In the Matter of the Wetland Conservation Act appeal filed by Paul Haik involving the Zander property, located in the SE 1/4 of Section 4, St. Mary Township, T. 107N, R. 23W, Waseca County.

This opinion will be unpublished and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

A04-314

 

In the Matter of the Wetland Conservation Act
appeal filed by Paul Haik involving the Zander property,
located in the SE 1/4 of Section 4, St. Mary Township,
T. 107N, R. 23W, Waseca County

 

Filed December 14, 2004

Affirmed

Minge, Judge

 

Minnesota Board of Water and Soil Resources

 

 

Paul R. Haik, Krebsbach and Haik, Ltd., 225 South Sixth Street, Suite 4320, Minneapolis, MN 55402 (for relators Zanders)

 

Mike Hatch, Attorney General, Christopher M. Kaisershot, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent Board of Water & Soil Resources)

 

Mike Hatch, Attorney General, Lisa A. Crum, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for intervenors/respondent Minnesota Department of Transportation)

 

            Considered and decided by Minge, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Relators appeal from a determination of the Minnesota Board of Water and Soil Resources rejecting their appeal of the decision of the Minnesota Department of Transportation to realign a highway and fill wetlands located on relators' property.  Because the record clearly supports the Minnesota Board of Water and Soil Resources' decision, we affirm.

FACTS

 

Respondent, Minnesota Department of Transportation (MnDOT) is upgrading and expanding U.S. Highway 14 between Mankato and Owatonna.  As part of this upgrade, MnDOT seeks to acquire land of relators, Dan and John Zander, and to fill in wetlands on that land.  Relators challenge the project on several bases in different proceedings, including an eminent domain action, a Minnesota Environmental Rights Act action,and this appeal of theMnDOT wetland replacement plan.  Relators' request to consolidate the eminent domain action with the matter before this court was denied.  Thus, this decision only deals with the wetland portion of the larger controversy, which is properly before this court in this appeal. 

As a part of preparing the project plans for Trunk Highway 14 (TH-14), MnDOT identified and evaluated alternative highway alignments based on environmental, historical, social, land use, and economic considerations.  Over a period of five years, MnDOT narrowed the project alternatives to four, which were evaluated in environmental-impact statements (EIS).  The four are: (1) take no action to improve Highway 14; (2) upgrade the existing two-lane highway; (3) expand to a four-lane roadway along the existing TH-14 route with three sub-alternative bypass options around Waseca; or (4) build a new four-lane expressway south of the existing Highway 14 and bypass Waseca on the south side (Alternative 4).  Because there is an abundance and a variety of wetlands in the area, a report was prepared which inventoried, analyzed and evaluated all the wetlands affected by the proposed TH-14 alignments.  

In response to public comments, MnDOT selected Alternative 4 as the preferred alignment and a final EIS was then prepared and approved.  Alternative 4 runs adjacent to the south side of the Dakota, Minnesota and Eastern Railroad (DM&E) tracks, and requires acquisition of a portion of relators' property.  This portion includes three wetlands having an area of 7.34 acres.  As a part of the TH-14 project, these wetlands will be filled.  According to the wetlands report and the final EIS, these wetlands are of medium function and value because they have been degraded by the proximity of the railroad track, a highway, farming activity, and an industrial facility.  Also, the EIS found that the wetlands had previously been drained, excavated and then rewatered, do not have a diversity of plant species, and are populated with invasive vegetation. 

DM&E parallels TH-14 and is undergoing a major reconstruction.  After MnDOT's preferred route was approved, DM&E announced that it planned to build a large railroad switchyard in the Waseca area on the south side of the existing railroad tracks.  In response to the DM&E plan, MnDOT developed yet another alternative that would avoid a conflict with the railroad switchyard.  This alternative would also have avoided the wetlands on relators' property.  When DM&E subsequently decided against building the switchyard, MnDOT abandoned this alternative route for TH-14 and returned to Alternative 4. 

Because Alternative 4 requires filling in the wetlands located on relators' property, MnDOT was required to develop and receive approval for a wetland replacement plan from its own Office of Environmental Services.  MnDOT's wetland replacement plan identified a replacement site in the same county and same watershed where two acres of wetlands would be established to replace each acre filled.  As required by regulations, a technical evaluation panel composed of representatives from the Minnesota Board of Water and Soil Resources (BWSR), MnDOT and Waseca County reviewed the wetland replacement plan, determined that the proposed replacement site would produce wetlands of higher quality than those currently on relators' property, and recommended that the Office of Environmental Services approve the replacement plan.

Relators objected to the wetland replacement plan.  In part, their objections were based on a report from an ecologist who they had retained to survey the property for endangered or threatened species.  The ecologist stated that several plants in the wetlands appeared to have leaves shared by Sullivant's milkweed, which is listed as a threatened species, but cautioned that he could not confirm the existence of threatened species in the wetlands because of the late fall season.  The possible existence of a threatened species in the wetlands contradicted two prior environmental evaluations which reported that there were no threatened or endangered species in the wetlands.  One such evaluation was in the Minnesota Natural Heritage Database; the other was a 1991 survey by the Minnesota Department of Natural Resources (DNR).  Relators urged that the alternative alignment for TH-14 that was developed to avoid the now abandoned railroad switchyard be evaluated and considered. 

In response to relators' comments, MnDOT compared Alternative 4 and the railroad switchyard avoidance alternative.  MnDOT concluded that although the railroad switchyard avoidance alternative was practicable and did not affect any wetlands, it was not prudent because it would be more environmentally damaging overall, use more acres of farmland for highway, would add travel distance for farmers to reach their fields, increase total expenses, require additional railroad crossings, and add two curves to the highway. 

On December 31, 2003, MnDOT's Office of Environmental Services approved the wetland replacement plan and issued findings of fact and conclusions.  The findings and conclusions addressed relators' concerns regarding the medium function and value of their wetlands and the existence of threatened species on the wetlands.

Relators appealed the decision by petitioning BWSR pursuant to Minn. Stat. § 103G.2242 (Supp. 2003) and Minn. R. 8420.0250 (2003) requesting that it disapprove MnDOT's wetland replacement plan.  The executive director of BWSR denied the petition and refused to hold a hearing because BWSR concluded that the petition was without merit and brought solely for purposes of delay.  Relators appealed to this court by writ of certiorari and argue that the matter should be remanded to BWSR for further consideration.  

D E C I S I O N

 

            Relators challenge BWSR's dismissal of their appeal disputing MnDOT's decision on the new alignment of TH-14.  The claims by relators include: (1) MnDOT's plan eliminates wetlands in violation of the state policy of not filling and destroying wetlands; (2) MnDOT's plan fails to recognize threatened species protected by law; (3) MnDOT's plan failed to consider an alternate alignment for TH-14 (which was developed in response to the proposed DM&E switchyard) that would not materially and adversely affect the environment;[1] (4) the decisions by MnDOT and BWSR, including BWSR's finding that relators' appeal was meritless and brought solely for the purposes of delay, are not supported by substantial evidence and are arbitrary and capricious; and (5) BWSR exceeded its authority and certain other points.  Respondents contest relators' claims and move to strike certain parts of relators' appendix and references to documents that are claimed to be outside the record.

The BWSR decision to deny relators' petition is a contested case for purposes of judicial review, and is governed by Minn. Stat. §§ 14.63 to 14.69 (2002).  See Minn. Stat. § 103G.2242 (Supp. 2003); Board Order, Kells (BWSR) v. City of Rochester, 597 N.W.2d 332, 336 (Minn. App. 1999).  An agency's factual findings must be viewed in the light most favorable to the agency's decision and shall not be reversed if the evidence reasonably sustains them.  White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983).  An application for appeal may be denied by BWSR if "the appeal is meritless, trivial, or brought solely for the purposes of delay[.]"  Minn. Stat. § 103G.2242, subd. 9 (2002). 

I.

The first issue is whether MnDOT's selection of a route that would fill the wetlands on relators' land violates the Wetlands Conservation Act (WCA) as codified in Minn. Stat. §§ 103G.221-.2372 (2002).  The legislation establishes the policy that wetlands are protected and directs that "[w]etlands must not be drained or filled, wholly or partially, unless replaced by restoring or creating wetland areas of at least equal public value . . . ."  Minn. Stat. § 103G.222, subd. 1(a); Minn. R. 8420.0100 (2003).  The law clearly allows the filling of wetlands, as long as they are replaced according to the rules and procedures outlined by BWSR in Minn. R. 8420.0200-0290.  See Minn. R. 8420.0520, subp.1 (2003).     

Relators argue that MnDOT did not follow rules and procedures for filling in wetlands when it developed and sought approval of a wetland replacement.  A wetland replacement plan is required for any activity approved by a local government unit (LGU) that impacts wetlands.  Minn. R. 8420.0510-.0520.  An LGU is a county or city in which the wetland is located or a state agency when the wetland is located on state land or affected by a state project.  Minn. R. 8420.0200, subp. 1 (2003).  MnDOT is the LGU on its projects; MnDOT's Office of Environmental Services reviews and approves the wetland replacement plans.  Any decision of the LGU is appealable by a petition to the BWSR which must grant the petition and hold a hearing on the appeal, unless: (1) BWSR determines that the petition is deemed meritless, trivial, or brought solely for the purposes of delay; (2) the petitioner has not exhausted administrative remedies; or (3) the petitioner failed to post a fee required by the LGU.  Minn. Stat. § 103G.2242, subd. 9; Minn. R. 8420.0250 (2003).   

The LGU may not consider or approve a wetland replacement plan unless the applicant has complied with what is called "sequencing."  Minn. R. 8420.0520, subp.1.  Sequencing requires the applicant to demonstrate that the project complies with five principles in descending order of priority.[2]  Id.

The first sequencing principle requires the applicant to examine the possibility of avoiding impact to wetlands.[3]  To establish whether the impact can be avoided, the applicant must in good faith examine alternatives and provide "documentation describing at least two alternatives in addition to the proposed project[.]"  Minn. R. 8420.0520 subp. 3(B) and (C)(1) (2003).  The LGU is required to determine whether any "feasible and prudent alternatives are available that would avoid impact to wetlands."  Id. at subp. 3(C)(2).  An alternative is feasible and prudent if it meets all the following requirements:

(a) it is capable of being done from an engineering point of view;

(b) it is in accordance with accepted engineering standards and practices;

(c) it is consistent with reasonable requirements of the public health, safety, and welfare;

(d) it is an environmentally preferable alternative based on a review of social, economic, and environmental impacts; and (e) it would create no truly unusual problems.

 

Id.  If the LGU determines that no "feasible and prudent alternative" exists, then the LGU considers the remaining sequencing requirements.  Id. at subp. 3(C)(3).[4]

MnDOT did consider several alternatives including: (1) taking no action to improve TH-14; (2) upgrading and maintaining the existing two-lane highway; and (3) expanding to a four-lane highway along the existing route but with bypasses of Janesville and Waseca.  One of the bypass options included routing the highway north of Waseca, which would have avoided relators' wetlands.  None of these alternatives was advocated by relators as the preferred selection, so we do not discuss these alternatives further. 

Relators argue that MnDOT failed to comply with the first sequencing requirements because it did not select the railroad switchyard avoidance alternative.  This alternative was the highway route proposed if DM&E built a switchyard south of Waseca.  Relators argue that even if DM&E did not build the switchyard, the railroad switchyard avoidance alternative should be selected because it would not destroy the 7.34 acres of wetlands on relators' property.  But, MnDOT is only required to consider alternatives if they meet feasibility and prudence requirements.  See Minn. R. 8420.0520, subp. 3(C).

Although technically feasible, MnDOT and BWSR concluded that the railroad switchyard avoidance alternative was not prudent for a variety of reasons.  Specifically, MnDOT determined that the railroad switchyard avoidance alternative's overall environmental impacts were more damaging because it would convert 16.75 more acres of existing farmland to the highway right-of-way, 68.03 acres of existing farm fields would be broken up and farmers would be required to travel an additional 4.5 miles to reach those severed fields.  In terms of safety, the railroad switchyard avoidance alternative would add two curves, would place a street access near the end of a curve, and would retain three rail crossings that would otherwise be closed.  Also, it is noteworthy that the railroad switchyard avoidance alternative would require the expenditure of an estimated $350,000 in additional right-of-way costs and would increase the project costs by an estimated $2,345,000.  Therefore, the railroad switchyard avoidance alternative was clearly inferior and was only developed and considered because of the proposed railroad switchyard.  When DM&E dropped the railroad switchyard, MnDOT concluded that there was no longer a need to consider the railroad switchyard avoidance alternative.  

Because MnDOT reviewed several prudent and feasible alternatives as required by the WCA, and because the evidence clearly indicates that the railroad switchyard avoidance alternative was not prudent, relators' claim that MnDOT failed to comply with the sequencing requirement for consideration of alternatives is without merit.  This supports the decision of BWSR to dismiss relators' petition without a hearing.

II.

The second issue is whether MnDOT violated the first sequencing principle because it failed to obtain a permit to fill wetlands that contained endangered or threatened species pursuant to Minn. R. 8420.0548, subp. 2 (2003).  This sequencing principle requires that the LGU avoid impacting wetlands that include endangered or threatened species, and the replacement plan must be denied unless a special permit is issued.  Minn. R. 6212.1800 (2003); Minn. R. 8420.0520, subp. 1(A), .0548, subp. 2.  The LGU is required to determine whether there are endangered or threatened species in the wetlands by reviewing the DNR natural heritage and nongame research program, which includes a database listing the locations of rare plants and other organisms.  Minn. R. 8420.0548, subp. 2. 

Relators argue that the wetlands on their land, which MnDOT plans to fill, contain threatened species and point to the ecologist's report from November 2003, which did not confirm or deny the existence of threatened species.  But MnDOT complied with this endangered species requirement because it reviewed the DNR database and found that there were no known instances of federal or state endangered or threatened species in the wetlands on relators' property.  Also, a cursory DNR 1991 survey and site visits in 2003 found no evidence of any endangered or threatened species in the area.  Because MnDOT complied with the sequencing requirement and the evidence of any endangered or threatened species in the wetlands on relators' property is speculative and is contradicted by clear evidence, relators' claim is without merit.[5]  This supports the decision of BWSR to dismiss relators' petition without holding a hearing.

III.

The third issue is whether MnDOT failed to consider a feasible alternative route that would not materially and adversely affect the environment in violation of the Minnesota Environmental Rights Act (MERA).  Relators argue that MnDOT violated MERA when it approved the wetland replacement plan because the plan adversely affects the wetlands on relators' property.  MERA was enacted to establish a private right of action for any person residing within the state to sue to protect the state's natural resources from "any conduct which materially adversely affects or is likely to materially adversely affect the environment[.]"  Minn. Stat.  §§ 116B.02, subd. 5, .03, subd. 1 (2002).  MERA rights are separate from a review of an agency's denial of appeal because an action under MERA is a judicial proceeding originating in the district courts and involves declaratory or equitable relief.  Minn. Stat. § 116B.03, subd. 1.  Our proceeding is appellate review of BWSR's denial of relators' petition for review.  Indeed, relators' MERA claim was recently dismissed by the district court.[6]  Therefore, the MERA claims are separate and inapplicable to this appeal.  Even if MERA were applicable to this appeal, we observe that in our discussion of the sequencing requirement and the WCA, that the railroad switchyard avoidance route was not prudent and that the route would have had its own adverse impact on the environment.  However, again we emphasize that we do not reach the ultimate questions raised by relators under MERA.

IV.

The fourth issue presented by this appeal is whether there is substantial evidence to support the decisions of BWSR and MnDOT.  This court can remand a BWSR decision if it lacks substantial evidence.  Substantial evidence is 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; or (5) the evidence considered in its entirety."  Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 466 (Minn. 2002) (citation omitted).  In examining whether the agency's decision is supported by substantial evidence, this court examines the decision based on the entire record submitted and

[i]f an administrative agency engages in reasoned decisionmaking, the court will affirm, even though it may have reached a different conclusion had it been the factfinder.  The court will intervene, however, where there is a ‘combination of danger signals which suggest the agency has not taken a "hard look" at the salient problems' and the decision lacks ‘articulated standards and reflective findings.' 

 

Cable Communications Bd. v. Nor-west Cable Communications P'ship, 356 N.W.2d 658, 668-69 (Minn. 1984) (citations omitted).  From the earlier discussion of the reasons why the switchyard avoidance plan was not prudent, it is clear that there is ample evidence in the record to support the decisions of MnDOT and BWSR.  Relators' claims of lack of substantial evidence does not require further consideration.

Relators also argue that the BWSR acted arbitrarily and capriciously.  This court determines that an agency's ruling is arbitrary and capricious if it

(a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency's expertise.

 

White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (quotation omitted), review denied (Minn. Oct. 31, 1997).  "[T]he agency's conclusions are not arbitrary and capricious so long as a rational connection between the facts found and the choice made has been articulated."  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted). 

Relators' argument that BWSR's decision was arbitrary and capricious apparently is based on BWSR's failure to consider or hold a hearing on the claim in relators' petition that the railroad switchyard avoidance alternative should have been selected and that Alternative 4 threatens endangered species.  MnDOT determined that the railroad switchyard avoidance alternative was not a prudent alternative because it caused more overall environmental damage and considerably increased costs.  These factual considerations have been previously discussed.  Similarly, relators have not introduced substantial evidence to show endangered or threatened species exist in the wetlands.  The record supports MnDOT's approval of Alternative 4, the wetland replacement plan, and the BWSR's denial of relators' appeal.  Because the facts strongly support MnDOT Office of Environmental Service's approval of the replacement plan, the BWSR did not act arbitrarily or capriciously in denying relators' appeal as being without merit and in declining to hold a hearing. 

V.

Relators also mention several claims that they do not fully argue or brief including: (1) MnDOT is in violation of the Minnesota Environmental Policy Act; (2) relators' substantial rights were prejudiced because the BWSR decision is a violation of constitutional provisions; (3) relators' substantial rights were prejudiced because the BWSR's decision exceeded the statutory authority or jurisdiction of BWSR; (4) BWSR's finding that relators' appeal was taken solely for purposes of delay is clearly erroneous; and (5) relators' substantial rights were prejudiced because BWSR's decision is affected by other errors of law.  Assignment of error in a brief based on "mere assertion" and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  This court declines to reach issues in absence of adequate briefing.  State Dep't of Labor and Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997).  Relators did not brief these issues on appeal.  With the exception of BWSR's finding that the petition was brought for the purpose of delay, claimed errors are not obvious.  We agree with relators that on this record there is not a basis for finding that they delayed consideration of this matter.  The fact that the process of selecting a route for TH-14 took several years does not appear on this record to have been the result of relators' actions.  Relators promptly appealed agency actions.  However, we have already found that BWSR's decision that the appeal is without merit is amply supported by the record, thus the delay determination is harmless error by BWSR.  We do not address the other points and deem them waived.

VI.

            Finally, respondents move to strike relators' appendix A1 and references to documents relating to the DM&E expansion, which were not part of the agency record.  The record on appeal consists only of the papers filed below, the exhibits, and the transcript of the proceedings.  Minn. R. Civ. App. P. 110.01.  But this court may take judicial notice of or refuse to strike public documents that were not made part of the record below.  See State v. Rewitzer, 617 N.W.2d 407, 411 (Minn. 2000) (refusing to strike documents introduced on appeal when documents were matters of public record and court was free to refer to them in the course of its own research); United Power Ass'n v. Comm'r of Revenue, 483 N.W.2d 74, 77, 77 n.3 (Minn. 1992) (taking judicial notice of MPCA permit issued to party).  Since relators' references to various Minnesota and federal reports involving the DM&E expansion are irrelevant to the issues on appeal, we do not rule on this motion.  However, we note that the reports are part of a public record in other proceedings and may be public documents.  To the extent they are public documents, we could refer to such reports in the course of our own research. 

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We do not deal with the other alignment alternatives because relators do not raise them in their brief or argue that the other alternatives are more appropriate than Alternative 4.

[2] The five sequencing principles are: (1) avoids direct or indirect impacts to the wetland that may destroy or diminish wetland; (2) minimizes the impact to the wetland by limiting the degree or magnitude of the wetland activity and its implementation; (3) rectifies the impact by repairing, rehabilitating, or restoring the affected wetland; (4) reduces or eliminates the impact to the wetland over time by preservation and maintenance operations; and (5) replaces unavoidable impacts to the wetland by restoring or, if wetland restoration opportunities are not reasonably available, creating substitute wetland area having equal or greater public value.  Minn. R. 8420.0520, subp. 1. 

[3] If wetlands include endangered or threatened species, then the first sequencing principle requires that the applicant receive a special permit prior to approval of the replacement plan.  Minn. R. 8420.0520 subp. 1(A) (2003); Minn. R. 8420.0548 subp. 2 (2003).

 

[4] Appellants only challenge compliance with the first sequencing requirement, so we do not address the remaining sequencing requirements.

[5] We note that motion papers filed with this court disclose that appellant admitted in a related proceeding that in June 2004, MnDOT's Office of Environmental Services conducted a comprehensive rare plant survey along TH-14 and concluded that wetlands on relators' property do not contain any threatened species.  But we do not rely on this information because it is not part of the record.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal).

Relators also argue that MnDOT is in violation of the Endangered Species Act.  Minn. Stat. § 84.0895 (2002).  But the issue is not considered because relators have not presented substantial evidence that an endangered or threatened species is present on relators' property.

[6] See John F. Zander v. State, No. C1-04-07, slip op. at 7 (Minn. Dist. Ct. Oct. 20, 2004).