What constitutes relevant evidence of the OHWL of a public water? Born v. Commissioner of Natural Resources, 1998 WL 15907 (Minn. App. 1998)(Unpublished) A farmer on Willis Lake sought a permit from the Department of Natural Resources (DNR) to lower the water level of the lake to 1016.5 feet above sea level. The DNR denied the permit application on the finding that the ordinary high water level (OHWL) was 1023.7 feet. The farmer was granted a contested case hearing. The Administrative Law Judge (ALJ) for the DNR affirmed the permit denial, but determined that the OHWL should be measured at a "stain line," a lower elevation than 1023.7 feet. The DNR appealed the ALJ's alternative OHWL determination to the Commissioner of Natural Resources. The Commissioner reversed the ALJ's decision, concluding that the OHWL was 1023.7 feet. The farmer appealed the Commissioner's decision. He first argued that it was arbitrary and capricious because the Commissioner failed to review the audiotapes of the contested case hearing. Because Office of Administrative Hearings contested case rules do not require review of audiotapes, but only of the "transcript, if one is prepared," the Court found no procedural deficiency. The farmer then asserted the Commissioner's OHWL determination to be unsupported by to the substantial evidence in the record. The court found that in determining the OHWL, the Commissioner is not limited to evidence from any particular time period as long as there is reliable evidence available for the time period used. In addition, the Commissioner need not determine the OHWL based only on the elevation where the natural vegetation changes from predominately aquatic to terrestrial. Finally, an OWHL determination does not constitute a taking, because the Commissioner is merely determining the limits of DNR regulatory jurisdiction pursuant to the statutory definition.
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