In the Matter of Permit Application No. 2004-1082 of Frank Spartz.

In the Matter of Permit Application No. 2004-1082 of Frank Spartz. A05-796, Court of Appeals Unpublished, June 21, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-796

 

In the Matter of Permit Application

No. 2004-1082 of Frank Spartz.

 

Filed June 21, 2006

Affirmed

Willis, Judge

 

Department of Natural Resources

File No. 4-2000-15911-2

 

 

William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 800, Bloomington, MN  55435 (for appellant Frank Spartz)

 

Mike Hatch, Attorney General, David P. Iverson, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN  55101 (for respondent Commissioner of Natural Resources)

 

            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Shumaker Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Relator Frank Spartz applied to the Department of Natural Resources (DNR) for an after-the-fact permit to put riprap on his lake-front property.  An administrative law judge (ALJ) recommended denying the application; the DNR commissioner adopted the ALJ's report and denied Spartz's application.  On appeal from that denial, Spartz argues that (a) the record shows the existence of sufficient erosion to allow him to install riprap; (b) the record does not show that the riprap is detrimental to significant fish and wildlife habitat; (c) the riprap was not placed on plants protected by law; (d) the commissioner's order is based on an improper delegation by the DNR to Cass County of the DNR's authority to regulate shorelines below the ordinary high water line (OHWL); and (e) the commissioner should have granted Spartz's request for reconsideration.  The record contains substantial evidence supporting the commissioner's decision and does not show that the commissioner misapplied the law; therefore, we affirm.

FACTS

            Spartz owns land on Wabedo Lake in Cass County and, in the summer of 2001, first consulted with a contractor about putting riprap along his shoreline.  Alteration of a shoreline above the OHWL is governed by county ordinances, and alteration below the OHWL is governed by DNR rules.  After inspecting the property in September 2002, the contractor told Spartz that he saw erosion of the shoreline and that, under DNR rules, riprap could be put on the property to avoid further erosion.  The next month, the DNR repealed its then-existing riprap rule and enacted a new rule that, in relevant part, required a permit for riprap to be put along more than 200 feet of shoreline.

            On December 3, 2002, Spartz applied to the county for a permit to allow him to put approximately 430 feet of riprap on his shoreline above the OHWL.  The county ordinance then provided that riprap was allowed only if "active erosion problems exist" and that any alteration of the shoreline below the OHWL "may require[]" a permit from the DNR.  Cass County, Minn., Land Use Ordinance § 1704 D, C 7 (2002).  Spartz's application to the county alleged that his shoreline was suffering erosion.  But after inspecting the property, the county found "no evidence of active erosion" and, on December 6, informed Spartz that his application was denied.

            In mid-December, Spartz, based on his contractor's advice, told the contractor to proceed with the riprap project below the OHWL.  In late December, the contractor put between 16 and 32 tons of riprap along Spartz's shoreline, most of it below the OHWL.

            In response to a complaint about the riprap on Spartz's property, the county inspected the property on April 1, 2003, and issued a misdemeanor citation to Spartz for altering the shoreline without a permit.  Later, the DNR inspected the property.  The DNR inspector told Spartz that he believed that the project failed to satisfy the DNR's riprap rules.

            In June, Spartz pleaded guilty to the misdemeanor, and the county directed him to bring his property into compliance with the county ordinance by "remov[ing] all riprap materials from your shoreline" by September 8.  Spartz and the county resolved their differences sometime after September 8 when Spartz removed the riprap that was above the OHWL.

            In October, Spartz applied to the DNR for an after-the-fact permit to install riprap below the OHWL.  After several inspections of the property, the DNR denied the application on December 16.  Spartz demanded a public hearing on his application, and the commissioner set that hearing for June 2004.

At the hearing, there was conflicting testimony regarding the existence of and the extent of erosion of Spartz's shoreline and the extent to which the riprap intruded on natural habitat for plants, animals, and fish.  On September 17, an ALJ issued a 32-page report that stated, among other things, that (a) Spartz's shoreline was the only shoreline on the lake along which riprap had been installed; (b) "[t]he vast majority of the Spartz Property shoreline was unaffected by any kind of erosion"; (c) "the encroachment into public waters of the riprap that was placed on the shoreline of [Spartz's] property is far in excess of the minimum amount necessary to protect that shoreline from erosion"; (d) the riprap installed by Spartz is detrimental to plants, animals, and fish existing in the natural habitat; and (e) Spartz had not sought a permit for removal of aquatic plants.  The ALJ's report recommended denying Spartz's application for an after-the-fact riprap permit.

            Both sides filed exceptions to the ALJ's report.  The commissioner, on February 8, 2005, adopted the report, with nonsubstantive changes.  Spartz then moved for reconsideration, but the commissioner denied that motion on March 22.  Spartz appeals.

D E C I S I O N

Appellate courts may reverse or modify an agency's decision only if the decision is (1) in violation of a constitutional provision; (2) in excess of the agency's statutory authority or jurisdiction; (3) made upon unlawful procedure; (4) affected by other error of law; (5) unsupported by substantial evidence; or (6) arbitrary and capricious.  Minn. Stat. § 14.69 (2004).  On appeal, an agency's decision is presumed to be correct, and appellate courts ordinarily accord deference to an agency in its field of expertise.  Reserve Mining Co. v. Herbst,256 N.W.2d 808, 824 (Minn. 1977).

I.

Under Minn. R. 6115.0216, subp. 2 (2005), "[t]he protection of shoreline from continued erosion by placement of natural rock riprap along the shore shall be approved" if certain conditions are met.  Because the rule uses "shall," Spartz correctly argues that a riprap permit "is mandatory" if "continued erosion" exists and the rule is otherwise satisfied.  See Minn. Stat. §§ 645.001 (2004) (stating that chapter 645, which relates to the interpretation of statutes also "govern[s] all rules becoming effective after June 30, 1981[,]" unless a law or rule states otherwise); 645.44, subd. 16 (2004) (defining "[s]hall" as "mandatory").

Spartz also argues that, based on the testimony of certain witnesses and 31 photographs of the property taken by Spartz's contractor, he proved both the existence of "erosion" of his shoreline and that the erosion of the shoreline was "continu[ing]."  Spartz concludes that because he proved the existence of erosion and because certain experts testified that the conditions of rule 6115.0216, subp. 2, were satisfied, the DNR should have granted his application for an after-the-fact riprap permit.

The existence of sufficient erosion to support a riprap permit, however, is not at issue: the commissioner found that "the Spartz Project minimally meets the rule's threshold ‘continued erosion' test."  Spartz argues that the record lacks substantial evidence to support the commissioner's finding of only limited erosion.  In the context of a contested agency decision, there is substantial evidence when the record, considered in its entirety, contains evidence that is (1) such that a reasonable mind might accept it as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than "some evidence"; and (4) more than "any evidence."  See Reserve Mining Co., 256 N.W.2d at 825.

Here, the witnesses on whose testimony Spartz bases his argument (his own, his contractor's, and two experts) were found by the commissioner to have limited credibility and weight.  Also, of the 31 photographs introduced into evidence, the commissioner found that nine had only "marginal probative value" because they showed the property covered with snow making it "extremely difficult" to know whether they showed erosion at all; three photographs could support the existence of erosion only by "inference"; and one did not clearly show any erosion.  And the record shows that another photograph was not of the shoreline at all.  While the remaining 17 photographs are not specifically mentioned by the commissioner, the commissioner ruled that those photographs collectively had marginal probative value:

[E]ven viewing the testimony of [the contractor] and [an expert relied on by Spartz] and the photographs they took in a generous light, [Spartz] was only able to establish the existence of some very limited erosion along his shoreline before riprap was installed.  And he failed to establish the existence of widespread, continued erosion along the vast majority of that shoreline.

 

Appellate courts defer to agency determinations of the weight and credibility of evidence.  In re Excess Surplus Status of Blue Cross and Blue Shield of Minn.,624 N.W.2d 264, 278 (Minn. 2001); In re Hutchinson,440 N.W.2d 171, 177 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989).  Spartz has not shown, therefore, that the commissioner's finding of only limited erosion is unsupported by substantial evidence.  See Reserve Mining Co.,256 N.W.2d at 825.

II.

The commissioner noted that Minn. R. 6115.0215, subp. 3A (2005), "expressly prohibits protection or restoration work in public waters that ‘is detrimental to significant fish and wildlife habitat [if] there are no feasible, practical, or ecologically acceptable means to mitigate the effects.'"  The commissioner then ruled that "[a] preponderance of the evidence established that the riprap that was placed in public waters adjacent to [Spartz's] property has been and will be detrimental to significant fish and wildlife habitat, and that there are no feasible, practical, or ecologically acceptable means to mitigate the effects."

            Based on Spartz's assertions that only one expert, an aquatic-life biologist called by Spartz, addressed the effect of the riprap on fish and wildlife habitat and that the expert found minimal effect, Spartz argues that there is "no evidence" that the riprap will be detrimental to significant fish and wildlife habitat.[1]  There are two problems with this argument.  First, it is based on the testimony of the aquatic-life biologist and his understanding of what, under rule 6115.0215, subp. 3A, the language "detrimental to significant fish and wildlife habitat" means.  The commissioner, however, rejected that understanding of the rule, noting that the aquatic-life biologist's understanding of "significant" was "solely as a quantitative measure" and that it was the biologist's opinion that "the amount of habitat that was adversely affected by the riprap on the Spartz Property was very minor in comparison with the amount of similar habitat that still remains along the shoreline of Wabedo Lake."  After analyzing caselaw and the rules, the commissioner concluded that the term "significant," as used by Minn. R. 6115.0215, subp. 3A, "also means any loss of fish or wildlife habitat beyond what is absolutely necessary to provide protection against the erosion problem that actually exists on a particular area of shoreline.  The habitat loss here fails that test."  Not only does Spartz not challenge the commissioner's reading of "significant" under the rule, but also appellate courts ordinarily defer to an agency in its field of expertise.  See Reserve Mining Co.,256 N.W.2d at 824.  Thus, the first problem with Spartz's argument is that it is based on a misunderstanding of the law.

A second problem with Spartz's argument is that two witnesses other than the aquatic-life biologist testified to the effect of Spartz's riprap on fish and wildlife habitat.  A DNR fisheries expert testified that (a) the riprap buried certain cobble on the lake bed, making the cobble "no longer available for Walleye spawning"; (b) the riprap covered areas needed for re-germination of bulrush, a plant protected by law; (c) he recommended removing the riprap because he had concerns about "shore habitat loss due to being buried under all of that rock"; (d) "there was some loss of [fish] habitat with that riprap placed there"; and (e) protection of existing habitat is "more important" on Wabedo Lake because the lake is extensively fished.  Also, a DNR wildlife supervisor testified that (a) the lake's natural shoreline has "a very high value for wildlife utilization"; (b) the riprap functions as a "barrier or a wall" to "smaller reptiles and amphibians" between the upland side and the lake side of the riprap, rendering the upland habitat "virtually not available" to those reptiles and amphibians; (c) the riprap diminishes the habitat and cover used by certain animals who live on or move through the lakeshore area; and (d) he was concerned about the cumulative loss of habitat.

Spartz cites In re Application of Orr,396 N.W.2d 657, 661 (Minn. App. 1986), for the propositions that each case must be analyzed on its merits and that limited weight is to be given to analyses involving speculation and the possible cumulative effect of granting multiple permit applications to owners of shoreline property on the same lake.  While cumulative effect was mentioned by the fisheries and wildlife experts, a review of the experts' testimony shows that their basic concerns were particular to Spartz's project.  Additionally, because of the commissioner's project-specific definition of what is a "significant" effect on fish or wildlife habitat under Minn. R. 6115.0215, subp. 3A, whether Spartz violated this rule depends on his project, not the effect of Spartz's project combined with the effects of unrelated projects or the possible existence of other properties on the lake with riprap on their shorelines.  Thus, Orr does not require a reversal here.  Similarly, the commissioner's project-specific reading of "significant," combined with his finding that this project has a significant effect on habitat, addresses Spartz's citation of State ex rel. Wacouta Twp. v. Brunkow Hardwood Corp.,510 N.W.2d 27, 30 (Minn. App. 1993), and Roach v. Comm'r of Dept. of Natural Res., 356 N.W.2d 432, 435 (Minn. App. 1984), to argue that, because his project's effects on fish and wildlife habitat are de minimis, those effects should not preclude granting his permit application.

III.

It is undisputed that the bulrush plant is protected by law.  Here, the commissioner found that when Spartz's contractor put riprap on Spartz's property, the contractor "covered emergent bulrushes," and, therefore, under Minn. R. 6115.0215, subp. 4(E)(6) (2005), Spartz needed an aquatic-plant-management permit to install the riprap.  Spartz notes that his contractor testified that he did not put riprap on the bulrushes and argues that an aquatic-plant-management permit under Minn. R. 6280.0250, subp. 1(D) (2005), was not required here because he had sought a public waters permit.

A.        Effect on Bulrushes

 

The commissioner decided that the contractor's testimony "minimize[d]" the number of bulrush plants that the riprap covered; compared the contractor's testimony with the testimony of other witnesses, as well as various reports and photographs in the record; and found that "a preponderance of the evidence established that some bulrush plants were covered by riprap along at least 175 feet of the riprapped shoreline, and that the extent of the coverage varied from a few inches to several feet."  This finding is supported by the record.  To the extent that testimony conflicted, the commissioner made a credibility determination, to which we must defer.

B.        Rule 6280.0250

The rule that Spartz cites to argue that he was not required to obtain an aquatic-plant-management permit states that a permit is not required

[for] destroying aquatic macrophytes incidental to activities authorized by a department permit for work in public waters as provided by [Minn. Stat. § 103G.245] or by a license permitting the passage of utilities over public lands and waters as provided by parts 6135.0100 to 6135.1800 and [Minn. Stat. § 84.415].

 

Minn. R. 6280.0250, subp. 1D.  Because it is undisputed both that Spartz had no permit for work in public waters and that this case has nothing to do with a utilities license, the fact that Spartz proceeded without an aquatic-plant-management permit made his installation of the riprap improper under Minn. R. 6115.0215, subp. 4(E)(6).

IV.

 

In denying Spartz's after-the-fact permit application, the commissioner also noted that Spartz's project does not comply with the county's shoreland-management ordinance.  Spartz argues that if, when deciding whether to grant a permit for putting riprap below the OHWL, the commissioner considers a county ordinance addressing the alteration of shoreland above the OHWL, the commissioner improperly delegates to the county his authority for supervising lands below the OHWL.

The commissioner's consideration of whether a project satisfies a county's shoreland-management ordinance as one factor in deciding whether to grant a permit for placing riprap below the OHWL does not constitute a delegation to the county of the authority for granting that permit.  Cf. Black's Law Dictionary 438 (7th ed. 1999) (defining "delegation" as "[t]he act of entrusting another with authority or empowering another to act as an agent or representative").  The commissioner "shall" grant a permit if he "concludes that the plans of the applicant are reasonable, practical, and will adequately protect public safety and promote the public welfare[,]" and the commissioner may include in the permit any conditions that may be necessary to accomplish those goals.  Minn. Stat. § 103G.315, subds. 3, 6(b) (2004).  To find that the commissioner must ignore a county's shoreland-management ordinance when deciding whether to grant a riprap permit creates the possibility that a property owner could be directed by the DNR to implement the DNR's polices for managing land below the OHWL in a manner that is inconsistent with the county's policies for managing the land above the OHWL.  This would not promote public safety and welfare.  Indeed, in a case in which Spartz's delegation argument was not raised, this court noted that the DNR "did not err by concluding that the excavation [of a channel between two bodies of water] is prohibited because of conflicts with the applicable local management plans and ordinances."  Bloomquist v. Comm'r of Natural Res.,704 N.W.2d 184, 189 (Minn. App. 2005).  Spartz has not shown that the DNR improperly delegated its authority to the county.

V.

The commissioner found that "[t]he riprapped shoreline of the Spartz property is the only portion of the Lake Wabedo shoreline on which riprap has been installed."  In making this finding, the commissioner admitted that the evidence conflicted on the subject; therefore, that the commissioner's finding involved judgments regarding the weight and credibility of witness testimony.  After the commissioner denied Spartz's application, Spartz sought reconsideration, tendering new evidence that six other properties on the lake had riprap along their shorelines.  The commissioner denied reconsideration, stating that "[a]fter reviewing the information, I find no justification to cause me to reconsider my decision in the Final Order."  Spartz challenges this ruling, arguing that "[t]he issue of equal treatment of this applicant as compared with other landowners similarly situated is an important one."  We reject this argument for four reasons.

First, Spartz's assertion of the importance of the existence of riprap on other properties is inconsistent with the commissioner's order, which characterizes the existence of other properties with riprap as "parenthetical to this inquiry" and "not determinable of the issues in this proceeding."  Also, the fact that the commissioner gave limited weight to the existence of riprap on other properties is consistent with his reading of Minn. R. 6115.0215, subp. 3A, to require a project-specific determination of the extent of any effect on fish and wildlife habitat.

            Second, under Minn. R. 1400.8300 (2005), an agency's reconsideration of a decision on the basis of newly discovered evidence requires that the evidence in question be "material evidence newly discovered that with reasonable diligence could not have been found and produced at [the original] hearing[.]" Assuming that the existence of other Wabedo Lake properties with riprap is material here, Spartz does not explain why the evidence he submitted with his request for reconsideration could not have been produced earlier.

Third, assuming both that there are other lake properties with riprap on them and that the owners of those properties received permits to install riprap, those applications would have been granted under the version of the DNR's riprap rule that pre-dated the version applicable to Spartz's application.  Therefore, it is not clear that the Spartz property is situated similarly to properties governed by the old rule or that treating those properties differently is discriminatory.

Finally, Spartz admits that whether to grant reconsideration is discretionary with the DNR.  With the defects in Spartz's arguments regarding reconsideration discussed above, he has not shown that the commissioner's denial of his motion for reconsideration was an abuse of discretion.

Affirmed.

[1] Spartz cites Minn. R. 6115.0210, subp. 3B (2005), to support his argument.  That rule was not invoked by the commissioner and addresses circumstances under which "structures" are prohibited in public waters.  Other aspects of the rule refer to docks, mooring facilities, and boat ramps.  Minn. R. 6115.0210 subps. 4, 5 (2005).  Because the rule is not relevant to this riprap dispute, we assume Spartz intended to refer to Minn. R. 6115.0215, subp. 3A.