White Bear Lake Restoration Association, ex rel. State of Minnesota, Appellant, and White Bear Lake Homeowners’ Association, Inc., ex rel. State of Minnesota, Appellant, vs. Minnesota Department of Natural Resources, et al., Respondents, and Town of White Bear, Respondent, City of White Bear Lake, Respondent.
A18-0750
STATE OF MINNESOTA IN SUPREME COURT
July 15, 2020
946 N.W.2d 373
Lillehaug, J. Concurring in part, dissenting in part, Anderson, J., Gildea, C.J.
Byron E. Starns, Daniel L. Scott, Micah J. Revell, Stinson LLP, Minneapolis, Minnesota, for appellant White Bear Lake Homeowners’ Association, Inc.
Keith Ellison, Attorney General, Oliver J. Larson, Colin P. O’Donovan, Assistant Attorneys General, Saint Paul, Minnesota, for respondent Minnesota Department of Natural Resources, et al.
Patrick J. Kelly, Chad D. Lemmons, Kelly & Lemmons, P.A., Saint Paul, Minnesota, for respondent Town of White Bear.
Monte A. Mills, Virginia R. McCalmont, Greene Espel PLLP, Minneapolis, Minnesota, for respondent City of White Bear Lake.
Soren M. Mattick, Campbell Knutson, Professional Association, Eagan, Minnesota, for amicus curiae City of North St. Paul.
Korine L. Land, David L. Sienko, LeVander, Gillen & Miller, P.A., South Saint Paul, Minnesota, for amicus curiae City of Stillwater.
Elise L. Larson, Minnesota Center for Environmental Advocacy, Saint Paul, Minnesota; and
Mehmet K. Konar-Steenberg and Colette Routel, Mitchell Hamline School of Law, Saint Paul, Minnesota.
William P. Hefner, Jeremy Greenhouse, The Environmental Law Group, Ltd., Mendota Heights, Minnesota; and
Lloyd W. Grooms, Saint Paul, Minnesota, for amicus curiae Minnesota Chamber of Commerce.
S Y L L A B U S
- Appellant associations stated a claim under the Minnesota Environmental Rights Act,
Minn. Stat. § 116B.03, subd. 1 (2018) , when they alleged that the Minnesota Department of Natural Resources polluted and impaired a lake and an aquifer bymismanaging the groundwater-appropriations permitting process, and violating other Minnesota statutes for the protection of water. - Appellant homeowners association did not state a claim under the common-law public trust doctrine when it alleged, in essence, that the Minnesota Department of Natural Resources failed as trustee to maintain the waters of a lake for public use by authorizing the pumping of aquifer water for other public uses in the state.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
LILLEHAUG, Justice.
After White Bear Lake’s water levels reached historic lows in the early 2010’s, two associations sued the Minnesota Department of Natural Resources (the DNR) for pollution and impairment of the lake, primarily arising out of alleged mismanagement of the groundwater-appropriation permitting process. Both associations brought claims under
White Bear Lake is a closed-basin lake in Ramsey and Washington counties. It has no natural surface-water inlets or outlets and has a small watershed for a lake of its size. Its water levels therefore depend on precipitation, evaporation, and groundwater.
White Bear Lake’s water levels have been recorded since 1924. The water levels have experienced significant fluctuations in that time, spanning a range of more than 7 feet. White Bear Lake’s lowest water level was 918.84 feet, recorded on January 10, 2013. Other notable low-water periods include 1924–39 and 1988–93, which correlate to the Dust Bowl and a statewide drought.
The effect of groundwater on White Bear Lake’s water level is at issue in this case. Appellants White Bear Lake Restoration Association (Restoration) and White Bear Lake Homeowners’ Association (Homeowners) allege that White Bear Lake has been polluted and impaired by groundwater pumping from the Prairie du Chien and Jordan aquifers (collectively, “the aquifer”). White Bear Lake and the aquifer are hydrologically connected, meaning that aquifer groundwater levels have an effect on the lake’s water levels. The aquifer is the most commonly used aquifer for drinking water in the Twin Cities metropolitan area. Annual withdrawals from the aquifer have more than doubled since 1980, from 1,873 million gallons in 1980 to 4,557 million gallons in 2007.
Restoration, a registered nonprofit corporation dedicated to the restoration and preservation of White Bear Lake, commenced this lawsuit against respondents the DNR and its then-commissioner, alleging MERA violations under
Homeowners intervened in the district court as a plaintiff. Homeowners is a registered nonprofit formed to protect the water quality of White Bear Lake and help prevent the spread of invasive species. All of Homeowners’ members hold riparian rights to the lake. Homeowners’ complaint echoed Restoration’s MERA claim and added another: a claim that the DNR had violated the common-law public trust doctrine. The
Respondents City of White Bear Lake and Town of White Bear intervened in the district court as defendants. Both are municipalities bordering White Bear Lake that hold DNR-issued permits, allowing them to pump groundwater from the aquifer.
In May 2013, the DNR filed motions to dismiss the associations’ complaints, in part for failure to state claims upon which relief could be granted. The district court denied the motions. All parties filed motions for summary judgment in early 2014. The district court denied the motions of Restoration, the DNR, and the Town of White Bear in full. The district court granted Homeowners’ motion in part, concluding that the public trust doctrine affords a common-law cause of action to protect public use of the water and lakebed of White Bear Lake, but denied summary judgment as to whether the DNR had breached its fiduciary obligation as trustee.
A bench trial began on March 6, 2017,2 and took place over the course of three and a half weeks. Based on the evidence at trial, the district court found that the DNR had violated both
The DNR appealed on nine grounds, arguing that the district court erred by:
(1) allowing the action to proceed under
Minn. Stat. § 116B.03 instead ofMinn. Stat. § 116B.10 , (2) misapplying the public-trust doctrine, (3) denying summary judgment on the ground that respondents failed to exhaust administrative remedies, (4) refusing to require joinder of affected permit holders not parties to the case, (5) interpreting MERA to require DNR to reopen and amend permits, (6) failing to give deference to DNR’s permitting decisions, (7) violating separation-of-powers principles, (8) requiring DNR to amend existing permits without holding administrative hearings, and (9) making clearly erroneous factual findings.
A divided court of appeals decided the first two issues, and did not reach the other seven. Id. at 358–59. The court concluded that neither
ANALYSIS
I.
Whether the associations have stated claims upon which relief may be granted under
The associations brought their MERA claims under
A.
“Pollution, impairment, or destruction,” as used in
Each prong covers “any conduct,” a phrase not separately defined by MERA. But we have interpreted that phrase before, and have interpreted it broadly. In County of Freeborn by Tuveson v. Bryson, we said: “We believe the legislature intended the phrase ‘any conduct’ to have broad, all-inclusive application without enumerating every appropriate situation in which the act could be invoked.” 210 N.W.2d 290, 296 (Minn. 1973). In Tuveson, Freeborn County initiated condemnation proceedings to acquire certain land for the construction of a highway. The county argued that
The DNR and the dissent argue that “conduct” does not include administrative action. We disagree. In Tuveson, we did not “engraft” any such exception upon MERA, even for eminent domain. Nor would engrafting such an exception make definitional sense. “Conduct” may be defined as “activities,” 210 N.W.2d 296, “behavior,” The American Heritage Dictionary of the English Language 278 (New college ed. 1982), or “the action or manner of managing an activity or organization,” The New Oxford American Dictionary 358 (2001). The DNR’s issuance of appropriation permits, management of the permitting process, and carrying out of its statutory water resource responsibilities fit any and all of these definitions. Plainly, the DNR engaged in “conduct.”
Indeed, the Legislature expressly contemplated that the DNR would engage in, and be held accountable for, ongoing conduct in managing groundwater appropriation. The Legislature required the DNR to develop a “water resources conservation program,” which includes “conservation, allocation, and development of waters of the state for the best
The DNR’s and the dissent’s position that the phrase “any conduct” somehow excludes administrative conduct not only does not make definitional sense, it is flatly refuted by MERA’s sister statute, the Minnesota Environmental Policy Act (MEPA). MERA was enacted in 1971, launching a wave of environmental legislation in the following years. MEPA was enacted just two years later, in 1973, “to complement MERA.” People for Envtl. Enlightenment & Responsibility (PEER), Inc. v. Minn. Envtl. Quality Council, 266 N.W.2d 858, 865 (Minn. 1978). MERA and MEPA are two of four pieces of environmental legislation which together form “a coherent legislative policy.” Id. (construing the four environmental statutes together); see also Floodwood-Fine Lakes Citizens Grp. v. Minn. Envtl. Quality Council, 287 N.W.2d 390, 397 (Minn. 1979) (same).
MEPA expressly incorporates the very MERA definition at issue here: “pollution, impairment or destruction,” including the phrase “any conduct.”
No state action significantly affecting the quality of the environment shall be allowed, nor shall any permit for natural resources management and development be granted, where such action or permit has caused or is likely to cause pollution, impairment, or destruction of the air, water, land or other natural resources located within the state . . . . Economic considerations alone shall not justify such conduct.
Here, the associations sufficiently alleged DNR “conduct”—specifically, that two types of conduct polluted and impaired White Bear Lake and the aquifer in violation of
B.
Although we did not grant review of the DNR’s first issue for conditional review—whether the district court’s order failed to give “deference” to the agency in violation of separation-of-powers principles—the DNR and the dissent rely on those principles. We do not understand the DNR and the dissent to contend that MERA, as we interpret it, is unconstitutional.5 Rather, we understand that they use these principles as aids to interpret the phrase “any conduct” to exclude administrative conduct. Their reliance is misplaced.
What we review today is not an administrative decision; we review judicial decisions of the district court and the court of appeals. In
More than 40 years ago, we put to rest the DNR’s and the dissent’s concern about MERA’s relationship to the principles of administrative deference and the separation of powers. In Minnesota Public Interest Research Group v. White Bear Rod & Gun Club, 257 N.W.2d 762 (Minn. 1977), we addressed civil actions brought under
[MERA] does not prescribe elaborate standards to guide trial courts, but allows a case-by-case determination by use of a balancing test, analogous to the one traditionally employed by courts of equity, where the utility of a defendant’s conduct which interferes with and invades natural resources is weighed against the gravity of harm resulting from such an interference or invasion.
Therefore, the responsibilities that MERA assigns to the courts are fully consistent with our judicial role. The principle of agency deference does not apply to actions under
C.
Because the DNR’s alleged conduct is actionable under
The no-action clause of
The DNR’s argument requires that we define the phrase “pursuant to” in the no-action clause, as in “conduct taken by a person pursuant to” any permit. Although we have not defined the phrase in a MERA case, we have done so recently in another context in Getz v. Peace, 934 N.W.2d 347 (Minn. 2019). In that case, looking to legal dictionaries, we defined “pursuant to” to mean “under,” “in accordance with,” “in compliance with,” or “in carrying out” the subject. Id. at 355. Applying these common-sense definitions to the no-action clause, to act pursuant to a permit means that the person was acting under, or in compliance with, the permit.
This reading finds support in other sections of MERA.
In short, nothing in the plain language of the no-action clause shields an agency’s conduct in issuing, reviewing, or amending permits—to the extent that the conduct violates standards or materially adversely affects the environment—from liability under
But, argues the DNR, if one reads MERA as a whole, the associations’ only remedy is under
We do not dismiss out of hand the possibility that the associations could have sought some relief under
Further, nothing within
In the end,
Accordingly, we conclude that the associations stated claims under
II.
Next, we must determine whether Homeowners stated a claim under the common-law public trust doctrine. Homeowners alleged that the DNR violated its
Whether the common law recognizes a cause of action is a question of law which we review de novo. Nelson v. Productive Alts., Inc., 715 N.W.2d 452, 454 (Minn. 2006). “In determining whether Minnesota recognizes a particular cause of action this court must look to the common law and any statutes that might expand or restrict the common law. This court has the power to recognize and abolish common law doctrines . . . .” Larson v. Wasemiller, 738 N.W.2d 300, 303 (Minn. 2007).
The common-law public trust doctrine was first formally recognized by the United States Supreme Court in Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 435 (1892). The doctrine entrusts the states with navigable waters and “the consequent right to use or dispose of any portion thereof, when that can be done without substantial impairment of the interest of the public in the waters.” Id. “[T]he State takes title to the navigable waters and their beds in trust for the public,” and “[u]nder accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders.” PPL Mont., LLC v. Montana, 565 U.S. 576, 604 (2012). As Illinois Central made clear, “[t]he doctrine is founded upon the necessity of preserving to the public the use of navigable waters from private interruption and encroachment.” 146 U.S. at 436.
We discussed Illinois Central and the public trust doctrine in State v. Longyear Holding Co., 29 N.W.2d 657 (Minn. 1947). We stated that, in exercising its authority, the state had a “right as trustee to dispose of beneficial interests in such lands, provided that in so doing it (a) acted for the benefit of all the citizens, and (b) did not violate the primary purposes of its trust, namely, to maintain such waters for navigation and other public uses.” Id. at 670.
Applying our and the Supreme Court‘s precedent to the facts here, we are not inclined to extend the public trust doctrine to this situation. Homeowners does not allege that the DNR has violated its duty as trustee to protect public use from “private interruption and encroachment,” which is the core rationale of the doctrine. See Ill. Cent., 146 U.S. at 436. Nor does it allege that water has been diverted outside the state. Instead, Homeowners alleges that the DNR issued groundwater permits, primarily to municipalities, and thereby violated its duty as trustee. We have found no precedent—and, at oral argument, counsel for Homeowners could cite none—extending the public trust doctrine in this way.
Twenty-five chapters within Minnesota Statutes are dedicated to water protection, use, and appropriation.
CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the decision of the court of appeals. Because respondents raised additional issues on appeal that the court of appeals did not reach, we remand to the court of appeals for decision on the remaining issues on appeal.
Affirmed in part, reversed in part, and remanded.
ANDERSON, Justice (concurring in part and dissenting in part).
I agree with the court‘s holding that the public trust doctrine does not apply here. I do not agree with the court‘s holding that the term “any conduct” in
A.
The court interprets
Any person . . . may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of . . . natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction . . . .
Although the court announces that executive branch decisions are “conduct” under the statute, it does so without any meaningful analysis of the statutory term “conduct.” Instead, the court relies on passing dicta in County of Freeborn by Tuveson v. Bryson, 210 N.W.2d 290 (Minn. 1973). Tuveson has little application here.1
In Tuveson, a county planned to condemn a strip of private land for the purpose of relocating a county highway. Id. at 293. That strip of land included part of a wildlife marsh. The landowners brought suit in district court to obtain “injunctive relief to restrain the county from acquiring the [property of the landowners] and from constructing a highway on it, claiming such conduct was prohibited by the Minnesota Environmental Rights Act.” Id. The issue before us in Tuveson was whether the state‘s sovereign power of eminent domain, appropriately delegated to the county, could be limited by MERA, which was silent about its impact on a county‘s eminent domain powers. On this narrow question we held that the Legislature “intended in appropriate cases that the power of eminent domain possessed by governmental subdivisions—including the power of a
The issue of whether MERA interacts with the eminent domain powers of a political subdivision has no bearing here. As we noted in Tuveson, the power of eminent domain is an essential attribute of sovereignty; and a delegation of that power by the Legislature to subordinate jurisdictions can be modified or withdrawn by the state. Id. at 295. The delegation of this power to a county, which is a legislatively created subdivision of the state, does not implicate the separation of powers doctrine in the way it does in the instant case. And while we granted review on only two issues, and other issues remain to be decided after our opinion in this matter is issued, including certain constitutional arguments raised by the DNR, the issue I raise below regarding separation of powers should also guide us in our statutory interpretation work.
Rather than relying on irrelevant dicta, this court should apply our canons of interpretation, beginning with a plain meaning analysis. See Staab v. Diocese of St. Cloud, 853 N.W.2d 713, 716-17 (Minn. 2014) (“If the legislature‘s intent is clear from the unambiguous language of the statute, we apply the statute according to its plain meaning.“). Because the word “conduct” is not defined by the statute, we look first to the plain and ordinary meaning of the word. Cent. Hous. Assocs., LP v. Olson, 929 N.W.2d 398, 403 (Minn. 2019). To determine the plain meaning of a word, we begin with dictionary definitions. Id.
The definitions used by the court of appeals are well chosen and useful here. “Conduct,” as a noun, means “the manner in which a person behaves, especially in a
[t]he conduct alleged to have impaired the lake‘s water levels is groundwater pumping. The DNR issued, maintained, and reviewed groundwater-appropriation permits necessary for municipalities to extract groundwater. The DNR has only one tool for regulating water appropriations—permits. The complained-of conduct that impairs the lake is the withdrawal of groundwater in conformity with or under the authority of the DNR‘s permits.
The court relies heavily on the Minnesota Environmental Policy Act (MEPA) to support its interpretation. But MEPA establishes that “conduct” is not the boundless catchall that the court holds it to be. The statute expressly distinguishes conduct from other types of activities. In defining “governmental action,” it separates regulating, approving, and permitting a project from conducting a project. See
Of course, the DNR could engage in conduct that causes pollution as defined by
B.
Beyond the court‘s strained and radical interpretation of MERA, the court‘s holding raises troubling constitutional issues that are avoided by affirming the court of appeals as set out in Part A of this dissent. The root constitutional problem created by the court‘s decision is that it raises serious separation of powers concerns because it arguably encroaches on the powers of the executive branch. As drafted—and as interpreted by the
Appellants seek injunctive relief from the district court. They ask the district court to require the DNR to “restore water levels in White Bear Lake to a protected elevation of 923.5 feet or another level to be determined by the court,” along with other injunctive relief dictating the DNR‘s management of White Bear Lake and the Prairie du Chien-Jordan aquifer. This type of relief reeks of impermissible encroachment by the judicial branch into executive branch authority. At issue is not judicial deference to an administrative agency decision, but rather whether the doctrine of separation of powers between co-equal branches is violated. An interpretation of MERA that allows a district court to serve as a quasi-executive agency, determining the appropriate water elevations to which the DNRId. at 577 (quoting Allen v. Wright, 468 U.S. 737, 760 (1984) (internal citation omitted). The Supreme Court has “always rejected” this view of its role. Id. Although not before us, I am doubtful that the provisions of MERA granting “any person” the ability to bring a citizen suit against the DNR to challenge administrative decisions unrelated to individual interests can withstand constitutional muster.
If by this the legislature intended to provide that the court should put itself in the place of the commission, try the matter de novo, and determine what are reasonable rates, without regard to the findings of the commission, such intent cannot be carried out, as a statute which so provided would be unconstitutional. The fixing of rates is a legislative or administrative act, not a judicial one. . . . And the performance of such duties cannot, under our constitution, be imposed on the judiciary.
Id. (emphasis added) (citations omitted). This is still as true today as it was over 100 years ago.
As discussed above, the court‘s statutory analysis does not address this issue. In Steenerson we construed the statute to avoid an unconstitutional construction, and this would be the better route for the court to take today. We have consistently said that we should interpret statutes to avoid constitutional problems. Limmer v. Ritchie, 819 N.W.2d 622, 628 (Minn. 2012) (“We need not resolve that thorny separation of powers problem here, however, because we are to construe statutes to avoid a constitutional confrontation if it is possible to do so.” (citations omitted) (internal quotation marks omitted)); see Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 17 (Minn. 2002); State ex rel. Pearson v. Prob. Court of Ramsey Cty., 287 N.W. 297, 302 (Minn. 1939); see also
The court‘s opinion, at a minimum, introduces constitutional uncertainty that is wholly unnecessary. Instead, as provided earlier in this opinion, I would interpret the statute to avoid these constitutional issues.
Thus, I would hold that, standing alone, administrative decisions do not harm the environment. Only conduct—i.e. action—that pollutes, impairs, or destroys the environment are conduct covered under the statute. The DNR‘s decision to issue permits, which is an executive branch administrative agency decision, simply is not conduct under MERA. This interpretation accords with the plain meaning of the statutory language and avoids creating constitutional issues. It is for these reasons that I would affirm the court of appeals and thus respectfully dissent.
GILDEA, Chief Justice (concurring in part and dissenting in part).
I join in the concurrence and dissent of Justice Anderson.
Notes
In referring to MEPA, the court plucks the sentence, “Economic considerations alone shall not justify such conduct” out of context to support its interpretation. The court claims that the cited sentence “makes clear that ‘conduct’ includes state administrative action, including the granting of permits.” This reasoning fails for two reasons. First, the “such conduct” to which the sentence refers is “pollution, impairment, or destruction“—i.e., “[e]conomic considerations alone shall not justify [pollution, impairment, or destruction],” not administrative decision-making, permit granting, or similar activity.
Second, and more to the court‘s argument, MEPA undermines the claim that MERA reaches administrative decisions (or actions under the court‘s framing). The very sentence that the court‘s interpretation hinges on is undermined by the language in the preceding sentence, which clearly, and expressly, distinguishes actions from permits. See
The only conclusion from MEPA is that granting a permit and the conduct allowed by the permit are distinct. Issuing a permit merely allows the permit holder to engage in certain conduct. Although it allows the conduct, the permit is not conduct itself.
Although not at issue before us (yet), I also have serious doubts regarding the standing of appellants. Appellants allege statutory standing under MERA, but it is unclear whether their complaint alleges a concrete and particularized injury.
Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement described in our cases, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch—one of the essential elements that identifies those “Cases” and “Controversies” that are the business of the courts rather than of the political branches.
Id. at 576. The Lujan Court held that this type of statutory or “procedural injury” does not satisfy the Article III case and controversy requirement and thus violates the separation of powers. “Individual rights,” within the meaning of the ESA citizen-suit statute, “do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public,” even if part of the public is a “subclass of citizens.” Id. at 578, 577.
To permit Congress to convert the undifferentiated public interest in executive officers’ compliance with the law into an “individual right” vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive‘s most important constitutional duty, to “take Care that the Laws be faithfully executed,” Art. II, § 3. It would enable the courts, with the permission of Congress, “to assume a position of authority over the governmental acts of another and co-equal department,” . . . and to become “virtually continuing monitors of the wisdom and soundness of Executive action.”
To the contrary, this type of focused review of quasi-judicial administrative decisions is required to preserve separation of powers. See Breimhorst v. Beckman, 35 N.W.2d 719, 734 (Minn. 1949) (holding that quasi-judicial executive branch decisions must not be final and must be reviewable via certiorari in order to not infringe on judicial branch functions).
The district court‘s review here is not of a quasi-judicial administrative decision, e.g., reviewing an agency permitting decision, but rather it is judicial review of quintessential executive branch functions. I would afford the executive branch the same comity as it relates to separation of powers that this court has demanded of the executive branch. See Holmberg v. Holmberg, 588 N.W.2d 720, 725-26 (Minn. 1999) (holding that a child support statute allowing an administrative law judge to modify district court child support orders violates the separation of powers doctrine and thus is unconstitutional because the Legislature may not “delegate[] to an executive agency the district court‘s inherent equitable power” even though there were public policy reasons for the statute).