In the Matter of the Restoration Order Issued to John P. Breese.

In the Matter of the Restoration Order Issued to John P. Breese. A06-1239, Court of Appeals Unpublished, May 29, 2007.

This opinion will be unpublished and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

A06-1239

 

In the Matter of the Restoration

Order Issued to John P. Breese

 

Filed May 29, 2007

Reversed

Klaphake, Judge

 

Minnesota Department of Natural Resources

File No. 6-2000-16096-2

 

Bruce P. Grostephan, Peterson, Engberg & Peterson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN  55401-2498 (for relator John P. Breese)

 

Lori Swanson, Attorney General, Jill D. Schlick, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent State/DNR)

 

            Considered and decided by Klaphake, 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

KLAPHAKE, Judge

            In this certiorari appeal, relator John P. Breese challenges the restoration order of the commissioner of the Department of Natural Resources requiring him to remove riprap that he had installed in 1992 from his shoreline on Lake Sylvia.  Because the commissioner's order is arbitrary and capricious and not supported by substantial evidence in the record, we reverse.

           

D E C I S I O N

            This court may reverse or modify an agency decision if "the administrative finding, inferences, conclusion, or decisions are . . . unsupported by substantial evidence in view of the entire record as submitted; or . . . arbitrary or capricious."  Minn. Stat. § 14.69 (2006).  The party seeking review has the burden to show that the agency decision violated these requirements.  Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn. 1977).  This court largely defers to an agency's expertise in its field.  Bloomquist v. Comm'r of Natural Res., 704 N.W.2d 184, 187 (Minn. App. 2005).  If the issue is a question of law, however, this court is not bound by the agency's decision and need not defer to the agency's expertise.  Dozier v. Comm'r of Human Servs., 547 N.W.2d 393, 395 (Minn. App. 1996), review denied (Minn. July 10, 1996).  The agency decision must be supported by substantial evidence, defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion or more than a scintilla of evidence."  Brinks, Inc. v. Minn. Pub. Utils. Comm'n, 355 N.W.2d 446, 450 (Minn. App. 1984) (quotation omitted).

            An agency ruling is arbitrary or capricious if the agency "(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."  CARD v. Kandiyohi County Bd. of Comm'rs, 713 N.W.2d 817, 832 (Minn. 2006).

            According to the record before us, relator installed riprap along the southern half of his lakeshore in 1992.  A hydrologist from the Department of Natural Resources (the department) staked the ordinary high water level (OHWL), which marks the boundary of the department's jurisdiction, and instructed relator that he could install riprap no further than five feet lakeward from that line.  In 1992, riprap could be installed without a permit, so long as it did not extend more than five feet lakeward of the OHWL, had a minimum slope of 3:1, and conformed to the natural shoreline.  See Minn. R. 6115.0190, subp. 4.C. (1991).  There is no evidence in the record that relator failed to follow these instructions, and there is testimony from relator's neighbor stating that the boulders relator used as riprap were in place when the neighbor purchased the adjoining land in 1996. 

            Although the administrative law judge (ALJ) concluded that the 1992 riprap conformed to the staking done by the department hydrologist, the commissioner deleted this conclusion, commenting in his short memorandum that the riprap boulders did not conform to the natural alignment of the shoreline and that they extended as far as 8.5 feet lakeward from the OHWL, a violation of the 1992 rule.  The commissioner based his conclusion on a survey done by a department hydrologist, Patricia Fowler, which was submitted in the record as Exhibit 42.  Fowler testified that she was unable to establish the natural alignment of the shoreline; she therefore established two endpoints that were at the natural OHWL elevation of 1050.1 feet and drew a straight line between them as the best evidence of the OHWL and the natural shoreline.  The 1992 riprap extended as much as 8.5 feet lakeward from this straight line.

            In his defense, relator submitted the testimony of a certified land surveyor, Dennis Taylor, who presented evidence regarding the natural alignment of the shoreline and the OHWL.  According to relator's Exhibits 1, 31, and 31A, the 1992 riprap conformed to the natural alignment of the shoreline and was within five feet of the OHWL.  Because high water obscured the shoreline in both 2002 and 2003, relator also submitted a survey prepared by Taylor in 1991, which showed that Taylor's 2004 survey was an accurate depiction of the shoreline. 

            The commissioner based his decision on Fowler's testimony despite the fact that Fowler was unable to establish the natural shoreline and the OHWL, and thus had to create an arbitrary line.  In doing so, the commissioner ignored Taylor's testimony that affirmatively established the natural shoreline and OHWL.  Our review of the exhibits submitted by the parties confirms that the certified survey establishes a natural shoreline, as opposed to the arbitrary straight line offered by the department, and that the natural shoreline is consistent with the 1991 survey done before installation of any riprap.

            Although we generally defer to agency fact finding, "[t]he court will intervene . . . 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."  MCEA v. Comm'r of MPCA, 696 N.W.2d 95, 105 (Minn. App. 2005) (quotation omitted).  Here, the commissioner offered no explanation as to why he rejected Taylor's survey, while accepting the less accurate and hypothetical survey prepared by Fowler. 

            When determining whether an agency decision is based on substantial evidence, we review the entire record as submitted.  Pomrenke v. Comm'r of Commerce, 677 N.W.2d 85, 94 (Minn. App. 2004), review denied (Minn. May 26, 2004).  We conclude the record here lacks substantial evidence to demonstrate that the commissioner engaged in reasoned decision-making; further, the commissioner's ruling runs counter to the evidence that was submitted, suggesting that the order is arbitrary and capricious.  We therefore reverse the restoration order as it applies to the removal of the 1992 riprap.

            Reversed.