Minch Family Limited Partnership v. Buffalo-Red River Watershed District, No. A06-850 (Minn. App. 1/16/2007)
| Decision Date | 16 January 2007 |
| Docket Number | No. A06-850.,No. A06-1194.,A06-850.,A06-1194. |
| Parties | Minch Family Limited Partnership through its general Partner, A. R. Minch and A. R. Minch, individually, Appellants, v. Buffalo-Red River Watershed District, et al., Respondents. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Clay County, File No. C6-05-1688.
Roger J. Minch, Beverley L. Adams, (for appellants)
Tami L. Norgard, Robin A. Schmidt, Vogel Law Firm, (for respondents)
Considered and decided by Halbrooks, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.
UNPUBLISHED OPINION
On appeal from the district court's judgment of dismissal on summary judgment and award of costs and disbursements to respondents Buffalo-Red River Watershed District (BRRWD) and its officers and managers Roger Ellefson, Curtis Nelson, Gerald L. VanAmburg, John E. Hanson, and E. Robert Olson, appellants Minch Family Limited Partnership and A. R. Minch contend that the district court erred by determining that the BRRWD's enforcement powers are discretionary and that the watershed-district managers' actions do not constitute intentional infliction of emotional distress and that the district court abused its discretion by awarding respondents their costs and disbursements. We affirm as modified.
Appellant A. R. Minch bought approximately 560 acres of land, including the south half of Section 28 in Kragnes Township, in the 1970s as investment property and later transferred the land to appellant Minch Family Limited Partnership. The land is now prone to flooding as a result of improvements to a dike built in 1979 by Robert Norby, whose land is immediately north of Minch's Section 28 property. The area is within the jurisdiction of respondent BRRWD.
Norby built the dike without obtaining a permit from the BRRWD, which must approve improvements that affect drainage. Norby filed a permit application after completion; and the BRRWD approved the permit, although the BRRWD's rules did not address approval of drainage projects after the fact. Norby continued to increase the height of his dike without permits from the BRRWD, and the dike gradually became high enough in 2000 or 2001 to impact drainage from appellants' land. After the dike washed out in April 2001, Norby rebuilt it despite the BRRWD's warning that he first needed a permit. Appellants assert that they suffered a 100% crop loss on 65 acres in Section 28 in 2004.
Minch filed a series of lawsuits against the BRRWD. Two of the suits concerned issues related to Section 34 of Minch's property. The district court in those matters granted summary judgment to the BRRWD. On appeal to this court, we concluded that the BRRWD lacks authority under chapter 103D of the Minnesota Statutes to order a landowner to clean a private ditch subject to the watershed district's public right-of-way easement. We therefore reversed. But because neither the watershed district nor the district court determined whether cleaning and removing the siltation in the ditch was an "obstruction" within the meaning of Minn. Stat. § 103E.075 (2004), we remanded to the district court for further proceedings consistent with the decision. Minch v. Buffalo-Red River Watershed Dist., 723 N.W.2d 483, 489-91 (Minn. App. 2006).
In this action, Minch sued the BRRWD and its officers, individually, for their failure to enforce the watershed-district rules against Norby and for the emotional distress that Minch claimed he suffered as a result of the BRRWD's conduct. Minch asserted that he sustained emotional distress because the BRRWD and its officers and managers intentionally caused him public humiliation, aggravation, frustration, and anger and treated him as an outsider. Minch claims that his emotional distress caused him to suffer depression, anxiety, stress, sleeplessness, increased diabetic symptoms, and additional stress on his immune system, which was already compromised by chemotherapy and radiation treatments for his lung cancer. Respondents moved for summary judgment, while appellants moved for leave to take additional depositions. A few weeks after the summary-judgment hearing, Minch died of lung cancer.
The district court initially granted respondents' motion in part and denied it in part, dismissing all of appellants' claims except for the claim for damages resulting from the Section 34 ditch cleaning. The district court stated that genuine issues of material fact existed as to that claim. Two weeks later, the district court, on its own initiative, corrected its prior order and granted summary judgment to respondents on all issues. In so doing, the district court noted that the ditch-cleaning claim was not properly before it, given that the ditch cleaning did not take place until after the amended complaint in this matter was filed and because that issue had already been litigated in proceedings before a different district court judge. The district court also awarded respondents their costs and disbursements. Appellants' motion for reconsideration was denied, as was respondents' request for attorney fees. This appeal follows.
"On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.
Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).
No genuine issue for trial exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). "[T]he party resisting summary judgment must do more than rest on mere averments." Id. at 71. "When the nonmoving party bears the burden of proof on an element essential to the nonmoving party's case, the nonmoving party must make a showing sufficient to establish that essential element." Id.; seealso Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006) ().
Appellants contend that the permit issued to Norby after he constructed his dike in 1979 was illegal because the BRRWD failed to enforce its rules. The district court based its summary-judgment decision on the authority of a watershed district as set forth in Minnesota Statutes chapters 103D and 103E. The district court determined that the watershed district's enforcement powers are discretionary, not mandatory, based on the statutory provision that an action by a watershed district "may be enforced by criminal prosecution, injunction, action to compel performance, restoration, abatement, and other appropriate action." Minn. Stat. § 103D.545, subd. 2 (2006). The use of the term "may" is permissive, in contrast to "shall" or "must," which are mandatory. Minn. Stat. § 645.44, subds. 15-16 (2006). A watershed district must adopt rules to implement statutory powers granted to managers. Minn. Stat. § 103D.341, subd. 1 (2006). But Minnesota law is silent about whether a watershed district may grant a permit after the fact. See Minn. Stat. § 103D.345 (2006).
The BRRWD has established rules for granting permits in a manner
not intended to delay or inhibit development. Rather, the permits are needed so that the Managers are kept informed of planned projects, can advise and in some cases provide assistance, and to insure that developments of the natural resources are orderly and in accordance with the Overall Plan for the District.
Buffalo-Red River Watershed Dist. R. § 4. But the rules also state that "No works or use requiring a permit shall be commenced prior to the issuance of the permit." Id., § 4(B). Action on a permit request occurs at the first regular meeting that is 30 days after the district receives the application. Id., § 4(D).
Appellants contend that the statute requires the BRRWD to enforce its rules and allows for discretion only as to the method of enforcement. We disagree. The district court's interpretation of Minn. Stat. § 103D.545, subd. 2, is consistent with the permissive quality of watershed-district powers. See Minn. Stat. §§ 103D.335, subds. 4, 25 (2006) (); and .705, subd. 1 (2006) (); Love v. Burlington N., Inc., 407 N.W.2d 452, 454 (Minn. App. 1987) (). The district court correctly determined that the BRRWD's enforcement powers are discretionary.
In addition, while it is not essential to this decision, we note that the BRRWD asserts that it is in the process of enforcing its rules against Norby. At a BRRWD meeting at which appellants were represented, their concerns about enforcement were addressed. Respondent BRRWD officer and manager "VanAmburg agreed that Norby's illegal diking activities have to be addressed." The BRRWD has mailed several warnings to Norby. As early as 2001, the BRRWD responded to complaints by warning Norby...
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