Friends of Lake Minnie Belle, et al., Appellants, vs. Meeker County Board of Commissioners, et al., Respondents, Dan Fitterer, Respondent.

Friends of Lake Minnie Belle, et al., Appellants, vs. Meeker County Board of Commissioners, et al., Respondents, Dan Fitterer, Respondent. A07-0055, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS
A07-0055
 
Friends of Lake Minnie Belle, et al.,
Appellants,
 
vs.
 
Meeker County Board of Commissioners, et al.,
Respondents,
 
Dan Fitterer,
Respondent.

 

Filed December 31, 2007

Affirmed

Wright, Judge

 

Meeker County District Court

File No. CV-06-500

 

 James P. Peters, Karna M. Peters, Peters & Peters, 460 Franklin Street North, #100, Glenwood, MN  56334 (for appellants)

Jay T. Squires, Ratwik, Roszak & Maloney, 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for respondents Meeker County Board of Commissioners)

Dustan J. Cross, Bridget L. Bailey, Gislason & Hunter, 2700 South Broadway, New Ulm, MN  56073 (for respondent Fitterer)

 

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WRIGHT, Judge

After determining that an environmental impact study (EIS) was not necessary, respondent county board granted a conditional use permit (CUP) that allows respondent project proposer to expand his dairy feedlot operation.  Appellants filed a declaratory-judgment action in district court to challenge the negative EIS declaration.  The district court subsequently granted respondents' motions for summary judgment, affirming the county board's determination.  On appeal from the district court's grant of summary judgment in favor of the board and project proposer, appellants argue that the board acted arbitrarily and capriciously by concluding that the proposed project did not have the potential for significant environmental effects and by failing to properly analyze the cumulative potential effects of the proposed project and related projects.  Appellants also maintain that the board erred by refusing to consider evidence submitted after the public-comment period but before the board's decision.  We affirm.

FACTS

Respondent Dan Fitterer applied to Meeker County (the county) for a CUP to expand his dairy feedlot.  Located within the shoreland district of Lake Minnie Belle (the lake), Fitterer's feedlot is approximately 300 feet from the lake's ordinary high-water line.  It is one of five feedlots located within one mile of the lake and one of two currently within the shoreland district.  Fitterer's feedlot also is close to a number of wetlands within one of the lake's subwatersheds, MB5.

            The county allows up to 300 animal units (AUs)[1] as a conditional use in its agricultural shoreland district.  When Fitterer applied for the CUP, his operation maintained 98 AUs, and he proposed to expand his feedlot to accommodate 240 AUs.  To accommodate the additional AUs, Fitterer proposed to convert an existing loafing barn into a compost barn and to construct a new high density polyethylene (HDPE)-lined manure basin.  The manure basin holds twelve months of manure storage, runoff from the open lot, and rain.  It also includes one foot of additional freeboard capacity beyond what is designated as full capacity.  The HDPE-lined basin constitutes an expansion and improvement of the existing earthen basin, which has a storage capacity of approximately six months of manure.  Fitterer also acquired additional acreage outside MB5 for land application of manure.

            Based on a citizen petition for an environmental assessment worksheet (EAW), the county ordered an EAW to investigate the project's potential effects on air and water quality in the area and to determine whether additional environmental review was required.  On October 18, 2005, the county completed its EAW, appending several documents, including a manure management plan (MMP) created by Fitterer that would be an enforceable part of the CUP.  The MMP describes the proposed methods to incorporate the manure into the soil and requires regular soil testing.  It also describes the proposed treatment of fields within MB5 as "sensitive fields" in compliance with Minn. R. 7020.2225, subp. 6 (2005).  Also appended to the EAW is a September 27, 2005 email from the Minnesota Pollution Control Agency (MPCA) stating that "the facility, as proposed, meets and/or exceeds all state rules and requirements and does not increase environmental concerns."

            The county submitted the EAW to the Environmental Quality Board (EQB) for public notice.  The EAW was published in the EQB Monitor on October 24, 2005, inviting comments on the proposed project.  The county received 71 written comments during the comment period, which ended on November 23, 2005.  The county responded to all "substantive comments" and appended a list of comments and responses to its order. 

            On December 13, 2005, respondent Meeker County Board of Commissioners (the board) addressed whether Fitterer's project proposal required an EIS.  The board directed county staff to prepare proposed findings for its meeting to be held on December 20, 2005.  But at that meeting, the board postponed its decision in order to obtain well-location maps, improve the descriptions of surrounding land use, review the MPCA report on liquid manure storage, and review a generic EIS regarding animal agriculture.  The county notified interested parties of the postponement and the nature of the information that it was gathering and reviewing.  The county did not extend or reopen the public-comment period.

            Appellants include individual residents of Meeker County, many of whom own property near the facility, and Friends of Lake Minnie Belle (FLMB), a nonprofit citizen organization.  On December 23 and 25, 2005, counsel for appellants sent the county additional written materials.  Finding that "consideration of untimely submissions would adversely affect the analysis and timely decision required for an EIS determination," the board declined to review these materials.  On January 3, 2006, the board concluded that an EIS was not required because the project did not have the potential for significant environmental effects.

            FLMB and the individually named appellants appealed the board's decision to the district court under the Minnesota Environmental Policy Act (MEPA), Minn. Stat. § 116D.04, subd. 10 (2006), seeking a judgment declaring that an EIS is required for the proposed project.  The parties filed cross-motions for summary judgment.  The district court granted summary judgment in favor of Fitterer and the board, and it struck from the record and refused to consider the materials submitted after the public-comment period.  This appeal followed.

D E C I S I O N

            Our review of a summary judgment affirming a negative declaration regarding the need for an EIS involves an examination of the proceedings before the decision-making body, not the findings of the district court.  Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 879 (Minn. App. 1995), review denied (Minn. July 28, 1995).  In doing so, we examine the decision to determine if the board took a "hard look" at the salient issues.  Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm'rs, 713 N.W.2d 817, 832 (Minn. 2006) (CARD).  Affording substantial deference to the board's decision, we will not reverse unless we conclude that either (1) the board committed an error of law; (2) the findings are arbitrary and capricious; or (3) the findings are unsupported by substantial evidence when the record is considered in its entirety.  Id. at 832-33.

            The board's negative declaration regarding the need for an EIS is arbitrary and capricious if the decision represents the board's "will, rather than its judgment."  Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn. App. 1999).  A decision is arbitrary and capricious if it (1) is based on factors that were not intended by the legislature, (2) entirely fails to address an important aspect of the problem, (3) provides explanations counter to the evidence, or (4) is so implausible that it could not be explained as a difference in view or the result of the decision-maker's expertise.  CARD, 713 N.W.2d at 832. 

            When there is "potential for significant environmental effects" resulting from any major governmental action, including the grant of a CUP, the action must be preceded by an EIS prepared by the responsible governmental unit (RGU).  Minn. Stat. § 116D.04, subds. 1a(d), 2a (2006); CARD, 713 N.W.2d at 823-24.  Here, it is undisputed that the county is the RGU.  As such, the county was required to analyze the following four factors to determine whether the project has the potential for significant environmental effects: (1) the type, extent, and reversibility of environmental effects; (2) the cumulative potential effects of related or anticipated future projects; (3) the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and (4) the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.  Minn. R. 4410.1700, subp. 7 (2005).  In doing so, the county was required to consider the project's EAW and comments received during the public€‘comment period.  Minn. Stat. § 116D.04, subd. 2a(b). 

            When analyzing a project's cumulative potential effects, "an RGU must take into account outside projects that have the potential to cause significant environmental effects when considered in conjunction with the proposed project."  CARD, 713 N.W.2d at 831-32.[2] This analysis considers whether the project, "which may not individually have the potential to cause significant environmental effects, could have a significant effect when other local projects already in existence . . . are considered."  Id. at 829.

Appellants argue that the board did not adequately analyze the cumulative potential effects of the project and the surrounding feedlots on the lake.  They also challenge the evidentiary support for the board's determination that the project presents no risk of cumulative potential effects on water quality in the lake.  Our review establishes that the board thoroughly researched and evaluated the likely impact on the lake from the increased number of AUs in the pastures and the increased quantity of manure to be stored and applied to fields.  The record demonstrates that the board's conclusion was supported by the evidence.

            The project's plan for manure application to fields meets or exceeds the requirements of chapter 7020 and the standards of the Natural Resource Conservation Service.  Although concerns were raised in the past about potential contamination of the MB5 wetlands resulting from agricultural runoff containing phosphorous, the more recently conducted research demonstrates that there is no potential for discharge of polluted water from MB5 into the lake except in times of extreme precipitation and runoff.  Furthermore, the lake is protected by more than 70 acres of pasture, which act as a buffer and a filter between crop fields and sensitive features, like the wetlands and the lake.  County technical staff determined that the project's MMP addresses issues related to preventing manure application from adversely impacting water quality.  And soil testing would occur to assist in soil nutrient management.  The board considered this evidence, combined with Fitterer's improved containment practices, the increase in land available for manure application outside MB5, and the project's compliance with chapter 7020 requirements.

            The project's plan for manure management within the feedlot itself is more than sufficient to protect the lake.  The county's characterization of the feedlot facility as "zero discharge" is supported by the evidence.  The EAW indicates that all runoff from the feedlot itself would be contained within the HDPE-lined basin.  Thus, the board's conclusion that there will be no runoff from the facility to affect the lake also is supported by substantial evidence.

The EAW also indicates that the pastures were sufficient to accommodate the additional animals and that precautions were in place to prevent harm to nearby wetlands and, by extension, the lake.  To mitigate the impact of the additional AUs, Fitterer will reduce the number of days the livestock would utilize the pasture, especially under wet conditions, and keep the livestock in the compost bed barn so as to protect against erosion.  Also, additional crop acreage would be converted to pasture if the proposed amount of acreage poses a problem.  Moreover, the livestock are fenced out of wetland W4.

            The board also considered the other feedlots around the lake in its cumulative€‘potential€‘effects analysis.  The EAW noted that there are five feedlots within one mile of the lake, two of which are located in the shoreland district.  It also noted that all five are Class A feedlots (less than 300 AUs).  The board found that the project "has sufficient cropland acreage available to land apply the manure that will be generated at this Project, so the number of feedlots in the vicinity does not create an impediment from this standpoint."  The board considered related and future projects in its cumulative€‘potential€‘effects analysis.  In light of the board's consideration and because Fitterer's proposed expansion has not been shown to have any effect on the lake, appellants' challenge to the cumulative€‘potential€‘effects analysis is unavailing.

            The board's conclusion that the proposed project meets or exceeds all applicable standards and did not result in the potential for significant environmental effects is supported by substantial evidence.  The administrative record establishes that the board's analysis of the relevant factors was sound and its negative declaration regarding the need for an EIS was not arbitrary and capricious.

            Appellants raise multiple other challenges to the board's negative declaration, all of which are without merit.  Appellants' challenge to the board's analysis of the potential effects on water and air quality is unfounded because sufficient evidence in the board's order and in the materials prepared by county staff indicates that little or no effect on the water or air quality is likely as a result of the proposed project.  Similarly, appellants' argument that the board did not adequately address the reversibility of environmental effects is unpersuasive because the board's order explains the extremely small likelihood of harm resulting from normal functioning of the expanded feedlot, the special precautions to be taken to prevent accidents, and the project's emergency response plan.  Without more, appellants' bare assertions are insufficient to prevail on these claims.

II.

            Appellants also argue that the board erred by declining to consider evidence that it submitted after the public-comment period but before the county rendered its decision.  Because the scope of the administrative record is defined by statute, the board's decision not to consider the additional evidence as part of the administrative record presents a question of statutory interpretation, which we review de novo.  In re Grain Buyer's Bond of Mischel Grain & Seed, 591 N.W.2d 734, 736 (Minn. App. 1999).

MEPA dictates the scope of the record on which an RGU may base its decision.  "The [RGU]'s decision on the need for an environmental impact statement shall be based on the environmental assessment worksheet and the comments received during the comment period."  Minn. Stat. § 116D.04, subd. 2a(b).  The EQB rules clarify that the record includes "specific responses to all substantive and timely comments on the EAW."  Minn. R. 4410.1700, subp. 4 (2005).

            Ten articles and studies were submitted one month after the comment period, which closed on November 23, 2005.  Since the materials were not timely submitted, they are not a part of the administrative record.  Id.  Therefore, the county was required neither to respond to the comments nor to take them into account in its determination as to the necessity of an EIS.  Id., subp. 3 (2005).  This is particularly true given that none of the articles addressed issues raised or discovered after the comment period.  The board accurately observed, and appellants do not dispute, that "there is no reason why the comments could not have been provided in a timely fashion."

            Appellants argue that the board should have considered the materials based on our decision in Trout Unlimited, Inc. v. Minn. Dep't of Agric., 528 N.W.2d 903 (Minn. App. 1995), review denied (Minn. April 27, 1995).  In Trout Unlimited, we interpreted the administrative record to include documents "available and in the possession of the [RGU]" while it considered the need for an EIS.  528 N.W.2d at 908.  But the documents at issue in Trout Unlimited were from the RGU's own records.  Id. at 907.  Because the documents submitted to the board were not part of the board's records, Trout Unlimited is inapposite.  Accordingly, the board's decision regarding the documents received after the public-comment period was not erroneous.

            After the board declined to review the documents, appellants presented them to the district court.  A reviewing court may consider matters outside the administrative record under very limited circumstances, such as when

(1) the agency's failure to explain its action frustrates judicial review; (2) additional evidence is necessary to explain technical terms or complex subject matter involved in the agency action; (3) the agency failed to consider information relevant to making its decision; or (4) plaintiffs make a showing that the agency acted in bad faith.

 

White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 734-35 (Minn. App. 1997).

            Appellants argue that the documents were "relevant, technical and helped to explain the complex subject matter."  But appellants fail to demonstrate that the board did not consider information relevant to making its decision.  Nor are we convinced that there were "technical terms or complex subject matter[s]" that the board was unable to adequately address with the voluminous materials that it considered.  See id.  Moreover, there is no showing that the agency acted in bad faith.

            Since the materials submitted one month after the comment period were not contained in the administrative record and do not satisfy any of the exceptions for judicial consideration, the district court properly declined to consider them.

            Affirmed.

[1]An "animal unit" is a unit of measure that allows comparison of the differences in the manure production of various types of animals by multiplying the number of animals of a particular type by a conversion factor.  Minn. Stat. § 116.06, subd. 4a (2006). 

[2] Although the board issued its negative declaration before CARD, there are no "special circumstances or specific pronouncements of prospectivity" in CARD that preclude its retroactive application here.  See State v. Baird, 654 N.W.2d 105, 109 (Minn. 2002) (stating rule that court decisions generally are given retroactive effect).