ST. PAUL — The state’s highest court affirmed a portion of the Court of Appeals decision regarding the lake level lawsuit and reversed a portion. Then they sent it back to the three-judge appeals panel.
In a decision issued July 15, the Minnesota Supreme Court said plaintiffs in the case against the Department of Natural Resources (DNR) brought the correct statute under the Minnesota Environmental Rights Act (MERA). That opinion reversed the appeals court decision issued April 2019 that a different statute, 116B.10, should have been used by the White Bear Lake Restoration Association and White Bear Lake Homeowners Association to state its claims.
Justices further concluded that the homeowners association failed to state a claim under the public trust doctrine, agreeing with the Court of Appeals on that issue, although on different grounds.
The restoration association and the homeowners association petitioned the high court in 2019 after the appeals judges overturned a ruling that the DNR violated MERA in managing groundwater pumping permits.
The homeowners association asserted claims both under MERA and the public trust doctrine, which accused the DNR of failing in its duty as trustee of the lake. Both groups sought an order requiring the DNR to amend groundwater appropriation permits in municipalities within a 5-mile radius of the lake.
In the opinion, Justice David Lillehaug wrote that the appeals court misunderstood the homeowners association’s contention that the DNR permitted the degradation of White Bear Lake by “abdicating its duties as trustee to manage groundwater and surface water levels.”
“Although we affirm the court of appeals result on this issue, we do not adopt its reasoning,” he said. “The court of appeals determined that the public trust doctrine did not apply on the theory that groundwater is non-navigable and is therefore not protected as a public water.”
The Supreme Court determined that the association did not allege that groundwater is held in the public trust or that the doctrine should be extended to include it.
Since filing the lawsuit nearly eight years ago, the restoration association and intervening lake homeowners have asserted DNR mismanagement under MERA Statute 116B.03. Arguments made before the high court in January claimed the agency inappropriately issued permits for groundwater extraction that caused White Bear Lake levels to drop, harming its value as a recreational and aesthetic asset.
Restoration association Chairman Greg McNeely considers last week’s decision a clear win for the lake. “The Supreme Court said citizens have the right to challenge the DNR when it fails in its duty to protect the environment. That’s a huge deal. Suing the government is tough. It’s been eight years. Bottom line is, we defended our lake and got a positive judgement to protect it,” he said.
Legal claims still afloat
The lawsuit is far from over, however. Justices are remanding to the Court of Appeals remaining issues raised in the DNR’s district court appeal.
There are seven issues presented by the DNR that the appeals court did not address in the first go-around. The attorney general’s office believes the district court judge erred by 1) denying summary judgment on the ground that respondents (plaintiffs) failed to exhaust administrative remedies; 2) that the court refused to require joinder of affected permit holders not parties to the case; 3) interpreting MERA to require the DNR to reopen and amend permits; 4) failing to give deference to DNR’s permitting decisions; 5) violating separation of powers principles, which deals with whether a judge can order municipalities to work on surface water alternatives; 6) requiring DNR to amend existing permits without holding administrative hearings; and 7) making clearly erroneous factual findings.
Remanding those remaining issues could be interesting, noted White Bear Township attorney Chad Lemmons. “The big one there is whether they (the plaintiffs) should have named cities in the 5-mile radius (No. 2). If the Court of Appeals finds that cities like Hugo, Vadnais Heights and Mahtomedi are necessary parties, the case could go back to district court. We would have to retry it because each city would have the right to present its own case.”
Lemmons said a claim issue dealing with MERA is another “big one” (No. 3).
“The court erred in requiring the DNR to retroactively reopen permits. That involves the safe harbor provision under MERA,” Lemmons explained. “The statute can’t be used to attack permits that have been granted by a state agency. It’s a defense that will be used by the municipalities if they’re allowed to come in.
“Any one of those issues could result in the case going back to trial. We’ll see what the appeals court does. The order could simply be amended.”
McNeely said he doesn’t expect a decision from the appeals court until January at the earliest. His lawyers don’t feel the case will go back to the Supreme Court, he added, and don’t expect much to change. Lemmons isn’t so sure. “It could go back up there again,” he said. “Either side could petition the high court following the appeals decision.”
An emailed statement from the DNR said the agency has no substantive comment on the decision at this time. “Our priority remains ensuring that White Bear Lake and its underlying aquifer are managed sustainably under the standards set forth in state law.”
Court divided in decision
The court decision was not unanimous. Justice Barry Anderson agreed with the court’s holding that the public trust doctrine does not apply in the case. He did not agree with the court’s holding that the term “any conduct” in MERA statute includes executive branch agency decisions.
In his dissent, the justice pointed out the injunctive relief sought by appellants from district court that requires the DNR to restore water levels to a protected elevation of 923.5 feet “reeks of impermissible encroachment by the judicial branch into executive branch authority.”
“An interpretation of MERA that allows a district court to serve as a quasi-executive agency, determining the appropriate water elevations to which the DNR should manage the lakes, violated the constitutionally required separation of powers,” he stated.
Justice Anderson contends that the DNR’s decision to issue permits, which is an executive branch administrative agency decision, simply is not conduct under MERA. Chief Justice Lorie Skjerven Gildea joined him in the concurrence and dissent.
Decision includes lake level facts
Included in the Supreme Court decision were statements regarding water levels that have been recorded since 1924. The lake has experienced significant fluctuations, it was noted, spanning a range of more than 7 feet. In 2013, the lake was 918.84 feet, an all-time low. Other notable low-water periods are 1924-39 and 1988-93, which correlate to the Dust Bowl and a statewide drought.
Also noted was the hydrologic connection between the lake and the Prairie du Chien aquifer below it. Annual withdrawals from the aquifer have more than doubled since 1980, from 1,873 million gallons to 4,557 million gallons in 2007. Allegedly, many of the DNR’s appropriation permits to municipalities are “evergreen,” which means they have no expiration date.