White Bear Lake Restoration Ass'n ex rel. State v. Minn. Dep't of Natural Res.

• Decision Date: 22 April 2019
• Docket Number: A18-0750
• Citation: 928 N.W.2d 351
• Parties: WHITE BEAR LAKE RESTORATION ASSOCIATION, EX REL. STATE of Minnesota, Respondent, and White Bear Lake Homeowners' Association, Inc., ex rel. State of Minnesota, plaintiff intervenor, Respondent, v. MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al., Appellants and Town of White Bear, defendant intervenor, Co-Appellant, City of White Bear Lake, defendant intervenor, Co-Appellant.
• Court: Minnesota Court of Appeals

928 N.W.2d 351

WHITE BEAR LAKE RESTORATION ASSOCIATION, EX REL. STATE of Minnesota, Respondent,
and
White Bear Lake Homeowners' Association, Inc., ex rel. State of Minnesota, plaintiff intervenor, Respondent,
v.
MINNESOTA DEPARTMENT OF NATURAL RESOURCES, et al., Appellants
and
Town of White Bear, defendant intervenor, Co-Appellant,

City of White Bear Lake, defendant intervenor, Co-Appellant.

A18-0750

Court of Appeals of Minnesota.

Filed April 22, 2019

RODENBERG, Judge

928 N.W.2d 355

Appellants, the Minnesota Department of Natural Resources (DNR)¹ along with its commissioner of natural resources, City of White Bear Lake, and Town of White Bear,² appeal from the district court’s grant of declaratory and injunctive relief to respondents White Bear Lake Restoration Association³ and White Bear Lake Homeowners' Association Inc.⁴ on respondents' claims that the DNR violated MERA and the common-law public-trust doctrine by making water-appropriation decisions that have lowered the water level of White Bear Lake. Appellants challenge the district court’s application of Minn. Stat. § 116B.03 and the public-trust doctrine to respondents' claims, and argue that the district court was without jurisdiction to make orders concerning the DNR’s issuance of well permits. They also challenge the district court’s findings of fact and the scope of its remedial order as unsupported by the record. We reverse and remand.

FACTS

White Bear Lake (the lake) is a large lake lying within Ramsey and Washington Counties. It has a surface area of between 2,100 and 3,100 acres, depending on its water level. It is a closed-basin lake, meaning that it has no major natural surface water inlets or outlets, such as rivers or streams. The lake depends on groundwater and precipitation for water. Because of this, and its relatively small watershed area, significant water-level fluctuations occur. Since 1924, water levels in the lake have ranged from 919.33 to 926.69 feet above sea level.

Closed-basin lakes depend primarily on underlying groundwater levels for lake water. Two bedrock aquifers, commonly referenced together as the Prairie du Chien-Jordan aquifer (the aquifer), are located below the lake. The lake and the aquifer

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are hydrologically⁵ connected, and the lake’s water levels are affected by groundwater pumping, among other factors.

The aquifer is a main source of drinking water for the Minneapolis-St. Paul metropolitan area. While the cities of Minneapolis and St. Paul are able to use surface water from the Mississippi River for their domestic water supply, most of the rest of the metropolitan area relies on groundwater pumped from municipal and private wells. Multiple high-capacity groundwater wells surround White Bear Lake, providing domestic water supply to area communities.

Cities and municipalities must first obtain a water-use permit from the DNR before extracting groundwater for municipal use. The DNR has authorized the pumping of groundwater from the aquifer through groundwater-appropriation permits. The DNR is responsible for issuing and amending groundwater-appropriation permits, ensuring that permittees comply with those permits, and taking action as needed when groundwater permits negatively impact a natural resource.

Respondent White Bear Lake Restoration Association (the restoration association) initiated this action in April 2013, seeking declaratory and injunctive relief related to groundwater-appropriation permits issued by the DNR. The only defendants named in the summons and complaint were the DNR and then-Commissioner Thomas J. Landwehr. The complaint alleged that increased groundwater withdrawals under the DNR’s groundwater-appropriation permits from high-capacity wells in the area of the lake had created and accelerated declines in lake-water elevations due to the DNR’s failure to review and amend permits. The restoration association alleged that the DNR had allowed the lake’s water levels to drop, and had violated MERA, Minn. Stat. §§ 116B.01 -.13 (2018). The restoration association alleged that the resulting low water levels had diminished the lake’s value as a recreational, historical, cultural, and aesthetic asset. The restoration association further claimed that, due to the lake’s low water levels, noxious plant and animal species had increased, businesses had experienced significant losses, a beach had closed due to a dangerous drop-off created by the lower lake level, and homeowners needed to extend docks hundreds of feet to access the lake.

Respondent White Bear Lake Homeowners' Association (the homeowners' association) intervened as a plaintiff, alleging that the DNR had violated MERA and the common-law public-trust doctrine. Its complaint alleged that the increased groundwater appropriations authorized by the DNR have materially and adversely affected the environment and that White Bear

928 N.W.2d 357

Lake and the aquifer have been materially and adversely impacted. Like the restoration association, the homeowners' association claimed that the declining water levels harmed native aquatic plants, exposed lakebeds, reduced recreational boating activity, impaired swimming and fishing, reduced access to the water for lakefront homeowners, and negatively impacted the economy around the lake.

In their pleadings, respondents suggested that a potential solution to increase the water level of White Bear Lake would be to order the DNR to amend groundwater-appropriation permits it had issued to municipalities. That remedy would impact groundwater-appropriation permits held by cities and municipalities who rely on the permits to supply water to their residents. Appellants City of White Bear Lake and Town of White Bear intervened as defendants. The DNR challenged respondents' claims, arguing, among other things, that those claims are not properly asserted under either Minn. Stat. § 116B.03 or the common-law public-trust doctrine. The DNR asserted that, instead, the available MERA relief was under Minn. Stat. § 116B.10.

The district court denied appellants' pretrial motions to dismiss and for summary judgment, allowing respondents' claims to proceed under Minn. Stat. § 116B.03 and the public-trust doctrine. It rejected appellants' argument that the only viable MERA claim in this circumstance would be under Minn. Stat. § 116B.10, providing that persons may initiate a civil action in district court for declaratory or equitable relief "against the state or any agency or instrumentality thereof where the nature of the action is a challenge to ... [a] permit promulgated or issued by the state or any agency or instrumentality thereof for which the applicable statutory appeal period has elapsed." Minn. Stat. § 116B.10, subd. 1.

From December 2014 to August 2016, the parties agreed to stay the district-court case while they jointly supported a request to the legislature to fund construction of systems to convert the domestic water supply in certain communities in the northeast metropolitan area from groundwater to surface-water sources. The district court lifted the stay after the legislature declined to fund the surface-water conversion.

The case was tried to the district court. Multiple experts testified for the associations and opined that the DNR’s groundwater-appropriation permits negatively impacted the lake’s water levels. Contrary evidence was produced by appellants. The district court ultimately concluded that the DNR did not properly manage its permitting process in light of its knowledge that groundwater pumping affected the lake’s water levels. The district court determined that the DNR knew, as early as 1998, that the groundwater-appropriation permits it issued could have significant effects on groundwater levels and ultimately on the water levels of the lake. The district court found that the DNR had failed to consider "regional or cumulative impact" when reviewing permit requests and instead issued and reviewed permits on a case-by-case basis.

The district court concluded that respondents had properly asserted their claims under Minn. Stat. § 116B.03, that the lake and the aquifer are natural resources subject to MERA protections, and that the lake and the aquifer have been and will likely continue to be impaired by the DNR’s permitting conduct. The district court declared that the DNR, through its actions and inaction in relation to groundwater-appropriation permits in the vicinity of the lake, had violated MERA, multiple

928 N.W.2d 358

provisions of the state’s water law, and the common-law public-trust doctrine.

The district court ordered injunctive relief that included requiring the DNR to review and amend all groundwater-appropriation permits within a five-mile radius of the lake, require permittees to submit contingency plans for conversion to surface-water supply, and impose a residential irrigation ban when the water level of the lake is below 923.5 feet (and continuing until the lake reaches 924 feet). The district court’s order prohibited the DNR from issuing any new groundwater-well permits and from increasing appropriation amounts in existing groundwater-appropriation permits within a five-mile radius of the lake until it had fully complied with statutory requirements. The order...