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

• Decision Date: 28 December 2020
• Docket Number: A18-0750
• 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

White Bear Lake Restoration Association,ex rel. State of Minnesota, Respondent,andWhite Bear Lake Homeowners' Association, Inc.,ex rel. State of Minnesota, plaintiff intervenor, Respondent, v. Minnesota Department of Natural Resources, et al., Appellants,andTown of White Bear, defendant intervenor, Co-Appellant,City of White Bear Lake, defendant intervenor, Co-Appellant.

A18-0750

STATE OF MINNESOTA IN COURT OF APPEALS

December 28, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Segal, Chief Judge

Ramsey County District Court

File No. 62-CV-13-2414

Michael V. Ciresi, Katie Crosby Lehmann, Heather M. McElroy, Ciresi Conlin LLP, Minneapolis, Minnesota; and

Eric J. Magnuson, Richard B. Allyn, Robins Kaplan LLP, Minneapolis, Minnesota (for respondent White Bear Lake Restoration Association)

Byron E. Starns, Daniel L. Scott, Micah J. Revell, Stinson LLP, Minneapolis, Minnesota (for respondent White Bear Lake Homeowners' Association, Inc.)

Keith Ellison, Attorney General, Oliver J. Larson, Colin P. O'Donovan, Stacey W. Person, Assistant Attorneys General, St. Paul, Minnesota (for appellant Minnesota Department of Natural Resources and Commissioner of Natural Resources)

Chad D. Lemmons, Patrick J. Kelly, Kelly & Lemmons, P.A., St. Paul, Minnesota (for co-appellant Town of White Bear)

Monte A. Mills, Virginia R. McCalmont, Greene Espel PLLP, Minneapolis, Minnesota (for co-appellant City of White Bear Lake)

Korine L. Land, David L. Sienko, LeVander, Gillen & Miller P.A., South St. Paul, Minnesota (for amicus curiae City of Stillwater)

David T. Anderson, Sarah J. Sonsalla, Kennedy & Graven, Chartered, Minneapolis, Minnesota (for amicus curiae City of Lake Elmo)

David K. Snyder, Johnson/Turner Legal, Forest Lake, Minnesota (for amicus curiae City of Hugo)

Soren M. Mattick, Campbell Knutson P.A., Eagan, Minnesota (for amicus curiae City of North St. Paul)

Jeremy Greenhouse, The Environmental Law Group, Ltd., Mendota Heights, Minnesota; and

Lloyd W. Grooms, St. Paul, Minnesota (for amicus curiae Minnesota Chamber of Commerce)

Elise L. Larson, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for amicus curiae Minnesota Center for Environmental Advocacy)

Mehmet K. Konar-Steenberg, Colette Routel, St. Paul, Minnesota (attorneys pro se and amici curiae)Considered and decided by Reilly, Presiding Judge; Segal, Chief Judge; and Bratvold, Judge.

UNPUBLISHED OPINION

SEGAL, Chief Judge

This appeal is taken from a district court judgment and injunction on claims asserted by respondent-associations against appellants, the Minnesota Department of Natural Resources and its commissioner (together the DNR), alleging that groundwater pumping is adversely affecting White Bear Lake (the lake) and the Prairie du Chien-Jordan Aquifer (the aquifer) that runs below the lake. A divided panel of this court issued a decision reversing the judgment and remanding for further proceedings. See White Bear Lake Restoration Ass'n ex rel. State v. Minn. Dep't of Nat. Res., 928 N.W.2d 351 (Minn. App. 2019) (White Bear Lake I), aff'd in part and rev'd in part, 946 N.W.2d 373 (Minn. 2020). The supreme court granted review, reversed our decision in part, and remanded to us for consideration of issues that were raised on appeal but that we did not reach in White Bear Lake I. See White Bear Lake Restoration Ass'n ex rel. State v. Minn. Dep't of Nat. Res., 946 N.W.2d 373 (Minn. 2020) (White Bear Lake II).

Because there are no reversible errors of law and the challenged findings of fact are supported by adequate evidence in the record, we affirm the judgment with regard to the remaining issues remanded to this court, but require an amendment to a portion of the ordered relief to avoid a conflict with the right of the municipal water-appropriation permit holders to an administrative contested-case hearing prior to the imposition of any permit amendments.

FACTS

The facts underlying respondents' claims are recited in both of the previous decisions, and we do not fully restate them here. Respondents' suit is based on their allegation that groundwater pumping by municipalities, pursuant to permits issued by the DNR, has impaired the lake and aquifer and is a cause of the low lake levels reached in the early 2010s.

The lake is a closed basin lake, meaning that it has no natural input from streams or rivers. The lake and the aquifer are, however, hydrologically connected. The level of the lake has fluctuated over time by a range of more than seven feet. There have been four periods of time since records on the elevation of the lake have been collected when the lake has been at its low-end level, including the mid-1920s, mid-1930s, and late 1980s, with the most recent low level at its worst in 2012-13. While precipitation and evaporation may have the greatest impact on the level of the lake, respondents' experts theorized, and the district court found, that groundwater pumping has had a negative, cumulative impact on both the lake and the aquifer.

Respondent White Bear Lake Restoration Association initiated this action in April 2013, asserting claims under the Minnesota Environmental Rights Act (MERA), Minn. Stat. §§ 116B.01-.13 (2018). Respondent White Bear Lake Homeowners' Association intervened as a plaintiff in May 2013, asserting claims under MERA and the common-law public-trust doctrine. Appellants City of White Bear Lake (the city) and Town of White Bear (the town) subsequently intervened as defendants.

In 2014, the parties reached a conditional settlement and the case was stayed from December 2014 through August 2016, while the parties unsuccessfully sought legislative funding to transition lake-area municipalities from groundwater wells to surface-water sources. After that condition of the settlement failed, the case proceeded to a bench trial. In August 2017, the district court issued findings of fact, conclusions of law and an order granting declaratory and injunctive relief pursuant to Minn. Stat. § 116B.03 of MERA and the public-trust doctrine.

The DNR, the city, and the town (together appellants) filed notices of appeal in May 2018, collectively raising nine issues. A divided panel of this court issued a decision in April 2019. White Bear Lake I, 928 N.W.2d 351. We addressed two of the nine issues raised by appellants, and held that the district court erred by (1) allowing respondents' claims to proceed under Minn. Stat. § 116B.03 of MERA instead of Minn. Stat. § 116B.10, and (2) applying the public-trust doctrine to groundwater outside the confines of the lake and lakebed. White Bear Lake I, 928 N.W.2d at 363-64, 367; see also White Bear Lake Restoration Ass'n ex rel. State v. Minn. Dep't of Nat. Res., 928 N.W.2d 351, 368-75 (Minn. App. 2019) (Bratvold, J., dissenting). Section 116B.03 of MERA broadly allows suits against "any person" for the "protection of air, water, land, or other natural resources . . . from pollution, impairment, or destruction." Minn. Stat. § 116B.03, subd. 1. Section 116B.10 more narrowly provides for actions against the state or other political subdivisions to challenge, among other things, permits issued by the state. Minn. Stat. § 116B.10, subd. 1.

With regard to the question of whether this action could be brought against the DNR under section 116B.03, this court held that since the suit involved challenges to permits granted by the DNR, the suit could only be brought under section 116B.10. On the public-trust-doctrine claim, this court held that the doctrine did not extend so far as to impose a duty on the DNR to manage the groundwater and the surface water level of the lake. We thus reversed the judgment and remanded for proceedings under Minn. Stat. § 116B.10. White Bear Lake I, 928 N.W.2d at 368.

Respondents petitioned for further review, which the supreme court granted. The supreme court reversed this court's holding on the issue of whether the suit could proceed under Minn. Stat. § 116B.03 of MERA, but affirmed our ruling on the public-trust doctrine (on other grounds),¹ and remanded for this court's consideration of the additional issues raised by appellants but not addressed in White Bear Lake I. White Bear Lake II, 946 N.W.2d at 387.

The remaining seven issues, as identified in White Bear Lake I, are whether the district court erred by

(3) denying summary judgment on the ground that respondents failed to exhaust administrative remedies, (4) refusing to require joinder of affected permit holders not parties to the case, (5) interpreting MERA to require the DNR to reopen and amend permits, (6) failing to give deference to the DNR's permitting decisions, (7) violating separation-of-powers principles, (8) requiring the DNR to amend existing permitswithout holding administrative hearings, and (9) making clearly erroneous factual findings.

White Bear Lake I, 928 N.W.2d at 358.

DECISION

In relevant part, Minn. Stat. § 116B.03, subd. 1, provides for "a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of the air, water, land, or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction." "Pollution, impairment, or destruction" is defined as conduct that (1) violates or is likely to violate any environmental quality standard, limitation, rule, order, license, or permit; or (2) materially adversely affects or is likely to materially adversely affect the environment. Minn. Stat. § 116B.02, subd. 5; see also State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 264 (Minn. 1997) (noting that "[t]here are two types of pollution, impairment or destruction of natural resources subject to action under MERA").

The supreme court has identified five factors (the Schaller factors) for district courts to consider in determining whether conduct has a materially adverse impact on the...