Attorneys in White Bear Lake level case argue before Supreme Court

Plaintiffs and legal counsel posed for a group photo after the Supreme Court hearing Jan. 6 at the Capitol. From left, attorney Heather McElroy, Greg McNeely, Katie Crosby Lehmann, Jim Markoe, Brian McGoldrick and attorney Byron Starns. 

ST. PAUL — As the state Supreme Court considers whether claims against the Department of Natural Resources (DNR) were brought under the correct statute in the lake level lawsuit, plaintiffs in the eight-year-old case say there is a positive outcome regardless of the decision. 

“Because of our action, the DNR is finally paying attention to managing its (water appropriation) permits,” said Greg McNeely, chair of the White Bear Lake Restoration Association, which sued the DNR in 2012 for mismanaging permits, blaming the agency for historic low lake levels. 

“Win or lose, I believe our efforts have brought awareness of water conservation to the table,” McNeely added.

The state’s high court heard oral arguments Jan. 6 from the restoration association’s lead attorney, Katie Crosby Lehmann, and lake homeowner’s association attorney Byron Starns. The homeowners joined the plaintiffs early on as an intervenor. The DNR was represented by Oliver Larson with the attorney general’s office. Attorneys for the city of White Bear Lake and White Bear Township, defendant intervenors, did not speak. 

Plaintiffs based assertions of DNR mismanagement under the Minnesota Environmental Rights Act (MERA), Minnesota Statute 116B.01 to .13. They theorized that the agency inappropriately issued permits for groundwater extraction that caused decreased water levels on White Bear Lake, which harmed the lake’s value as a recreational and aesthetic asset. 

The homeowner’s association asserted claims both under MERA and the common-law public trust doctrine. Both groups sought an order requiring the DNR to amend groundwater appropriation permits in municipalities within a 5-mile radius of the lake. 

The DNR challenged the claims, arguing they were not properly asserted under Statute 116B.03, under which the plaintiffs brought their claims, but instead fall under Statute 116B.10, which does not provide for injunctive relief. 

After a bench trial, the district court found in favor of the plaintiffs and issued injunctive relief imposing restrictions on the DNR’s groundwater permitting activities under and around the lake. A majority court of appeals panel reversed and remanded the district court to institute proceedings under section 116B.10. The appeals court concluded that section .10 provides the exclusive remedy under MERA when the challenged action is that of a state agency issuing a permit. 

The issues presented to the Supreme Court are whether appellants’ (plaintiffs) claims that the DNR improperly managed groundwater under the lake are governed by section 116B.03 or 116B.10 and whether the public trust doctrine extends to groundwater not directly beneath a navigable water. 

In her opening remarks, Crosby Lehmann, a partner with Ciresi-Conlin LLP called it “ironic” the case was tried in what former Gov. Mark Dayton called the year of water. “Minnesota holds water in high regard, as it should,” she said. “Yet trial showed there is a systemic level problem in how the DNR fulfills its statutory mandate as steward of our water.”

The restoration association attorney noted that the Legislature passed laws providing “guard rails” for the DNR’s permitting activity and the “DNR blew by them. Then the court of appeals gave the DNR judicial immunity for its violations of law.”

Crosby Lehmann said courts must be allowed to step in “when there is clear abdication of all responsibility and a complete failure by the executive branch to follow its legislative mandate to manage state waters and comply with environmental standards. Otherwise, the DNR is the accused, the prosecutor and the jury of its own conduct.”

Chief Justice Lorie Gildea asked counsel to help them understand how the two statutory provisions work together. “Section .03 regulates conduct; .10 allows for change in the law or permit,” replied Crosby Lehmann. She added that Section .03 applies to all persons, including government agencies. 

Section .10 can’t change how the DNR behaves, maintained the attorney. “We can’t win under section  .10. This case is about the DNR’s behavior in violating the law. They ignored the accumulative impact of all the permits.

“This isn’t an issue about one straw in the bathtub,” Crosby Lehmann explained. “There are 100 straws in the bathtub. When we look one by one, we don’t recognize the harm. Section .10 deals with permits one by one. Section .03 deals with the systemic level, the accumulative impact (of all the straws).”

Justice Margaret Chutich voiced concern about interpreting section .03 too broadly, leading to more lawsuits in other cases involving agency permits. “What prevents open season on any permit given under any application, such as mining?” she asked. Crosby Lehmann said the case is unusual and about the DNR’s behavior in violating the law. 

The judge said the court may be undermining an administrative process set up years ago. 

Attorney Starns maintained that the DNR abdicated its responsibilities through an “absence of action.” 

Justice David Lillehaug said he wasn’t sure that was right. “The DNR knew what it was doing,” he said. “It was preferring pumping of groundwater versus protection of White Bear Lake. The DNR was making a choice.” 

Starns argued that the DNR was not acting prudently under its trust obligation. “The DNR knew its action was causing harm and did nothing. That is what the court found,” he said. 

DNR attorney Larson said the district court ordered the agency to amend its permits, dictating the terms of what the permits were going to be.

“The DNR doesn’t deny permits impact White Bear Lake,” he told the court. “It makes sense to reopen some of the permits even if they don’t violate the law. There are more people, global warming, change in resource use; the permits need to be revisited. But the appropriate vehicle is under section .10. That is the better remedy for changing a permit.”

Larson pointed out that 11 permits account for 90% of the influence on the lake, so “it doesn’t make sense to open all the permits.”

The hearing took about 70 minutes. At its conclusion, the chief justice thanked counsel and said an opinion will be issued “in due course.” 

Township attorney Chad Lemmons felt both sides did a good job of presenting their case. “It was well argued. I wouldn’t go so far to say there was a clear winner or loser. The justices had a clear understanding of how the statute works. Is there a connection between section .03 and .10? In my opinion, there is not. They are mutually exclusive sections when it comes to permits.”

If the court affirms the court of appeals decision, then it goes back to district court for a new order, Lemmons said. If they don’t affirm, it goes back to the original order. Justices could also reverse just a portion and affirm a portion. 

All cities within the 5-mile radius received notices that permits are under review. That will go forward no matter what, Lemmons added. 

The hearing in the Capitol courtroom was a first for Crosby Lehmann. “It was an honor to argue before the state Supreme Court on a case that could impact sustainable water management not only in Minnesota, but across the country,” she said later. 

White Bear Lake Homeowner’s Association President Jim Markoe expressed gratitude for the “extraordinary pro bono commitment” of the plaintiffs’ legal team. 

“I am gratified knowing that we have all worked to do everything possible to pursue solutions through the courts, Legislature and conservation education,” he commented.

“We have worked conscientiously and persistently for eight years to educate people regarding the systemic problem of unsustainable high-volume groundwater pumping from the Prairie du Chien aquifer. This problem has been temporarily masked by two of the wettest years ever, but it is not gone.” 

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