What constitutes a "roofed" structure prohibited from Minnesota's public waters?

In re Permit Application No. 2001-1036 to William C. Young (Minn. App. No. A03-1394) (June 8, 2004) (unpublished).

Mr. Young sought a permit from the Minnesota Department of Natural Resources for a 20 by 30 foot structure over boat slips that included 14 support timbers with cross beams, 15 wood roof trusses made from two-by-fours, and shingled plywood sheathing. The permitted was denied, Young built the structure, and the DNR ordered it removed. Young reapplied, proposing first to attach the structure to pilings with removable brackets, and then to mount the support timbers on a wheeled structure. In each case the DNR denied the request under Minnesota Rules 6115.0210, subpart 3D, which prohibits a structure in public waters designed or intended to include a “roof.” The Court of Appeals affirmed, finding that under common usage the structure in question is a roof.

Is impact to a downstream public water sufficient to require a DNR permit for a crossing not located on a public water?

Gillette v. Peterson (Minn. App. A03-997) (June 1, 2004) (unpublished).

The Minnesota Court of Appeals found that a landowner exceeded his right to “reasonable use” when he installed creek crossings without evaluating their impact, the crossings backed water up on the property of his upstream neighbor and caused the water to stagnate, and other methods such as ponding existed to mitigate flooding of his property. The Court also found that although the creek was not designated by the Department of Natural Resources as a public water until further downstream, a DNR permit was required for the road crossings because the crossings had the effect of changing or diminishing the course or current of the downstream water within the meaning of Minnesota Statutes §103G.245, subdivision 1(2).

What is required notice for appeal of a protected waters determination?

Bode v. Minnesota Dep't of Natural Resources, 633 N.W.2d 25 (C9-01-321)(Minn. App. 2001).

In 1980 William Bode appealed the determination of the Minnesota Department of Natural Resources (DNR) that a portion of his farm constituted a public wetland. The Nicollet County Hearings Unit held for Bode, and in 1986 the DNR appealed this decision to the district court. The DNR sent Bode a notice of hearing of the appeal, but the notice did not list him as a party and it did not state that if the DNR prevailed, Bode would be liable to remove a drain tile system that he had installed while the appeal was pending. Bode later lost the appeal, and the DNR partially removed the drain tile system to restore the wetland.

Bode's successors-in-interest, his daughters, filed suit in 1996 against the DNR for damages cause by the DNR's partial removal of the drain tile system. The district court granted the DNR summary judgment. In October 2000, the Bodes filed a motion to vacate the 1986 judgment on the ground that the notice to Bode of the 1986 appeal was constitutionally inadequate and therefore the court did not have personal jurisdiction. The district court denied the motion and the Bodes appealed.

The Court of Appeals noted that Bode was informed before the 1981 drain tile installation that he would be taking a risk if he installed the tile prior to the final wetland determination. Consequently, "Bode knew of the potential consequences of a reversal of the hearings-unit decision" and could not claim he received inadequate notice. The Court also observed that Bode was involved in disputes regarding the wetland between 1980 and 1986, and retained counsel for the 1980 hearing based solely on published notice. Thus, Bode did not lack the "experience and sophistication in legal and administrative matters" that would lead him to ignore a notice of hearing simply because it did not list him as a party. The Court ruled that the 1986 hearing notice was constitutionally sufficient and upheld the district court judgment.

The Court further held that even if the notice was insufficient, the Bodes waived the right to assert the defense of lack of personal jurisdiction by participating in the subsequent legal proceedings. A defense of lack of personal jurisdiction is waived when the court's jurisdiction affirmatively is involved. The Court concluded that "by proceeding through multiple appeals in the issue of wetland designation and then delaying 14 years before filing motions to vacate, appellants have waived any right to assert a lack of personal jurisdiction."

Is an OHWL properly based on an elevated lake level caused by an unpermitted structure?

Farnes v. State (In re Goose Lake), 2001 Minn. App. LEXIS 1190 (Oct. 30, 2001) (unpublished).

The DNR Commissioner set an Ordinary High Water Level (OHWL) on Goose Lake in Carver County at a level at least partially created by a control structure built on the lake in the 1960s without a DNR permit. An OHWL is defined as the "highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape." See Minn. Stat. § 103G.005, subd. 14(1) (2000). The water level established by the Commissioner had been maintained for a sufficient time to leave "evidence upon the landscape." The control structure was a flow-through fish barrier that had been used to control lake levels disturbed by ditching in the 1940's.

Harold Farnes challenged the Commissioner's decision, asserting that the lake level hearing was called for an improper purpose and that the DNR should have directed its attention to removal of the structure. The Goose Lake Property Owners' Association, conversely, had asked the Commissioner to set the OHWL at the higher "natural" level that existed before the ditching.

The Court of Appeals first noted the Commissioner's broad authority, under Minnesota Statutes § 103G.401, to initiate lake level investigations and hearings. It then held that the OHWL set by the Commissioner was valid even though it was based on "water levels influenced by the control structure." The Court determined that the Commissioner properly considered the control structure and ditching to the extent that they have been maintained and used so as to affect water level sufficiently to leave a mark on the landscape. The record also evidenced the Commissioner's determination that the established OHWL was one that could be maintained under existing lake conditions. The Commissioner did not err in disregarding the circumstances under which the lake level was raised.

Had a riparian parcel become "useless" to the public so that its dedication to public use was properly vacated?

Matter of Application of Leysen, 1998 WL 811543 (Minn. App. 1998)(Unpublished).

In 1964, a property owner dedicated lakefront property to public use as lake access. The current property owners moved to vacate the dedication so they could sell it to owners of adjacent property. The district court granted the motion to vacate, and the Department of Natural Resources (DNR) appealed the vacation.

The court of appeals first noted the language of the controlling statute, allowing dedication only on a finding that the property "is useless for the purpose for which it was laid out." Minn. Stat. ¤ 505.14 (1996). The district court found that the "size, location and condition" of the property "make it unlikely that it will ever be . . . used" for public purposes. The Court of Appeals, examining the record, found ample support for the district court's conclusion.

Must the DNR regulate activities above the ordinary high water level of a public water?

Pelican Group of Lakes Impr. Distr. v. Minnesota Dep't of Natural Resources, 589 N.W.2d 507 (Minn. App. 1999).

The Cormorant Lakes Watershed District and Cormorant Township filed an application with the Minnesota Department of Natural Resources to build an outlet structure on Cormorant Lake at the ordinary high water level. The DNR declined to exercise permitting authority under the protected waters statute. Appellants, a lake improvement district and a property owners' association, sought a writ of mandamus to compel the DNR to conduct permit proceedings.

The court granted deference to the DNR's interpretation of its governing statute. The DNR, according to its Director of Waters, "[a]s a matter of policy, focuses its protection efforts on activities occurring below the ordinary high water levels of public waters." Thus, the Court found no basis to order the DNR to require a permit for the project.

How is the OHWL of a public water determined?

Appeal of Quade, 1998 WL 61991 (Minn. App. 1998)(Unpublished)

A property owner sought a permit from the DNR to expand a berm adjacent to DNR wetland for roadway access to an island. The DNR denied the request and after a contested case hearing, Quade appealed the DNR Commissioner's OHWL determination on which the permit denial was upheld.

The "tree method," which looks to the existence or absence of trees as evidence of historical inundation, is the primary method of ascertaining the OHWL under DNR guidelines. The Court found substantial evidence to support the Commissioner's reliance on this method, including testimony by the DNR expert that it has been used for some 26 years.

The appellant contended that the tree method yielded an artificially high water level because the flow of the ditch was blocked by an obstructed culvert. The court found that the appellant did not demonstrate that the OHWL would be lower if the ditch were not blocked. The opinion further suggests that a higher water elevation due to an artificial blockage may serve as the basis for a higher OHWL, if of sufficient duration.

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.