Minnehaha Cr. Watershed Dist. v. Hoffman, 3-76 Civ. 149.

• Decision Date: 19 April 1978
• Docket Number: No. 3-76 Civ. 149.,3-76 Civ. 149.
• Citation: 449 F. Supp. 876
• Parties: MINNEHAHA CREEK WATERSHED DISTRICT, a political subdivision of the State of Minnesota, Lake Minnetonka Conservation District, a public corporation and political subdivision of the State of Minnesota, Lake Minnetonka Association, a Minnesota non-profit Corporation, Thomas P. Lowe, and William Bradley VanNest, Plaintiffs, and The State of Minnesota, Department of Natural Resources, Plaintiff in Intervention, v. Martin R. HOFFMAN, Individually and as Secretary, Department of the Army, Corps of Engineers, Department of the Army, Lieutenant General William C. Gribble, Individually and as Chief of Engineers, Department of the Army, and Colonel Forrest T. Gay, Individually and as District Engineer, Corps of Engineers, Department of the Army, Defendants.
• Court: U.S. District Court — District of Minnesota

449 F. Supp. 876

MINNEHAHA CREEK WATERSHED DISTRICT, a political subdivision of the State of Minnesota, Lake Minnetonka Conservation District, a public corporation and political subdivision of the State of Minnesota, Lake Minnetonka Association, a Minnesota non-profit Corporation, Thomas P. Lowe, and William Bradley VanNest, Plaintiffs and The State of Minnesota, Department of Natural Resources, Plaintiff in Intervention, v. Martin R. HOFFMAN, Individually and as Secretary, Department of the Army, Corps of Engineers, Department of the Army, Lieutenant General William C. Gribble, Individually and as Chief of Engineers, Department of the Army, and Colonel Forrest T. Gay, Individually and as District Engineer, Corps of Engineers, Department of the Army, Defendants.

No. 3-76 Civ. 149.

United States District Court, D. Minnesota, Third Division.

April 19, 1978.

COPYRIGHT MATERIAL OMITTED

Raymond A. Haik, Popham, Haik, Schnobrich, Kaufman & Doty, Minneapolis, Minn., for plaintiff Minnehaha Creek Watershed Dist.

Glenn E. Purdue, LeFevere, Lefler, Pearson, O'Brien & Drawz, Minneapolis, Minn., for plaintiff Lake Minnetonka Conservation Dist.

Richard A. Hassel and Dobson West, Wright, West & Diessner, Minneapolis, Minn., for plaintiffs Lake Minnetonka Ass'n, Thomas P. Lowe and William Bradley VanNest.

Warren Spannaus, Atty. Gen., State of Minnesota, by Steven G. Thorne, Sp. Asst. Atty. Gen., St. Paul, Minn., for plaintiff in intervention.

Andrew W. Danielson, U. S. Atty., by Stephen G. Palmer, Asst. U. S. Atty., Minneapolis, Minn., and Donald W. Fowler, Dept. of Justice, Washington, D. C., for defendants.

FINDINGS OF FACT AND MEMORANDUM ORDER

DONALD D. ALSOP, District Judge.

This case comes before the court on cross-motions for summary judgment based upon the pleadings and affidavits on file herein. It appearing to the court that no material issues of fact are in dispute, the case is ripe for a determination upon its merits.

This is an action for declaratory judgment and injunctive relief with respect to the regulatory jurisdiction asserted by the United States Department of the Army over the body of water known as Lake Minnetonka in Hennepin County, Minnesota, and its outlet, Minnehaha Creek.

The plaintiffs seek a declaratory judgment determining that Lake Minnetonka and Minnehaha Creek are not navigable waters of the United States within the meaning of Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403. They further seek a declaratory judgment determining that the regulations promulgated by the defendants pursuant to Section 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344, are invalid to the extent that they purport to regulate activities which are beyond the purview of that statute.

The plaintiff in intervention also seeks a declaratory judgment that, to the extent the court finds defendants do have jurisdiction over Lake Minnetonka, General Permits AM-10 and AM-11, issued by defendant Gay on April 23, 1976, are invalid insofar as they conflict with state and local regulations and insofar as they require the submission of applications for permission to conduct certain activities on the lake.

The plaintiffs are two political subdivisions of the State of Minnesota with planning and regulatory authority over the waters in question, a non-profit corporation organized to preserve the qualities of Lake Minnetonka, and two private homeowners who reside on the shore of Lake Minnetonka. The State of Minnesota, Department of Natural Resources, which exercises regulatory authority over public waters in the state, appears as an intervening party plaintiff.

The defendants are individuals serving as Secretary of the Army, Chief of Engineers of the Department of the Army, and District Engineer of the St. Paul District of the Army Corps of Engineers, as well as the Army Corps of Engineers as an entity.

This court has jurisdiction under 28 U.S.C. § 1331. (See Memorandum Order filed March 4, 1977.)

Upon the pleadings and affidavits on file herein, the court makes the following findings of fact:

1. Lake Minnetonka is a natural lake entirely located in west central Hennepin County, Minnesota. It has a total surface area of 22.5 square miles. Water levels in the lake are controlled by a fixed crest dam at the eastern end of Gray's Bay. The depth of the lake averages forty feet, although in isolated spots maximum depths reach eighty to one hundred feet. No permanent tributaries empty into Lake Minnetonka; Minnehaha Creek is the lake's single outlet. (Affidavits of Frank Mixa, director of Lake Minnetonka Conservation District, and Franklin J. Ryder, chief, Regulatory Branch, St. Paul District, Corps of Engineers.)

2. Minnehaha Creek flows approximately 20-22 miles eastward from Gray's Bay and enters the Mississippi River. The flow of the creek is variable and intermittent; during a large part of the summer and fall, the flow, if any at all, is inadequate to provide sufficient depth for passage of any form of navigation. (Affidavits of Frank Mixa, director of Lake Minnetonka Conservation District, and Franklin J. Ryder, chief, Regulatory Branch, St. Paul District, Corps of Engineers.)

3. There is no history of navigation, private or commercial, on Minnehaha Creek. (Affidavit of Frank Mixa, director of Lake Minnetonka Conservation District.)

4. Lake Minnetonka has a history of use in navigation and commerce as follows:

a. Prior to settlement of the lake in the mid-19th century, Indians navigated the lake by canoe.

b. In 1852, a dam and sawmill constructed at Minnetonka Mills on Minnehaha Creek raised the lake level sufficiently to float steam-powered boats and logs.

c. During and after the Civil War and until 1926, luxury steamboats were operated on the lake.

d. From and after 1867, steamers carried passengers from the newly constructed railroad (which ran to St. Paul) at Wayzata across the lake to Excelsior.

e. From and after 1867, steamers carried mail from Excelsior across Lake Minnetonka and down Minnehaha Creek to Minnetonka Mills. From there, horse-drawn stages carried the mail to Minneapolis and elsewhere f. Newspapers were shipped by rail from St. Paul to Wayzata and delivered from there to points around the lake by steamboat.

g. In 1869, a flour mill, and later a grain elevator, was constructed at Minnetonka Mills and was serviced by the railroad. Grain and lumber products were shipped or floated on the lake to the mills and then shipped in commerce by rail. The flour was marketed internationally.

h. Timber logged along the shores of Lake Minnetonka was floated across the lake to Wayzata and carried by trains to be used as fuel for the locomotives.

i. Beginning in 1890 and continuing thereafter, Lake Minnetonka, a thriving resort area, was used by American and foreign tourists as a means of transportation to reach points around the lake and for recreational purposes.

(Affidavit of Franklin J. Ryder, chief, Regional Branch, St. Paul District, Corps of Engineers.)

5. Navigation on the portion of Minnehaha Creek between Lake Minnetonka and Minnetonka Mills was rendered impossible in 1897 by the construction of a dam at the outlet of the creek at Gray's Bay. (Affidavit of Franklin J. Ryder, chief, Regional Branch, St. Paul District, Corps of Engineers.)

6. Centers of urban population around the lake are located at Mound, Excelsior, and Wayzata. Rail service to shoreline communities is provided by the Burlington Northern and by the Chicago and Northwestern Railroad. (Affidavit of Franklin J. Ryder, chief, Regional Branch, St. Paul District, Corps of Engineers.)

7. On May 12, 1916, the District Engineer for the St. Paul District of the Corps of Engineers advised the Minneapolis Street Railway Company that construction of a bridge across an arm of Lake Minnetonka would require the approval of the Chief of Engineers. With that exception, the Corps of Engineers has not exercised active jurisdiction over Lake Minnetonka or Minnehaha Creek until February of 1975. (Affidavit of Franklin J. Ryder, chief, Regional Branch, St. Paul District, Corps of Engineers.)

8. In June of 1945, the Minnesota Attorney General advised that Minnehaha Creek was a navigable water of the State and would be treated as such by state administrative agencies. The state of Minnesota has continued to treat Lake Minnetonka and Minnehaha Creek as navigable for the purposes of its laws and regulations. (Affidavit of Franklin J. Ryder, chief, Regional Branch, St. Paul District, Corps of Engineers.)

9. In 1976, approximately 10,000 small pleasure boats were docked on the lake or used on the lake at various times. (Affidavit of Frank Mixa, director of Lake Minnetonka Conservation District.)

10. At present, navigation on Lake Minnetonka is limited to powerboats and recreational craft. Several marinas rent boats for use on the lake, and three charter excursion boats carry large numbers of passengers for hire. Several noncommercial seaplanes use the lake. The present use is primarily recreational. In addition to local residents, travelers from other states use the lake for these purposes. (Affidavit of Thomas A. Larson, Assistant District Counsel, St. Paul District, Corps of Engineers.)

11. Lake Minnetonka is currently regulated by several levels of state and local government. The principal regulatory body is the Lake Minnetonka Conservation District (LMCD), created by the state legislature in 1967 as a public corporation and political subdivision of the state of Minnesota. The LMCD is charged by statute with broad responsibilities of regulating the use of the lake, undertaking research regarding the lake, and eliminating pollution in the lake. The LMCD has statutory authority to regulate the construction, installation and maintenance of permanent docks and moorings and the construction, size, location, and configuration of marinas and their related facilities. Pursuant to this authority, the...