Environmental Assessment Worksheet required for parcel where previously permitted gravel mining was taking place

by Kaitlin Heinen

Duininck, Inc. v. Renville County Board of Commissioners
(Minnesota Court of Appeals, April 15, 2013)

Duininck, Inc. applied to Renville County Board of Commissioners for an interim use permit (IUP) to allow gravel mining on 44 acres of land in the County. Duininck has been mining at Molenaar site since 2000 under conditional use permits (CUPs) from the County for 39 acres of the area. The County now requires an IUP instead of a CUP for gravel mining, so Duininck applied for an IUP to expand the site by 5 acres. The County’s director of environment and community development, Mark Erickson, reviewed the application and concluded that an environmental assessment worksheet (EAW) might be mandatory under Minnesota Rules because the application encompassed more than 40 acres.

Before the county board’s next meeting, Duininck filed another application for an IUP that only covered the permitted 39 acres “to ensure that it would be able to continue existing mining operations if its CUP expired during the environmental-review process.” If the board decided to require an EAW, Duininck would pursue the 39 -acre application instead. The board voted to require an EAW for the 44-acre application, so Duininck withdrew the 44-acre application after the meeting. The County then reviewed and granted the 39-acre application. However, Duininck still appealed to the Minnesota Court of Appeals regarding the EAW and the 44-acre application.

In reviewing an EAW challenge, the Court of Appeals must determine whether the decision was “unreasonable, arbitrary or capricious, made under an erroneous theory of law, or unsupported by substantial evidence.” The Court noted, “Minnesota Rule 4410.4300 describes the types of projects for which an EAW must be prepared…Preparation of an EAW is mandatory for projects that meet or exceed the thresholds identified in rule 4410.4300…which requires preparation of an EAW in connection with a project for the ‘development of a facility for the extraction or mining of sand, gravel, stone, or other nonmetallic minerals, other than peat, which will excavate 40 or more acres of land to a mean depth of ten feet or more during its existence.'” Duininck’s project involves mining gravel on 44 acres of land, and because this falls within the definition of ” project” in 4410.4300, the Court concluded that an EAW is required with the 44-acre IUP application.

Duininck argued that the scope of the project in determining whether an EAW is required should not include the 39 acres it had been mining under CUPs since 2000. In support, Duininck cited part of the rules that provides a 3-year look-back rule for determining whether to include original project acreage in determining whether the mandatory EAW threshold is met. However, Duininck’s CUPS expired on their own terms. So Duininck filed the 44-acre application, intending to continuing and expanding its mining operations. Because all 44 acres were considered a part of the current project, the rule cited by Duininck did not apply. Duininck also argued that the county erred by treating the 5-acre expansion as a phased action. “Phased actions are multiple projects to be undertaken by the same proposer that ‘will have environmental effects on the same geographic area’ and ‘are substantially certain to be undertaken sequentially over a limited period of time.'” Though the county argued that Duininck’s expansion can be considered a phased action, the record did not reflect this as a basis for its decision. Further the rules governing phased actions do not apply again because all 44 acres are part of the current project.

Having applied the plain language of the EAW rules to ongoing mining operations, which require permit renewals whether or not the proposer has completed any particular area, the Minnesota Court of Appeals affirmed the county’s decision to require an EAW in connection with the 44-acre application.

MN Court of Appeals affirms decision to allow 450-foot tower on edge of Boundary Waters

by Gary Taylor

State of Minnesota, by Friends of the Boundary Waters v. AT & T Mobility, LLC
(Minnesota Court of Appeals, June 18, 2012)

The Boundary Waters Canoe Area Wilderness (Boundary Waters) is a 1.1 million-acre wilderness area composed of federal and state lands in northeastern Minnesota. The Boundary Waters consists of 1,175 lakes, hundreds of miles of streams and rivers, and surrounding forested areas. It is the most heavily used wilderness area in the country and the only wilderness area that has an airspace reservation prohibiting flights below 4,000 feet. Visitors to the BWCAW value its scenic beauty and remoteness, as well as its lack of evidence of human existence. The Boundary Waters was one of the first federally designated wilderness areas, and it is protected by the federal Wilderness Act of 1964 and the Boundary Waters Act of 1978. The Minnesota legislature also protects the Boundary Waters by statute, recognizing that the it is an area “of surpassing scenic beauty and solitude, free from substantially all commercial activities and artificial development.”

Appellants AT&T Mobility LLC and American Tower Inc. applied for a conditional use permit (CUP) in Lake County, seeking permission to construct a wireless-communications tower. The tower will be approximately 1.5 miles outside of the border of the Boundary Waters.  It will be 450 feet high and have five sets of three guy wires. The tower will be lit with red or white blinking lights 24 hours a day to increase its visibility and comply with federal aviation requirements. The CUP application stated that the proposed tower is “deemed the optimum size tower to provide the most amount of coverage in this rural area with the least amount of visual impact.” The Lake County Planning Commission concluded that there is “a need for this tower for the health and safety of residents, tourists, and businesses.” Lake County approved appellants’ CUP application on July 20, 2009.  Friends of the Boundary Waters Wilderness (Friends) filed a complaint in Hennepin County District Court seeking a declaration that the proposed tower would violate the Minnesota Environmental Rights Act (MERA).  The district court enjoined construction of the proposed tower, determining that the proposed tower would materially adversely affect the scenic and esthetic resources in the Boundary Waters. The district court also determined that appellants failed to establish an affirmative defense under MERA. AT&T and American Tower appealed.

The Minnesota Court of Appeals reversed the district court.  In doing so it cited five factors from a previous case, Schaller v. Blue Earth County, for determining “whether conduct materially adversely affects or is likely to materially adversely affect the environment under MERA”:

(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected; (2) Whether the natural resources affected are rare, unique, endangered, or have historical significance; (3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable (for example, by replanting trees or restocking fish); (4) Whether the proposed action will have significant consequential effects on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed); and (5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.

The Court of Appeals concluded that the district court committed legal error by failing to weigh and analyze the relative severity of the adverse effect of the proposed tower on scenic views in the Boundary Waters under the first factor.    The Court of Appeals noted that the district court’s factual findings established that less than fifty percent of the proposed tower will be visible from less than one percent of the BWCAW’s 1,175 lakes, several of which have scenic views that include signs of human existence already.  According to the Court of Appeals, the district court failed to analyze whether this met the “severe” threshhold of the first factor.

The Court of Appeals also found fault with the district court’s conclusions on the third, fourth and fifth factors. As for the third factor (long-term-adverse-effects factor) “…removal of the proposed tower, which would be located outside of the BWCAW, would immediately eliminate any adverse effect on scenic views in the Boundary Waters, thereby restoring the affected resource to its original condition.”  The district court’s finding with regard to the fourth factor (significant consequential effects on other natural resources factor), that it was “not possible . . . to confidently quantify how many of which species of [migratory] birds will be killed by the [p]roposed [t]ower,” was not sufficient to sustain the conclusion that this factor weighs against the tower. Finally, under the fifth factor (increasing or decreasing of the affected natural resources), although the district court found that scenic views “from the lakes and rivers in the [Boundary Waters] where there are no lasting signs of human impact, are limited and finite resources” and that “[t]hey are not increasing and unless protected they will decrease over time,” The Court of Appeals found the district court in err because it did not “address whether the potential decrease in scenic views is significant.”  Thus, only the second factor (rareness-and-uniqueness factor) weighs strongly against construction of the proposed tower.  Even though the rareness-and-uniqueness factor is compelling, and “each factor need not be met in order to find a materially adverse effect,” the Court of Appeals held that the district court’s factual findings and legal analysis did not sustain its legal conclusion that respondent proved a prima facie case of a materially adverse effect on the scenic and esthetic resources in the Boundary Waters. Because respondent failed to establish a prima facie case for judicial intervention under MERA, The Court of Appeals reversed the district court’s order enjoining construction of the proposed tower without addressing appellants’ other arguments in support of reversal.





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