Freeborn County by Tuveson v. Bryson

• Decision Date: 18 June 1976
• Docket Number: Nos. 45601--2,45610,s. 45601--2
• Citation: 309 Minn. 178,243 N.W.2d 316
• Parties: COUNTY OF FREEBORN, By Robert C. TUVESON, Its County Attorney, Respondent, v. William H. BRYSON, et al., Appellants-Respondents, State of Minnesota, by William H. Bryson, et al., Appellants-Respondents, and STATE of Minnesota, By Warren SPANNAUS, its Attorney General, Intervenor, Respondent-Appellant, State of Minnesota, by the Sierra Club, Intervenor, Respondent-Appellant, v. COUNTY OF FREEBORN, et al., Respondents.
• Court: Minnesota Supreme Court

Page 316

243 N.W.2d 316

309 Minn. 178

COUNTY OF FREEBORN, By Robert C. TUVESON, Its County Attorney, Respondent, v. William H. BRYSON, et al., Appellants-Respondents,

State of Minnesota, by William H. Bryson, et al.,

Appellants-Respondents,

and

STATE of Minnesota, By Warren SPANNAUS, its Attorney General, Intervenor, Respondent-Appellant, State of Minnesota, by the Sierra Club, Intervenor, Respondent-Appellant, v. COUNTY OF FREEBORN, et al., Respondents.

Nos. 45601--2, 45610.

Supreme Court of Minnesota.

June 18, 1976.

Syllabus by the Court

1. The Environmental Rights Act, Minn.St. c. 116B, applies to a county seeking to acquire land by eminent domain even though the provisions of the act may not apply to land used for farming operations.

2. The evidence in this case indicates a proposed new highway would seriously and adversely affect a unique marshland.

3. The county must use an alternate route for its new highway if there is a feasible and prudent alternative to its proposed route.

Reversed and remanded.

Christian, Slen, Savelkoul, Johnson & Broberg and Rolf O. Slen, Albert Lea, for Bryson, and others.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., James P. Gerlach, Sp. Asst. Atty. Gen., St. Paul, for State.

Will H. Hartfeldt, St. Paul, Carol L. Moore, Mound, for State by Sierra Club.

Bob A. Goldman, County Atty., Robert C. Tuveson, Asst. County Atty., Albert Lea, for County of Freeborn, and others.

Considered and decided by the court en banc.

YETKA, Justice.

Three appeals from a judgment refusing to enjoin Freeborn County from constructing a highway across a natural wildlife marsh, entered following denial of a post-trial motion for amended findings. We reverse.

Because our decision is based on a perceived legislative intent to subordinate the county's interest in highways to the state's paramount concern for the protection of natural resources, it is worthwhile at the outset to quote at length from the applicable portions of the Environmental Rights Act, Minn.St. c. 116B (hereinafter the Act).

'The legislature finds and declares that each person is entitled by right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state and that each person has the responsibility to contribute to the protection, preservation, and enhancement thereof. The legislature further declares its policy to create and maintain within the state conditions under which man and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed. Accordingly, it is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction.' Minn.St. 116B.01.

'Natural resources shall include, but not be limited to, all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources.' Minn.St. 116B.02, subd. 4.

"Person' means any natural person, any state, municipality or other governmental or political subdivision or other public agency or instrumentality, any public or private corporation, any partnership, firm, association, or other organization, any receiver, trustee, assignee, agent, or other legal representative of any of the foregoing, and any other entity, except a family farm, a family farm corporation or a bona fide farmer corporation.' Minn.St. 116B.02, subd. 2.

"Pollution, impairment or destruction' is * * * any conduct which materially adversely affects or is likely to materially adversely affect the environment * * *.' Minn.St. 116B.02, subd. 5.

'Any person * * * may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction * * *.' Minn.St. 116B.03, subd. 1.

'In any other action (not based on violation of administrative regulations or orders) maintained under section 116B.03, whenever the plaintiff shall have made a prima facie showing that the conduct of the defendant has, or is likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative ¹ and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare in light of the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment, or destruction. Economic considerations alone shall not constitute a defense hereunder.' Minn.St. 116B.04.

This case was before us earlier. At that time we stated that the provisions of the Act limit the county's power of eminent domain. We said:

'* * * From the language of the act, we conclude that the legislature intended in appropriate cases that the power of eminent domain possessed by governmental subdivisions--including the power of a county to condemn land for a public highway--was to be limited by the provisions of the act.' County of Freeborn v. Bryson, 297 Minn. 218, 227, 210 N.W.2d 290, 296 (1973).

Despite our admonition, it is evident from the facts of this case that the county continues to resist the state policy established in the Act.

When this case was first before us, the county proposed to construct the highway along the property line separating farms owned by William H. and Arlene Bryson (Bryson) and Peterson, Peterson & Thunstadt, a farming partnership (Peterson). The marshland which would be traversed meanders through both properties, but is an integrated ecological unit. 297 Minn. 228, 210 N.W.2d 297. Bryson opposes the highway. Condemnation proceedings against the Bryson property were initiated on June 2, 1971. Bryson, with the Sierra Club and the state as intervenors, sought injunctive relief pursuant to Minn.St. 116B.03, subd. 1, in order to protect the marsh. The trial court dismissed the environmental action for failure to establish a prima facie case, but on appeal we reversed and remanded.

In reversing, this court held that a prima facie case had been established because the marsh was a 'natural resource' as defined in Minn.St. 116B.02, subd. 4, and the proposed highway construction would 'materially adversely affect' that resource within the meaning of Minn.St. 116B.02, subd. 5. However, because Bryson operated a family farm and was excluded by definition in Minn.St. 116B.02, subd. 2, from the term 'person' against whom an environmental action could be brought, this court expressed its concern that an injunction against the county might be futile if Bryson did not thereafter preserve the marsh himself.

'We therefore conclude that the Brysons and intervenors have established a prima facie case under the Environmental Rights Act. This, however, Represents only the barest of prima facie showings because there is no certainty that the wildlife area will be continued as a natural resource by the landowner. It has only been shown that, at present, the area constitutes a protectable natural resource. A travesty of justice would occur if, after the county rerouted the highway at a higher cost resulting in a less desirable highway, the landowner or his successor decided to divert the area to other uses. An action under the act could not prevent such conduct since a family farm is excepted from suit.' 297 Minn. 228, 210 N.W.2d 297. (Italics supplied.)

To bolster his prima facie case, after this court's reversal but before the trial on remand, Bryson gave to the state a perpetual wildlife easement over that portion of the marsh located on Bryson property. As a result, the trial court recognized that the prima facie case with respect to the Bryson marsh was no longer the 'barest' of showings, and enjoined highway construction along the route originally proposed.

A second development also occurred after reversal but before the trial on remand. The county had planned a right-of-way 100 feet wide along the property line separating the Bryson and Peterson farms. An easement 50 feet wide had already been acquired on the Peterson side of the property line. When it became apparent that the remaining 50 feet on the Bryson side might not be successfully obtained because of the Environmental Rights Act litigation, the county obtained from Peterson 75 additional feet contiguous to the 50 feet acquired earlier. Manifestly, this second route would impair and destroy the marsh in substantially the same way that this court and the trial court have acknowledged the route originally proposed would do. The second route is virtually identical in relation to the marsh, having been moved over 50 feet to circumvent the Bryson property line. Nevertheless, the trial court would permit highway construction over this second route.

Bryson had proposed an alternative route circumventing the marsh entirely by passing to the west on Peterson's property. The trial court conceded that this was a possible alternative route and that it would probably not result in 'significant increased costs of construction.' However, the alternative would shorten some of Peterson's crop rows and thus impair the efficiency of his farm operations. The trial court then balanced the anticipated impairment of Peterson's farming interest against the environmental values which would be protected if this alternative route were used and concluded that the route traversing the marsh was more desirable. We do not find substantial evidence to support...