Minnesota Public Interest Research Group v. Minnesota Environmental Quality Council, s. 45943

• Decision Date: 19 December 1975
• Docket Number: Nos. 45943,46027,s. 45943
• Citation: 237 N.W.2d 375,306 Minn. 370
• Parties: MINNESOTA PUBLIC INTEREST RESEARCH GROUP, et al., Appellants, v. MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent, Minnesota Pollution Control Agency, Respondent, and AMAX Exploration, Inc., Intervenor, Respondent.
• Court: Minnesota Supreme Court

Page 375

237 N.W.2d 375

306 Minn. 370

MINNESOTA PUBLIC INTEREST RESEARCH GROUP, et al., Appellants, v. MINNESOTA ENVIRONMENTAL QUALITY COUNCIL, Respondent Minnesota Pollution Control Agency, Respondent and AMAX Exploration, Inc., Intervenor, Respondent.

Nos. 45943, 46027.

Supreme Court of Minnesota.

Dec. 19, 1975.

Syllabus by the Court

1. The Environmental Quality Council's decision not to require an 'environmental impact statement' for the construction of an exploratory test shaft to determine the feasibility of eventual copper-nickel mining in northern Minnesota is subject to judicial review under Minn.St. c. 116D, the so-called Environmental Policy Act.

2. Such a decision is also subject to judicial review as a 'contested case' under the Administrative Procedure Act.

3. Where such exploration will be subjected to continued monitoring by several state agencies, one of the purposes being to accumulate data for an eventual environmental impact statement should the project test results encourage future mining, the Environmental Quality Council has a rational basis for its decision not to require an environmental impact statement at this time. The trial court's decision that such action was not arbitrary is affirmed.

Elliot C. Rothenberg, Minneapolis, for appellants.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Solicitor Gen., Richard G. Mark, Asst. Sol. Gen., Jean E. Heilman and Larry Salustro, Special Asst. Attys. Gen., St. Paul, for Mn. Env. Q.C.

Warren Spannaus, Atty. Gen., Sandra S. Gardebring, Special Asst. Atty. Gen., Roseville, for Mn. Pol. Control Agency.

Popham, Haik, Schnobrich, Kaufman & Doty, Raymond A. Haik and Rolfe A. Worden, Minneapolis, for AMAX Exploration, Inc.

Dayton, Herman & Graham and John H. Herman, Minneapolis (seeking reversal) (for Sierra Club) amicus curiae.

Heard before OTIS, TODD, MacLAUGHLIN, SCOTT, and KNUTSON, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This action involves the decision of Minnesota's Environmental Quality Council (hereinafter EQC) that an 'environmental impact statement' ¹ (hereinafter EIS) need not be prepared prior to the construction of an exploratory copper-nickel mine by AMAX Exploration, Inc., near Babbitt, Minnesota. On July 30, 1974, plaintiff Minnesota Public Interest Research Group (hereinafter MPIRG) filed with defendant EQC a petition seeking an EIS. On November 12, 1974, EQC decided that an EIS was not required. MPIRG and three other organizations concerned with protecting the environment filed suit in the District Court of Hennepin County seeking reversal of that decision. On March 7, 1975, the Minnesota Pollution Control Agency (hereinafter PCA) was added as a defendant, and PCA was temporarily enjoined from granting a permit to AMAX for waste disposal related to the exploratory mine. On March 14, 1975, AMAX was permitted to intervene in the action. On April 16, 1975, upon defendants' motion for summary judgment, the district court determined that the AMAX project was a private action of only local significance, that delay in its commencement would prevent gathering of data on the copper-nickel resources of the state and the impacts of potential copper-nickel development, that the necessary waste disposal permit would have to be obtained from the PCA, and that the EQC resolution was not a commitment to copper- nickel development. The court further determined that plaintiffs were not entitled to judicial review, granted the motion for summary judgment, and vacated the temporary injunction. Plaintiffs appeal from that order.

The AMAX project consists of an exploratory test shaft 14 feet in diameter and 1,705 deep, with 3,300 feet of tunnels, which will be excavated over a period of 18 months. The purpose of the shaft is to get information on the grade, size and shape of the mineral deposits identified by surface drilling. The project will involve the removal of 60,000 tons of rock. The waste rock will be spread over 6 acres of land next to the test shaft to a depth of 5 feet. Two settling ponds, which together with dikes will cover a total of 2 1/2 acres, will be constructed for shaft dewatering. The total surface area disturbed will be 10 acres.

The land involved is 4 miles southeast of Babbitt, Minnesota, and 20 miles south of the Boundary Waters Canoe Area, and is part of School Trust Fund lands leased by the state, pursuant to Minn.St. 93.25, to Bear Creek Mining Company in 1966 for a term of 50 years. The shaft will be 2 miles south of Reserve Mining Company's Peter Mitchell taconite mine and 3 miles southwest of the Erie Mining Company's Dunka River taconite mine.

The project site lies within the watersheds of Langley Creek and the Dunka River, which drain into Birch Lake, the Kawishiwi River, and in turn into the Boundary Waters Canoe Area. An ongoing monitoring program for surface and ground water to be conducted by AMAX has been approved by the Minnesota Department of Natural Resources and the PCA.

On July 30, 1974, pursuant to Minn.St. 1974, § 116D.04, subd. 3, MPIRG submitted a petition to EQC signed by over 500 persons, requesting that an EIS be prepared for the AMAX test shaft project. On August 28, 1974, AMAX submitted an environmental assessment of the project. ² On August 21, 1974, EQC was informed that International Nickel Company was proposing an open-pit copper-nickel mine in Minnesota. On October 8, 1974, EQC adopted a resolution calling for the preparation of a regional EIS on the cumulative effects of copper-nickel mining in northern Minnesota and an EIS on the open-pit copper-nickel mine proposed by International Nickel.

On August 21, 1974, EQC's citizens advisory committee recommended that an EIS be required on the AMAX proposal. The technical committee of EQC discussed the AMAX test shaft at several meetings and on November 4, 1974, recommended to the EQC that an EIS not be required for the test shaft. On November 12, 1974, the EQC resolved:

'THAT the proposed AMAX Project is not a major private action of more than local significance, and that the exploratory action does not have the potential for significant environmental effects.

'THAT an Environmental Impact Statement shall not be required by the MEQC on the AMAX Project.

'THAT delay in commencement of the AMAX exploration project and continuation of the environmental monitoring program will prevent the gathering of data concerning the nature of the copper/nickel resource and the impacts of potential copper/nickel development.

'THAT this resolution shall not be construed as a commitment to copper/nickel development in the state and that any exploration project, such as the AMAX proposal, is undertaken at the risk of the proposer and does not obligate the state to approve any subsequent proposed mining development.'

The issues presented are as follows:

1. Is EQC's decision not to require an EIS subject to judicial review under Minn.St. c. 116D, the so-called Environmental Policy Act?

2. Is EQC's decision not to require an EIS subject to judicial review under the Administrative Procedure Act?

3. Was the trial court's determination that the EQC was not arbitrary in refusing to require AMAX to furnish an EIS proper?

1--2. The threshold question is whether EQC's decision not to order an EIS is subject to judicial review. MPIRG petitioned EQC under Minn.St.1974, § 116D.04, subd. 3, which states:

'Upon the filing with the council of a petition of not less than 500 persons requesting an environmental impact statement on a particular action, the council shall review the petition and, where there is material evidence of the need for an environmental review, require the preparation of an environmental impact statement in accordance with provisions of this section.' ³

The purpose of this section is to provide an avenue by which the public may obtain a forum regarding specific matters which may require environmental review. The section is similar in this respect to Minn.St. 116C.05, subd. 2(a), ⁴ which requires statewide public meetings of the EQC's citizens advisory committee, and to § 116C.58, which requires annual public hearings regarding sites for power plants.

We find that although the right to a hearing regarding a petition is not specifically stated in § 116D.04, subd. 3, as it is in other sections, ⁵ the right is implied in the purpose of the act. Minn.St. 116C.01, to which the policies and goals of c. 116D are supplementary, ⁶ states:

'* * * The legislature also finds that further debate concerning population, economic and technological growth should be encouraged so that the consequences and causes of alternative decisions can be better known and understood by the public and its government.'

While Minn.St. 116C.06 requires the EQC to hold hearings on 'matters that it determines to be of major environmental impact,' so that the EQC can recommend administrative and legislative actions on such matters, that chapter is silent on the question of required hearings or the appealability of an EQC decision not to require an environmental impact statement upon the petition of 500 citizens.

There is a presumption in favor of judicial review of agency decisions in the absence of statutory language to the contrary. ⁷ The United States Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681, 687 (1967), said:

'* * * (J)udicial review of a final agency action will not be cut off unless there is persuasive reason to believe that such was the purpose of a Congress. * * * (O)nly upon a showing of a 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review.'

In an earlier case, Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733, 747 (1944), the United States Supreme Court similarly declared:

'* * * When * * * definite personal rights are created by federal statute, similar in kind to those...