It's a wrap; trial concludes for lake level lawsuit

This graph showing fluctuating lake levels was entered into evidence by the city during the final day of the trial. The lowest recorded water level was adjusted by the Press to accurately correspond  with the legend. 

ST. PAUL — A decision is expected midsummer from the judge hearing the lake level lawsuit case. 

The nearly four-week trial wrapped up March 29 with both sides presenting closing arguments before District Judge Margaret Marrinan.

Attorneys for the plaintiff, the White Bear Lake Restoration Association, summed up evidence pointing to conclusions by the Metropolitan Council and U.S. Geological Survey: White Bear Lake is closely connected to the aquifer below due to its geology and the lake is still not at its long-term average despite record rainfall. 

Attorney Heather McElroy, with Ciresi Conlin LLP, closed for the plaintiff, avowing that the state of Minnesota has allowed the draining of White Bear Lake. 

From day one, the restoration association has charged that permitted pumping from high-capacity municipal wells are withdrawing too much water from the Prairie du Chien aquifer, causing the lake to drop.

McElroy's clients are seeking a 30 percent reduction in groundwater pumping by banning lawn sprinkling. The plaintiff contends that USGS studies support the premise that a reduction or cessation of summer pumping for irrigation would approximate 30 percent of residential water use and could cause as much as a 1 foot increase in lake level. 

The defendant, the Department of Natural Resources, maintained that the lake has rebounded to nearly 923 feet amid heavy rainfall and that fluctuations in elevation are normal.  

The city of White Bear Lake, an intervenor on the side of the defense, was represented by Greene Espel attorney Monte Mills, who provided a statement to the Press. 

“The city believes that facts entered into evidence during the trial support the defense,” Mills said. 

“As of March 27, 2017, the lake level was at 922.99 feet, which is less than 2 inches from the lake’s historical average level of 923.13 feet. Data from observation wells show that the aquifer is currently at a higher level than it was in the early 2000s. The area experienced a drought in the years when the lake’s water levels declined; additionally, warmer temperatures led to several periods since 2003 where evaporation exceeded precipitation.” 

Mills pointed out that lakes such as North Center Lake and North Lindstrom Lake, which are far away from high-capacity wells that withdraw groundwater, experienced declines in their water levels similar to White Bear Lake. 

“The evidence shows that climate caused the lake’s low water level,” Mills maintained. “Municipal groundwater pumping has declined since the early 2000s, when the lake had high water levels and groundwater pumping was greater than it is now. Given these facts, the Court should be reluctant to interfere with the DNR’s administrative process and work on the North and East Metropolitan Groundwater Management Area.”

When asked if he expected the case to go to appeal, City Attorney Roger Jensen replied, “it depends.”

“If the city isn't hurt by the judge's decision, I don't think we would appeal,” Jensen said. “I do think the DNR has concerns about its jurisdiction and separation of powers. There is a real significant question of separation of powers when the judiciary is telling the executive and legislative branch what to do. There is a real issue there.” 

Lastly, Byron Starns argued for the White Bear Lake Homeowners Association, an intervenor on the side of the plaintiff. 

He emphasized that in addition to violation of the Minnesota Environmental Rights Act, the DNR was in violation of the Public Trust Doctrine. This is the common law rule that the state holds public waters in trust for the benefit of all citizens. 

“Here the DNR breached its trustee duties by not taking affirmative action to protect the natural resource that is White Bear Lake,” explained plaintiff attorney Dick Allyn, with Robins Kaplan LLC. “Even with record rains and even though virtually all other lakes in the area are full, White Bear Lake is still below its long-term average level.” 

All parties must submit proposed findings by May 15 to Judge Marrinan, who then has up to 90 days to issue an order for judgment. Since she is retiring in August, Allyn said he would be surprised if a decision isn't issued by mid-July.  

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