ST. PAUL — Time was precious Jan. 24 as both sides in the lake level lawsuit were allotted just 15 minutes to argue their case before a three-judge appellate court.
Attorneys representing the Department of Natural Resources (the appellant) and the White Bear Lake Restoration Association (the respondent) chose to spend their minutes arguing over the Minnesota Environmental Rights Act (MERA). That state law provides civil remedy to protect air, water, land and other natural resources from pollution, impairment or destruction.
In its seventh year of litigation, the lawsuit was filed against the Department of Natural Resources (DNR) by the White Bear Lake Restoration Association (WBLRA) in late 2012 when lake levels were dropping. The nonprofit group blames the DNR for the lake’s historic low water levels, contending that groundwater pumping by municipalities is drawing water from the lake into the aquifer below. The DNR is responsible for issuing those water pumping permits.
A district court judge sided with the plaintiff in 2017, declaring that the DNR's permitting violated MERA, as well as the Public Trust Doctrine, a law binding the state to protect its natural resources on citizens' behalf.
The ruling was appealed and now awaits a decision by the appellate panel. Judges have 90 days to issue an opinion, which puts the time frame in late April.
“Both sides did a good job arguing their cases,” observed Chad Lemmons, attorney for White Bear Township. Both the township and the city of White Bear Lake are intervenors in the suit on the side of the DNR. Lemmons attended the hearing but did not speak. Both the township and city agreed to give their time to the DNR's counsel, Assistant Attorney General Oliver Larson.
Larson argued that the lawsuit should have been brought under Section 10 of MERA, according to Lemmons. “Our position and the state's position is that they (the plaintiffs) were ultimately challenging the permits. That is the relief the court granted by ordering the DNR to review and amend municipal permits. Since action on the permits was the ultimate goal of the plaintiffs, it should have been brought under section 116B.10. That was the main argument.”
The respondent's attorney, Katie Crosby Lehmann, with Ciresi Conlin LLP, argued in favor of the lower court's decision and determination that MERA permits private citizen groups to challenge government actions that are alleged to impair the environment, including public waters, noted Robins Kaplan attorney Dick Allyn, part of the WBLRA legal team.
He's holding out hope that the Legislature will step in to help deal with the pumping problem.
“Communities need funding to wean them off being totally dependent on drawing water off the aquifer,” Allyn said. “They need to develop water systems like Roseville, Maplewood and others who connect to the St. Paul Regional Water System.” That system draws water from the Mississippi River.
Whatever the ruling, Allyn is sure one side will try to appeal.
“I'd be very surprised if the Supreme Court wouldn't entertain the case,” Allyn said. “This case is destined for it.”
Jim Markoe, president of the lake homeowners association, an intervenor on the side of the WBLRA, iterated that oral arguments focused on MERA at the hearing, which is a complicated law. “The other part of the pleading was the Public Trust Doctrine. “It's an extraordinary backstop to the MERA issue in the appeal. If for any reason the court doesn't see eye to eye with us on MERA, the Public Trust Doctrine is ancient law that has carried over to present day. Any arguments to the contrary are pretty weak.”
Like Allyn, Markoe feels the case could go to the state's highest court. “It could be a seminal case that will be looked at for a generation or more,” said the lake homeowner. “It has been an honor to be involved with it.”
Added Markoe: “The lake is high now and that's a wonderful gift, but rainfall will revert to the mean and the problem will not go away. The science is conclusive.”