State ex rel. Swan Lake Area v. Nicollet County Bd., No. A08-1739.

• Decision Date: 01 September 2009
• Docket Number: No. A08-1739.
• Citation: 771 N.W.2d 529
• Parties: STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, relator, Appellant, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent, v. Marlin Fitzner, et al., intervenors, Respondents, v. Minnesota Department of Natural Resources, third party defendant, Respondent.
• Court: Minnesota Court of Appeals

771 N.W.2d 529

STATE of Minnesota ex rel. SWAN LAKE AREA WILDLIFE ASSOCIATION, relator, Appellant, v. NICOLLET COUNTY BOARD OF COUNTY COMMISSIONERS, Respondent, v. Marlin Fitzner, et al., intervenors, Respondents, v. Minnesota Department of Natural Resources, third party defendant, Respondent.

No. A08-1739.

Court of Appeals of Minnesota.

September 1, 2009.

Garry D. Barnett, Barnett Law, Ltd., Mankato, MN; and William G. Peterson, Peterson Law Office, Bloomington, MN, for appellant.

Scott T. Anderson, Kimberly K. Sobieck, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent Nicollet County Board of County Commissioners.

Gerald W. Von Korff, Kurt A. Deter, Rinke-Noonan, St. Cloud, MN, for respondents Fitzner, et al.

Lori Swanson, Attorney General, Thomas Overton, Jill Schlick Nguyen, Assistant Attorneys General, St. Paul, MN, for respondent Minnesota Department of Natural Resources.

Considered and decided by HALBROOKS, Presiding Judge; LANSING, Judge; and SHUMAKER, Judge.

OPINION

SHUMAKER, Judge.

After a seven-day bench trial, the district court concluded that respondents Nicollet County Board of County Commissioners (County) and the Department of Natural Resources (DNR) were in violation of the Minnesota Environmental Rights Act (MERA) for permitting two wetlands to drain over the course of several decades. To remedy the violation, the district court ordered respondents to raise the primary lake's water level to a three-foot depth. However, the district court later amended its order because it was persuaded that the DNR had exclusive authority over the water levels of the state, and, therefore, it concluded that it was without jurisdiction to order a particular lake level as a remedy to the violation.

Because we held in a previous appeal of this case that the district court has subject-matter jurisdiction over this matter under MERA's plain language, we reverse the district court's determination that it is without jurisdiction to set a water level for the lakes, and remand for further proceedings to determine the appropriate crest elevation for the lake's dam. And although we conclude that the district court properly exercised jurisdiction over the DNR, we conclude that the DNR may not be held in violation of MERA for its decision not to force the County to repair the dam. Therefore, we also reverse the district court's order holding the DNR liable under MERA. We affirm the remainder of the amended order.

FACTS

This case concerns an ongoing dispute among several parties over the declining water levels of Little Lake and Mud Lake, both located in Nicollet County. Little Lake is a meandered lake¹ covering approximately 440 acres. Mud Lake is part of Little Lake's tributary watershed and is approximately the same size as Little Lake. Both lakes' water levels began to drop in the mid-1960s when a sheet pile dam located at the outlet of Little Lake fell into disrepair. This action began in 2003 when appellant Swan Lake Area Wildlife Association (Association) sued respondent County under MERA, alleging that the County had impaired a natural resource by neglecting to repair the dam and by allowing the lakes to drain. Respondent DNR was joined as third-party defendant, and respondent landowners intervened in the action.

In its amended request for relief, the Association asked that Little Lake's dam be set at a crest elevation of 976 feet above sea level.² The County moved to dismiss the action, arguing that the district court does not have subject-matter jurisdiction to consider the matter because the County is vested with exclusive authority over drainage decisions, which may only be challenged via administrative review processes. The district court denied the motion to dismiss, finding that it has subject-matter jurisdiction, and the County appealed.

In State ex rel. Swan Lake Area Wildlife Ass'n v. Nicollet County Bd. of County Comm'rs, we held that "the district court has subject matter jurisdiction over [the Association's] MERA claim regardless of the administrative processes and remedies available under the drainage provisions." 711 N.W.2d 522, 525-26 (Minn.App.2006), review denied (Minn. June 20, 2006) (Swan Lake I). We remanded to the district court, and the Honorable Judge Moonan presided over the trial.

At trial, the Association presented evidence detailing the history behind the draining of Little Lake and Mud Lake, which are characterized by the DNR as "Type 3" wetlands.³ In 1907, the County approved the establishment of County Ditch 46A and authorized the dredging of Little Lake. A reviewing district court found that the deepest parts of Little Lake were approximately six feet in the wet season and three feet in the dry season, and approved of the partial draining of Little Lake (which would result from the dredging) because it was "no longer of sufficient depth and volume to be capable of any beneficial use of a substantial character for fishing, hunting, boating or public water supply." The district court affirmed the County's establishment of the ditch, which was constructed in 1908.

In 1949, landowners petitioned the County to improve the ditch. The County conducted drainage-improvement proceedings, and as part of the drainage-improvement plan, it approved the installation of a sheet pile dam at the outlet of Little Lake. Shortly thereafter, the dam was installed at a crest elevation of 973.2 feet above sea level.

The Association introduced evidence that around 1966 the dam began to deteriorate and the lakes' water levels began to drop. In 1972, the County sought a permit from the Commissioner of Natural Resources (presently known as the DNR) to replace the dam and construct a longer dam structure. The Commissioner granted a permit for the new dam conditioned on the County's raising the crest elevation to 973.8 feet above sea level. The Commissioner noted that the natural ordinary high-water level of Little Lake is "not lower than elevation 976.0" feet above sea level, and, when the ditch was originally constructed, "it was dredged at least 1.4 feet deeper and somewhat wider through Little Lake than was designed." The County did not build the new dam or fix the old one, and Little Lake and Mud Lake continued to lose water.

For the next three decades or so, various entities, including the DNR, asked the County to repair the dam. In 2002, the Association became involved in the matter and offered to pay for the construction of the dam, but no one could agree on the appropriate crest elevation.

The Association also introduced evidence about the negative effects that low water levels have on the environment. Presently, the lakes' water levels are as low as 0.2 inches below the lake bottom. Dennis Simon, a DNR wildlife specialist, testified to the poor waterfowl habitat that the lakes currently provide because of their shallow depth. According to Simon, Mud Lake is "generally choked with cattails and emergent vegetation," and Little Lake provides only a "marginal" waterfowl habitat. He testified that an ideal waterfowl lake should have a "hemi-marsh" condition, which means that approximately half of the lake is open water and half is emergent vegetation. Simon explained that in the past a "couple" feet of water may have sufficed to maintain the hemi-marsh condition in a wetland such as Little Lake, but a recent narrow-leaf cattail invasion has changed things. Narrow-leaf cattail "tends to completely choke out a shallow wetland system that is not controlled in some way, so it's 100 percent dense stands of almost impenetrable cattail and then it doesn't allow the light to penetrate or anything else." Consequently, the wetland becomes totally dominated by the cattail, and the amount and diversity of wildlife in the wetland are reduced. Thus, Simon testified, a three-foot lake depth is "really ... the minimum that we would like to see" because three feet of water would encourage the cattail to "die back," and permit muskrats to "over winter" under the ice, which helps to further remove the invasive vegetation.

The district court ordered judgment for the Association, finding both the County and DNR in violation of MERA for permitting Little Lake and Mud Lake to "all but drain[]." Judge Moonan issued findings of fact, conclusions of law and an accompanying memorandum explaining his decision. Specifically, he found that the County had made no repairs on the 1950s dam since 1972, and that "this inaction or passive neglect allowed the dam to deteriorate," which "almost destroyed [the lakes] as natural resources." The district court found that the DNR was also responsible for the MERA violation because "the DNR did not take enforcement action or utilize their authority to protect the public waters from continued drainage ... failure for over 35 years to accomplish the dam's replacement, or an alternative, amounted to tacit acquiescence to lowering the level of the lakes and allowing unnecessary drainage." The district court's order concluded that neither the county nor the DNR had rebutted the Association's evidence of impairment of the wetlands, and had failed to demonstrate that there was no prudent and feasible alternative to their conduct.

As to the appropriate remedy, Judge Moonan noted that "[t]he evidence of the past decades show that it has been and is futile to utilize administrative proceedings to stop the drainage of the lakes and restore the lakes' value as natural resources." Therefore, based on the testimony at trial regarding the environmental benefits of a three-foot lake depth, Judge Moonan ordered the County to construct an outlet dam in Little Lake "capable of impounding or storing water in Little Lake to a depth of three (3) feet." Recognizing that raising the lake to such a level could cause flooding of the surrounding area, Judge Moonan also ordered the DNR to supervise and fund the implementation of a diking and lift system.

All parties filed motions for...