In the Matter of the NorthMet Project Permit to Mine Application Dated December 2017 (A18-1952, A18-1958, A18-1959), ...
Monte A. Mills, Davida S. Williams, Greene Espel PLLP, Minneapolis, Minnesota; and Jay C. Johnson, Kathryn A. Kusske Floyd, Venable LLP, Washington, D.C., for appellants Poly Met Mining, Inc. and Poly Met Mining Corp.
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
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.
Michael D. Madigаn, 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, Conclusions, and Order of Commissioner1 for the permit to mine also denied respondents’ petitions for a contested case hearing on various factual issues related to PolyMet‘s completed permit to mine application. Respondents Minnesota Center for Environmental Advocacy (MCEA),2 WaterLegacy, and Fond du Lac Band of Lake Superior Chippewa (the Band) appealed from the decisions to grant the permit to mine and the dam-safety permits, and the decision to deny their contested case petitions.3 After consolidating
dam-safety permits in order to allow for reconsideration of those permits after the contested case hearing on the permit to mine. Id.
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
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 open-pit mine site is a previously undisturbed area; the plant site is a former taconite-processing facility owned by LTV Steel Mining Company (LTV Mining). Over the estimated 20-year life of the mine, approximately 533 million tons of ore and waste rock would be removed from the open-pit mines and processed at a rate of up to 32,000 tons per day.
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 cease, the project сalls 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
monitoring and maintenance of water quality until conditions are deemed environmentally acceptable. See
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.
PolyMet‘s Permit Applications. The review process that culminated in the DNR‘s issuance of PolyMet‘s permit to mine and dam-safety permits began in 2004, with a joint federal-state environmental review. See In re Applications for Supplemental Envtl. Impact Statement for Proposed NorthMet Project, No. A18-1312, 2019 WL 2262780, at *1 (Minn. App. May 28, 2019) (summarizing the environmental review process), rev. denied (Minn. Aug. 20, 2019). PolyMet has received the major state and federal permits needed for the NorthMet project, including pollutant discharge and air-emissions permits.9 In addition, the Final Environmental Impact Statement (FEIS), which was deemed adequate in March 2016 under the
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.
commissioner nonetheless concluded that petitioners had not met their burden of demonstrating that a contested case hearing was necessary on the factual issues presented in their petitions.
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 decision 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 deсisions 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
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
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 drinking, washing, and bathing, began testing his well water for bacteria and chemicals to establish a baseline for monitoring potential future groundwater pollution. Another declarant explained that the real estate market in northeastern Minnesota, where her family owns property, has been “destabilized” in the wake of PolyMet‘s proposed mining operations. And yet another property owner described intermittent streams that cross his property, which he contends, in part, enhance the value of his property, and which he fears will be affected by the proposed mine. Each of these declarants allege that property they own will be influenced or impacted in some way by the NorthMet project. Therefore, we agree with the court of appeals: respondents have standing to file a petition for a contested case hearing under
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
The DNR asserts that the court of appeals erred as a matter of law in requiring a contested case hearing based solely on a showing of factual disputes. The DNR contends that
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 a hearing would aid the commissioner in making a final decision on the completed application.
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, superfluous. See
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 evaluatеd deferentially 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 аnd 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 case hearing. Id. at 923, 925. The court of appeals reversed, deciding first that the agency erred in reissuing the permits because it could not “conclude that the MPCA‘s decision not to apply the phosphorus rule was supported by substantial evidence.” Id. at 928; see also id. at 927–28 (relying on the questions raised “concerning whether the MPCA engaged in reasoned decision-making” and whether factors other than the agency‘s rule were relied on). But, because the court was “not prepared . . . to re-write the permits” to address the merits of MCEA‘s challenges to the permits, the court considered whether the agency erred by denying MCEA‘s petition for a contested case hearing. Id. at 928. Noting that the MCEA had identified experts who challenged the agency‘s methodology and interpretations, the court concluded that when a “relator has raised a genuine question concerning whether the MPCA adequately addressed the disputed fact issues . . . a presentation of these issues to a neutral administrative law judge in a contested case hearing ‘will aid the agency in resolving the disputed facts and making a final decision on the matter.’ ” Id. at 930 (quoting
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 concluded that the MPCA‘s permitting decision lacked substantial evidence. See id. at 928 (concluding “that the MPCA‘s decision not to apply the phosphorus rule” was not “supported by substantial evidence“). Had the court of appeals concluded that the MPCA did not err in denying MCEA‘s petition for a contested case hearing, the outcome would not have changed—the MPCA‘s decision to reissue the permits would have been overturned based on a lack of substantial evidence. See State v. Atwood, 925 N.W.2d 626, 631 (Minn. 2019) (noting that the “paradigmatic example of nonessential dicta” is an alternative conclusion that would not change the outcome of a case).
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
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 thе record. See id. (applying a substantial-evidence standard to a decision to deny 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 analysis requires us to “determine whether the agency has adequately explained how it derived its conclusion and whether that conclusion is reasonable on the basis of the record.” Minn. Power & Light Co. v. Minn. Pub. Utils. Comm‘n, 342 N.W.2d 324, 330 (Minn. 1983). This principle is rooted in the deference we show to matters that are properly within an agency‘s particular expertise. See Reserve Mining Co., 256 N.W.2d at 824 (explaining that “deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience“). “Our guiding principle is that if the ruling by the agency decision-maker is supported by substantial evidence, it must be affirmed.” In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 279 (Minn. 2001).
With this standard in mind, we now turn to the specific material issues of fact addressed
The tailings basin dam
PolyMet 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
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 case hearing is necessary to consider whether PolyMet‘s wet closure plan will adequately protect natural resources or if there is a feasible or prudent alternative closure method.
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
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 and the record demonstrate that the DNR‘s explanation was adequately explained and its conclusion was reasonable.16 Minn. Power & Light Co., 342 N.W.2d at 330.
Bentonite amendment to the tailings basin
For its proposed plan for the “reclamation or restoration” of the mining area,
MCEA and WaterLegacy assert that a contested case hearing is required to address three of the DNR‘s findings related to the bentonite amendment.
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 suppоrted its findings that bentonite “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 believe it will function as intended, because of the unproved application methods.” In addition, respondents submitted new evidence with their petitions that the proposed sodium bentonite could react with multivalent cation species in the pond water, resulting in a cation exchange that could reduce the effectiveness of the bentonite by up to seventy percent. The DNR wholly failed to address respondents’ concerns about cation
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 speciаl conditions 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.
Financial Assurances
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 “consider any issue if the interests of justice so require,” Hegseth, 877 N.W.2d at 196 n.4, and we have occasionally considered issues raised solely by an amicus, we only do so if the issue is one that we could raise sua sponte. See, e.g., League of Women Voters Minn. v. Ritchie, 819 N.W.2d 636, 645 n.7 (Minn. 2012). The circumstances of this case, an appeal on certiorari review of an agency decision that is subject to a deferential standard of review, is not one of those rare instances where we need to or should reach an issue raised only by an amicus party.
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.“).
Glencore
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
February 28, 2018. See
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
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 substitute [our] own judgment” for that of the agency when the language at issue “is clear and capable of understanding.” Id. at 40.
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 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 rely on the DNR‘s expertise to discern its meaning. In Annandale, for example, we determined that the phrase “cause or contribute to the violation of water quality standards” merited deference to the interpretation supplied by the MPCA. Id. at 517; see also Minn. Ctr. Envt‘l Advoc., 644 N.W.2d at 464 (holding that the phrase “significant environmental effects” required application of MPCA‘s technical knowledge and expertise). The same reasoning does not apply to the word “term,” which has a consistent, plain meaning across multiple references.
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
V.
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-sаfety permits. Instead, the court reversed the DNR‘s decision 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— it presumed that a contested case hearing on factual issues related to the permit to mine would inevitably affect the validity of the dam-safety permits. But the two types of permits are governed by different statutory standards. Compare
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 permits as allowed by the mining statutes and regulations. See
CONCLUSION
For the foregoing reasons, we affirm in part, reverse in part, and remand to the
Affirmed in part, reversed in part, and remanded.
THISSEN, J., took no part in the consideration or decision of this case.