In re Big Stone Cnty. Ditch 21 Drainage Sys. Records
| Decision Date | 20 September 2021 |
| Docket Number | A20-1370 |
| Parties | In the Matter of the Reestablishment of Big Stone County Ditch 21 Drainage System Records. |
| Court | Minnesota Court of Appeals |
This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).
Big Stone County Board of Commissioners
Keith Ellison, Attorney General, Christina M. Brown, Assistant Attorney General, St. Paul, Minnesota (for relator Minnesota Department of Natural Resources)
Gerald W. Von Korff, John C. Kolb, Rinke Noonan, Ltd., St. Cloud Minnesota (for respondent Big Stone County Board of Commissioners)
Joy R Anderson, Elise L. Larson, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for Amicus Curiae Minnesota Center for Environmental Advocacy)
Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey, Judge.
In this certiorari appeal, relator argues that respondent-drainage authority exceeded its statutory authority, acted arbitrarily or capriciously, and made a decision unsupported by substantial evidence when it ordered reestablishment of drainage records for a drainage ditch in its jurisdiction. Relator also moves to supplement the record on appeal. We grant relator's motion to supplement the record, and we reverse.
Legal background
There are several types of drainage proceedings, including improvements, repairs, and record reestablishment. See Minn. Dep't of Nat. Res. v. Chippewa/Swift Joint Bd. of Comm'rs, 925 N.W.2d 244, 249 (Minn. 2019) (). Improvements, which are initiated by petition of "at least 26 percent" of affected landowners, include tiling, enlarging, extending, straightening, or deepening an established and constructed ditch. Minn. Stat. § 103E.215, subds. 2, 4 (2020). Relator the Minnesota Department of Natural Resources (DNR) plays an advisory role in improvement proceedings and must conduct environmental review if required for an improvement. Minn. Stat. § 103E.255 (2020) (); Minn. Stat. § 116D.04, subd. 2a (2020) ().
In contrast, repairs are initiated either by petition or based on the report of an inspector and are undertaken "to restore all or part of a drainage system as nearly as practicable to the same hydraulic capacity as originally constructed and subsequently improved." Minn. Stat. § 103E.701, subds. 1, 4 (2020). Before conducting a repair, the drainage authority must notify the DNR only "if the repair may affect public waters" or the state is an affected landowner. Minn. Stat. §§ 103E.701, subd. 2 (2020), 103E.715, subd. 3 (2020).
In In re Petition of Zimmer, the supreme court concluded that the as-constructed or subsequently improved condition of a ditch, rather than its original design, determines whether proposed maintenance or changes to the ditch constitute repairs or improvements. 359 N.W.2d 266, 271 (Minn. 1984). However, because many drainage records are more than 100 years old, a record of the as-constructed or subsequently improved condition of some ditches may be lost or incomplete. The statutory record-reestablishment process allows a drainage authority to reestablish those records to recreate a baseline. Minn. Stat. § 103E.101, subd. 4a (2020).
The record-reestablishment process begins by the drainage authority's motion or a landowner petition. Minn. Stat. § 103E.101, subd. 4a(b). The drainage authority must first find that drainage system records establishing certain parameters, such as ditch depth, width, and slope, are "lost, destroyed, or otherwise incomplete." Id., subd. 4a(a). Then, a professional engineer must investigate the existing records and evidence and prepare a report. Id. The drainage authority must notify interested parties, including the relator Minnesota Department of Natural Resources, and hold a public hearing regarding record reestablishment. Id., subd. 4a(c). Based on information gathered through the engineer's report and at the public hearing, the drainage authority may then reestablish records. Together with the existing records, the reestablished records must "define the alignment; cross-section; profile; hydraulic structure locations, materials, dimensions, and elevations; and right-of-way of the drainage system." Id., subd. 4a(a).
Big Stone County Ditch #21 (CD21) was designed and constructed around 1917 primarily as a tile ditch. The ditch designs called for CD21's main branch to include 7, 300 feet of tile ditch and 700 feet of open ditch. However, the tile system soon failed, becoming clogged with sand and mud. In December 1919, landowners filed a petition demanding that the "ditch be constructed forthwith strictly in accordance with the plans and specifications and contract on file" to answer to its purpose. The record contains no information regarding a response to this petition by the drainage authority, respondent Big Stone County Board of Commissioners (the board). However, the design engineer's final estimate for CD21, filed on January 5, 1921, indicates that tile was "in place" for the main branch of CD21.
The present dispute
The record contains little information regarding CD21 from 1921 until this action. In 2019, landowners petitioned the board to commence record reestablishment for CD21 in preparation for potential repairs or improvements. The board commissioned Big Stone County Engineer, Todd Larson, to review CD21's records, which Larson found to be incomplete. The board adopted a resolution to reestablish records under Minn. Stat. § 103E.101, subd. 4a (2020). Larson investigated the existing records and evidence and issued a report (engineer's report), concluding that the tile in CD21 had been removed and that CD21 had been "left as open channel." He noted the existing parameters of CD21 and recommended several "repairs," such as widening the ditch bottom to align with the original ditch width and establishing side slopes and buffers per statutory requirements for open ditches.
On July 28, 2020, the board notified the DNR of a public hearing regarding record reestablishment for CD21. The next day, the DNR asked for the engineer's report, which the board provided. On August 17, 2020, the day before the public hearing, the DNR submitted a public comment letter objecting to record reestablishment. The DNR asserted that (1) the engineer's report did not rely on all available data; (2) all historical records in the board's possession should be part of the record; (3) record reestablishment is improper because the board possesses the original design plans; and (4) any conversion of CD21 to an open ditch did not follow improvement procedures. The DNR did not participate in the public hearing, but the board read its comment letter into the record.
The board issued an order reestablishing records on September 1, 2020. It found that there is no evidence of "significant modifications" to CD21 since its construction, but that the evidence demonstrates that CD21 has "existed as maintained open ditch since at least 1919." It concluded that CD21 had been "repaired" to open ditch, such that CD21's as-constructed or subsequently improved condition was an open ditch. It therefore ordered reestablishment of records regarding CD21 aligning with Larson's findings and recommendations.
The DNR petitioned this court for a writ of certiorari seeking review of the board's order for record reestablishment. On appeal, the DNR argues that the board exceeded its authority, made a decision unsupported by the record, and acted arbitrarily and capriciously by ordering record reestablishment; and that the engineer's report did not comply with statutory requirements. The DNR also moves this court to supplement the record.
A drainage authority's order to reestablish records is a quasi-judicial decision subject to certiorari review. Minn. Dept. of Nat. Res. v. Chippewa/Swift Joint Bd. of Comm'rs, 925 N.W.2d 244, 250 (Minn. 2019) (Chippewa/Swift). On certiorari appeal, we review a local authority's order for issues "affecting the jurisdiction of [the local authority], the regularity of its proceedings, and . . . whether [its] order or determination . . . was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it." Eneh v. Minnesota Dep't of Health, 906 N.W.2d 611, 614 (Minn.App. 2018) (quotation omitted).
An agency's ruling is arbitrary if it, among other things, "entirely failed to consider an important aspect of the problem" or "offered an explanation that runs counter to the evidence." Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm'rs, 713 N.W.2d 817, 832 (Minn. 2006) (CARD). "We will not retry facts or make credibility determinations, and we will uphold the decision if the lower tribunal furnished any legal and substantial basis for the action taken." Staeheli v. City of St. Paul, 732 N.W.2d 298, 303-04 (Minn.App. 2007) (quotation omitted).
The DNR moves to supplement the record with documents that it argues show that the board failed to consider information relevant to its decision. We agree.
The documents the DNR seeks to add include: (1) handwritten notes referring to CD21 as tile; (2) the county engineer's 2006 letter to landowners regarding whether to abandon CD21 calling it a "tile ditch [that] stopped functioning just a few years after it was put into service"; (3) documents attached to the county engineer's 2006 letter showing no damages, which are usually associated...
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