Peter Tysdal, Appellant, vs. Jason Bodine, Respondent.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-922

State of Minnesota,

Respondent,

vs.

Ralph Samuel Drum,

Appellant.

Filed April 14, 1998

Affirmed

Peterson, Judge

Douglas County District Court

File No. T3952638

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Allen L. Senstad, Douglas County Attorney, Daniel C. Lee, Assistant County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (for respondent)

William G. Peterson, William Peterson & Associates, Ltd., Suite 7, 8400 Lyndale Avenue South, Minneapolis, MN 55420 (for appellant)

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant Ralph Drum was convicted of the misdemeanor offense of violating a cease and desist order directing him to stop draining a protected wetland. See Minn. Stat. § 103G.2732, subds. 1, 2 (1996). Drum challenges the trial court's exclusion of defense evidence and its refusal to consider constitutional and statutory challenges to the cease and desist order, and argues that the evidence is insufficient to support the conviction. We affirm.

FACTS

Drum was charged with failure to obey a cease and desist order issued to him on July 20, 1995, by a DNR Conservation Officer. The cease and desist order required Drum to "IMMEDIATELY CEASE AND DESIST FROM ANY ACTIVITY MODIFYING THE WETLAND" described in the order (a pond located on Drum's property). The complaint alleged that Drum, who had been given permission to lower the water elevation of the wetland to 95.3 feet, had actually drained the wetland a foot lower, prompting complaints from neighboring landowners. On June 21, 1995, a Soil Conservation Service (SCS) agent had told Drum not to drain any more water. Drum, however, disagreed with the official determination of the proper water level and said he would keep on draining.

After more complaints from neighbors and more warnings to Drum, the cease and desist order was issued on July 20, 1995. After neighbors' complaints that Drum was not complying, and more warnings, the DNR officer and the SCS agent visited Drum's property and issued Drum a citation charging him with violating the cease and desist order. Three days later two drainage officials visited the site and determined that Drum had drained the wetland down to 93.7 feet, 1.6 feet below the allowed drainage level.

The trial court granted the state's pretrial motion in limine to prevent Drum from presenting any evidence that he qualified for an exemption or a "no-loss determination," or any evidence that his drainage activities should have been allowed under the rules and regulations of the Board of Water and Soil Resources (BWSR). The court concluded that Drum, who had not prevailed in his civil administrative proceeding before the BWSR, should not be allowed to seek a determination of his drainage rights by the jury in the criminal trial. When defense counsel argued at trial that a conservation officer could not constitutionally issue a cease and desist order, and that the order was invalid because the slough was not within the statutory definition of a "wetland," the trial court held that both of those issues should have been raised before trial and were waived. The court also ruled that Drum could not present a deposition from his surveyor concerning the legal status and proper water elevation of the slough.

The jury found Drum guilty of violating the cease and desist order. Drum was sentenced to 90 days in jail, with execution stayed for one year. He was also fined $700, with $400 stayed for one year.

D E C I S I O N

I.

Drum argues that the trial court improperly limited defense evidence when it granted the state's motion in limine, and later enforced its order at trial. A trial court's evidentiary ruling will be upheld absent a clear abuse of discretion. State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988), review denied (Minn. Mar. 18, 1988).

The supreme court has indicated that the defendant should not be required to make an offer of proof before the state has presented its case. State v. Brechon, 352 N.W.2d 745, 747-48 (Minn. 1984). The court, however, has never categorically barred the state from filing a motion in limine. Cf. id. at 748 (prosecution motion in limine, particularly one broad in scope, is questionable). The trial court here allowed Drum to testify about his reasons for continuing his drainage activities. Drum also testified to the damage the water level was causing to his property, to the cause of the rise in water level, and to his disagreement with the officially approved water level of 95.3 feet. Drum was not denied his due process right to testify in his own behalf and present to the jury the reasons for his actions. Cf. id. at 751 (defendant has a due process right to explain his conduct to a jury). The trial court did not abuse its

discretion in excluding defense evidence that related only to legal issues that were not properly before the jury.[1]

II.

The trial court found that Drum had waived his proposed evidentiary challenge to the validity of the cease and desist order by failing to challenge the order in a pretrial motion. See generally Minn. R. Crim. P. 12, cmt. (in misdemeanor case, motions not made at pretrial conference are waived, except for lack of jurisdiction over offense and failure of complaint to state an offense). Drum did not raise a challenge to the validity of the cease and desist order until the middle of the testimony of the first witness. Defense counsel, who at one point in the trial admitted this was a legal issue, should not have expected that the trial court would allow it to be presented to the jury.

Drum cites no authority holding that cease and desist orders, a common statutory tool provided to administrative agencies, violate the separation of powers clause. There are many cases upholding the issuance of cease and desist orders by administrative officers and agencies, or assuming their general authority to issue them. E.g. F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 394-95, 85 S. Ct. 1035, 1048 (1965) (courts will not interfere with cease and desist orders except where remedy has no reasonable relation to unlawful practices found to exist); cf. S.E.C. v. Sloan, 436 U.S. 103 , 110-11, 98 S. Ct. 1702, 1708 (1978) (SEC lacked statutory authority to issue series of continued suspension orders, although it had power to issue individual orders). This court has even upheld an agency's authority to issue a cease and desist order that was inconsistent with a previous court decision. See In re Medcenters Health Care, Inc., 450 N.W.2d 635, 640 (Minn. App. 1990) (Commissioner of Health's cease and desist order that was inconsistent with earlier arbitration ruling affirmed by court did not violate separation of powers), review denied (Minn. Mar. 8, 1990).

Drum's statutory challenge to the cease and desist order centered on his claim that the slough on his property, because its size exceeded 10 acres, was not a statutorily defined "wetland," but was instead a "public waters wetland." There is a different enforcement mechanism for draining or filling "public waters wetlands." See Minn. Stat. §. 103G.135 (1996) (DNR commissioner to seek injunction in district court). The state, however, argues that the applicable definition of "wetlands" is found in the rules promulgated by the BWSR, and includes all wetlands except public waters wetlands found on the public waters inventory (PWI) map. Minn. R. 8420.0105 (1995). The issue of which definition of "wetland" should apply is a legal issue that Drum should have presented to the trial court by pretrial motion.

Drum argues that the evidence is insufficient to support his conviction because the water simply continued to drain, and there was no evidence that he engaged in any "activity" after July 20, 1995, that would have violated the cease and desist order. This argument rests on a restrictive interpretation of the term "activity," a matter of statutory construction. The trial court denied Drum's motion for a judgment of acquittal made on this basis. This court may independently review a question of statutory construction. In re Welfare of D.D.G., 532 N.W.2d 279, 280-81 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).

The statute provides that a cease and desist order may be issued to "stop any illegal activity" and that a "violation" of the order is a misdemeanor. Minn. Stat. § 103G.2372, subds. 1, 2 (1996). Contrary to Drum's argument, therefore, the statute does not require any new "activity" commenced after the cease and desist order is issued. The statute, rather, indicates that it is a violation to fail to "stop any illegal activity." The pre-existing activity Drum was required to stop was his drainage of the slough. There is ample evidence that Drum failed to stop the illegal drainage.

Drum has filed a motion to strike respondent's brief, or the appendix to respondent's brief. Although the appendix to respondent's brief unnecessarily reproduces materials from the trial court record, we decline to strike either the brief or the appendix on that basis. See Minn. R. Civ. App. P. 130.01, subd. 1, 130.02. The motion to strike is denied.

Affirmed.

[1] This court affirmed the decision of the Board of Water and Soil Resources that Drum's legal challenges to the denial of his request for a permit for further drainage are without merit. Drum v. Minnesota Bd. of Water & Soil Resources, 574 N.W.2d 71, (Minn. App. 1998).