White Bear Lake level lawsuit going  to court of last resort

Water levels have been high on White Bear Lake this summer.

ST. PAUL — The Minnesota Supreme Court has agreed to review the Court of Appeals decision in the lake level case.

The White Bear Lake Restoration Association (WBLRA) and the White Bear Lake Homeowners' Association Inc. petitioned the high court in April after the Court of Appeals overturned a ruling that the Department of Natural Resources (DNR) violated the Minnesota Environmental Rights Act in managing groundwater pumping permits.

The majority opinion by the appeals panel focused on a procedural issue. Two of the three judges agreed that the district court erred by allowing respondents' claims to proceed under a statute that pertained to civil action when a different statute provided “the proper remedy for challenged actions” regarding a DNR permit.

In her order signed July 16, Chief Justice Lorie Gildea granted the petitions filed by the WBLRA, plaintiff in the seven-year-old lawsuit, and the homeowners' association, plaintiff intervenor.

The request by the DNR, the City of White Bear Lake and White Bear Township for conditional cross-review was denied.

What does conditional cross-review mean? Township Attorney Chad Lemmons explained that the Court of Appeals only addressed the main procedural issue about whether the trial court applied the correct statute. “Once that was dealt with, everything else disappeared,” he said. “The other arguments we brought up in our petition were ancillary to that main issue, which the court considers moot. They (the Supreme Court) are not going to deal with those issues even though they've never been resolved.”

Attorneys for the WBLRA and homeowners' association (the appellants) must file their briefs within 30 days under the Court's Rule 131 unless granted an extension. The respondents' briefs will be due 30 days after that and appellants may file reply briefs 10 days after that. Then the high court will schedule oral arguments.

White Bear Lake City Manager Ellen Hiniker wasn't surprised by the decision to review the appeals court ruling. “While the lake is near record high levels, application of the Minnesota Environmental Rights Act (MERA) remains a compelling and important issue,” she said. “We are confident, however, that the Supreme Court will uphold the Court of Appeals decision.”

DNR Deputy Commissioner Barb Naramore issued this statement: “The Minnesota DNR has confidence in the ruling from the Minnesota Court of Appeals in the White Bear Lake case.  We look forward to the Minnesota Supreme Court’s review of the case. Our priority remains ensuring that White Bear Lake and its underlying aquifer are managed sustainably under the standards set forth in state law.”

Chief Justice Gildea also granted a motion of the Minnesota Center for Environmental Advocacy, professors Mehmet Konar-Steenberg and Colette Routel, to serve and file a joint brief as friends of the court in support of the petitioners (the WBLRA). They are not allowed to participate in oral arguments.  

The WBLRA has always alleged the DNR allowed the lake's water levels to drop by mismanagement of groundwater appropriation permits and had violated MERA, claiming low water levels diminished the lake's value as a recreational, historical and aesthetic asset.

Lead counsel for the plaintiff, Katie Crosby Lehmann, commented after the appeals decision that the majority opinion essentially gives a government agency immunity from following the state's environmental laws. “As highlighted by the dissent, this is wrong,” she said. “No one is above the law.”

Town Attorney Lemmons disagrees. “The takeaway from the Court of Appeal decision is not that the DNR is above the law but the process that should have been following in ordering the DNR to review all permits should have been under Statute 116B.10. That basically means the court can issue an order directing the DNR to review all water permits. We already knew that was going to happen. It was our argument in our summary judgment brief five years ago.

“That is the whole point here,” Lemmons said. “The DNR can be ordered to review all the well permits they've issued, that's never been a question. The question is, what rights does the trial court have to go beyond ordering the DNR to review all permits? That was the big argument: The court didn't have that power. The law does state the judge can issue temporary relief. The relief she (now retired Judge Margaret Marrinan) was issuing was permanent relief. That was the point of appealing this. She got the statute wrong. And that is what the appeals court said.”

Dellwood resident Greg McNeely, president of the WBLRA, said he's pleased the Supreme Court is hearing the case. “We're happy to be going the full distance,” he said. “It's terrific the lake is at an almost all-time high but it should be noted there has been above-average rainfall for the last five years. It's questionable whether this weather pattern will continue. Yes, the lake goes up and down but when it's dry, the water level will go down even faster to a new low. We are confident in the science. There are still too many straws in the cup and the groundwater is not sustainable.”

The Minnesota Supreme Court is described as “the court of last resort” for cases filed in state courts. According to the Minnesota Judicial Branch online page, the seven-member court often resolves challenges that concern the constitutional rights of Minnesotans. Supreme Court decisions serve as precedent for the Minnesota Court of Appeals and Minnesota's trial courts.

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