DNR-86-012-BC

2-2000-551-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF NATURAL RESOURCES

David H. Kaldahl, Five Lake

(56-357-P), Otter Tail County,

Building of an Unauthorized FINDINGS OF FACT,

Excavated Channel and Removal CONCLUSIONS AND

of Unauthorized Fill Below RECOMMENDED ORDER

the Ordinary High Water Mark

of Five Lake

By written Motion received by the Office of Administrative Hearings on

July 28, 1986, David Kaldahl sought an Order of the Administrative Law Judge

dismissing the above-captioned matter for lack of jurisdiction in the

Commissioner of Natural Resources to regulate construction in or alteration of

Five Lake. By Order dated October 9, 1986, the Administrative Law Judge

dismissed the Motion and found that the Commissioner of Natural Resources had

regulatory jurisdiction over Five Lake, since the water is public water of the

State of Minnesota. The Administrative Law Judge certified his Decision to

!he Commissioner. By Order dated October 30, 1986, the Commissioner of

Natural Resources affirmed the Decision of the Administrative Law Judge and

found that, as a matter of law, Five Lake, Otter Tail County, is public water

as that term is defined in Minn. Stat. 105.37, subd. 14 (1984). Subsequent

to the Decision of the Commissioner, counsel agreed that no evidentiary

hearing in the above-captioned matter was necessary and all facts for purposes

of final disposition could be treated as stated in the Administrative Law

Judge's Order on Motion for Summary Disposition and Order of Certification,

dated October 9, 1986, attached hereto as Exhibit A. Hence, with the

concurrence of all counsel, no contested case hearing in the above-captioned

matter was held.

Appearances: A.W. Clapp III, Special Assistant Attorney General,

Suite 200, 520 Lafayette Road, St. Paul, Minnesota 55155, appeared on behalf

of the Department of Natural Resources (Department or DNR); and Richard C.

Hefte, Rufer & Hefte, Attorneys at Law, 110 North Mill Street, P.O. Box 866,

Fergus Falls, Minnesota 56537-0866, appeared on behalf of David H. Kaldahl

(Mr. Kaldahl or Respondent).

The record herein closed on May 6, 1987, the date of receipt by the

Administrative Law Judge of the final comment of counsel regarding the lack of

necessity for a hearing herein.

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 Joseph N. Alexander,

Commissioner, Department of Natural Resources, First Floor DNR Building,

500 Lafayette Road, St. Paul, Minnesota 55146.

STATEMENT OF ISSUE

This proceeding was brought to determine whether the admitted, unapproved

excavation of a channel and the removal of fill below the ordinary high water

mark in Five Lake, Otter Tail County, are subject to the regulatory

jurisdiction of the Commissioner of Natural Resources and, if so, whether

Respondent must restore the area to its pre-excavation status.

Based upon all of the proceedings herein, the Administrative Law Judge

makes the following:

FINDINGS OF FACT

1. The Administrative Law Judge hereby adopts as Findings of Fact,

Findings I through 15 of the Findings contained in the Order on Motion for

Summary Disposition and Order of Certification, attached hereto as Fxhibit A.

2. The Respondent has waived his right to a contested case hearing

herein and has no intention to apply for a permit to authorize, after the

fact, the complained of activity in Five Lake.

Based upon the foregoing Findings of Fact, the Administrative Law Judge

makes the following:

CONCLUSIONS

1. The Administrative Law Judge hereby adopts as Conclusions herein,

Conclusions 1 through 5 contained in the Order on Motion for Summary

Disposition and Order of Certification, attached hereto as Exhibit A.

2. As a consequence of Conclusion 1, supra, construction in or

alteration to Five Lake, Otter Tail County, requires a prior permit from the

Commissioner, issued pursuant to Minn. Stat. 105.42 (1984).

3. As a consequence of Conclusions 1-2, supra, David Kaldahl has

violated Minn. Stat. 105.42 (1984), by performing prohibited construction in

public waters of the State of Minnesota, as that term is defined in Minn.

Stat. 105.37, subd. 14 (1984).

4. Any Finding of Fact more properly considered a Conclusion, or any

Conclusion more properly considered a Finding of Fact is hereby expressly

adopted as such.

Based upon the foregoing Conclusions, the Administrative Law Judge

recommends to the Commissioner of Natural Resources that he enter the

following:

ORDER

Within 30 days of the effective date of this Order, David H. Kaldahl shall

comply with the Restoration Order herein, issued pursuant to Minn. Stat.

105.46 (1984), requiring him to fill the channel created through the

peninsula in Five Lake (56-357-P), in Otter Tail County, and to perform such

other acts with respect thereto as are required in the Restoration Order.

Dated this 20th day of May, 1987.

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: No Hearing Held.

MEMORANDUM

This proceeding does not involve any disputed issues of fact. Mr. David

Kaldahl stipulated that he excavated a channel and removed fill below the

ordinary high water mark in Five Lake, Otter Tail County, without a permit

from the Department of Natural Resources. Mr. Kaldahl did so on the basis of

his position that Five Lake does not constitute public waters of the State of

Minnesota, and, therefore, was not subject to the regulatory jurisdiction of

the Commissioner of Natural Resources. In his Order on Motion for Summary

Disposition and Order of Certification dated October 9, 1986, the

Administrative Law Judge determined that Five Lake is public waters of the

State of Minnesota, as that term is defined in Minn. Stat. 105.37, subd. 14

(1984), and, therefore, that it is subject to the regulatory jurisdiction of

the Commissioner. The determination of the Administrative Law Judge was

upheld by the Commissioner, in an Order dated October 30, 1986. The

Administrative Law Judge also determined in his Order on Motion, attached

hereto as Exhibit A, that principles of stare decisis, res judicata and

collateral estoppel did not prohibit the application of the Restoration Order

to Mr. Kaldahl. The Administrative Law Judge hereby adopts, as his discussion

of the legal issues involved, the Memorandum included in the Order on Motion

for Summary Disposition and Order of Certification, attached hereto as Exhibit

Since both the Administrative Law Judge and the Commissioner have

determined that Five Lake is public water of the State of Minnesota subject to

the regulatory jurisdiction of the Commissioner, the channeling and removal of

fill below the ordinary high water mark in the lake would require a permit

from the Commissioner. Mr. Kaldahl has waived his right to a hearing herein

and has indicated an intention not to seek any permit from the Commissioner

for the alteration of Five Lake previously described. Since it has been

determined that Five Lake is public water of the State of Minnesota, subject

to the jurisdiction of the Commissioner, and Mr. Kaldahl admits the acts

herein complained of, enforcement of the previously issued Restoration Order

is appropriate.

B.D.C.

-3-