State By Waste Management Bd. v. Bruesehoff

Decision Date11 January 1984
Docket NumberNo. CX-83-1221,CX-83-1221
Citation343 N.W.2d 292
PartiesSTATE of Minnesota By the WASTE MANAGEMENT BOARD, Respondent, v. Mae M. BRUESEHOFF, et al., Appellants.
CourtMinnesota Court of Appeals

Syllabus by the Court

1. Statutory terms must be construed according to their common and approved usage and agency powers must be construed in light of the purposes for which they were created.

2. The Waste Management Board's access authority under Minn.Stat. Sec. 115A.06, subd. 5, is not limited to surface surveys and inspections. The board may enter private property to conduct electrical resistivity testing pursuant to the statute.

3. Electrical resistivity testing pursuant to Minn.Stat. Sec. 115A.06, subd. 5, does not rise to the level of a constitutional taking. Such testing involves only a temporary 4. The Waste Management Board did not impermissibly delegate determination of necessity to its staff. Reliance upon staff recommendations does not constitute illegal rulemaking.

minimal intrusion. It does not substantially interfere with property rights or cause a measurable decline in market values.

5. A formal resolution of necessity is not absolutely required under Minn.Stat. Sec. 115A.06, subd. 5. However, it is advisable for the board to pass such a resolution before seeking access to private property.

6. The Waste Management Board's determination of necessity was not arbitrary, capricious, fraudulent or contrary to law. Minn.Stat. Sec. 115A.06, subd. 5, authorizes access for electrical resistivity testing, and such testing is reasonably necessary or convenient to further selection of suitable hazardous waste disposal sites.

Robert A. Nicklaus, Nicklaus, Monroe & Fahey, Chaska, for appellants.

Hubert H. Humphrey, III, Atty. Gen., Allan W. Kowalchyk, Sp. Asst. Atty. Gen., Roseville, for respondent.

Heard, considered and decided by POPOVICH, C.J., and FOLEY and SEDGWICK, JJ.

OPINION

FOLEY, Judge.

This is a case of first impression. It comes as an appeal from a summary judgment enjoining appellant landowners from interfering with electrical resistivity testing upon their land by the Waste Management Board. Both as a matter of statutory interpretation and as a matter of constitutional law, appellants contest the board's right to conduct the tests without first conducting condemnation proceedings. They also challenge the boards compliance with the necessity requirement of Minn.Stat. Sec. 115A.06, subd. 5 (1982). The trial court found the access statute to be constitutional and to authorize electrical resistivity testing. We affirm.

FACTS

The Waste Management Board is a state agency charged with selecting commercial hazardous waste disposal sites in the state. Minn.Stat. Secs. 115A.18--115A.30 (1982). Appellants own land in Carver County which the board has designated as a hazardous waste disposal candidate site. The site is approximately four square miles.

In September 1982, the board sought access to appellants' land to conduct electrical resistivity tests to obtain soil permeability information. The board planned to use the information to reduce the site size to approximately one square mile before conducting an exhaustive environmental impact study. The board offered appellants anticipatory damages of $100 each and concedes that it is liable for actual damages.

Appellants denied repeated requests for access, so the board brought an action which resulted in the injunction from which appellants appeal.

ISSUES

Upon appeal, appellants challenge the testing upon several grounds. They assert:

1. As a matter of statutory construction, Minn.Stat. Sec. 115A.06, subd. 5, only authorizes Waste Management Board access to private property to conduct surface surveys and investigations.

2. Minn.Stat. Sec. 115A.06, subd. 5's, authorization of board access to appellants' property to conduct electrical resistivity testing is an unconstitutional taking.

3. The board failed to satisfy the requirements of Minn.Stat. Sec. 115A.06, subd. 5, in determining necessity.

ANALYSIS

Minn.Stat. Sec. 115A.06, sub. 5 (1982), provides:

Whenever the board or the chairperson acting on behalf of the board deems it necessary to the accomplishment of its purposes, the board or any member, employee, or agent thereof, when authorized by it or the chairperson, may enter upon property, public or private, for the purpose of obtaining information or conducting surveys or investigations...

Appellants urge us to interpret this language to permit only surface surveys and inspections. More intrusive testing, they assert, should be done only by invoking Minn.Stat. Sec. 115A.06 subd. 4, to get a temporary easement for testing through condemnation.

The broad language of the statute and its underlying purpose convince us otherwise. Statutory terms must be construed according to their common and approved usage. Minn.Stat. Sec. 645.08, subd. 1 (1982), and agency powers must be construed in light of the purposes for which they were created.

In Puryear v. Red River Authority, 383 S.W.2d 818 (Tex.Civ.App.1964) a Texas court interpreted the statutory right of a water authority to "make surveys" to include the power to conduct core drilling. Puryear involved an injunction restraining a landowner from interfering with core drilling operations upon his land by the Red River Authority. The court affirmed the injunction, noting that the term "survey" should be interpreted in light of the authority's statutory duty to control, preserve, and develop the waters of the Red River. The court reasoned:

To permit appellee the right to enter land and make surveys but deny it the right to conduct core drillings to determine the feasibility of locating a dam would be contrary to the clear intention of the Legislature. Surveying, without the right to test underground stratum would be of little value to water control districts. Core drilling to determine the underground stratum is an essential step in determining the location of proposed dams. 383 S.W.2d at 821.

Puryear 's purpose-oriented analysis applies here. The Waste Management Board has the difficult and politically sensitive task of selecting hazardous waste disposal sites for the state. The access statute authorizes the board to investigate potential sites so it can make informed site selections.

Electrical resistivity testing would cause minimal intrusion or damage, and would yield soil permeability information needed to assess the suitability of the Carver County site. Denying the board access to conduct such testing would frustrate legislatively mandated state waste management planning. "Obtaining information" and "conducting surveys and investigations" are expansive phrases, which when interpreted in light of the purpose of the access statute, clearly include electrical resistivity testing.

Constitutionality

Appellants also argue that Minn.Stat. Sec. 115A.06, subd. 5 must be interpreted to authorize only surface surveys and inspections because more intrusive testing would be an unconstitutional taking under Minn. Const. art. 1, sec. 13, and U.S. Const. amend. XIV. The proposed electrical resistivity testing does not rise to the level of a constitutional taking because the testing serves an essential government function and involves minimal intrusion. Furthermore, the board is liable to the landowners for actual damages.

The Minnesota Supreme Court has not addressed the issue of taking in the context of a state agency's temporary intrusion onto private property to inspect and conduct tests. However, it has established a taking standard for cases where government activities interfere with landowners' use and enjoyment of their property. In Alevizos v. Metropolitan Airports Commission of Minneapolis and St. Paul, the court held:

The test then that we prescribe will give relief to any property owner who can show a direct and substantial invasion of his property rights of such a magnitude he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of the property. 298 Minn. 471, 487, 216 N.W.2d 651, 662 (1974) Other states have used similar standards to uphold the constitutionality of statutes authorizing government bodies to enter private property to conduct preliminary surveys prior to eminent domain proceedings. They reasoned that surveys are temporary intrusions which do not substantially interfere with the owner's property rights or enjoyment of the land, and therefore, are not a taking in the constitutional sense. See, e.g., Indiana & Michigan Electric Co. v. Stevenson, 173 Ind.App. 329, 363 N.E.2d 1254 (1977); Duke Power Co. v. Herndon, 26 N.C.App. 724, 217 S.E.2d 82 (1975); King v. Power Authority of State, 76 Misc.2d 725, 351 N.Y.S.2d 493 (Spec.Term 1973); Wood v. Mississippi Power Company, 245 Miss. 103, 146 So.2d 546 (1962); Lewis v. Texas Power & Light, 276 S.W.2d 950 (Tex.Civ.App.1955). See also, Annot., 29 A.L.R.3d 1104 (1970). Even Iowa State Highway Commission v. Hipp, 259 Iowa 1082, 147 N.W.2d 195 (1966), which appellants cite in...

To continue reading

Request your trial
5 cases
  • Northern States Power Co. v. City of Oakdale
    • United States
    • Minnesota Court of Appeals
    • February 2, 1999
    ...May 23, 1990). Agency powers must be construed in light of the purpose for which they were granted. State ex rel. Waste Management Board v. Bruesehoff, 343 N.W.2d 292, 295 (Minn.App.1984). The commission is charged with the responsibility of balancing the public need for adequate, efficient......
  • Oglethorpe Power Corp. v. Goss, 41162
    • United States
    • Georgia Supreme Court
    • November 28, 1984
    ...752 (1968)." County of Kane v. Elmhurst Nat. Bank, supra, 67 Ill.Dec. at 29, 443 N.E.2d at 1153. Accord, State Waste Management Board v. Bruesehoff, 343 N.W.2d 292(4) (Minn.App.1984); Indiana & Michigan Electric Co. v. Stevenson, 173 Ind.App. 329, 363 N.E.2d 1254(2, 3) (1977); Jacobsen v. S......
  • Computer Tool & Engineering, Inc. v. Northern States Power Co.
    • United States
    • Minnesota Court of Appeals
    • April 3, 1990
    ...grant of exclusive control over rates in light of the purpose for which the grant was made. State ex rel. Waste Management Board v. Bruesehoff, 343 N.W.2d 292, 295 (Minn.Ct.App.1984). Rate-making is a quasi-legislative function, Peoples Natural Gas Co. v. Minnesota Public Utilities Commissi......
  • Assessment Issued to Leisure Hills Health Care Center on Mar. 2, 1992, Matter of
    • United States
    • Minnesota Court of Appeals
    • March 2, 1992
    ...explicitly each and every technique that may be used in the course of executing the statutory mission"); State by Waste Management Bd. v. Bruesehoff, 343 N.W.2d 292, 295 (Minn.App.1984) ("obtaining information" and "conducting surveys and investigation," as permitted by statute, are expansi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT