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OAH Docket No. 54-2000-17028-2
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STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES
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In the Matter of the Restoration Order Issued to Thomas M. Stanek |
FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION |
This matter was heard on May 1,
2006 in
Appearing on behalf of the
Department of Natural Resources (the Department) was Assistant Attorney General
Jill Schlick,
Appearing on behalf of Thomas M.
Stanek was William Peterson,
NOTICE
This report is a recommendation, not a final decision. The Commissioner of the Department of Natural
Resources (the Commissioner) will make the final decision after a review of the
record. The Commissioner may adopt, reject or modify these Findings of Fact,
Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties to the proceeding for at least ten days. An
opportunity must be afforded to each party adversely affected by this Report to file exceptions and
present argument to the Commissioner. Parties should contact Parties
should contact the office of Gene Merriam, Commissioner, MN Department of
Natural Resources,
If the Commissioner fails to issue a final decision within
90 days of the close of the record, this Report will constitute the final
agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the
filing of exceptions to the Report and the presentation of argument to the Commissioner,
or upon the expiration of the deadline for doing so. The Commissioner must
notify the parties and the Administrative Law Judge of the date on which the
record closes.
Under Minn. Stat. § 14.63, subd. 1, the agency is required
to serve its final decision upon each party and the Administrative Law Judge by
first class mail or as otherwise provided by law.
1. Is the walkway constructed by Thomas Stanek a bridge providing private access to an island in violation of Minnesota Rule 6115.0230, subpart 3(F)?
2. If so, is the bridge reasonable, practical and constructed in a manner that will adequately protect the public safety and promote the public welfare, entitling Thomas Stanek to an after-the-fact permit for its construction?
Based on the evidence in the hearing record, the Administrative Law Judge makes the following:
1.
Thomas M. Stanek (Stanek) owns lakeshore
property on
2. Since purchasing the property, Stanek built a cabin on it which his family uses two or three weekends a month. His father, who has limited walking ability, stays at the cabin more frequently. The Stanek family enjoys fishing and swimming off a pontoon boat Stanek owns. Stanek’s lakeside property also includes a dock.[1]
3.
Part of Stanek’s
4. Aerial photographs of the lake from 1939 to the present demonstrate that at times the disputed landform appears to be a peninsula, connected by land to the lakeshore while at other times the subject landform appears as an island, separated from the lakeshore by water.[4]
5. Limnologist Richard Osgood, expert witness for Stanek, testified that the disputed landform is “peninsula like” in most years. Osgood, based primarily upon his review of aerial photographs, described the disputed landform as a peninsula in 1939, 1940, 1947, 1958, 1966, 1975, 1989 and 2003. It was possibly an island in 1982 and 1991 and more clearly an island in 1995 and 2005, according to Osgood.[5] He qualified his opinion with regard to the 1966 photograph by noting that there appeared to be a “channel” between the disputed landform and the rest of the Stanek property.
6.
A 1940 DNR depth sounding map of
7. When viewing aerial photographs, it is sometimes difficult to distinguish between dry land and water in which aquatic vegetation is growing. This limits the usefulness of aerial photographs in determining whether there was water between Stanek’s lakeshore property and the disputed landform.[9]
8.
The ordinary high water level is the
jurisdictional boundary of public waters in
9.
The ordinary high water level of
10.
DNR Area Hydrologist Howard Christman defined an
island to be an area of land located at an elevation above the ordinary high
water level of water which is circumscribed by the ordinary high water level of
the public water.[15] The disputed landform is above the ordinary
high water level of
11. The disputed landform is an island.
12.
In the winter of 2004-2005, Stanek constructed a
120-foot long by 5-foot wide walkway connecting his lakeshore property on
13. Stanek stated that there is water below the walkway “sometimes” and that there are lily pads in the area. Where there is ground, it is “spongy and wet”.[22] The water in the area which is now below the walkway is not navigable for speedboats, but (if there was no walkway in place) it could be navigated by canoe or kayak.[23]
14.
In June 2005, DNR Area Hydrologist Howard
Christman (Christman) received a complaint regarding the construction of the
bridge on the Stanek property. Christman
determined that no permit had been obtained to build a bridge on
15. DNR waters survey crew also inspected the subject property on October 25, 2005. At that time the island was separated from the lakeshore by water which was nearly three feet deep under the center of the walkway.[25]
16. The walkway provides a crossing of public waters. Although it can be raised or lower, at its present height it obstructs navigation by canoe and kayak. The walkway is a bridge for purposes of Minn. Rule 6115.0230.
17.
Christman prepared a Restoration Order which was
issued to Stanek on July 13, 2005 (the Restoration Order). The Order stated that the bridge is
prohibited by Minnesota Rule 6115.0230, subpart 3(F) because it provides
private access to an island. The
Restoration Order directed Stanek to perform restoration by “removing all
components of the bridge in their entirety and replacing the bridge materials
in a suitable upland location outside of public waters.”[26] Finally, the Restoration Order further noted
that the property was the site of a previous public waters permit violation
conducted by Stanek in 2000 and that one condition of the previous order was
that Mr. Stanek refrain from any future violations relating to public waters of
the state of
18. Stanek requested review of the Restoration Order pursuant to Minnesota Rule 6115.0255, subpart 5(A) (2005), but the Department upheld the Restoration Order.[28]
19. At the hearing on May 1, 2006 Stanek served the Department with a petition for a variance pursuant to Minnesota Statutes section 14.055 (2004).[29]
Based on these Findings of Fact, the Administrative Law Judge makes the following:
1. Stanek properly appealed the Restoration Order. The Commissioner gave proper notice of the hearing and has fulfilled all relevant procedural requirements of law or rule. The Administrative Law Judge and the Commissioner of Natural Resources have jurisdiction in this matter.
2. Stanek has the burden of establishing by a preponderance of the evidence that the walkway he constructed is not a bridge providing private access to an island in violation of Minnesota Rule 6115.0230, subpart 3(F).
3. Stanek has the burden of establishing by a preponderance of the evidence that, if the walkway is a bridge providing private access to an island, that it is reasonable, practical and constructed in a manner that will adequately protect the public safety and promote the public welfare, entitling Stanek to an after-the-fact permit for its construction.
4.
Stanek’s property on
5. In the winter of 2004-2005, Stanek constructed a wooden walkway from his lakeshore property to the island. That walkway is a bridge which provides private access for Stanek’s family to an island.
6. The bridge crosses public water and obstructs navigation.
7. Stanek failed to obtain a permit prior to constructing the bridge. It was constructed in violation of Minnesota Rule 6115.0230 subpart 3. Stanek has failed to prove by a preponderance of the evidence that the walkway he constructed is not a bridge providing private access to an island.
8. Stanek’s family could access the island by boat, from their existing dock, as they did prior to the construction of the bridge.
9. Stanek has not met his burden of proving that the building of the bridge is the minimum encroachment upon the environment and that there is no feasible alternative to its building.[30]
10. Stanek has failed to prove by a preponderance of the evidence that his bridge is reasonable, practical and constructed in a manner that will adequately protect the public safety and promote the public welfare.
11. The foregoing Conclusions of Law are based on the reasons set out in the Memorandum which follows and which is incorporated into these conclusions by reference.
Based on these Conclusions, and the reasons set out in the attached Memorandum, the Administrative Law Judge makes the following:
The Administrative Law Judge recommends that the Restoration Order be upheld.
Dated: July 14, 2006
s/
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Administrative
Law Judge |
Reported: Taped,
2 tape(s)
No
transcript prepared
The two major factual disputes at the heart of this hearing are whether the walkway constructed by Stanek is, indeed, a bridge and, if so, whether it provides a crossing of public waters to an island. Neither the term “island” nor the term “bridge” are defined by the public waters regulations.
While
much of the testimony at the hearing examined photos and rainfall totals from
decades past, the question of whether the landform is an island is best answered
by examining the past ten years, when Stanek owned the property, rather than
depression era maps. The landform was
described in the deed as an island when Stanek purchased it. He has never walked in tennis shoes from his
cabin to the landform (which his expert describes as a peninsula). He describes the land between the two parts
of his property as “spongy” and sometimes covered by water—to the point it is
filled with lily pads and navigable by canoe.
The photographs since 1995 almost all show water surrounding the
island. The photographs taken by the Department
in its investigation in 2005 clearly show a significant amount of water under
the walkway Stanek built. Finally, the
lakebed below the walkway was undisputedly below the ordinary high water level
of
Having found that there is navigable water below the walkway, it is clear that the walkway itself is a “crossing” of public waters. The dictionary definition of a “bridge” is “a structure spanning and permitting passage over a river, chasm, road or the like.”[31] Minnesota Rule 6115.0230, subpart 3(F) (2004) states that ‘crossings are prohibited when the project . . . will provide private access to an island.” The rule governs “any bridge, culvert, intake, outfall, or other crossing of public waters.”[32] Christman testified that, upon inspection after receiving the complaint, he considered the structure to be a bridge rather than a dock. He based this opinion on the fact that it was used for access to an island, rather than to moor boats. Stanek admits that he constructed the walkway to do just that: provide passage to a part of his property which, prior to the construction, was accessible only by boat.
Given the fact that the walkway directly violates the prohibition on private crossings to islands, it is difficult for Stanek to meet his burden of proving that he is entitled to an after-the-fact permit. Moreover, Minnesota Rule 6115.0230, subpart 5 (E) only permits crossings of public waters when there is no feasible or practical alternative that does not require the placement of a structure in public waters. As the Department argues, Stanek does have an alternative: he can access the island by boat. This argument is made more difficult by the fact that Stanek’s father, who frequents the property, is disabled. It is less feasible to expect Stanek’s father (as opposed to Stanek) to have reasonable access to the island via boat. This is particularly true when he is alone at the property. However, given the clear imperative of the prohibition on private crossings and the fact that Stanek has the burden of proving that he meets the requirements for an after-the-fact permit, his appeal falls short.[33] Stanek’s arguments regarding access for his father are best considered by the Commissioner in his petitioner for a variance, which is outside the scope of this current proceeding.
L.E.J.
[1] Testimony of Thomas Stanek.
[2] Stanek testimony.
[3] Post hearing brief of Thomas Stanek at p. 5.
[4] Ex. 11A, 50-60.
[5] Testimony of Richard Osgood and Exhibits 50-60, 64A, and64B
[6] Ex. 65 and Ex. 71.
[7] Ex.
52 (1958) and Ex. 53 (1966).
[8] Ex.
57, Ex. 11, and Ex. 7,8 and 9.
[9] Testimony of Howard Christman.
[10]
[11] Stipulation of the parties and Ex. 22.
[12] Christman testimony.
[13] Testimony of Kurt Woodrich; Ex. 22.
[14] Woodrich testimony.
[15] Christman testimony.
[16] Testimony of Woodrich and Ex. 22.
[17] Stanek testimony; Ex. 3.
[18] Stanek testimony.
[19] Ex. 3.
[20] Stanek testimony.
[21] Stanek, Osgood testimony.
[22] Stanek testimony.
[23] Testimony of Stanek, Osgood.
[24] Christman testimony and Exs. 7-9.
[25] Ex. 22, p. 6
[26] Ex. 2.
[27] Ex. 2.
[28] Ex. 3-4.
[29] The ALJ granted the Department’s motion in limine and excluded the evidence regarding the variance petition with the exception that the ALJ permitted Stanek to testify that he had submitted a petition for a variance and admitted a copy of the petition into evidence.
[30]
[31]
Random
[32]
[33]
In his post hearing brief, Stanek also argues that the enactment and
enforcement of the prohibition on private access crossings contained in Minn.
Rule 6115.0230 subp. 3(F) constitutes an unconstitutional violation of the
separation of powers. Stanek post-hearing
brief at pages 1-4. That argument, which
was not addressed in the hearing itself, must be brought in another forum. In
the Matter of