7-2000-5836-2
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE DEPARTMENT OF NATURAL RESOURCES
In the Matter of the Alteration Without FINDINGS OF FACT,
a Permit of the Cross-Section of CONCLUSIONS, AND
Byrne Lake by Howard Mesenbrink and RECOMMENDATION
Don Ascheman.
The above-entitled matter came on for hearing before Administrative Law
Judge Richard C. Luis on October 7 and October 8, 1991 at the Swift County Law
Enforcement Center, Benson, Minnesota. A site visit was conducted on the
afternoon of October 7.
Appearing on behalf of the Department of Natural Resources (hereinafter
"DNR'l) was Jerilyn K. Aune, Special Assistant Attorney General, Suite 200, 520
Lafayette Road, St. Paul, Minnesota 55155. Howard Mesenbrink, 920 South
Highway 104, Glenwood, Minnesota 56334, and Don Ascheman, RR2, Box 78,
Hancock, Minnesota 56244, (hereinafter "the Landowners" or "Appellants")
appeared on their own behalf at the hearing. Mr. Mesenbrink was not present
for the start of the hearing. When he appeared, he was given the opportunity
to become familiar with the evidence that had already been put into the
hearing record. David C. McLaughlin, Pfleuger, Kunz & McLaughlin, P.A.,
Attorneys at Law, 212 Second Street N.W., Ortonville, Minnesota 56278
subsequently submitted Briefs and an Application to Reopen the hearing record
on behalf of the Landowners.
The record in this matter closed on April 14, 1992, upon issuance of a
Letter Order denying the Landowners' Application to Reopen the record.
This Report is a recommendation, not a final decision. The Commissioner
of Natural Resources will make the final decision after a review of the record
which may adopt, reject, or modify the Findings of Fact, Conclusions, and
Recommendations contained herein. Pursuant to 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 each party adversely affected by this Report to
file exceptions and present argument to the Commissioner. Parties should
contact Rodney Sando, Commissioner, Minnesota Department of Natural Resources,
500 Lafayette Road, St. Paul, Minnesota 55155-4001, to ascertain the procedure
for filing exceptions or presenting argument.
STATEMENT OF ISSUES
Whether Howard Mesenbrink and Don Ascheman have altered the cross-section
of Byrne Lake without a permit from the Commissioner of Natural Resources, and
if so, whether Mr. Mesenbrink and Mr. Ascheman should be required to take
affirmative action to restore the lake basin to its former condition.
Based on all of the proceedings herein, the Administrative Law Judge makes
the following:
FINDINGS OF FACT
1. Byrne Lake (76-115W) is located in Section 1, Township 122 North,
Range 41 West (Fairfield) and Section 6, Township 122 North, Range 42 West
(Tara), in Swift County, Minnesota. As originally identified, Byrne Lake
consisted of two basins, a southern basin of approximately 20 acres in a
rectangle and a longer basin located to the northwest of approximately 65
acres. The DNR has identified the northwestern basin as a Type 4 wetland, as
that classification is defined by the U.S. Fish and Wildlife Service. DNR
Exhibits 3 and 7. The southern basin was since designated as a separate
wetland and is not included in this proceeding. From the southeast, the
northwest basin of Byrne Lake extends northwest over Mr. Ascheman's land and
runs out naturall on land owned by Mr. Mesenbrink.
y
2. Near the furthest point northwest on Byrne Lake, water flowing in
Judicial Ditch No. 2 (hereinafter J.D.2) crosses underneath the township road
which forms the boundary between Stevens County and Swift County. At that
location, J.D.2 enters onto Mr. Mesenbrink's property and changes its flow
from south to west, running south of and parallel to the County-line road.
Just south of J.D.2 is an earthen berm, which runs parallel to J.D.2 and
separates the road and J.D.2 from the land containing Byrne Lake. au
Attachment A. The water flow from Stevens County to Swift County occurs
through a 36" culvert flowing from north to south. J.D.2 drains farmland for
several miles to the north, east, and to a small extent, south. J.D.2 flows
from east to west between the berm on its south and the County-line road on
its north. Approximately 350 feet west of J.D.2's entry onto Mr.
Mesenbrink's land, an 1811 culvert was placed in the berm as part of the ditch
system prior to 1963. This culvert was originally placed to carry overflow
from Byrne Lake into J.D.2. Without that culvert, overflow from Byrne Lake
would flood cultivated fields of both Landowners. As originally installed,
any drainage overloading J.D.2 can "back into" Byrne Lake. This reserve
capacity reduces the likelihood of flooding downstream in J.D.2 and in the
Pomme de Terre River.
3. Historically, Byrne Lake consisted of 88 acres. With the designation
of the southern basin as a separate wetland, Byrne Lake presently consists of
65 acres. When water is standing in Byrne Lake it attains a depth of up to
three feet of water. At the time of the hearing, the entire lake basin was
empty of water. The northern basin has been used for cultivation since 1987.
4. Byrne Lake had been the subject of a prior action taken against
Howard Mesenbrink and Fred Ascheman (Don Ascheman's father). In that prior
action, a criminal complaint for draining Byrne Lake was dismissed upon
agreement to restore Byrne Lake to its prior condition. The criminal
complaint was filed on the basis of ditching performed in 1961. As part of
the case brought against Mr. Mesenbrink and Fred Ascheman, a survey was
completed in 1963 of the northwestern end of Byrne Lake and a culvert was
placed in the berm between J.D.2 and the portion of Mr. Mesenbrink's land
lying immediately north of the Byrne Lake basin. The survey concluded that
the ordinary high water level (hereinafter "OHWL") of Byrne Lake is 1106.0
feet above Mean Sea Level (hereinafter 'IMSLII). The conclusion was reached
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based on the contours of the lake basin, evidence of aquatic vegetation, and
the evidence of definable banks around the lake. DNR Exhibit 36. On January
27, 1964, the DNR certified that restoration of the basin was completed.
5. Aerial photographs taken of Byrne Lake from 1950 through 1989 show
clearly defined banks to the Byrne Lake basin. DNR Exhibits 10, 11, 12 and
13. Those photographs taken before 1983 show Byrne Lake holding water at
varying levels, but not beyond the 1106 MSL contour on DNR surveys.
Photographs taken after 1983 show outlines of the dry banks of Byrne Lake.
DNR Exhibits 15 and 23.
6. In 1972, Roy W. Holmquist, Attorney at Law, inquired of the DNR as to
the status of Byrne Lake by letter on behalf of the Landowners. Lawrence D.
Seymour, Supervisor of the DNR Regulations Unit, responded in a letter dated
November 3, 1972. Mr. Seymour informed Mr. Holmquist that Byrne Lake was
listed on the Inventory of Minnesota Lakes; that the lake is considered a
public water; and that drainage of Byrne Lake would require a permit from the
DNR. Mr. Seymour also volunteered the opinion that the DNR is "of course,
opposed to drainage of this public water." DNR Exhibit 6. A permit
application form was enclosed with the letter. There is no evidence that a
permit was applied for in 1972.
7. A Data Inventory Sheet for Byrne Lake was prepared between 1979 and
1981 by the DNR. DNR Exhibit 7. This document was prepared to identify
protected waters, including ubi@ waters and wetlands, and establish a
preliminary inventory. The document indicates that Byrne Lake is a type 4
wetland, as defined by the U.S. Fish and Wildlife Service. The Sheet also
states that Byrne Lake is an:
Excellent waterfowl, upland game + big game habitat. 1968 photo shows
muskrat houses visible.
DNR Exhibit 7.
8. The Swift County Hearings Unit concluded in March, 1981 that Byrne
Lake was not a wetland. That conclusion was reversed on appeal by Swift
County District Court Judge John C. Lindstrom in an Order dated March 25,
1985. By operation of that Order, Byrne Lake was placed into the inventory of
public waters as a type 4 wetland. No further appeal was taken from Judge
Lindstrom's Order.
9. In 1983, while the appeal of the Swift County Hearings Unit decision
was ongoing, the Landowners reestablished the ditch from the natural runout
point of Byrne Lake to the 18" culvert leading to J.D.2. The ditch followed a
natural contour of the land approximately 825 feet to establish a run out
point at an elevation of approximately 1104.4 MSL. The ditch drained Byrne
Lake to that level, down from the OHWL of 1106 MSL. The Landowners did not
have a permit from the DNR to perform this drainage.
10. Since at least the time J.D.2 was last cleaned out in 1981, the
Landowners have been levied upon by the joint ditch authority for drainage
into J.D.2 from their land, including the land under Byrne Lake. The DNR has
supported the Landowners in their efforts to reduce their assessed ditch tax
by excluding the land under Byrne Lake. At a meeting on January 16, 1987, the
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ditch authority informed the Landowners that the ditch authority would
consider reducing their assessment if the Landowners were refused a permit to
drain Byrne Lake.
11. On February 6, 1987, the Landowners submitted a permit application to
drain Byrne Lake. DNR Exhibit 16. Thomas Orr, Swift County Soil and Water
District Technician, and Tom Anderson, Swift County Parks and Drainage
Supervisor, commented on the effects of the proposed drainage as part of the
application process. The drainage would have run into J.D.2. The Landowners'
application was filled out in the DNR Appleton Office with the assistance of
David Soehren, a DNR employee.
12. The Landowners were informed of the options of entering the Water
Bank program, fee acquisition by the State of the land under Byrne Lake, or
assigning easements to any one of several entities, in lieu of draining the
lake. This information was given to the Landowners within sixty days of the
date of the application to drain Byrne Lake. The Landowners expressed their
lack of interest in any of those programs to the DNR before April 1, 1987.
13. The DNR formally denied the Landowners' application to drain Byrne
Lake in a written decision dated April 1, 1987, and mailed to the Landowners,
the ditch authority, two Legislators, and several local public bodies. DNR
Exhibit 27. No appeal was taken from this decision.
14. In October of 1987, the Landowners used a tractor and scraper to
construct a ditch running over 2000 feet from the J.D.2 berm into the Byrne
Lake basin. From within the lakebed, the ditch runs northwest along the line
of the 1963 ditch until the 1963 ditch curves south along the contour. The
1987 ditch continues northwest in a straight line, bisecting the contour
followed by the 1963 ditch and rejoining the 1963 ditch at that point.
Attachment A. From there the 1987 ditch follows the line of the 1963 ditch to
the 18" culvert. The 1987 ditch established a run out point of 1103.1 MSL
from Byrne Lake into J.D.2.
15. The 1811 culvert provided drainage at approximately 1104 MSL in 1963.
In 1987, the lowest point on the 18" culvert was surveyed at 1102.5. DNR
Exhibit 38. A flap gate has been installed on the 18" culvert on the J.D.2
end. The flap gate opens to allow water to flow from the Byrne Lake side of
the culvert, but closes to prevent water from flowing into Byrne Lake from
J.D.2. This flap gate severely reduces the reserve water retention capacity
of Byrne Lake and increases the risk of flooding on the Pomme de Terre River.
16. As a result of the drainage in 1983 and 1987, Byrne Lake no longer
has standing water within its definable banks.
17. On June 9, 1988, Ronald Harnack, Administrator of the Permits and
Land Use Section, Division of Waters of the DNR, issued Findings of Fact and
an Order determining that the cross-section of Byrne Lake had been altered and
requiring that the Landowners restore it:
[T]o the condition to which it existed prior to the
aforementioned ditching. Such restoration shall consist of
constructing a permanent water control structure within the
ditch in the vicinity of the private crossing located at Station
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30+56 of the attached copy of D.O.W. Survey Map No. D-1481. The
minimum runout elevation for this control structure shall not be
less than 1106.0 feet above Sea Level (NGVD, 1929).
DNR Exhibit 20, I[ B.
18. On August 26, 1991, Ronald Nargang, Deputy Commissioner of Natural
Resources issued an Order and Notice of Hearing setting this,matter for
hearing on October 7, 1991, in the Community Room of the County Law
Enforcement Center in Benson, Minnesota.
19. On August 27, 1991, the Order and Notice of Hearing was served upon
the Landowners and a number of federal, state, and local officials by U.S.
Mail.
20. A copy of the Order and Notice of Hearing was published in The
Appleton Press for two successive weeks, on September 4, 1991, and September
11, 1991. DNR Exhibit 1. The Order and Notice of Hearing was also published
in the -EQB MonitoE, Volume 16, Number 6, September 16, 1991. DNR Exhibit 2.
Based on the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS
1. All relevant substantive and procedural requirements of law and rule
have been fulfilled to confer jurisdiction over this matter upon the
Commissioner and the Administrative Law Judge pursuant to Minn. Stat. 14.57
and 103G.251.
2. The basin of Byrne Lake (76-115W) is a "waterbasin" within the
meaning of Minn. Stat. 103G.005, subd. 16 (1990).
3. By Order of Judge John C. Lindstrom dated March 25, 1985, Byrne Lake
is classified as a "wetland" under Minn. Stat. 105.37, subd. 15.
4. Byrne Lake is a "public waters wetland" within the meaning of Minn.
Stat. 103G.005, subd. 18 (1991). "Public waters wetland" is the successor
definition to "wetland" as classified by Judge Lindstrom in 1985.
5. Prior to 1983, the contents of Byrne Lake were "waters of the state"
as defined by Minn. Stat. 105.37, subd. 7 (1982). The Byrne Lake basin met
the definition of "waterbasin" as determined by Minn. Stat. 105.37, subd. 9
(1982). The wildlife habitat and flood control aspects of Byrne Lake
identified in DNR Exhibit 7 existed up to 1983 and were "beneficial public
purposes" as defined by Minn. Stat. 105.37, subd. 6 (1982).
6. By operation of Minn. Stat. 103G.005, subd. 15(a)(11), Byrne Lake
is a public water.
7. Byrne Lake has been properly designated a protected public water
pursuant to the DNR's inventory and classification procedures.
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8. The DNR has the burden of proving by a preponderance of the evidence
that any alteration of the cross-section of Byrne Lake required a permit from
the Commissioner of Natural Resources and that Howard Mesenbrink and Don
Ascheman have engaged in the unlawful alteration of Byrne Lake's cross-section.
9. The DNR has proven that Howard Mesenbrink and Don Ascheman have
engaged in the unlawful alteration of Byrne Lake and that any such activity
required a permit from the Commissioner.
10. The Administrative Law Judge makes these Conclusions for the reasons
given in the attached Memorandum. Where necessary, reasons contained in the
Memorandum are adopted and incorporated herein as Conclusions.
11. Any of the foregoing Findings of Fact properly considered Conclusions
of Law are hereby adopted as such.
Based on the foregoing Conclusions, the Administrative Law Judge makes the
following:
RECOMMEN ATION
IT IS HEREBY RECOMMENDED: That the Commissioner issue an Order requiring
that Howard Mesenbrink and Don Ascheman install a water control structure in
the ditch in the vicinity of Station 30+56 of D.O.W. Survey Map No. D-1481 so
that the minimum runout elevation for this control structure shall not be less
than 1106.0 feet above Sea Level and restore Byrne Lake to the condition of
the Lake in 1964. It is recommended that the flap gate be removed from the
18" culvert entering J.D.2. It is further recommended that any other parts of
the June 9, 1988 Order by Ronald Harnack which are deemed needed to carry out
the purposes of the DNR in restoring Byrne Lake should also be made a part of
the Commissioner's order.
Dated: April 1992.
RICHARD C. LUIS
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: Tape Recorded. No Transcript.
Seven Cassettes: Nos. 10,608 to
10,613 and 10,624.
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MEMORANDUM
The evidence in this matter is mostly undisputed. The Landowners
acknowledge ditching in Byrne Lake in both 1983 and 1987. They admit that no
permit was issued by the DNR to allow this activity. At the hearing, the
Landowners appeared to rely upon the assessments from the joint ditch
authority to justify draining Byrne Lake into J.D.2. No authority has been
cited to support that position. The DNR witnesses with personal knowledge of
the Landowners' permit application testified that the application was made
with the expectation that it would be denied and the denial then used as a
basis to lower the ditch assessments levied against the Landowners. Every
document which comments on the permit application is consistent with this
explanation of the reason for requesting the permit. The Landowners did not
dispute this testimony and emphasized the unfairness of the drainage
assessment. That unfairness has been negated in part by the ditching done by
the Landowners. Once the illegal drainage has been eliminated, the Landowners
may wish to consider appealing further ditch assessments.
The Landowners also base their actions on Byrne Lake's being dry in 1987.
Minn. Stat. 105.391, subd. 10 expressly authorizes use of wetlands for
cropland during drought periods "if there is no construction of dikes,
ditches, tile lines or buildings, and the agricultural use does not result in
the drainage of the wetlands or public waters." In this case, a ditch was
constructed and drainage was performed. Once a ditch has been excavated to
drain a wetlands the owner cannot rely upon the land being dry to justify the
construction.
The Landowners vigorously disputed the DNR's charge that the 18" culvert
connecting the outflow of Byrne Lake and J.D.2 was lowered. Photographs of
the culvert in 1983 and in 1987 show unmistakable signs of disturbance. DNR
Exhibit 23. Unbroken vegetation covered the berm around the culvert in 1983.
Vehicle tracks were worn into the berm on top, with vegetation growing between
the wheel ruts. In 1987, the vegetation around the culvert and on top of the
berm is missing, with bare dirt present in the berm for several feet on either
side of the culvert, extending on a line with the culvert through the berm.
The vegetation was undisturbed on the Byrne Lake side of the berm. The DNR
witnesses who visited the site in 1987 testified that the lowering of the
culvert was "obvious." In photographs, the culvert appears to be further
below the top of the berm in 1987 than the culvert was in 1983, with no change
in the height of the berm at that point. DNR Exhibit 23. The survey
introduced into the record indicated that the culvert was lower in 1987 than
in 1963.
Due to the method suggested to remedy the illegal drainage, the position
of the culvert is not critical to any Finding, Conclusion, or Recommendation
in this Report. The topography of the Byrne Lake basin is such that
re-establishing the 1106 MSL contour by blocking the 1987 ditch is adequate to
return Byrne Lake to its pre-existing OHWL. The foregoing recitation has been
set forward because the culvert, in its current location and without a flap
gate, would cause significant backflow problems for the Landowners if certain
conditions are present on J.D.2. At the culvert's present level, water from
J.D.2 would flow onto the Landowners' property more easily than from the 1983
level. Since raising the culvert would require a permit, an exception filed
to this Report requesting the culvert be raised to the 1963 level, or an
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additional Finding by the Commissioner requiring that change could bring the
culvert to its 1963 level of 1104 MSL and prevent unnecessary hardship for the
Landowners. The flap gate constitutes an alteration which could affect the
normal backflow of water from J.D.2 into the Byrne Lake basin, although only
under extremely high water conditions. Since no permit was issued to install
the flap gate, it must be removed.
After the hearing in this matter, counsel for the Landowners made an
Application to Reopen the hearing record. This application was treated as a
motion for rehearing on the issues presented. The motion was denied by letter
on April 14, 1992, and that letter stated that the reasons for that denial
would be contained in this Report.
Two theories have been presented to justify reopening this case. First,
the Landowners argue that Minn. Stat. 103G.221, subd. 3 authorizes drainage
of Byrne Lake due to DNR's failure to make an offer of inclusion in the State
Water Bank program or offer to purchase the land under Minn. Stat. 97A.145,
or offer some other easement, lease, or conservation program. The evidence in
the record shows that the permit was originally sought to provide a basis for
appeal of the Landowners' ditch assessments and that all parties believed the
permit would be denied. This is shown in both testimony and DNR Exhibits 17,
18, and 26. Exhibit 26, a letter dated May 27, 1986, from David Soehren, DNR
Area Wildlife Manager, addressed to Don Ascheman states:
The impression I got from you at the time of your
visit was that you would rather be exempted from your
assessments [sic] than persue [sic] the legal battle that
would result from attempted drainage of the wetland.
My suggestion to you, Don, is to submit the enclosed
application for a permit to drain Byrne Lake (76-115W). In
all likelihood, this application will result in a denial of
permit. You then will have a better argument to contest
your assessed benefits with the Joint Ditch Authority. You
will then be subject to less criticism from your neighbors
because you can show that you tried to drain the wetland
legally.
When your application is received, the State has
sixty(60) days in which to notify you of a denial and
extend the range of offers I listed above.
The DNR has supported Appellants' attempts to reduce their ditch
assessements. DNR Exhibit 25. The hearing record also indicates that the
Landowners were offered the statutorily required options during the 60 day
period. DNR Exhibit 27 and Soehren Testimony (Tape 3, 4445 and 5350). An
inquiry was initiated into whether the Nature Conservancy would purchase the
land. Soehren Testimony (Tape 3, 3800). While no document indicates the
Landowners' response to these offers, testimony indicates that there was no
interest in the State Water Bank or any other transfer of land rights.
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Soehren Testimony (Tape 3, 5350). At no point in the hearing did the
Landowners object to, or dispute the veracity of these statements.
Ironically, the first Exhibit proposed to be included in the reopened
hearing record is the March 2, 1987 letter which indicates that Mr. Mesenbrink
can sell his portion of Byrne Lake to the DNR if he so desires. That letter
accompanies the form letter setting out how a wetland is determined to be
eligible for financial compensation and an application form for Water Bank
eligibility. The only form identified as included in the mailing and not
included in proposed Exhibit A is the blank statement that the landowner is
not interested in the Waterbank program. A valid inference from that form's
absence is that the form was executed by Mr. Mesenbrink and returned to the
DNR.
In addition to the State Water Bank advisory in proposed Exhibit A, Judge
Lindstom's Order of March 25, 1985 (DNR Exhibit 4), the Local Unit of
Government Comment on the 1987 Permit Application (DNR Exhibit 17), and the
Order of the Commissioner, dated April 1, 1987, denying the application (DNR
Exhibit 27) all state that the Water Bank program or other compensated
transfers of rights are available. The Order of the Commissioner
affirmatively found that: 1) the DNR offered those options to the Landowners;
2) the Landowners informed the DNR that they were not interested in those
options; and 3) the Landowners failed to file the information required to
determine whether Byrne Lake was eligible for compensation under any of the
DNR's programs. That Order was not appealed.
Failure to file information to determine the eligibility of the public
water for inclusion in the State Water Bank is important only in the event
that a Finding is made that the DNR failed to make the offers listed in Minn.
Stat. 103G.221, subd. 3. The record is replete with direct and
circumstantial evidence that the DNR made those offers and the Judge has found
accordingly in this matter. Reopening the record to receive proposed Exhibit
A and supporting testimony would only add to the weight of evidence showing
the Landowners had been informed of their rights to a compensated transfer of
land within 60 days of the permit application.
Even if the Judge were to find that the DNR had not made the offers listed
in Minn. Stat. 103G.221, subd. 2, the result would be the same. The
Landowners argue that the applicable statute states:
Subd. 2. Drainage of Wetlands for Cropland. (a) Wetlands that are
lawful, feasible, and practical to drain and if drained would provide high
quality cropland and that is the projected land use, as determined by the
commissioner, may be drained without a permit and without replacement of
wetlands of equal or greater public value if the commissioner does not
choose, within 60 days of receiving an application for a permit to drain
the wetlands to:
(1) place the wetlands in the state water bank program
under section 103F.601; or
(2) acquire them in fee under section 97A.145.
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(b) If the commissioner does not make the offer under paragraph (a),
clause (1) or (2), to a person applying for a permit, the wetlands may be
drained without a permit.
The foregoing language was added to Minn. Stat. 105.391, subd. 3 (later
recodified as Minn. Stat. 103G.221, subd. 2) by operation of Minn. Laws
1987, Chapter 357, Section 20 and Chapter 229, Article 2, Section 1. This
language became effective August 1, 1987, after the application had been filed
and denied. The statutory language in effect during the application process
at issue reads:
Subd. 3. Except as provided below, no public waters or wetlands shall be
drained, and no permit authorizing drainage of public waters or wetlands
shall be issued, unless the public waters or wetlands being drained are
replaced by public waters or wetlands which will have equal or greater
public value. However, after a state waterbank program has been
established, wetlands which are eligible for inclusion in that program may
be drained without a permit and without replacement of wetlands of equal
or greater value if the commissioner does not elect, within 60 days of the
receipt of an application for a permit to drain the wetlands, to either
(1) place the wetlands in the state waterbank program, or (2) acquire it
pursuant to section 97A.145, or (3) indemnify the landowner through any
other appropriate means, including but not limited to conservation
restrictions, easements, leases, or any applicable federal program. The
applicant if not offered a choice of the above alternatives, is entitled
to drain the wetlands involved.
Minn. Stat. 105.391, subd. 3 (1986)(emphasis added).
The underlined language in the statute is critical to the claim that a
landowner is entitled to drain wetlands without a permit. Only wetlands
eligible for inclusion in the State Water Bank program are eligible for
draining without a permit in the event the Commissioner fails to offer the
listed alternatives within 60 days. For land to become eligible for
inclusion, the application must contain the proper forms. @ Minn. Rule
6115.1220, subp. 1. Without the forms, the Commissioner could not determine
eligibility and properly extend an offer to the Landowners. See Minn. Rule
6115.1220, subp. 2(A) and (B). There is no requirement under the law in
effect in April, 1987, that applications for the Water Bank program be
included to consider a permit application. If a landowner declines to
participate in any alternative program and makes that decision clear to the
DNR, the agency is not required to engage in futile paperwork.
In this case, the Landowners made their lack of interest in the State
Water Bank program clear to the DNR and they did not make any effort toward
determining if their wetlands were eligible for that program. The permit
application process was conducted to obtain a basis for relief from a portion
of their assessment for J.D.2. No appeal of that assessment was made after
the permit was denied. While the reasons for the Landowners' failure to
appeal the assessment is not made explicit in the record of this matter, it
may arise from the illegal ditching performed in 1987. It would be difficult
for the Landowners to explain why they are entitled to assessment relief when
they have used J.D.2 as the outlet to drain Byrne Lake, when the very
inability to drain the lake is the basis for the assessment appeal.
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The Landowners' failure to file the required forms removed their
application from the operation of Minn. Stat. 105.391, subd. 3 (1986), since
the eligibility of Byrne Lake for any of the options listed in the statute was
never established. Even if the Commissioner had failed to advise the
Landowners of the options listed under the statute, the Landowners were not
entitled to drain the wetland without a permit.
The Landowners maintain that the hearing record must be reopened to
include evidence of the cross-section of Byrne Lake as it existed after
ditching performed in 1983. They argue the alteration made in 1983 was done
under an existing right and sets the standard to which drainage can be
restored. This argument is grounded upon the holding in Department of Natural
Resources v. Mahnomen County Hearings Unit, 407 N.W.2d 434 (Minn.App. 1987),
rev. denied, August 12, 1987. That decision states:
This section implies that a basin becomes a public
water or protected wetland at the time the hearings unit
issues its final order making that classification. Before
that time, a private owner may ditch a basin because it has
not been classified as a public water or wetlands The
statute does not expressly state that any ditching prior to
an inventory of the waterbody would be illegal.
Mahnomen County Hearings Unit, 407 N.W.2d at 438.
The quoted language would suggest that the critical issue is the time at which
the hearings unit decision classifies the basin. The final decision in the
Byrne Lake classification came in Judge Lindstrom's decision of the appeal of
the 1981 hearings unit decision. Judge Lindstrom's decision on that appeal
came in 1985.
However, the Mahnomen decision itself renders the date of classification
issue potentially moot. The Court of Appeals, immediately after the quoted
language above, states:
The DNR also failed to show that any of the waters
under evaluation would have qualified as a public water
under the 1973 or 1976 definitions. If it had argued that
these waters fit the definition of public waters under
those statutes, its argument regarding the unlawfulness of
the drainage would have merit. Absent that evidence,
however, it becomes incumbent upon us to review the
sufficiency of the evidence based on the condition of the
areas at the time of the hearing.
Mahnomen County Hearings Unit, 407 N.W.2d at 438.
The Mahnomen decision did not create an "open season" on wetlands in the
inevitable interim period between the passage of the statute in 1979, when the
hearing unit system was initiated, and the final decision of the hearing unit,
or the final appeal of the hearing unit's decision. It is incorrect to
suggest that drainage of wetlands occuring after the hearing on whether a
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geographic feature was a wetland could be used to determine the actual extent
of the wetland to be protected. This result would render the statutory system
of public water and wetland classification a nullity. The holding of the
Mahnomen decision is that legal ditching at the time of the hearing is not
made illegal by a finding that the feature is a wetland. Any illegal
ditching, whether before or after the finding that the feature is a wetland,
is not ratified by the hearing unit's decision.
The hearing record shows clearly that ditching without a permit was
illegal on Byrne Lake as early as 1963. The DNR has demonstrated that Byrne
Lake met the 1976 definition of public waters through 1983, since Byrne Lake
met the criteria for beneficial public use through wildlife habitat and flood
control. The only aspect of beneficial public use disputed by the Landowners
is the DNR's conclusion that Byrne Lake provided excellent waterfowl habitat.
The DNR's conclusion, made between 1979 and 1981, is strongly supported by the
presence of a duck blind on the lake bed as late as November 24, 1987. DNR
Exhibit 23. This suggests the presence of waterfowl, in addition to that of
the upland game (pheasant, grouse) acknowledged by the Landowners as
inhabitants of the basin. Since Byrne Lake met the definition of a wetland in
1983, Minn. Stat. 105.42, subd. 1 required a permit for altering the
cross-section of Byrne Lake at that time. The ditching performed on Byrne
Lake in 1983 was performed without a permit and was not authorized by statute
or ratified by the holding in Mahnomen.
Proposed exhibits C through H arose from the period after the application
denial on April 1, 1988. The Landowners maintain that these exhibits
demonstrate the DNR's continuing failure to meet their statutory obligation to
purchase the land underlying Byrne Lake. These proposed exhibits might have
been relevant if the Landowners had timely filed the proper forms to determine
that the land was eligible for inclusion in the Water Bank program. Since
those forms were not filed, no statutory right was infringed by the DNR.
Because the denial of the Landowner's permit application was already issued,
the actions of the DNR as documented by those proposed exhibits are not
relevant. The DNR has the discretion to attempt to settle contested cases.
Proposed exhibits C through H, taken most favorably to the Landowners, show
only that the DNR has attempted to purchase the property, in lieu of awaiting
the outcome of this action. These proposed exhibits do not demonstrate any
statutory right to alter the cross-section of Byrne Lake or any violation of
the Landowners' due process rights. It is noted that proposed exhibit H,
alleging that J.D.2 will not work properly unless the Landowners' ditching is
retained, would be relevant only if they had a pre-existing right to drain
Byrne Lake into J.D.2. As found above, the record makes clear that the
Landowners have not had such a right since the early 1960's, at the latest.
The same reasoning applies to the argument in proposed exhibit G based on the
fact that the lake basin land is subject to property tax and ditch assessment.
The Landowners have not demonstrated that any of the evidence proposed to
be introduced by reopening the record will support their position in this
case. It is either cumulative (proposed Exhibit A), already in the record
(proposed Exhibit B), or irrelevant (proposed Exhibits C, D, E, F, G and H).
Since the evidence is not needed to arrive at the decision in this case, there
is no reason to impose the additional burden of a further hearing on the DNR
or its witnesses.
R.C.L.
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