7-2000-12019-2

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF NATURAL RESOURCES

 

In the Matter of the Alteration of a Cross-Section of the St. Croix River by Lee and Genevieve Rossow Without a Permit from the Commissioner of Natural Resources

FINDINGS OF FACT, CONCLUSIONS OF LAW, RECOMMENDATION AND MEMORANDUM

 

This matter was heard on February 2 and 3, 1999, in Stillwater, Minnesota and on February 12, 1999, at the Office of Administrative Hearings in Minneapolis, Minnesota before Administrative Law Judge (ALJ) Richard C. Luis.  The record closed on April 8, 1999 with the receipt of the last posthearing brief.

Appearing on behalf of the Department of Natural Resources (DNR) was Assistant Attorney General Peter Tester, 900 NCL Tower, 445 Minnesota Street, Saint Paul, Minnesota 55101-2127.  Sherry E. Enzler and Barbara L. Forry, Doherty, Rumble & Butler, P.A., 2800 World Trade Center, 30 East Seventh Street, Saint Paul, Minnesota 55101, appeared on behalf of Lee and Genevieve Rossow (Appellants).

Notice is hereby given that, pursuant to Minn. Stat. § 14.61, a final decision of the Commissioner shall not be made until this Report has been made available to the parties in this proceeding for at least ten days, and an opportunity has been afforded to each party adversely affected to file exceptions and present argument to the Commissioner.  The parties desiring to file exceptions or present argument should contact Allen Garber, Commissioner of Natural Resources, 500 Lafayette Road, St. Paul, MN 55155 to ascertain the procedure for filing exceptions or presenting argument.

STATEMENT OF ISSUE

Whether Lee and Genevieve Rossow must comply with the Order of the Commissioner dated November 24, 1997, ordering them to completely remove a dock and boathouse "from the bed" of the St. Croix River and to pay an inspection fee of $100.00.[1]

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

 

FINDINGS OF FACT

1.                  Lee and Genevieve Rossow own the property located at 4416 River Road, Afton, Minnesota.  That property has significant riparian frontage on the Saint Croix River.  For many years, a dock (Smith dock) comprised of telephone poles supported by floating metal barrels was in place on the river when the property was owned by the Smith family from 1926 to 1972.[2]  The Smith dock was approximately 55 feet long by 13 feet wide.[3]   After the Bjurlin family purchased the property in 1972, a floating dock (hereinafter "old dock") was placed in approximately the same location as the Smith dock.  Stairs and a landing lead directly down from the bluff above the dockage area to the riverbank.[4]  In addition, a gently sloping roadway runs down to the dockage area, terminating in a boat ramp providing ample access to the river.[5]  The Rossows purchased the property in 1992.

2.                  In 1992, the Rossows refitted and floated the old dock to use during the boating season.  The old dock was approximately 50 feet long by 12 feet wide.[6]  The Rossows anchored the old dock with a concrete barrel that had been left on the bed of the Saint Croix River.[7]  Due to the materials used in the dock construction, the old dock was insufficient to meet the Rossow's needs.  At that time, the Rossows were seeking to purchase a sailboat and that craft would require substantially better dockage than the old dock could provide.

3.                  The Rossows designed and built a new dock to meet their needs.  The new dock consisted of a platform, 55 feet long by 12 feet wide.[8]  This platform is supported entirely by plastic barrels, which float.  The dock has a draft of between six and eight inches.  The platform has an undercarriage equipped with wheels.[9]  The platform was floated in the 1993 boating season, when high water came up around the boat ramp where the dock was stored.[10]  After the dock floated itself, Lee Rossow anchored it and waited for the water to recede before using the dock.[11]  The anchors used to prevent the dock from floating downriver are two concrete barrels that Rossow found on bed of the Saint Croix River when preparing the area for his dock.  These barrels were moved to positions on the outside corners of the dock and attached to the dock by lengths of chain.[12]

4.                  The Rossows have two boats, a 25-foot motorboat[13] and a three-masted barquentine, the Dolphin.  The Dolphin is 67 feet long and 17 feet wide, weighs 78,000 pounds, and draws 7 feet, 8 inches of water.[14]  Both boats are moored at the Rossow dock during the boating season and removed from the Saint Croix River for the winter.

5.                  In the fall of 1994, a DNR staffer observed that the Rossow dock had three additional platforms[15] added (two measuring 55 feet by 4 feet and one 32 feet by 3 feet) to the main platform, which formed two boat slips extending downriver.  In addition, a boathouse was constructed on the main platform.  The boathouse measures 12 feet long by 7 feet wide with walls approximately 7 feet high and a roof.  It has no floor, but is secured to the platform by bolts.  The staffer referred the matter to the Army Corps of Engineers (Corps) for investigation as to whether a Corps permit was required for placement of that structure.[16]  The staffer did not initiate any DNR compliance process.[17]

6.                  Each section of the Rossow dock is designed to allow its removal from the Saint Croix River for maintenance.  The main platform of the dock is equipped with wheels and can be removed from the water by use of a hand winch.  Each smaller segment is capable of removal from the water by use of a hand winch and a dolly that can be manually placed in the water to carry the weight of the segment once it is sufficiently far out of the water that it loses bouyancy.  As a matter of convenience, Lee Rossow typically attaches the main platform or the dolly to his pick-up truck to remove the dock from the water.  Some maintenance work is performed on at least one segment of the dock each year.

7.                  Each anchor found on the bed of the Saint Croix River and used by the Rossows to anchor the dock has been moved as needed, by use of a hand winch attached to the main platform or a rowboat.  An anchor is winched up until it clears the bed of the river and then lowered again when properly positioned.  Each anchor can be removed with the hand winch by continuing to use the winch until the anchor clears the water.  The Rossows have never physically removed the anchors from the Saint Croix River.

8.                  The Corps allowed the Rossows to apply for an after-the-fact permit for the dock and some supporting work done by the Rossows.[18]  A public notice of the Rossow's permit application was issued on April 11, 1995.  The DNR received a copy of the permit application on April 14, 1995.[19]  The description of the project in the notice reads:

The applicant proposes to retain a portable floating boat dock measuring 55 feet long by 12 feet wide as shown on the attached drawing.  It is connected to shore by a ramp that measures 40 feet long by four feet wide.  The dock is constructed of galvanized steel tubing, steel bar joists, a plywood surface; and stabilized with (2) two 55-gallon barrels filled with cement for placement.  On top of the dock is a 7 foot by 12 foot boat house.  There are also two boat slips attached to the dock with (2) gangways (D & E) measuring 55 feet long by four feet wide and (1) one additional (C) 32 feet long by 3 feet wide (see drawing).  The previous dock, installed by the last owner was removed in 1992.  In addition, winter storage would be parallel to the applicant's property in the St. Croix River and below the OHWM [ordinary high water mark].[20]

9.                  The DNR received from the Corps the public notice requesting comment as to whether a Corps permit should be granted.[21]  The DNR submitted comment to the Corps that the DNR objected to the boathouse.[22]  The DNR indicated that it could not conclude whether the structure was temporary or permanent.  The DNR also questioned whether the cement-filled forms can be removed by nonmechanized means.  The DNR recommended that the Corps grant a permit, provided that the boathouse was removed and no further additions be made to the dock.[23]  The DNR also requested that the main platform be reduced to 6 feet in width.

10.             The Corps issued a permit approving the dock, provided that the main platform was reduced to 6 feet in width and the boathouse was removed from the dock.[24]  Lee Rossow responded that a reducing the width of the main platform would constitute a safety hazard.  The DNR responded that it lacked the engineering expertise to determine if a larger dock was needed to provide a safe mooring for the Rossow's sailboat.[25]  The DNR continued to object to the boathouse as violative of the City of Afton's setback requirement.[26]

11.             On September 11, 1995, the Corps approved the after-the-fact permit application for the dock in its existing width.[27]  The Corps found that the dock did not pose a hazard to navigation but declined to address any issues regarding the boathouse as beyond the authority of the Corps.[28]  On May 29, 1996, the DNR demanded that the Rossows remove the boathouse from their dock, citing both Minn. Rule 6115.0210, subp. 3, and the Afton Lower St. Croix Ordinance.[29]  The Rossows refused to remove the boathouse.[30]

12.             On November 24, 1997, the Commissioner issued his Findings of Fact and Order in this matter.  The Order directed Lee Rossow to "Completely remove the dock and boathouse from the bed of the St. Croix and do not reinstall it …."[31]  Field inspection costs of $100.00 were assessed in the Order.  To support the conclusion that the dock must be removed, the Order relied upon findings that the Rossow dock constitutes a permanent dock and that no permit had been obtained from the DNR.[32]

13.             On December 23, 1997, the Rossows requested a hearing on the on the Commissioner’s Order, and submitted the $500 required by Minn. Stat. § 103G.251, subd. 2(c).[33]

14.             On December 10, 1998, Commissioner Sando issued the Notice and Order for Hearing in this matter, setting the hearing for February 2, 1999 in Stillwater City Hall.[34]  On December 23 and 30, 1998, the Notice was published in the Oakdale/Lake Elmo Review.[35]

Based upon the foregoing Findings, the Administrative Law Judge makes the following:

CONCLUSIONS

1.            The Administrative Law Judge and the Commissioner have jurisdiction in this matter pursuant to Minn. Stat. §§ 14.40, 103G.245, and 103G.251.

2.            Notice of the hearing was timely given, and all other relevant substantive and procedural requirements of law or rule have been fulfilled.  Therefore, the matter is properly before the Administrative Law Judge.

3.            The Rossow dock does not meet the definition of "permanent dock" as set out in Minn. Rule 6115.0170, subp. 26.

4.            The Rossow dock meets the definition of "seasonal dock" as that term is defined in Minn. Rule 6115.0170, subp. 36, since each segment of the dock is capable of being removed from public waters by nonmechanized means.

5.            The Rossow dock is a floating structure within the meaning of Minn. Rule 6115.0170, subp. 13.

6.            No permit is required for the Rossow dock under Minn. Rule 6115.0210, subp. 4.A., because the dock is an exempt "seasonal dock or floating structure" within the meaning of that rule.  The dock does not constitute a hazard to navigation.  All of the other standards for exemption from the permit requirement specified in subpart 4.A. of that rule are met by the Rossow dock.

7.            No permit is required for the concrete anchors used for the Rossow dock since those anchors are capable of removal by nonmechanized means within the meaning of Minn. Rule 6115.0170, subp. 13.

8.            The boathouse attached to the surface of the Rossow dock violates the prohibition in Minn. Rule 6115.0210, subp. 3, items C and D, against structures with walls and a roof.  The boathouse does not meet any of the standards for exemption from the prohibition against boathouses contained in Minn. Stat. § 103G.245, subp. 4(d).

9.            The Commissioner’s Order dated November 24, 1997, requiring the Rossows to remove the boathouse is a reasonable exercise of the Commissioner’s authority granted in Minn. Stat. § 103G.251, subd. 2.  It is in the public interest that the action be taken to remove the boathouse.  The order to remove the Rossow dock and its anchors is not supported by law or rule.  Ordering removal of the dock and anchors is not in the public interest.

10.            Any of the Findings of Fact more properly designated as Conclusions are hereby adopted as such.

            Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS RECOMMENDED that the Commissioner’s Order be REVERSED as to removal of the floating structure used as a dock, and AFFIRMED as to removal of the boathouse and payment of the inspection fee.

 

Dated this

7th

day of

May

,    1999.

 

                                                                             

                                                                             

/s/

RICHARD C. LUIS

Administrative Law Judge

NOTICE

 

            Pursuant to Minn. Stat. § 14.62, subd. 1, the Department is required to serve its final decision upon each party and the Administrative Law Judge by first-class mail.

 

Reported:       Transcript Prepared.

                        Gail M. Hinrichs and Jodi L. Dahl, Court Reporters

                        Janet Shaddix & Associates

 

 

MEMORANDUM

The issues presented by this matter extend to the DNR's jurisdiction and what restrictions exist on structures present in the waters of the State.  There are three different structures at issue: a platform, consisting of four segments[36]; a boathouse fastened to the deck of the platform; and three anchors consisting of concrete or concrete block, resting on the bed of the St. Croix River.  The DNR maintains that the boathouse is prohibited by rule and statute and must be removed.  Further, the DNR asserts that the platform is a permanent dock, and therefore a permit is required before the dock can be constructed.  The Rossows assert that the platform is not permanent and therefore no permit is required.  Regarding the boathouse, the Rossows maintain that the structure does not fall within the DNR's jurisdiction.

The Boathouse

Minn. Rule 6115.0210, subp. 3, adopted in 1983, contains a number of express prohibitions against structures to be placed in or on public waters.  The subpart states, in pertinent part:

Subp. 3. Placement of structures not permitted. Placement of structures shall not be permitted where the structure:

* * *

C. Is designed or intended to be used for human habitation or as a boathouse.

D. Is designed or intended to include walls, a roof, or sewage facilities.

While the structure is not exceptionally large, or designed to be used as a human habitation, the structure does have walls and a roof.  The structure is used to house jet skis, which are watercraft.  The structure is also used to store tools for work on the Dolphin.  These uses of the structure place it within the description of boathouse as that term is used in the rule.

The structure falls under both the prohibitions against boathouses and structures that include walls and a roof.  The reasons for prohibiting boathouses are reasonable, since allowing such structures would have a dramatically detrimental impact on the visual experience of persons using public waters.  Since such structures are very useful to riparian owners, there would be a large number of such structures to deal with, absent a total ban.

The Rossows argue that a subsequent statute indicates that there was no prohibition against boathouses.  Minn. Stat. § 103G.245, subp. 4 defines "boathouse" as:

Subd. 4. Structures in or adjacent to public waters. (a) The following definitions apply to this subdivision: (1) "boathouse" means a floating structure that is moored by spuds, cables, ropes, anchors, or chains that may be intended for habitation and has walls, a roof, and either an open well for boats or a floor from wall to wall and does not include houseboats; ….

Item (c) of the statute establishes a prohibition against boathouses subject to an exemption for structures that meet three tests.  The statute reads in pertinent part:

(c) Boathouses are prohibited on public waters of Minnesota, except as allowed by paragraph (d).

(d) The commissioner may issue a public waters work permit for boathouses only: (1) in areas of historic use for such structures, as determined by the commissioner; (2) when approved by the local government unit; and (3) where the boathouse is in existence on public waters prior to January 1, 1997.[37]

While that statutory prohibition was not enacted until 1997,[38] the statute did not affect the already adopted rule prohibiting such structures.  Since the boathouse does not meet two of the three elements (areas of historic use and approved by the local government unit), the statutory exemption is inapplicable to the structure on the Rossow dock.  The boathouse was built in contravention of the rule's prohibition against such structures.  Therefore it is appropriate to order its removal.[39]

The Dock

As described by the DNR Administrator, the first question to be answered is whether a project triggers the DNR's "criterion in the statute for a permit being required?"[40]  The statute referred to is Minn. Stat. § 103G.141, subd. 1, which prohibits "the alteration in the course, current, or cross section of public waters . . . of the state without previously obtaining a permit from the commissioner."  Minn. Stat. § 103G.245, subp. 1(2), requires a person to obtain a permit from the Commissioner prior to conducting work in public waters that would "change or diminish the course, current, or cross section of public waters, entirely or partially within the state, by any means, including filling, excavating, or placing of materials in or on the beds of public waters."

To implement the permit requirement, the DNR has adopted administrative rules.  Minn. Rule Chapter 6115 contains the standards applied to activity conducted in public waters.  The rules define various terms and those terms fit within a system of regulation to carry out the goals of balancing use of natural resources and preservation of those resources.  The purpose of imposing a permit requirement is to afford oversight over work done and to ensure that the work meets required standards.  The scope of these rules is set out in Minn. Rule 6115.0160, which states:

To achieve the purpose declared in part 6115.0150 these rules set forth minimum standards and criteria for the review, issuance, and denial of permits for proposed projects affecting protected waters. Permits shall be required for any activity affecting the course, current, or cross-section of protected waters unless specifically exempted within these rules.

Thus, the issue of whether the DNR's permit requirement is triggered has two parts.  First, whether the project is an "activity affecting the course, current, or cross-section of protected waters," and second, whether the activity is "specifically exempted within these rules."[41]

The Rossow dock is in the protected waters of the Saint Croix River.  The concrete anchors used to moor the dock are located on the bed of the Saint Croix River.  There is no evidence in the record that any harm is caused by any changes in "the course, current, or cross-section" of these waters due to the dock.  The DNR itself described any interference with the flow of the Saint Croix River as "imperceptible."[42]  Nevertheless, the mere placement of the structure in protected water is sufficient to trigger the DNR's jurisdiction over the structure.  The DNR rules themselves take into account the degree of impact that any activity can have on protected waters and the Rossow dock must be assessed under the regulatory system established by those rules.  The core issue of this proceeding, whether a permit is required to anchor the Rossow dock in the Saint Croix River, will be decided by the second part of the test, that is, whether the activity is specifically exempted from the permit requirements by the DNR's rules.

Permanent Dock

The DNR has maintained throughout this proceeding that the Rossow's project constitutes a permanent dock, and therefore requires a permit.  The term "permanent dock is defined as:

Permanent dock. "Permanent dock" means any dock other than seasonal docks and wharves as defined by this part.[43]

While this definition is not very descriptive, the DNR has adopted standards for permanent docks in its rules.  The rule concerning permanent docks states:

Subp. 2. Docks. Except as provided in part 6115.0210, subpart 3, item B, a permit shall be required for the construction or reconstruction of any dock and shall be granted provided:

 

A. Similarly situated docks in the vicinity have not experienced maintenance difficulty and the use of a seasonal dock is precluded because:

(1) long fetches would subject seasonal docks to damaging storm wave conditions;

(2) bottom conditions such as bedrock or an extremely gradual offshore slope would preclude the use of seasonal dock stringers; or

(3) the number of public and private users is so great the seasonal docking equipment would not provide adequate stability.

B. Piling docks shall be preferred in all cases unless the depth to bedrock is too shallow to allow the driving of piles, in which case rock crib docks may be authorized.

C. The docks shall extend waterward only to a navigable depth, generally considered to be no greater than four feet.

D. The dock shall not exceed six feet in width.[44]

As the rule states, not all permanent docks require permits.  The DNR has made a determination, reflected in its rules, that not all permanent alterations to the "course, current, or cross-section of protected waters," are serious enough to trigger the permit requirements of Minn. Rule Chapter 6115.  Most permits are required because of the use of pilings since "pilings are a permanent structure .… not capable of removal by nonmechanized means."[45]

Another notable feature of the rule standards for permanent docks is the requirement that "piling docks shall be preferred in all cases" except where piles cannot be driven, "in which case rock crib docks may be authorized."[46] The rule indicates that, to constitute a permanent dock, some portion of the structure must be installed into the bed of the public water to support the dock.[47]  Perhaps not surprisingly, a "permanent dock" must reflect some degree of permanency in its installation.

 

Seasonal Dock

In addition to some permanent docks, seasonal docks are expressly exempted from the DNR's permit requirement.[48]  The DNR argues that the Rossow dock is too large to constitute a seasonal dock, and therefore must be classified as a permanent dock.  Minn Rule 6115.0170, subp. 36, defines "seasonal dock" as:

Seasonal dock. "Seasonal dock" means a dock so designed and constructed that it may be removed from the lake or stream bed on a seasonal basis. All components such as supports, decking, and footings must be capable of removal by nonmechanized means.

The evidence in the record is that Lee Rossow can, through the use of a dolly[49] and winch, remove the entire structure from the water, over a period of several days without the use of mechanized equipment.  The largest section of the dock is equipped with wheels and an attachment to hitch a chain for removal.[50]

The DNR argues that no one would actually perform the labor required to remove the dock by that method.  It is true that Lee Rossow has not actually used only a hand winch and dolly to remove his dock from the water.  But the definition of "seasonal dock" in the rule does not require that the dock actually be removed by non-mechanized means, only that the dock be "capable" of being moved by that method.[51]

The fact that Lee Rossow has only used his pick-up truck to remove the dock from the water is irrelevant to the rule standard for seasonal docks.  The DNR has asserted that the nonmechanized standard is met by the "average family" being able to remove a dock.  There is nothing inconsistent with the "average family" using a hand winch to remove a dock.  Lee Rossow credibly testified that a hand winch attached to a tree is all that is required to remove even the largest segment from the water.  The principles of physics that govern moving objects with a winch support that testimony.  For the DNR to prevail in its argument that the Rossow dock is incapable of removal by nonmechanized means, some contrary evidence must be introduced into the record, which was not done.

These facts by themselves are sufficient to qualify the structure as a seasonal dock within the standards set out in the DNR's rules.  But the rule definition specifically references "supports" and "footings" as components of the seasonal dock.  The rule clearly envisages that a seasonal dock will be supported by some structure placed into the bed of the protected water.  There are no supports or footings used with the Rossow structure, and this raises the issue as to whether the structure is most appropriately characterized as any type of "dock" consistent with the DNR's rules.

Floating Structure

The Rossows supported their placement of a structure in the Saint Croix River by comparing their dock with other docks on the river near their property.  These docks are supported solely by their own bouyancy and anchored to the bottom of the river to prevent them from drifting downstream.[52]  None of these neighbors has ever been required to obtain a permit from the DNR for their docks.[53] At the conclusion of the boating season, these docks are detached from their anchors, towed to a marina, and moored in the marina until spring.[54]  At no time are these docks or any submerged anchors removed from the water.[55]

Floating structures are exempt from the permit requirement as stated in Minn. Rule 6115.0210, subp. 4, which reads as follows:

Subp. 4. No permit required. No permit shall be required for the following activities, unless prohibited under subpart 3:

 

A. To construct, reconstruct, or install a seasonal dock or floating structure provided:

(1) the structure will not constitute a hazard to navigation or public health, safety, and welfare, as determined by the commissioner;

(2) the structure will not include fuel-handling facilities;

(3) the structure will allow the free flow of water beneath it; and

(4) the structure is not used or intended to be used as a marina.[56]

The definition of floating structure is set out in Minn. Rule 6115.0170, subp. 13, which states:

Floating structure. "Floating structure" means any houseboat, mooring or navigational buoy, swimming or diving platform, water ski jump, watercraft, or other structure supported entirely by its own buoyancy which is not permanently anchored by means of pilings, foundations, gabion baskets, or other materials incapable of removal by nonmechanized means.

Docks are not excluded from the definition of "floating structure."  Thus, so long as the dock meets the other standards of the rule, a dock can be a floating structure exempt from the permit requirements for structures in public waters.

The definition of floating structure requires that the structure be supported entirely by its own bouyancy.  The Rossow's structure is entirely supported by its own bouyancy.  This fact is demonstrated by the draft on the Rossow dock, which ranges from six inches to eight inches.[57]  Further evidence of the dock's bouyancy is shown by the Rossow's practice of detaching the structure from its anchors and towing the structure to a winter mooring closer to shore and some yards upriver.[58]  Since the structure is detached from its anchors each winter, the structure meets the "not permanently anchored" requirement of the definition.  When the structure is anchored, the anchors consist of concrete weights (each formerly contained in a 55-gallon metal drum that has long since rusted away).  While effort is required to move the concrete by nonmechanized means, that effort is not in the same category as "pilings, foundations, [or] gabion baskets" as described in the definition and certainly not beyond the Rossow's capacity.[59]

When the Rossows first placed their structure in the Saint Croix River, they did not place any anchoring material into the river.  Rather, they found three concrete anchors already on the riverbed that had been used for moorings by prior landowners.[60]  The Rossows moved the anchors to the locations where the structure would be moored.[61]

The DNR maintains that the concrete anchors are in the bed of the Saint Croix River and not capable of being removed by nonmechanical means.  This assertion ignores the record in this matter as to how the concrete anchors are actually moved.  As Lee Rossow testified:

Well, when I move them, what I do is I put a winch across the face of the dock.  If we go back to Exhibit 2 here where those four poles are, I usually take a winch and I drop the cable over the edge of the dock.  And then I take a come-a-long.  That term was used yesterday, which is a handle with a little winch on it.  And I winch them off the bottom of the river.  And then I float them to wherever I want to go with them.  So they do move.  I mean, if we get a big wind or something like that, they will move.  So I have to put them back from time to time.[62]

As this testimony demonstrates, the concrete anchors are actually moved about on the bed of the Saint Croix River and the only device used to move these anchors is a hand-operated winch mounted on the floating structure itself.[63]  The DNR has indicated that hand-operated winches constitute nonmechanized means.[64]  When high winds arise, the dock drags its concrete anchors and the anchors must be repositioned.  The concrete anchors meet the standard of portability for anchoring devices contained in the definition of "floating structure."

Deference to Agency Interpretation

The DNR asserted that its imposition of a permit requirement on the Rossow structure was entitled to deference as an agency interpretation of its own rules.  The standards for deference to agency interpretations are as follows:

Where a statute on its face is ambiguous, it is our practice to "accord substantial consideration to the interpretation of the administrators working daily with the problem sought to be remedied."   Goodman v. State, Department of Public Safety, 282 N.W.2d 559, 560 (Minn.1979).   A court, however, is not bound by an agency's construction of statutory language where the statute is phrased in common, rather than exceedingly technical, terms, see Minnesota Microwave, Inc. v. Public Service Commission, 291 Minn. 241, 245-46, 190 N.W.2d 661, 665 (1971), or where interpretation of the statute is based on legal, rather than factual, considerations, No Power Line, Inc. v. Minnesota Environmental Quality Council, 262 N.W.2d 312, 320 (Minn.1977).   Administrative interpretations are not entitled to deference when they contravene plain statutory language, State v. Northwestern Bell Telephone Co., 304 N.W.2d 872, 876 (Minn.1981), or where there are compelling indications that the agency's interpretation is wrong, Buhs v. State, Department of Public Welfare, 306 N.W.2d 127, 129 (Minn.1981).[65]

In this instance, the rules being interpreted are not technical in nature and the matters governed are capable of common understanding.  The rules are not ambiguous, particularly when the definition of "floating structure" is considered.  Further, the DNR has made a number of statements regarding its rules and the application of those rules to docks akin to that used by the Rossows.

The DNR appended the Statement of Need and Reasonableness (1978 SONAR) for the 1978 adoption of rules governing work in public waters (codified as 6 MCAR § 1.5020, et seq.).  The rules adopted pursuant to the 1978 SONAR contains the following definition of "structure:"

"Structure" means any building, footing, foundation, slab, roof, boathouse, deck, wall, dam, or any other object permanently attached to the bed or bank of a protected water.  These rules shall not pertain to floating structures such as houseboats, mooring and navigational buoys, swimming and diving platforms, water ski jumps, and watercraft, provided such floating structures are not permanently anchored by means of pilings, foundations, gabion baskets, or other materials which are not capable of removal by non-mechanical means.[66]

The 1978 rules were revised in 1983 and a SONAR (1983 SONAR) was prepared to state the basis for the new rules.  The 1983 SONAR describes the exemption of floating structures from the permit requirement as "needed to provide general exemptions from permit for those activities which are routinely allowed and for which a permit requirement would be unreasonable and unnecessary, provided the conditions for exemption are met."[67]  The conditions mentioned are the conditions contained in Minn. Rule 6115.0210, subp. 4.A. (not a hazard to navigation or safety, no fuel handling facilities, not a marina, and allows the free flow of water under the structure).

The Rossows assert that the DNR has already expressly stated that structures such as the Rossow dock do not require a DNR permit.  The agency interpretation of "floating structure" was critical in the DNR's response to a permit request by another riparian landowner, Stanley Hubbard.  On April 25, 1988, the Acting Regional Hydrologist for the DNR informed Mr. Hubbard that:

We have reviewed the information we received on March 30, 1988 showing your dock locations and your June 16, 1987 request to extend and modify Permit #84-6184.

The most recent plans show that the addition to the dock will be a floating structure like the existing dock.  The DNR does not regulate temporary docks, therefore, no permit is required.  The original permit application was issued to reinstall a piling knocked out be (sic) ice.  Your secretary, Connie Eckert, stated on April 20, 1988 that you do not intend to install a piling for any purposes such as dock support or boat tying off.  Therefore, we hereby terminate permit #84-6184 and no extensions or amendments are necessary.

The U.S. Army Corps of Engineers (USCOE) has regulatory jurisdiction over all docks on the St. Croix River and it is our understanding that they are looking into this matter.  If you have any questions, please contact Area Hydrologist Molly Shodeen of my staff at 296-7523.[68]

During the hearing in this matter, the DNR argued that the Rossow's dock differed from the Hubbard dock.  The Hubbard dock uses "spud poles" as anchors, rather than submerged concrete.[69]  Spud poles are lengths of pipe placed through sleeves (attached to the dock) that reach down into the riverbed.  As proposed to the DNR, the Hubbard dock would have a section 25 feet long and 10 feet, 5 inches wide added to the existing dock portion that was 50 feet, 2 inches long and the same width.  In addition to that main portion, the Hubbard dock had a slip formed by two additional floating platforms, one of which was approximately 50 feet long.[70]  The point of reciting these dimensions is to clarify that the DNR policy of determining whether a dock is a permanent structure or not does not rely upon the dimensions of the dock or the size of the dock's component parts.  The only consideration has been whether the dock can be detached and floated away.

The spud poles used to anchor the Hubbard dock weigh approximately 1,000 pounds each and require a substantial winch to remove.[71]  By contrast, the concrete barrels used to anchor the Rossow dock weigh approximately 750 pounds and require a small winch to move.  There is no evidence in the record to suggest that any agency practice has existed to require permits for floating structures when large spud poles are used as anchors.  Since large winches are needed to remove the spud poles for such structures, the Rossow's use of small winches cannot trigger the permit requirement.

Credible, unrebutted testimony demonstrates that the Rossows have moved the concrete anchors with a hand winch.  Lee Rossow also testified credibly that to remove the anchors, the same method would be used.[72]  The only difference is that the anchors must be raised higher to get them onto the largest segment of the dock.[73]  There is no meaningful difference between the nonmechanized means of moving those concrete anchors and the nonmechanized means of removing spud poles.[74]  Whether spud poles or concrete anchors are used, the Rossow dock is not "permanently anchored" to the riverbed by any means, and therefore fits within the definition of floating structure and the exemption in the rules afforded such structures.  The unambiguous language of the rule, the SONARs, and the prior applications[75] of the DNR's rules demonstrate that no permit has been required for such structures.  There is no basis for granting deference to the DNR's determination that the Rossow structure constitutes a permanent dock subject to the permit requirements of the rule.

The DNR acknowledges that there are activities that are exempt from the permit requirements for work conducted in public waters.  Since the Rossow dock is capable of being removed from the Saint Croix River by nonmechanized means, the Rossow dock meets the DNR definition of a seasonal dock and is thereby exempt from the DNR permit requirement.  But narrowly focusing on the differences between seasonal and permanent docks has obscured the appropriate category for the Rossow dock.  The Rossow dock is a floating structure that meets all the standards for exemption from the permit requirement as set out in Minn. Rule 6115.0210, subp. 4.A.

The exemption from the permit requirement for floating structures has existed for at least twenty years.  The exemption is enjoyed by a large number of riparian owners along the Saint Croix River who do not obtain permits for large floating docks.  There is no legal basis for requiring the Rossows to obtain a DNR permit for the anchoring of their dock in the Saint Croix River along their riparian frontage.  The Administrative Law Judge recommends that the Commissioner’s Order requiring removal of the dock portion of the structure be REVERSED.

The "boathouse" built upon the Rossow dock violates the prohibitions against such structures in Minn. Rule 6115.0210, subp. 3, items C and D.  There is no basis in law to allow the construction of such a structure.  Therefore, the Administrative Law Judge recommends that the Commissioner’s Order requiring removal of the "boathouse" portion of the structure be AFFIRMED.

The parties did not argue the issue of the inspection fee.  The amount of the fee is de minimus and the inspection was required to initiate this proceeding to require that the boathouse be removed.  Therefore, the imposition of an inspection fee is appropriate and the Administrative Law Judge recommends that the Commissioner’s Order requiring payment of the fee be AFFIRMED.

R.C.L.