May ditch authorities compel the Department of Natural Resources to pay assessments on "con-con" lands?

Marshall County, et al. v. State of Minnesota and its Department of Natural Resources, (Minn. Ct. App.) (Docket No. CX-01-716, December 4, 2001).

No. In this action, the Counties of Marshall, Beltrami and Roseau sought a ruling that the Minnesota Department of Natural Resources (“DNR”) is responsible to pay ditch assessments on consolidated conservation ("con-con") lands.

Early last century, northern Minnesota was the site of a massive project to drain marginal agricultural lands. Much of the drained land nonetheless proved unable to support agriculture. Widespread farm default on ditch liens threatened the financial viability of the affected counties. In 1929, the State took title to the land, known as con-con land, in return for assistance to the counties. The DNR now manages some 1.5 million acres of con-con land for forestry, wildlife, flood control and similar purposes.

For some years, the State has disputed assessments on con-con lands made by respondent counties as ditch authorities, on the basis that the assessments have not corresponded to benefits conferred. In 1992, the State advised the counties that it would not pay pending assessments until a joint review of benefits was conducted. In 1993, it ceased paying assessments on con-con lands for which redetermination of benefits had not taken place. The three counties brought this action in Marshall County District Court to force the DNR to pay pending assessment. Their motion for summary judgment was granted; the Court of Appeals reversed.

The issue is governed by Minnesota Statutes section 84A.55, subdivision 9, which states:

If the [DNR] commissioner finds after investigation that a project for the construction, repair, or improvement of a public ditch or ditch system undertaken by a county or other public agency as otherwise provided by law will benefits the lands for th[e] purposes [for which the lands were established], the commissioner may cooperate in the project ... on any conditions the commissioner determines. The commissioner shall authorize the imposition of assessments for the projects on the lands in any amounts the commissioner determines.

Respondents cited Minnesota Statutes section 103E.025, subdivision 3, which authorizes ditch authorities to assess state lands used for conservation. The Court of Appeals found that section 84A.55, subdivision 9, "reveals the intent to grant the commissioner almost total discretion in deciding how much should be paid for assessments on con-con lands." It concluded that section 84A.55, subdivision 9, does not conflict with section 103E.025, subdivision 3, but simply is a more specific statute pertaining to the con-con lands.

Respondents also pointed to section 84A.55, subdivision 12, which prohibits the commissioner from taking an action under section 84A.55 "that will interfere with the operation of ditches or drainage systems existing in [the con-con lands]." The court read subdivision 12 as prohibiting only a physical alteration of a drainage system; it would not construe a commissioner’s decision not to pay an assessment as constituting interference with operation of a drainage system as contemplated by subdivision 12.

Respondent counties also argued that the commissioner's decision was arbitrary because the law directed the DNR to establish, by January 1, 1986, criteria to determine benefits to state-owned lands, yet the DNR had failed to do so. The court rejected this argument, adopting the principle that an agency's failure to act within a statutory timeframe does not bar subsequent action, unless the statute specifically directs that result.

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