In thе Matter of the NorthMet Project Permit to Mine Application Dated December 2017 (A18-1952, A18-1958, A18-1959), and In the Matter of the Applications for Dam Safety Permits 2016-1380 and 2016-1383 for the NorthMet Mining Project (A18-1953, A18-1960, A18-1961).
A18-1952, A18-1953, A18-1958, A18-1959, A18-1960, A18-1961
STATE OF MINNESOTA IN SUPREME COURT
April 28, 2021
Hudson, J.; Thissen, J., took no part
Court of Appeals; Filed: April 28, 2021, Office of Appellate Courts
Sherry A. Enzler, General Counsel, Minnesota Department of Natural Resources, Saint Paul, Minnesota; and Jon W. Katchen, Sarah M. Koniewicz, Holland & Hart LLP, Anchorage, Alaska, for appellant Minnesota Department of Natural Resources.
Paula G. Maccabee, Just Change Law Offices, Saint Paul, Minnesota, for respondent WaterLegacy.
Ann E. Cohen, Elise Larson, Evan Mulholland, Minnesota Center for Environmental Advocacy, Saint Paul, Minnesota, for respondents Minnesota Center for Environmental
Vanessa L. Ray-Hodge, Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, Albuquerque, New Mexico; and
Sean Copeland, Tribal Attorney, Cloquet, Minnesota, for respondent Fond du Lac Band of Lake Superior Chippewa.
Margo S. Brownell, Evan A. Nelson, Maslon LLP, Minneapolis, Minnesota, for respondent Friends of the Boundary Waters Wilderness.
Dara D. Mann, Squire Patton Boggs LLP, Atlanta, Georgia, for amicus curiae Iron Mining Association of Minnesota.
Byron E. Starns, Stinson LLP, Minneapolis, Minnesota, for amicus curiae MiningMinnesota.
Lloyd W. Grooms, Minnesota Chamber of Commerce, Saint Paul, Minnesota; and
Jeremy P. Greenhouse, The Environmental Law Group, Ltd., Mendota Heights, Minnesota, for amicus curiae Minnesota Chamber of Commerce.
Michaеl D. Madigan, Brandt F. Erwin, Megan J. Kunze, Christopher W. Bowman, Madigan, Dahl, & Harlan, P.A., Minneapolis, Minnesota, for amicus curiae Sierra Club.
Eric E. Caugh, Zelle LLP, Minneapolis, Minnesota, for amici curiae Arne Carlson, John P. Gappa, Ron Sternal, and Alan Thometz.
Gregory R. Merz, Lathrop GPM LLC, Minneapolis, Minnesota, for amici curiae Allan W. Klein, Richard Luis, and Eldon G. Kaul.
S Y L L A B U S
- Allegations that property owned by a person will be affected by the proposed mining operations is sufficient to satisfy the standing requirement in
Minn. Stat. § 93.483, subd. 1 (2020) , to file a petition for a contested case hearing. The Minnesota Department of Natural Resources has discretion under Minn. Stat. § 93.483, subd. 3(a) (2020) , to decide whether a contested case hearing will aid the commissioner in resolving a disputed material issue of fact related to a completed application for a permit to mine.- Under
Minn. Stat. § 93.483, subd. 3(a)(3) , when reviewing the commissioner‘s decision to deny a petition for a contested case hearing, the reviewing court must determine whether the petitioner has shown that the decision by the Minnesota Department of Natural Resources regarding a specific disputed material issue of fact was not reasonably supported by substantial evidence in the record. Minnesota Statutes § 93.481, subd. 3(a) (2020) , requires the commissioner of the Minnesota Department of Natural Resources to set a definite, fixed term of years for a permit to mine.- The court of appeals erred in reversing the dam-safety permits on the basis that a contested case hearing was ordered on the permit to mine because the two permits are governed by distinct statutory standards.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
HUDSON, Justice.
On November 1, 2018, the Minnesota Department of Natural Resources (DNR) issued a permit to mine and two dam-safety permits to Poly Met Mining, Inc. (PolyMet) to build and operate Minnesota‘s first copper-nickel mine. The DNR‘s Findings of Fact,
We conclude that the court of appeals adopted an incorrect legal standard to evaluate the DNR‘s decision to deny the petitions for a contested case hearing. By disregarding the DNR‘s discretion, the court of appeals erred in its interpretation of
FACTS
PolyMet proposes to develop a mine and associated processing facilities to extract copper and nickel from the NorthMet Deposit in northeastern Minnesota. If approved, the mine would be the first of its kind in the state. Minnesota has a long history of regulating iron and taconite mining. Although years of study and regulatory activity have been underway to prepare for copper-nickel mining, this is the first permit to mine of its kind. Further, the proposed NorthMet project brings with it potential environmental impacts unique to this type of mining. In particular, the mine waste generated by extracting and processing sulfide ore has the potential to release acid rock drainage, which occurs if either the sulfide ore or waste rock is exposed to oxygen or water. If so exposed, the sulfide ore and waste rock would release toxic metals and sulfate that could seep into nearby surface waters and groundwaters. As a result, the NorthMet projеct has generated significant public interest and controversy.
The NorthMet Project. As proposed by PolyMet, the NorthMet project will be located along the eastern flank of the Mesabi Iron Range, near the towns of Babbitt and Hoyt Lakes in St. Louis County. The project would consist of three main facilities: a mine about six miles south of Babbitt; an ore processing plant about six miles north of Hoyt Lakes; and a transportation corridor connecting the two sites. The entire project would be located within the St. Louis Watershed, which drains into Lake Superior. The proposed
Tailings, the waste by-product from ore processing, would be mixed with water and pumped as a slurry into an existing, but upgraded, flotation tailings basin maintained at the LTV Mining plant site.5 To contain these tailings, PolyMet plans to build a new dam atop the existing LTV Mining tailings dam, using an upstream construction method.6 To keep water and oxygen from reaching the tailings, the exterior side of the dam, along with the tailings basin beaches and basin bottom, would incorporate a bentonite-amended oxygen-barrier layer (the bentonite amendment). Bentonite is a natural clay sealant. The project would also use a containment system to collect water seepage from the tailings basin to prevent surface water and ground water pollution.
After mining operations ceasе, the project calls for placing the tailings under a “wet cover” (i.e., a man-made pond) to minimize the reactivity of tailings to oxygen. Reclamation and closure following the expected 20-year mine life would include periodic
The Mine Permitting Application Process. Mining in Minnesota is regulated by statute and administrative rules. The permitting process allows the State to balance its interests in limiting the “possible adverse environmental effects of mining” and preserving natural resources, against its interests in encouraging “the orderly development of mining,” “good mining practices,” and the beneficial aspects of mining.
There are two types of permits at issue in this appeal. The first, the permit to mine, concerns the NorthMet project. See
The application for a permit to mine is a multi-phase process that begins after the environmental review by federal and state regulators is complete. See
A permit to mine application must include “a proposed plan for the reclamation or restoration” of the affected mining area, a certificate of a “public liability insurance policy” or “evidence that the applicant has satisfied . . . state or federal self-insurance requirements.”
The DNR reviews a permit to mine application to determine if it is “complete.”
Within 120 days after the permit to mine application is “deemed complete and filed,” the DNR must “grant the permit applied for, with or without modifications or conditions, or deny the application unless a contested case hearing is requested or ordered.”
Dam-safety permits are authorized by
The commissioner must notify the applicant within 30 days whether the application is deemed complete and must “act on” the application within 150 days after it is deemed complete, by either holding a hearing or by granting or denying the permit.
Over the next year, the DNR and PolyMet identified and resolved issues and concerns raised by the agency and various public comments, with PolyMet submitting at least three revised versions of its permit to mine application. By early 2018, the DNR had developed 90 special conditions for the permit to mine to address operations, reclamation, mitigation of wetland impacts, and financial assurances, among other issues.
The draft dam-safety permit applications were circulated to local and county governments and tribal entities, and a 30-day public comment period was opened in September 2017. The DNR issued notice of the draft permit to mine application and opened a public comment period on January 5, 2018. The DNR received more than 5,000 public comments on the dam-safety permit applications and more than 14,000 public comments on the permit to mine application. The permit to mine application was deemed complete and filed on January 29, 2018. Respondents MCEA and WaterLegacy each submitted a timely petition for a contested case hearing on the permit to mine.11
On November 1, 2018, the DNR issued three decisions: the first denied respondents’ petitions for a contested case hearing and granted the permit to mine subject to the special conditions; the second granted the dam-safety permits; and the third transferred the existing permit for the LTV Mining tailings basin to PolyMet.12 The DNR supported its decision on the permit to mine with a 177-page document containing over 800 findings of fact, in addition to the commissioner‘s conclusions. The decision granting the dam-safety permits was similarly supported by extensive factual findings and conclusions. Based on its review of the entire record, the DNR concluded that PolyMet‘s proposed dams and mining operations are reasonable, practical, and will adequately protect natural resources, ensure public safety, and promote the public welfare. Thus, the DNR concluded that it was required to grant the applications subject to the terms and conditions in the permits. The DNR also denied the petitions for a contested case hearing, concluding that respondents lacked standing to seek such a hearing because they did not own property that would be affected by the proposed mining operations. But assuming that they had standing, the
Judicial Proceedings. Respondents sought review of the DNR‘s permit decisions by filing six separate certiorari appeals in the court of appeals: three from the DNR‘s decision to deny a contested case hearing and to issue the permit to mine (A18-1952, A18-1958, A18-1959) and three from the DNR‘s decision to issue the dam-safety permits (A18-1953, A18-1960, A18-1961). The court of appeals consolidated the six appeals, and while briefing was on-going, temporarily stayed the permits pending a final decisiоn on the merits. In re NorthMet, No. A18-1952, Order at 7-9 (Minn. App. filed Sept. 18, 2019).
On January 13, 2020, the court of appeals reversed the DNR‘s decisions granting the permit to mine and the dam-safety permits. In re NorthMet, 940 N.W.2d at 237-38. Interpreting
We granted the petitions for review filed by the DNR and PolyMet.
ANALYSIS
This appeal primarily concerns the contested case requirements in
I.
We begin with the question of who can file a petition for a contested case hearing. “Any person owning property that will be affected by the proposed [mining] operation . . . may file a petition” for a contested case hearing.
The court of appeals rejected this interpretation of
This issue presents a question of statutory interpretation, which we review de novo. See In re Restorff, 932 N.W.2d 12, 18 (Minn. 2019). We begin with the language of the statute, giving words and phrases their plain and ordinary meaning. Id. at 19; see also
The court of appeals concluded that the term “affected,” in the statutory clause, “property that will be affected,”
The DNR argues that the court of appeals erred, asserting that the Legislature intended to extend the right to petition for a contested case hearing only to a narrow class of persons based on the statutory requirement that property will be affected. The DNR‘s position hinges on the likelihood that a member‘s property will actually be affected if any of the potential adverse consequences actually come to pass, or that any effect, if it occurs, will be substantial. This interpretation, however, asks us to add terms to the statute that the Legislature did not include, which we do not do. General Mills, Inc. v. Comm‘r of Revenue, 931 N.W.2d 791, 800 (Minn. 2019) (“We do not, however, add words to the plain language of a statute to fit with an identifiable policy.“).
Instead, we consider whether respondents have alleged potential impacts from the proposed mining operations that will affect their property. The declarations filed with respondents’ petitions for a contested case hearing included numerous allegations about the potential impact of the mining operations on state-wide natural resources—waters, fish and wildlife populations—used by their members who own property in northeastern Minnesota. These allegatiоns, by themselves, do not satisfy the statutory standard to file a petition for a contested case hearing because the members do not own the natural resources that they allege will be affected by the NorthMet project.
On the other hand, at least one declaration filed by each petitioning organization contained specific allegations about potential impacts to property actually owned by the declarant. For example, one declarant, who uses a well to supply his home with water for
II.
Next, we consider the legal standard that governs the DNR‘s decision on a petition for a contested case hearing, including the standard that applies to judicial review of that agency‘s decision. The DNR “must grant” a contested case petition if the сommissioner finds that:
- there is a material issue of fact in dispute concerning the completed application before the commissioner;
- the commissioner has jurisdiction to make a determination on the disputed material issue of fact; and
- there is a reasonable basis underlying a disputed material issue of fact so that a contested case hearing would allow the introduction of information that would aid the commissioner in resolving the disputed facts in order to make a final decision on the completed application.
The court of appeals concluded that paragraph (3) of subdivision 3(a) requires the DNR to grant a contested case hearing “when there is probative, competent, and conflicting evidence on a material fact issue.” In re NorthMet, 940 N.W.2d at 231; see also id. (explaining that court‘s conclusion that the phrase “so that” in paragraph (3) reflects a “legislative judgment that a contested-case hearing will be helpful in cases where there are genuine, material disputes of fact” (emphasis added)). In reaching this conclusion, the court of appeals rejected the DNR‘s argument that the commissioner has the discretion to decide whether to hold a contested case hearing as “inconsistent with the language of the statute and the caselaw.” Id.; see also id. (“Nothing in the statutory language grants the DNR the unfettered discretion it seeks to employ.“). The court of appeals acknowledged that the DNR had already evaluated the issues presented in the petitions, including the construction method for the tailings basin dam, the use of bentonite, the closure method and other storage alternatives, PolyMet‘s financial assurances, and the ownership interests in PolyMet. Id. at 232-37. Nonetheless, the court concluded that nothing in subdivision 3(a) “limits contested case hearings to ‘new’ evidence,” and the issue is “not whether there is substantial evidence to support the DNR‘s decision,” but whether the petitions presented material fact issues, “such that a contested-case hearing was required before the DNR made its decision.” Id. at 232, 237.
We have not had occasion to address the requirements for a contested case petition outlined in subdivision 3(a). Thus, we begin with the plain language of the statute. Subdivision 3 governs the commissioner‘s decision to hold a contested case hearing. Paragraph (a) lays out three distinct criteria: there must be material facts in dispute; the commissioner must have jurisdiction to make a decision on that factual dispute; and, there must be a reasonable basis for those factual disputes such that new information introduced at
The plain language of subdivision 3(a) requires more than the mere existence of material factual disputes to merit a contested case hearing. Subdivision 3(a) contains two statutory requirements in addition to showing there are material facts in dispute. See
Moreover, by focusing solely on the existence of material factual disputes without regard for the Legislature‘s decision to give the commissioner authority to find that a hearing will be helpful, the court of appeals effectively collapsed paragraphs (1) and (3) into a single, determinative inquiry: does the petition present disputed material issues of fact. This interpretation cannot be correct because it renders the entirety of paragraph (3), which directs the Commissioner to find a “reasonable basis” underlying the identified factual disputes,
Finally, our conclusion that the Commissioner must find, based on the three criteria in subdivision 3(a), that a hearing will aid in making a final decision on the permit application, preserves a discretionary agency decision that is evaluated deferentiаlly by the judiciary under a substantial-evidence standard. See Minn. Ctr. Envt‘l Advoc. v. Minn. Pollution Control Agency, 644 N.W.2d 457, 463–64 (Minn. 2002) (applying a substantial-evidence standard to an agency‘s decision to deny a request to prepare an environmental impact statement, noting that a decision on environmental effects of the proposed project “is primarily factual” and requires the agency‘s “technical knowledge and expertise“); see also
Such deference is consistent with the authority the commissioner holds under subdivision 5. See Anderson v. Comm‘r of Tax‘n, 93 N.W.2d 523, 528 (Minn. 1958) (explaining that statutes are “construed as a whole so as to harmonize and give effect to all its parts“). Under this provision the commissioner identifies “the issues to be resolved and limit[s] the scope and conduct of the hearing.”
The court of appeals’ decision In re City of Owatonna‘s NPDES/SDS Proposed Permit Reissuance, 672 N.W.2d. 921 (Minn. App. 2004), on which respondents rely, does not support a different conclusion. There, the Minnesota Pollution Control Agency (MPCA) reissued permits to two municipalities whose wastewater treatment facilities discharged into streams flowing into Lake Byllesby, and also denied the MCEA‘s petition for a contested
But the concerns presented by the record in In re Owatonna are not present here. See id. at 927–28 (questioning the agency‘s modeling on phosphorus limits, noting the agency announced its intent to reissue the permits before modeling was done, and stating that the MCEA‘s concerns were rejected in a “conclusory manner“). The record in this case is replete with examples of the DNR soliciting input from the public and considering such input in a deliberative manner, as evidenced by its 177-page findings of fact and conclusions of law released alongside the permit to mine. We also question whether the court‘s discussion of the need for a contested case hearing in In re Owatonna was dicta because the court ultimately
Finally, we are unpersuaded by the respondents’ policy arguments for requiring the DNR to hold a contested case hearing whenever a petitioner presents probative evidence of material fact disputes. Although evidence that is not probative in nature is unlikely to aid the agency, the converse is not necessarily true: the presence of probative evidence may, but also may not, aid an agency in making a final decision on the completed permit application. Every petition for a contested case hearing must be considered in light of the evidence presented as well as the record developed to that point. We disagree with the MCEA‘s suggestion that a contested case hearing is necessary to “build a robust record” for appellate review whenever probative evidence of a disputed material issue of fact is presented. The record for appellate review depends on the agency decision at issue—here, the decision to deny the petitions for a contested case hearing. And at the time the DNR denies a petition for a contested case hearing, a reviewing court has all the evidence it needs to determine whether such a decision is supported by substantial evidence in the record. See, e.g., In re NSP Wilmarth, 459 N.W.2d at 923 (“Our review of the extensive record developed . . . prior to issuance of the permit leads
In sum, we hold that the DNR has the discretion to determine whether a hearing on the factual disputes in a petition for a contested case hearing will “aid” the agency in making a final decision on the completed application.
III.
We now turn to the merits of the DNR‘s decision to deny the petitions for a contested case hearing and whether that decision was based on substantial evidence in the record. See id. (applying a substantial-evidence standard to a decision to dеny a petition for a contested case hearing).
Under
We have said that substantial evidence is relevant evidence that “a reasonable mind might accept as adequate to support a conclusion,” and more than a “scintilla,” “some,” or “any” evidence. Cable Commc‘ns Bd., 356 N.W.2d at 668 (citing Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)). Although we have used different formulations, this standard reflects a singular legal principle: a substantial-evidence
With this standard in mind, we now turn to the specific material issues of fact addressed by the court of appeals13 to determine whether the DNR‘s decision to deny respondents’ petitions for a contested case hearing was supported by substantial evidence in the record.
The tailings basin dam
PоlyMet proposes to build a new tailings basin dam using an upstream construction method.14 Under Minnesota‘s nonferrous mining rules, a tailings basin must, among other requirements, be “structurally sound” and “minimize hydrologic impacts.”
In denying the petitions for a contested case hearing, the DNR determined that PolyMet‘s proposed tailings basin dam will be structurally sound and satisfies the applicable requirements, including safety factors. MCEA and WaterLegacy contend that these findings are erroneous because using an upstream construction method for the tailings basin dam poses an unreasonable risk of dam failure. They provided expert opinions critical of the upstream construction method and highlighted at least two recent incidents where upstream tailings dams catastrophically failed, resulting in widespread pollution and significant loss of life.15
After a careful review of the DNR‘s findings and the underlying record, we conclude that substantial evidence supports the DNR‘s decision to deny the contested case hearing petitions on the proposed upstream construction design. The DNR‘s findings explain that selecting a construction approach is not a one-size-fits-all determination and that the proper construction method should be based on the specific circumstances of the proposed dam. To that end, the DNR‘s findings noted that one advantage of the uрstream construction method is that it creates a smaller footprint for the tailings basin dam, thereby minimizing the impact on nearby wetlands. The findings also explained that PolyMet‘s proposed dam is to be constructed using the existing LTV Mining coarse tailings as building material, which, due to its limited availability, weighs against the downstream or centerline construction methods. Finally, the DNR‘s findings included multiple references to PolyMet‘s Flotation Tailings Management Plan, which provided the engineering and
Alternatives to wet closure of the tailings basin
Upon completion of mining activities, PolyMet proposes using wet closure to achieve reclamation as required by Minnesota‘s nonferrous mining rules. See
As a reclamation method, “wet closure” entails covering the tailings in the basin with water to create a 900-acre pond to prevent oxygen from reaching the stored tailings. In contrast, “dry closure” involves draining the basin and placing the tailings under a dry cover with bentonite amended over the entire surface of the tailings basin. Another tailings-management method is “dry stacking” or “filtered tailings,” which involves dewatering and stacking the dried tailings on an exposed liner. MCEA and WaterLegacy contend that dry closure or dry stacking are preferable to wet closure and that a contested
In its findings, the DNR concluded that using wet closure has advantages over dry closure or dry stacking, acknowledged the trade-offs associated with wet closure, and noted that there is no ideal solution that completely eliminates all environmental risks and impacts. The DNR‘s findings explained that, although dry stacking tailings conserves water and does not require a dam, dry tailings are prone to wind erosion and can release pollutants that become saturated in humid climates like Minnesota. As a result, the DNR concluded that dry closure or dry stacking would not present significant benefits over PolyMet‘s proposed wet closure method. The DNR fully evaluated the various methods of mine closure, including dry closure and dry stacking, and had access to a report by outside experts who presented the DNR with six alternatives for covering the tailings basin at closure. The report included a discussion of the benefits and risks associated with each closure option, and provided support for the conclusion that wet closure would best serve to protect nearby natural resources while also providing an acceptable factor of safеty.
After a careful review of these findings and the underlying record, we conclude that substantial evidence supports the DNR‘s decision to deny the petitions for a contested case hearing on the wet closure method. The record shows that the DNR was aware of, and considered, the trade-offs associated with the alternative closure options. Specifically, the DNR noted that “[w]hile dry closure has advantages, it also must be stressed that it has downsides, including the deleterious impacts to water quality based on the predictive water modeling and more impacts to wetlands, sensitive habitats, and wildlife.” The findings
Bentonite amendment to the tailings basin
For its proposed plan for the “reclamation or restoration” of the mining area,
First, MCEA and WaterLegacy challenge the DNR‘s finding that bentonite is an “available technology” under
Second, MCEA and WaterLegacy challenge the DNR‘s finding that the bentonite amendment is a “practical and workable” reclamation technique. See
The DNR supported its findings that bеntonite “has been tested” and “will be effective” with various citations to the FEIS. But the references to bentonite in the FEIS consist of descriptions and objectives of the bentonite amendment and conclusory statements about its effectiveness; there is no analysis of the scientific basis for the DNR‘s assumptions. Further, the single study on which nearly all the DNR‘s findings of effectiveness rely is not in the record.18
The contested case petitions, in contrast, presented a bevy of evidence, including statements made by the DNR‘s own experts and external consultants that contradicted the DNR‘s finding on effectiveness. For example, one of the DNR‘s external consultants opined that “[t]he methods and assumptions used to place the bentonite and to control the infiltration and tailings saturation are unsubstantiated, and wishful thinking. We do not
Nor can we conclude that the special conditions of the permit to mine, which require PolyMet to prove the effectiveness of the bentonite amendment before construction may begin on the tailings basin dam, are an effective substitute for the substantial evidence required to support the DNR‘s decision. The special сonditions only require PolyMet to demonstrate the effectiveness of the bentonite amendment in reducing oxygen infiltration into the tailings basin beaches and dam face before construction begins; notably, those conditions do not address how PolyMet will subaqueously apply bentonite to the pond bottom in a uniform manner or that the bentonite layer, even if uniformly applied, will be effective at permanently maintaining a positive water balance of the pond. Even PolyMet‘s proposed pilot/field testing plan (included as Attachment I of Appendix 11.5 of the permit to mine application) requires at least 2 years of deposited tailings to accumulate after mining operations have begun before experimental testing on the effectiveness of the bentonite pond bottom cover could occur.
The effectiveness of the bentonite amendment is critical in preventing oxygen and water from reaching the stored tailings and ensuring the NorthMet project‘s compliance with the DNR‘s reactive waste rule. See
Third, MCEA and WaterLegacy challenge the DNR‘s finding that the bentonite amendment will not negatively impact the stability of the tailings basin dam. They contend that the bentonite amendment will exacerbate erosion on the tailings basin dam face, making the dam “geomorphically unstable” and increasing the likelihood of a catastrophic dam failure. However, the DNR‘s findings about bentonite‘s effect on the stability of the tailings basin dam are supported by a technical analysis conducted by third-party experts that is summarized in the Geotechnical Data Package, included with the permit application. That study included an analysis with equations, modeling, and review of scientific literature, all of which found that the proposed bentonite-amended dam would meet state and federal safety factors. Thus, the DNR adequately explained its conclusion and based on the record, that conclusion is reasonable. Minn. Power & Light Co., 342 N.W.2d at 330.
Minnesota‘s nonferrous mining rules require permittees to submit evidence of financial assurances that a source of funds is available to the DNR if the permittee (1) fails to meet its closure and reclamation obligations or (2) is required to take corrective action by the commissioner for noncompliance with design and operation criteria. See
We agree with the DNR. Under the principle of party presentation, we generally do “not consider arguments raised for the first time on appeal” nor do we “decide issues raised solely by an amicus.” Hegseth v. Am. Fam. Mut. Ins. Grp., 877 N.W.2d 191, 196 n.4 (Minn. 2016). Amicus must accept the case before the court as it is and “ordinarily cannot inject new issues into a case that have not been presented by the parties.” Kline v. Berg Drywall, Inc., 685 N.W.2d 12, 23 n.9 (Minn. 2004). Although we have the authority to
MCEA may have raised issues related to PolyMet‘s financial assurances in its contested case petition. But MCEA, WaterLegacy, and the Band did not raise or address this specific issue in their briefs to the court of appeals.19 Indeed, the only party who argued for a contested case hearing on the issue of financial assurances before the court of appeals was the Carlson amici.20 Therefore, we conclude that because the question of whether a contested case hearing on financial assurances was raised and argued solely by an amicus before the court of appeals, that issue is not properly before us. See Hegseth, 877 N.W.2d at 196 n.4 (“[W]e generally will not decide issues raised solely by an amicus.“).
Minnesota‘s nonferrous mining rules require that “[w]hen two or more persons are or will be engaged in a mining operation, all persons shall join in the application, and the permit to mine shall be issued jointly.” See
We agree with the DNR and PolyMet. Neither of respondents’ timely filed petitions requested a contested case hearing on Glencore‘s ownership interest in PolyMet. Because PolyMet‘s permit to mine application was deemed completed and filed on January 29, 2018, any petition for a contested case hearing was required to be submitted by
Nor can we agree with the court of appeals that “the DNR had an independent obligation to determine whether a contested case hearing is required.” In re NorthMet, 940 N.W.2d at 236 n.28. The criteria in
IV.
Next, we must decide whether the DNR erred by issuing a permit to mine without a definite, fixed term. The DNR must include in the permit “the term determined necessary by the commissioner for the completion of the proposed mining operation, including reclamation or restoration.”
The permit to mine issued to PolyMet states that the NorthMet project, including mining and reclamation activities, would “be completed in approximately the year 2072.” Maintenance and “active water treatment” would continue at the site “until such time that continued compliance with the
We review de novo an agency decision that “turns on the meaning of words in a statute or regulation.” St. Otto‘s Home v. Minn. Dep‘t of Human Servs., 437 N.W.2d 35, 39–40 (Minn. 1989). “In considering such questions of law, reviewing courts are not bound by the decision of the agency and need not defer to agency expertise.” Id. Thus, we “may
The DNR argues that the plain meaning of the word “term” does not require a permit term to be for a fixed, calendar-based duration. Instead, the DNR asserts that an indefinite, performance-based term is appropriate because Minnesota‘s mining rules contemplate that reclamation and post-closure activities may last for an indefinite period. In the alternative, the DNR argues the word “term” in the statute is ambiguous and, therefore, its own interpretation is entitled to deference.
We disagree with the DNR on both counts. In interpreting a statute, we construe words “according to their common and approved usage.”
The DNR and supporting amici contend that a permit term may be fixed by an increment other than years. For example, amicus Iron Mining Association of Minnesota contends that a “life term” is a term that is fixed to an indefinite length (i.e., the life of the individual). But, in that phrase, the word “life” modifies and limits the meaning of the word “term.” We are not convinced that the phrase “determined necеssary . . . for the completion of the proposed mining operation, including reclamation” modifies and limits the meaning of “term” in
The DNR also argues that the definition of “term” is susceptible to multiple reasonable interpretations and, therefore, its interpretation is entitled to deference. As a threshold matter, we only defer to an agency‘s interpretation of an ambiguous statute if we determine the agency‘s interpretation is reasonable. In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502, 516 (Minn. 2007). Even if ambiguous, we only defer to the agency‘s expertise if the “language is so technical in nature that the agency‘s field of technical training, education, and experience is necessary to understand the [statute].” Id.
We do not find the DNR‘s indefinite, performance-based term to be a reasonable interpretation of the word “term” as used in the context of the statute. But even if we did, the word “term” is not the type of language that is so technical in nature that we need to
Finally, the DNR argues that, as a matter of public policy, setting a fixed permit term at the time of issuance would upend its ability to ensure reclamation because a permittee could simply complete its mining activities, wait for the permit to expire, and walk away from its reclamation responsibilities. This argument presumes that the DNR is powerless to enforce reclamation requirements beyond a permit‘s term. That presumption is simply incorrect. The Legislature gave the DNR broad enforcement powers to correct violations of mining statutes and rules by assessing civil penalties and seeking criminal penalties or injunctive relief. See
In sum, we conclude that the meaning of “term” in
Finally, we must determine whether the court of appeals erred by reversing the DNR‘s decision to issue the two dam-safety permits for the NorthMet project. The DNR‘s decision to waive a contested case hearing on the dam-safety permits went unchallenged. Cf.
The court of appeals did not separately evaluate whether the DNR‘s decision to issue the dam-safety permits was based on substantial evidence nor did it find any legal deficiencies with the dam-safety permits. Instead, the court reversed the DNR‘s decisiоn to issue to the dam-safety permits, relying on the DNR‘s explanation that there was “substantial overlap between the permit-to-mine and the dam-safety permits as each permit was issued to the same permittee for the same project and is based on the same underlying factual analysis.” In re NorthMet, 940 N.W.2d at 237 n.31. The DNR asserts that the court of appeals erred by reversing the dam-safety permits without making any finding that those permits were factually or legally deficient.
We agree with the DNR. The court of appeals’ decision to reverse the dam-safety permits, without considering the record on which the DNR relied for those permits, was an error of law. In reversing the dam-safety permits based on the decision that a contested case hearing on the permit to mine is necessary, the court of appeals acted prematurely—
Thus, we conclude that the court of appeals erred in reversing the dam-safety permits to allow for reconsideration after a contested case hearing on the permit to mine. If reconsideration of the dam-safety permits is necessary after the DNR holds a contested case hearing on the permit to mine, the DNR may, in its discretion, modify the dam-safety
CONCLUSION
For the foregoing reasons, we affirm in part, reverse in part, and remand to the Department of Natural Resources to conduct the contested case hearing required by this decision and, thereafter, to determine and fix the appropriate definite term for the permit to mine as necessary.
Affirmed in part, reversed in part, and remanded.
THISSEN, J., took no part in the consideration or decision of this case.