Citizens Advocating Responsible Development, et al., Respondents, vs. Kandiyohi County Board of Commissioners, Appellant (A04-886), Respondent (A04-890), Duininck Bros., Inc., Intervenor (A04-886), Appellant (A04-890).

Citizens Advocating Responsible Development, et al., Respondents, vs. Kandiyohi County Board of Commissioners, Appellant (A04-886), Respondent (A04-890), Duininck Bros., Inc., Intervenor (A04-886), Appellant (A04-890). A04-886, A04-890, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-886

A04-890

 

Citizens Advocating Responsible Development, et al.,

Respondents,

 

vs.

 

Kandiyohi County Board of Commissioners,

Appellant (A04-886),

Respondent (A04-890),

 

Duininck Bros., Inc.,

Intervenor (A04-886),

Appellant (A04-890).

 

 

Filed January 11, 2005

Reversed

Toussaint, Chief Judge

 

Kandiyohi County District Court

File No. C8-03-1428

 

James Pierce Peters, Peters & Peters, PLC, 507 North Nokomis Street, Suite 100, Alexandria, MN 56308 (for respondent Citizens Advocating Responsible Development)

 

Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300 US Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Kandiyohi County Board of Commissioners)

 

Donald H. Walser, Kraft, Walser, Hettig & Honsey, PLLP, 131 South Main Street, P.O. Box 129, Hutchinson, MN 55350 (for appellant Duininck Bros., Inc.)

 

Richard Paul Cook, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (Amicus)

 

Dwight S. Wagenius, Public & Human Resources Sec., 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (Amicus)

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

The county-responsible governmental unit and developer argue that the district court incorrectly ruled that an environmental impact statement was necessary for the developer's proposed gravel pits.  Because the county's negative declaration regarding an environmental impact statement was based on substantial evidence and was not arbitrary and capricious, we reverse the district court judgment. 

FACTS

            Appellant Intervenor Duininck Brothers (Duininck) has operated gravel mines in Kandiyohi County for many years.  The two gravel pits at issue here were initially proposed in 1998 for Dovre Township (the Eagle Lake West pit) and in late 2002 for Green Lake Township (the CA pit).   

The Kandiyohi County Board of Commissioners makes conditional use permit (CUP) decisions and was also assigned to be the responsible governmental unit (RGU) for environmental review of these two proposed pits.  Kandiyohi citizens petitioned the Minnesota Environmental Quality Board (EQB) for an environmental assessment worksheet (EAW) for the Eagle Lake West pit, and the county board also voted to require an EAW for the CA pit. 

The county prepared and published the EAWs for each pit and comments were solicited.  After considering responses from agencies and citizens, the county requested additional information from Duininck before making its decision regarding an environmental impact statement (EIS).  Duininck responded to agency comments and the county's request for additional information.  A supplemental submittal responding to public comments regarding the proposal for the two pits was also prepared.  When the county board convened to consider the proposed gravel pits, it made a negative declaration for an EIS on both pits. 

Respondent Citizens Advocating Responsible Development (Citizens) appealed the county's decision not to require an EIS and sought a district court order requiring one. Citizens is a non-profit organization that describes itself as dedicated to promoting sustainable economic development while protecting the environment in Kandiyohi County.  Its members are primarily landowners in the vicinity of the two proposed gravel pits.

When the county submitted the administrative record for the district court appeal, the record did not contain all of the materials that it possessed during the EAW process.  Citizens moved the court to consider additional materials.  The court ordered that some additional materials be part of the administrative record, including the petition for an EAW on the Eagle Lake West pit, the 2002 EAW for a nearby highway interchange, a 1980 hydrologic budget for Eagle Lake, and the CUP applications and board minutes relating to the proposed pits.  

            The district court heard the parties' cross-motions for summary judgment and granted Citizens' motion for summary judgment and request for a declaratory judgment that the county must order an EIS for both pits.  Duininck and the county filed separate appeals that were consolidated by this court.  In addition to the appellate briefs submitted by the parties, the EQB has submitted an amicus curiae brief.

D E C I S I O N

 

            When reviewing the district court's summary judgment on an agency's decision that an EIS is not required, "the focus is on the proceedings before the decision-making body . . . , not the findings of the trial court."  Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 879 (Minn. App. 1995) (citation omitted), review denied (Minn. July 28, 1995).  This court reviews the agency decision[1] to determine if it is "unsupported by substantial evidence in view of the entire record as submitted or was arbitrary or capricious."  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn. 2002).  Here, the agency made a negative declaration on the need for an EIS.

I.

Was the county's decision not to require an EIS arbitrary and capricious?

Citizens contends that the county's decision not to require an EIS was arbitrary and capricious because the record lacked, and the county completely failed to consider, information regarding the size of the project and the cumulative effects of past, present, and anticipated future projects.  On thorough consideration of the record, we cannot agree.

An agency's decision is arbitrary and capricious if the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise.

 

Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn. App. 1999) (citation omitted).

First, with regard to the record, the county not only had the written record that was produced on appeal, but also the breadth of knowledge of a county board serving as the primary decision maker with regard to land use within its jurisdiction.  A review of the written record, which includes all documents "available and in the possession of" the county, Trout Unlimited Inc., v. Minn. Dep't of Agriculture, 528 N.W.2d 903, 908 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995), reflects historical information regarding gravel mining in Kandiyohi County, as well as specific information about this developer, these proposals, and its other gravel mining operations in the area.  The board minutes indicate that it was well aware of the issues and concerns over pre-permitting gravel pits that had escaped the regulation that currently exists and the need to use current regulations to remedy past problems, particularly lack of restoration of pits.  The record contains documents submitted with the petition for an EAW, including maps and past county minutes and proceedings, relating to this developer and its gravel mining in the area.   In light of this ample record and Citizens' failure to identify a specific deficit in the record, we see no merit in the claim that the county lacked information.

Second, we also conclude that the county considered the information before it with regard to the size of the project and its relation to other gravel pits.  The county specifically analyzed the project in light of the rule requirement that it consider connected and phased actions as part of the same project.  See Minn. R. 4410.4400, subp. 1 (2003).  The county, in consultation with EQB concluded that, the proposed gravel pits were not "connected" or "phased" actions of other projects and they did not meet the 160-acre mandatory EIS threshold.  We cannot conclude that the county acted arbitrarily or capriciously when it consulted with the EQB, expressly considered the size of the proposals and their relation to other gravel pits, and concluded that, at most, the proposals represented a total of 92-acres, well under the threshold for a mandatory EIS. 

Third, Citizens also argues that the county failed to consider the cumulative effects of past, present, and anticipated future projects.  We disagree.  The minutes of board meetings and the county's decision to order an EAW reflect that the board knew about and considered past and present gravel mining in the area.  The board grappled with the best method to remedy past failures to require and enforce reclamation of pits.  It also was reminded by a citizen's letter that, in 2002, it had issued this same developer three permits covering a total of 53.5 acres.  As for "anticipated future projects," the county did not find that such projects were planned or likely.  Cf. Trout Unlimited, 528 N.W.2d at 908 (determining it was arbitrary for commissioner to conclude individual projects were unlikely to stimulate additional irrigation projects where EAW stated that future stages were "planned or likely" and agency letter indicated nearby parcels would likely be irrigated pending outcome of this project).  Having reviewed the record, we concur with the district court's specific finding, and the county's implied finding, that there was no evidence of such projects.  In light of all of the evidence relating to gravel mining in this area and the lack of evidence showing interaction of the proposed pits with a larger project, we cannot conclude that the county failed to consider the size of the proposals or erred in its determinations that the proposals related to two separate pits of 60- and 32-acres, respectively.   

Related to the issue of whether the county gave adequate consideration to other projects is a disagreement among the parties, the district court, and the EQB as to the precise criteria for determining whether a discretionary EIS is required.  One of the criteria expressly set out in the rules requires that the county shall consider the "cumulative potential effects of related or anticipated future projects."  Minn. R. 4410.1700, subp. 7 (2003) (emphasis added).  The EQB argues that this criterion actually requires the county to consider the "cumulative impacts" of "other past, present, and reasonably foreseeable future projects regardless of what person undertakes the other projects."  Minn. R. 4410.0200, subp. 11 (2003) (emphasis added).  The EAW form itself contains a hybrid third statement of the cumulative-effects criterion in its Question 29.  In this case, however, we need not determine whether these various statements of the criterion are substantively distinguishable because the county considered other gravel mining in the area and the environmental effects of gravel mining generally.  It then determined that because no significant environmental effect had been identified for any single gravel pit, there was no basis to conclude there existed a cumulative significant environmental effect based on other gravel pits.  Therefore, we cannot conclude that the county failed to consider an important aspect of the problem or misapplied the law. 

II.

Does substantial evidence support the county's decision not to require an EIS?

 

            The county began the EAW process by recognizing that the proposed pits "may have" potential significant environmental effects.  After completing the EAW process and considering all comments and responses, the county determined that the proposed pits do not have potential significant environmental effects.

The county's decision will be affirmed if the administrative record contains substantial evidence supporting the county's findings.  Iron Rangers, 531 N.W.2d at 880. "Substantial evidence" has been defined as: (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; and (5) evidence considered in its entirety.  White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  If the county engaged in reasoned decision making, this court will affirm even if it may have reached a different conclusion had it been the factfinder.  Id.  "Where there are technical disputes and uncertainties, the court must assume that the agency or RGU has exercised its discretion appropriately."  Iron Rangers, 531 N.W.2d at 881.

            The county determined that the projects presented the type, extent, and reversibility of environmental effects that other mining operations present and do not have potential for significant environmental effects.  The county found that any environmental effects are subject to ongoing regulatory authority by the Department of Natural Resources (DNR), the Minnesota Pollution Control Agency (MPCA), and Kandiyohi County.  The parties dispute the significance of four areas of potential environmental effects and the weight to be given mitigation.  We conclude that the county engaged in reasoned decision making and properly resolved technical disputes within its discretion.

            Ground Water.  The EAW stated that "the most important issue is the groundwater issue."  In the supplemental submittal to the EAW, both a representative of the Minnesota Department of Health Well Division and the Kandiyohi County Director of Environmental Services opined that residential wells and groundwater quality would not be impaired by these projects.  Nevertheless, potential groundwater contamination was the primary concern expressed by the DNR and the many citizens who questioned whether the gravel extraction would leave an inadequate natural buffer between the bottom of the pit and the water table. 

The controversy turns on the quality of the evidence produced by the developer to demonstrate that a significant buffer will remain after the proposed excavation. Conspicuously missing from the record is any scientific opinion setting the minimum buffer required to protect groundwater or any well tests evidencing contamination of groundwater caused by inadequate buffer in similar gravel mining operations.  Part of the county's supplemental submittal on these proposed pits proposes filling this void to some extent by requiring future CUPs to include installation of water monitoring wells to begin a water monitoring program at gravel mining sites. 

The Minnesota Department of Health Well Division opined, however, that any excavation above the water table would be considered a dry excavation site with no impact on wells.  The Eagle Lake EAW indicated "from what is known about the hydrology and topography of the area, the ground water is a minimum of 80 [feet] deep," and for the CA pit 60 feet deep.  For Eagle Lake, borings to a depth of 30-35 feet encountered no water and for the CA pit, borings to a depth of 25-30 feet encountered no water.  Based on these numbers, Duininck represented that 50 and 25 feet would remain as a buffer between the bottom of the respective pits and the groundwater. 

Citizens cites to the seventy-page petition for an EAW to establish that there is potential for a significant environmental effect on the groundwater.  A review of the materials in the petition, including the 1980 hydrologic budget for Eagle Lake, does not provide evidence that gravel extraction causes or even threatens groundwater contamination.  Furthermore, with the exception of a possible on-site petroleum tank, the record does not show that gravel pits present a source of pollution or contaminants.  Duininck noted that a more threatening source to ground water would be agricultural runoff, which it addressed in its response to possible surface water contamination. 

In short, the county had substantial evidence to support its determination that the groundwater would not be affected by the proposals.  

            Surface Water Quality.  The MPCA comment on the EAW requested further discussion of surface-runoff on the site during mining operations and measures proposed for mitigation of any impact.  The developer subsequently submitted a responsive comment indicating that runoff would be redirected into a holding area in the pit where it will undergo purification by sedimentation before seeping through the ground or evaporating.  It likened the process to that used in municipal water treatment plants.  The DNR also identified the issue of runoff, but this concern was addressed by the developer's response highlighting the plan to create a holding area and the RGU's recommendation that phased reclamation be required.

A citizen inquired of a Kandiyohi County Hydrologist and a United States Geologic Survey engineer whether they thought removal of topsoil from more than 100 acres of land over the gravel pit area would affect the groundwater or water quality of Eagle lake.  These individuals expressed concerns to the citizen but indicated that a study would be needed.  The use of 100 acres in the hypothetical, however, does not represent the acreage of either or both of the proposed projects,.  But more importantly, the RGU recommended progressive reclamation to allow "re-establishment of a vegetative cover in a shorter period of time and . . . help to filter any possible contaminants prior to infiltrating through the porous material found below the bottom of the pit."   

As for substances entering the ground, the only concern raised by the project was the possibility of a petroleum tank puncture.  Duininck responded that they have no plans to have a tank on site, but if they do, the tank will be properly insulated by secondary containment and overfill protection.

The county properly weighed Citizens' general claims that mining "will inevitably destroy any vegetation on the site and reduce the protective layer of sand and gravel that cleans surface water" against the developer's specific responses to comments made in the EAW process.  In light of the record, we conclude there was substantial evidence to support the county's decision that any anticipated surface water runoff issues would be handled adequately through mitigation.     

            Air Quality.  The record contains a few private citizen comments regarding potential air pollution, primarily questioning whether the project might create dust and odors.  The EAW addressed the issues of vehicle-related air emissions, odors, noise and dust, specifically stating that the number of vehicles would not generate a high concentration of pollutants; dust would be controlled with water; and noise, although anticipated through past surveys to be within MPCA guidelines, would be controlled with mufflers.  The county zoning ordinance also addresses these issues specifically and requires the developer to take specific affirmative action and obtain county board approval for its mining and reclamation plans.  The MPCA's complete silence regarding air quality issues implies its lack of concern that this project will have a significant environmental effect on air quality. 

Citizens argues that the 2002 EAW for the nearby highway interchange reconstruction project contains documented violations of state noise standards.  Citizens' brief lacks specific citations to the record in support of its arguments and does not identify facts or studies showing documented violations of state noise standards caused by gravel mining.  Although Citizens cites generally to the highway EAW, that document specifically addressed traffic noise and concluded that "[c]onstruction noise has been considered and no impact is anticipated, as no unique noise receptors have been identified in the area of the proposed project and the construction activity is not expected to generate unusual or excessive noise." 

There being no evidence to show potential significant environmental effects of gravel mining on air quality, the county's finding is supported by substantial evidence. 

            Reclamation.  Although Citizens states that there "were no reclamation plans discussed or analyzed in the EAW process," and the DNR stated that the EAW did not contain detailed information about the intended reclamation plans, the record contains reclamation plans and maps for both pits that were prepared for the EAW process.  The board minutes indicate that it was acutely aware of the need to have and enforce reclamation plans for gravel pits.  The county also notes that, its mining ordinance requires landowners to prepare and submit a reclamation plan that is considered and approved by the county board, including a bond in the amount of the anticipated reclamation.  

            There is no basis for Citizens' claim that the board glossed over the critical element of reclamation in the environmental review of these gravel pits.  The evidence supports the county's decision that there were no potential significant environmental effects.

            Mitigation.  Duininck argues that the county properly relied on mitigation by ongoing public regulatory authorities.  Mitigation is an express criterion to be considered in determining whether an environmental impact statement should be required.  Minn. R. 4410.1700, subp. 7.C. (2003).  In determining whether environmental effects reach the level of "significant," the agency may base its decision on available mitigation measures as long as they are "more than mere vague statements of good intentions."  Iron Rangers, 531 N.W.2d at 881 (quotation omitted).

Here, the county stated for both pits "there were no environmental effects identified which cannot be adequately addressed by the developer or resolved through ongoing enforcement of existing regulations and permits."  The county is in the unique position of being responsible for the CUP process, for implementation and enforcement of its mining ordinances, and for environmental review of these proposed gravel pits.  See Id.at 883 (noting that EQB prefers to designate governmental unit with greatest responsibility for supervising or approving project as RGU).  With regard to these proposals, the county expressly recommended that any future CUPS in this watershed should include progressive reclamation and water monitoring.  The MPCA will also require a pollution prevention plan.  Accordingly, there is substantial evidence of ongoing monitoring and enforcement at the county, as well as other government levels, which was properly considered in the county's negative EIS declaration.

Reversed.

[1] Because our independent review in this case focuses on the county board's decision, we need not address the parties' specific arguments to affirm or reverse the district court's findings and conclusions.  See Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233 (Minn. App. 1999) (on appeal from summary judgment reversing MPCA decision, reviewing administrative record to determine if MPCA acted properly).  Similarly, we will not take this as "an opportunity to clarify the role of a district court in an environmental challenge," as urged by the county.