DNR-86-002-BC
2-2000-45-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF NATURAL RESOURCES
In the Matter of the Application FINDINGS OF_FACT,
of Barbara A. Orr to Place Structures CONCLUSIONS AND
in Mille Lacs Lake. RECOMMENDATION
The above-entitled matter came on for hearing before Bruce D. Campbell,
Administrative Law Judge, on September 25 and 26, 1985, at the Aitkin County
Courthouse in Aitkin, Minnesota.
Appearances: Donald A. Kannas, Special Assistant Attorney General, Second
Floor, Space Center Building, 444 Lafayette Road, St. Paul, Minnesota 55101,
appeared on behalf of the Department of Natural Resources (Department or DNR);
and William G. Peterson, William Peterson & Associates, Ltd., Attorneys at
Law, 8400 Lyndale Avenue South, Suite 7, Minneapolis, Minnesota 55420,
appeared on behalf of Barbara A. Orr (Mrs. Orr or Applicant).
The record closed on January 31, 1986, after the receipt by the
Administrative Law Judge of the final post hearing reply brief.
Notice is hereby given that, pursuant to Minn. Stat. 14.61 the final
decision of the Commissioner of Natural Resources shall not be made until this
Report has been made available to the parties to the 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.
Exceptions to this Report, if any, shall be filed with the Commissioner of
Natural Resources, Joseph N. Alexander, Third Floor, Centennial Office
Building, 658 Cedar Street, St. Paul, Minnesota 55155.
STATEMENT OF ISSUE
The issue to be determined in this proceeding is whether Barbara A, Orr
should be granted a permit to place structures in Lake Mille Lacs adjacent to
her commercial campground.
Based upon all of the proceedings herein, the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. On October 24, 1984, Barbara A. Orr submitted a permit application to
the Department requesting a permit to construct a "waterbreak" in Lake Mille
Lacs adjacent to her commercially operated campground. Pet. Ex. 3.
2. The structures, as more particularly described in Pet. Ex. 2, consist
of two natural rock breakwaters placed 120 feet apart and extending both
perpendicular and parallel to the shoreline. The shoreline in this area runs
generally north and south. The southerly structure would extend from the
shoreline perpendicularly a distance of 90 feet and then at an angle of 45'
to the north for a distance of approximately 100 feet. The northerly
structure would extend perpendicular to the shoreline approximately 90 feet
with a lateral arm to the south approximately 25 feet long. The configuration
of the structures leaves an entrance between the separate structures
approximately 20 feet wide. The height of the structures would be
approximately two feet above the ordinary high water mark. Within the
protected area created by the structures, the Applicant would construct a dock
with slips for 20 boats. In conjunction with the Application, permission to
perform maintenance dredging of the area within the two structures was also
requested.
3. On November 27, 1984, the project was approved by the Aitkin County
Soil and Water Conservation District. Pet. Ex. 6; Pet. Ex. 8.
4. An identical application was made to the United States Army Corps of
Engineers.
5. On December 18, 1984, the Corps of Engineers approved the project.
Pet. Ex. 17. It was the opinion of the Corps that the project would not
adversely affect the game fish population of the lake.
6. On December 21, 1984, the Minnesota Pollution Control Agency approved
the project, provided that permits were issued in accordance with the
requirements of the Department. Pet. Ex. 19.
7. On March 14, 1985, the Commissioner notified the Applicant that the
permit would be denied and that formal findings would be transmitted within 30
days. Pet. Ex. 25.
8. On April 10, 1985, the Commissioner, by Order, deried the Application
both as to the primary request to place the structures heretofore described in
Lake Mille Lacs and as to an alternative request to constract an inland
harbor. Pet. Ex. 30.
9. The Applicant filed a timely Notice of Appeal DNR Ex 5
10. On August 23, 1985, the Commissioner issued a Notice and Order for
Hearing. DNR Ex. 1.
!I. The Notice of Hearing was published in the EQB Monitor of September
9, 1985. The Notice was published in the Aitkin Independent Age on August 28,
1985 and September 4, 1985. DNR Ex. 4.
12. The Permit Application, the Notice of Hearing and the Affidavits of
Publication are proper in form, content, execution and filing.
13. Mrs. Barbara A. Orr operates Orr's campground and trailer park in the
Malmo Bay Area of Lake Mille Lacs, a distance south of the Town of Malmo in
Aitkin County, Minnesota. Malmo Bay is located in the northeastern portion of
the lake. The campground and trailer park is licensed for 120 sites, 2/3 of
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which are occupied by essentially permanent residents and 1/3 of which are
occupied by temporary guests. The campground and trailer park has a dining
facility which also caters to transient fishermen.
14. The campground occupies approximately 13 acres and has 344 feet of
shoreline, characterized by the presence of fine sugar-like sand. Pet. Ex. 68.
15. Mrs. Orr currently maintains permanent docks 150 feet long. In
addition, approximately 80 mooring posts are located up to 50 feet past the
existing dock. The posts are approximately 40 feet apart, When docking space
is unavailable boats are attached to the posts.
16. The campground has a concrete boat ramp from which boats are launched
and retrieved with the aid of a four-wheel drive vehicle or a backhoe. The
boat ramp is frequently clogged with sand as a result of the winds and bottom
movement hereinafter described. Mrs. Orr has received a DNR maintenance
permit to remove sand from her boat ramp, and does so periodically.
17. The shallowness of the water, the presence of fine sand and the
frequent rough water make the safe launching and retrieval of boats at the
Orr's facility difficult.
18. Lake Mille Lacs is an oval, shallow fresh water lake which has a
surface area of approximately 200 square miles and a drainage area of
approximately 400 square miles. The prevailing winds during the spring and
summer, the open water fishing season, are from the south and southwest.
19. The shallowness of the northeastern portion of the lake and the
prevailing wind patterns make the Malmo Bay area particularly susceptible to
extremely rough water conditions.
20. During the fishing season of 1985, at least 12 strong storms caused
extreme difficulty in retrieving boats at the Orr Campgrounds. In the high
winds and choppy water, there is a likelihood of damage to boats and docks
and of personal injury. Frequently, boats must be removed at night in high
winds under extremely unsafe conditions. When a severe storm approaches, all
boats at the Orr Campground must be removed from the water.
21. In the last several years, a number of persons have been injured
attempting to retrieve boats in high winds.
22. There is no evidence in the record of the average number of boats
launched and retrieved from the Orr Campground on any particular day. At its
busiest time, opening weekend, the campground may handle as many as 200 boats.
23. During opening day weekend of 1985, tornado warnings and storms made
it necessary to remove as many as 200 boats from the water under extremely
adverse conditions.
24. The proposed structures will be beneficial by creating a sheltered
area for the launching and retrieval of watercraft. It will eliminate the
threat to physical safety posed by the current open condition of the Orr
dock, The calmer water will enable a larger number of boats to be retrieved
more quickly and will permit the Applicant to moor her large launch at the
campground, instead of at a neighboring resort with an inland harbor.
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25. The construction of the structures would prevent drift material from
filling the boat launching area and thus make it possible to launch boats
without driving a four-wheel drive vehicle into the water. TR. 281.
26. Lake Mille Lacs, due to its oval shape without substantial bays or
sheltered areas, has not experienced a significant rough fish problem. The
shearing action of moving sand along the bottom and the prevailing wind
patterns prevent the growth of vegetation which is conducive to the spawning
and feeding of carp and bullhead. The lake is the state's most important lake
for the production of walleyes.
27. The quieter water partially enclosed by the structures would provide
some habitat which may be favored by carp and bullheads.
28. The quieter, shallow waters within the structures will produce an
undetermined amount of aquatic vegetation which may be used by certain species
of rough fish to reproduce and feed.
29. There is no evidence in the record regarding the additional quantity
of rough fish that would be introduced into Lake Mille Lacs as a consequence
of the Orr project.
30. The construction proposed in the Application would not have a direct
effect on the walleye population of Lake Mille Lacs or significantly affect
the presence of rough fish in the lake.
31. The Department is concerned about creating an unfavorable precedent
if construction is allowed. TR. 539. For the last 15 years, the Department
has imposed an unofficial moratorium on the granting of permits like this on
Lake Mille Lacs. The Department reasons that all future construction permits
will have to be granted if the unofficial moratorium is not followed and the
cumulative effect will be detrimental to the walleye population of the lake.
32. Beginning in the early 1970's, the Department of Natural Resources
adopted an informal moratorium on the construction of inland harbors and
offshore structures in the lake. Prior to the moratorium, 32 inland harbors
and 8 breakwaters and inlake structures had been constructed in Lake Mille
Lacs. A number of the protected areas are in Malmo Bay which is subject to
the wind and water conditions heretofore described.
33. Gill net information and creel census data from the early 1960's
until the present date indicate that the walleye population in Lake Mille Lacs
is as high as it has ever been. There is no significant rough fish
incursion. TR. 553-554.
34. Although indicating an intention to do so, the Department has never
undertaken a study of the effect of inland harbors and inlake structures on
the walleye population of the lake.
35. The unofficial policy of the DNR of not allowing additional inland
harbors or structures in Lake Mille Lacs was not promulgated as a rule under
the Administrative Procedures Act.
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36. The project will result in some erosion of the sand shoreline
adjacent to the northern most structure for a distance of up to several
hundred feet.
37. The erosion could be controlled through the use of riprap.
38. Carp exhibit some rooting tendency which may have a minor adverse
effect on water quality. TR. 491.
39. The beach and shoreline in front of the Orr Campground provides no
particular habitat for walleyes or other game fish and is not located in a
posted fish spawning area.
40. The posts currently placed several hundred feet into the lake provide
no protection for boats in the event of storms. Moreover, placing and
removing boats at the posts is dangerous in rough water.
41. Boatlifts could not be used to provide protection to the numerous
boats launched and landed at the Orr facility. Each lift can accommodate only
one boat.
42. There is not sufficient area on the Orr property for the creation of
an inland harbor of sufficient size to service the commercial traffic at the
campground. TR. 75; TR. 369-370. Moreover, an inland harbor with a mouth
along the Orr shoreline would be subject to frequent sand accumulations,
requiring continual dredging and maintenance. TR. 634-635.
43. On August 31, 1984, a representative of the Army Corps of Engineers
and the DNR met with Mrs. Orr at her campground. At that meeting, both the
DNR representative and the representative of the Army Corps of Engineers
dissuaded Mrs. Orr from proposing an inland harbor based on the practicality
of the proposal and the history of the denial of such requests. TR. 163; TR.
75-76; TR. 634-635. Mrs. Orr proceeded with the current proposal primarily on
the basis of the representations of the governmental officials.
44. The Department of Natural Resources has indicated on a number of
occasions that an inland harbor at the Orr property would be objectionable.
TR. 497; TR. 541-542; TR. 618, 620. In her permit application, Mrs. Orr made
the alternative proposal of an inland harbor. Pet. Ex. 3. The Order of the
Commissioner denied both the proposed breakwater and the alternative of an
inland harbor.
45. As a consequence of Findings 42-44, supra, an inland harbor at the
Orr Campground is not a feasible alternative.
46. A winching system would not be acceptable since it would not offer
protection in the event of storm conditions and would not appreciably reduce
physical injury or property damage experienced in retrieving boats under
adverse conditions
47. The erosion to the sand shoreline north of the northernmost structure
could be ameliorated by depositing the sand periodically taken from the
protected area into any portion of the shoreline subject to erosion or scour.
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48. Creating some additional habitat suitable for the reproduction and
feeding of rough fish could be mitigated by the periodic removal of any
accumulations of aquatic vegetation and by including the structures the
maximum openings as are consonant with their structural stability.
49. The proposed construction allows for the mooring of twenty boats, or
approximately .17 protected moorings for each authorized campsite or mobile
home site at the Orr Campground.
50. Due to the shallowness of the water along the Orr property, there is
no water traffic near the shoreline. Moreover, the proposed structures will
extend some 80 to 100 feet less out into the water than the existing docks and
mooring posts, reducing the waterward occupation by 112.
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. The Administrative Law Judge and the Minnesota Department of Natural
Resources have jurisdiction over the Permit Application herein.
2. All relevant substantive and procedural requirements of law and rule
have been fulfilled.
3. At the time Barbara A. Orr made an application to place structures in
Lake Mille Lacs, it constituted protected public waters of the state as those
terms are used in Minn. Stat. Ch. 105.
4. The structures herein sought to be placed in Lake Mille Lacs will not
obstruct navigation or create a water safety hazard.
5. A grant of the permit herein will not be detrimental to significant
fish and wildlife habitat or protected vegetation.
6. The proposed project represents the minimal impact solution to a
specific need with respect to all other reasonable alternatives.
7. The project will involve a minimum of encroacnment, change, or damage
to the envi ronment , i ncluding but not limited to f ish and wild I ife habitat,
navigation, water supply, and storm water retention.
8. The proposed structures are consistent with applicable governmental
management standards and ordinances for the waters involved.
9. Modifications to the plan proposed and the imposition of additional
requirements on the Applicant, as discussed in the Findings and Recommendation
herein, would mitigate any adverse effects on the physical or biological
character of the waters.
10. An alternative dock or inland facility at the Orr Campground is
infeasible.
11. The structures are adequate in relation to the appropriate
engineering factors listed in the applicable Minnesota Rules.
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12. The application and plan for construction is adequate in relation to
the geologic and hydrologic factors contained in Minnesota Rules.
13. The size and shape of the structures are designed in a compact
fashion so as to blend in with the surrounding shoreline while minimizing the
surface area occupied in relation to the number of watercraft to be served.
14. The structures do not exceed the minimum thickness necessary to
withstand the anticipated forces consistent with maintenance requirements and
are constructed of natural materials.
15. The structures minimize encroachment waterward of the ordinary high
water mark and provide a number of protected mooring spaces consistert with
Minnesota Rules.
16. The Applicant herein has established by a preponderance of the
evidence that the application is reasonable, practical and will adequately
protect the public safety and promote the public welfare if the conditions for
mitigation of the possible adverse environmental consequences discussed in the
Findings herein are made a condition of the permit.
17, The Applicant has met any burden of proof under the Minnesota
Enviromental Protection Act and the Minnesota Environmental Rights Act
relating to a lack of feasible and prudent alternatives.
18. The proposed construction does not violate any Departmental rule
relating to excavation in protected waters,
19. Any of the foregoing Findings of Fact which are more properly termed
Conclusions and any of the Conclusions herein contained more properly termed
Findings of Fact are hereby expressly adopted as such.
Based on the foregoing Conclusions, the Administrative Law Judge makes the
following:
RECOMMENDATION
It is the recommendation of the Administrative Law Judge that the
Commissioner grant the Application herein to construct the structures in Lake
Mille Lacs in accordance with the submitted design with the following
conditions:
1, In addition to the water connections to the lake through the
navigation channel and through the natural rock structure, the Commissioner
should designate such reasonable culverts or other interruptions in the wall
surface as will accomplish adequate water flows and allow maximum particulate
movement, consonant with the stability and purpose of the structures.
2. The Applicant must periodically remove from the area of sheltered
waters any aquatic vegetation that occurs under such permits or conditions as
may be determined by the Commissioner.
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3. The Applicant must install and maintain on the structures such
navigational lights and guiding devices as are required by the United States
Coast Guard.
4. The Applicant must place the sand material taken from within the
structures and adjacent areas to such reasonable locations upland or adjacent
to the structure or such areas in the bed of Lake Mille Lacs as may sustain
any scouring or erosion as a result of the structures as may be directed by
the Commissioner.
Dated this 3rd day of March, 1986.
BRUCE D. CAMPBELL
Administrative Law Judge
NOTICE
Pursuant to Minn. Stat. 14.62, subd. 1, the agency is required to serve
its final decision upon each party and the Administrative Law Judge by first
class mail.
Reported: Court Reported by
Mary Ann Hintz
Route 4, Box 142
Isanti, MN 55040
MEMORANDUM
Barbara Orr's application for a permit to place structures in Lake Mille
Lacs is made pursuant to Minn. Stat. 105.42 (1984), which requires
permission from the the Commissioner of Natural Resources prior to certain
described construction in public waters of the state. Lake Mille Lacs is,
certainly, within the definition of public waters of the state. Minn. Stat.
105.45 (1984), sets the standards for the grant of the permit herein. The
statute, in relevant part, provides:
If the commissioner concludes that the plans of the
applicant are reasonable, practical, and will adequately
protect public safety and promote the public welfare, he
shall grant the permit . . .. In all other cases the
commissioner shall reject the application or he may require
such modification of the plan as he deems proper to protect
the public interest. In all permit applications, the
applicant has the burden of proving that the proposed
project is reasonable, practical and will adequately
protect the public safety and promote the public welfare.
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In granting a permit the commissioner may include therein
such terms and reservations with respect to the amount and
manner of such use or appropriation or method of
construction or operation of controls as appears reasonably
necessary for the safety and welfare of the people of the
st ate
Hence, it is apparent that the burden of proof herein is on the Applicant.
Since the environment is involved, however, the Commissioner must also
comply with the Minnesota Environmental Rights Act, Minn. Stat. Ch. 116B
(1984), and the Minnesota Environmental Policy Act, Minn. Stat. Ch. 116B
(1984). Basically, those Acts prohibit the grant of any administrative permit
which will impair, pollute, or destroy the air, water, land or other natural
resources of the state if there is a feasible and prudent alternative
consistent with reasonable requirements of the public health, safety and
welfare and the state's pairmount concern for the protection of the
environment. Minn. Stat. 116B.09, subd. 2 (1984); Minn. Stat. 116D.04,
subd. 6 (1984). A violation of the Minnesota Environmental Rights Act or the
Minnesota Environmental Policy Act may be established by showing that a
governing rule is violated. Minn. Stat. 116B.02, subd. 5 (1984).
The main Departmental rule of concern in this proceeding is Minnesota Rule
6115.0210, subp. 3, which lists conditions under which structures may not be
placed in public waters. There is no serious contention that the structures
Mrs. Orr intends to place in the lake will obstruct navigation or create a
water safety hazard. Nor is there any suggestion that the structures will be
used for human habitation, as a boathouse, or as a structure including walls,
a roof or sewage facilities. The primary objection of the DNR relates to
Minnesota Rule 6150.0210, subp. 3B, which prohibits the placement of
structures when the work "will be detrimental to significant fish and wildlife
habitat or protected vegetation. Construction is prohibited in posted fish
spawning areas." It is stipulated that the Orr beachfront is not a fish
spawning area. The waters in front of the Orr property provide no
particularly beneficial walleye or game fish habitat,
The position of the Department, apparently, is that the word "habitat" as
contained in tne rule refers to the entirety of the shoreline of ake Mille
Lacs It is argued that the structure will enclose an amount of water, foster
the development of vegetation within the orotected area and serve as a place
of incubation for unwanted rough fish. Some undetermined level of rough fish
may compete with walleye, the preferred species, for food and may make fishing
on the lake generally less desirable.
The record, however, leads only to the conclusion that the development
proposed by Mrs. Orr will not have a significant impact on any particular
habitat for walleye on Lake Mille Lacs or upon the presence of rough fish in
the lake. Some 40 inland harbors and inlake protected areas were created
prior to the moratorium announced by the DNR in the early 1970s. However, the
record establishes that the walleye population of the lake has never been
higher and that rough fish pose no current problem for the lake. As noted in
the Findings, the real concern of the Department is not the effect of Mrs.
Orr's proposal alone, but rather the effect it may have as a precedent for
other development in the lake. It was conceded by the DNR that rough fish
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habitat in the lake is not a problem and that Mrs. Orr's proposed construction
itself would not threaten the walleye or game fish population of the lake.
TR. 512; TR. 539; TR. 531; TR. 540.
Since the unofficial moratorium on construction in Lake Mille Lacs was
adopted by the Department in the early 1970s, no study of the degree to which
inland harbors or inlake structures contribute to the rough fish population
has been undertaken by the Department. There has been no showing in any
proceeding, whether contested case or rulemaking, that the "no build" policy
it has adopted is necessary and reasonable. Simply stated, the Department has
attempted to place Lake Mille Lacs in a total "no build" condition despite the
existence of rules allowing building if an applicant meets the stated criteria.
The Department argues that its position with respect to the interpretation
of its rule is reasonable since it would be required to grant the permits of
all similarly situated individuals, eventually resulting in a cumulative
adverse effect on the walleye population of the lake. Northwestern colleqe v.
City of Arden Hills, 281 N.W.2d 865 (1979). That decision, however, does not
prohibit the Department of Natural Resources from protecting the integrity of
Lake Mille Lacs. The touchstone of the Northwestern College decision is that
there may not be invidious and arbitrary discrimination against applicants
similarly situated. It cannot be seriously argued that every permit
application, irrespective of the area of the lake involved or the need
demonstrated, would be identical. See, Prior Lake Aggregates, Inc. y. City of
Savage, 349 N.W.2d 575, 580 (Minn.App. 1984).
Moreover, subsequent applicants may not otherwise be similarly situated.
If additional structures or inland harbors are created in the lake, the effect
of those structures and additional inland harbors would bear on the propriety
of granting any further permit. A later applicant for a permit in Lake Mille
Lacs is not similarly situated with a current applicant.
What is needed is for the Department not to abdicate its regulatory
authority by an unwritten moratorium, but to determine the point at which a
demonstrable adverse effect on the game fish population of the lake may be
established in a contested case proceeding. They have not done so here.
Noreover, it is apparent that the specter of an adverse precedent is not
sufficient grounds for abrogating or refusing to enforce an existing rule. In
Odell v. City of Eagan, 348 N.W.2d 792 (Minn.App. 1984), the Court refused to
accept as a reason for denying an otherwise valid permit application the
precedential value of the action, Moreover, in Cardon v. Cromarty, 221
N.Y.S.2d 924, 926 (Sup. Ct. 1961), the Court held that each application must
be viewed on its own merits without reference to other applications.
What the Department has attempted to do is place Lake Mille Lacs in a
special protected category, denying all inlake and inland construction. Its
attempt to do so, irrespective of the directive of its rules, is, in itself,
an invalid unpromulgated rule. It is clear that a moratorium to suspend the
application of an existing statute or ordinance is inappropriate. The
Minnesota State Supreme Court has expressly disapproved such moratoriums.
Ostrand v. Village of North St. Paul, 147 N.W.2d 571 (Minn. 1967); Alexander
v. City of Minneapolis, 125 N.W.2d 583 (Minn. 1963).
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The actions of the Department in imposing an unofficial moratorium on
future development irrespective of a demonstrated impact on the fish resources
of Lake Mille Lacs is clearly an invalid, unpromulgated rule. In Laura Baker
School v. Department of Human Services, 377 N.W.2d 465 (Minn.App. 1985), the
Commissioner of Human Resources imposed an administrative moratorium on the
application of certain of the Agency's rules. The Court of Appeals hold:
The administrative moratorium adopted by DHS was illegal.
The moratorium is clearly within the statutory definition
of a rule . . . . Minn. Stat. 14.02, subd. 4 (1982). In
the case of the moratorium, DHS adopted a new policy for
determination of need. Rather than considering the various
factors set out in Minn.R. 9525.0080, it instead adopted a
flat rule that no determinations of need would be issued.
When a rule such as this is not adopted according to the
procedures set out in the APA, Minn. Stat. 14.131 -
.365, the rule will be invalidated. White Bear Lake Care
Center, 319 N.W.2d at 9.
It is clear that the "no build" status into which the Department has placed
Lake Mille Lacs is an abrogation of DNR's existing rules regarding the
placement of structures in public waters.
The Department may argue the reasonableness of its position and the need
to protect Lake Mille Lacs, the most valuable walleye resource of the State of
Minnesota, from any type of degradation. If the necessity and reasonableness
for such a rule can be established, the Department should engage in a
rulemaking proceeding rather than by adopting an unofficial moratorium
abrogating existing rules. The Department cannot claim that an emergency
situation requiring immediate action has been established. The moratorium has
been in effect longer than the initial rules of the Department. Moreover, as
late as 1983, the Department substantially revised its rules and took no
action with respect to protecting particular public waters from additional
construction.
Having chosen not to demonstrate the need and reasonableness of a complete
no build" solution in a rulemaking proceeding, the Department must show that
the application of Mrs. Orr will have a material adverse impact on significant
fish or wildlife habitat. This it has failed to do. Under such
circumstances, the Administrative Law Judge concludes that none of the
conditions contained in Minnesota Rule 6115.0210, subp. 3, prohibiting the
placement of the structures, has been established.
It should be noted that counsel for the DNR stated at the hearing that the
impact of the development on the walleye population of the lake was the reason
for denial of the permit, TR. 11.
Minnesota Rule 6115.0211, subp. 4 contains specific standards for the
grant of a permit for breakwaters and marinas. The only condition contained
in that rule raised at the hearing was the requirement that "alternative dock
or inland facilities are infeasible". As demonstrated in the record, there is
adequate reason to conclude that an inland facility at the Orr campground is
infeasible. Moreover, it is disingenuous of the Department to raise that
issue in this proceeding after Mrs. Orr was advised by DNR personal that such
an inland harbor was not feasible on her property. It was, primarily, on the
basis of such representations that she proceeded with her current proposal.
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Under such circumstances, Mrs. Orr might well argue an estoppel on the part of
the Department to raise the issue at this stage of the proceedings. Hart v.
Bell, 222 Minn. 69, 24 N.W.2d 41 (1946). See, 31 C.J.S., Estoppel, 117.
The DNR also in its contacts with Mrs. Orr and in the Order of the
Commissioner denied the grant of a permit for an inland harbor.
The Administrative Law Judge, however, need not rely on the presence of an
estoppel. The record adequately demonstrates that the area available for an
inland harbor on the Orr property would be inadequate and that it would be
subject to perpetual clogging from the moving sands experienced at that
portion of the lake.
The recent revisions to the DNR rules contain general criteria in addition
to those previously discussed limiting the grant of permits for construction
in public waters of the state. Minnesota Rule 6115.0210, subp. 5. The
requirements of that Rule are satisfied by the Findings which demonstrate the
absence of a feasible alternative, including a "no build" alternative and the
conditions that the Administrative Law Judge has imposed on the grant of the
permit.
While the conditions imposed on the grant of the permit are
self-explanatory, a discussion of the alternatives available to Mrs. Orr
appears appropriate. As demonstrated in the Findings, no reasonable
alternative would alleviate the problem Mrs. Orr experiences in operating her
commercial campground. The concern is not for the economic viability of Mrs.
Orr's enterprise but for the protection of property and persons using her
facility.
The only alternative that the Department seriously suggests is appropriate
in this circumstance is the "no build" alternative. The Administrative Law
Judge finds that alternative inappropriate. As previously demonstrated, the
proposal will have an insignificant impact on the environment. The "no build"
alternative, however, will still subject those persons who use Mrs. Orr's
facility to the risk of property damage and physical injury. Under such
circumstances, weighing the argued precedential effect of granting the permit
against the real harm occasioned by the "no build" solution, the
Administrative Law Judge finds that it is not a reasonable alternative.
it was suggested at the hearing that the regulations of the Deoartment
relating to excavation in public waters for haroors and boatlifts might be
relied upon to deny the application herein. The only two sections of the
applicable rule advanced by the Department at the hearing for the denial of
the permit are contained in Minnesota Rule 6115.0200, subp. 3 A and C. Those
two prohibitions, however, parallel the rule regarding the placement of
structures in public waters. The rule prohibits an excavation when there is
an alternative means which would result in less environmental impact or when
the excavation would be detrimental to significant fish and wildlife habitat
or protected vegetation and there are alternative means to mitigate the
effects. As demonstrated with respect to the rule regarding the placement of
structures in public waters, the proposal of Mrs. Orr represents a minimum
impact solution. The proposal will not have an appreciable impact on the fish
population of the lake and those minor adverse environmental impacts that can
be predicted are subject to acceptable methods of mitigation. Hence, the rule
regarding excavations in public waters may not be used to deny the permit.
B.D.C.
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