Tracie Erickson, Relators v. Minnesota Department of Natural Resources

• Court: Court of Appeals of Minnesota
• Decided: July 20, 2015
• Docket: A14-1732
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A14-1732

Tracie Erickson, et al., Relators,

vs.

Minnesota Department of Natural Resources, Respondent.

Filed July 20, 2015 Reversed Smith, Judge

Minnesota Department of Natural Resources

Julie N. Nagorski, HKM, P.A., St. Paul, Minnesota (for relators)

Lori Swanson, Attorney General, Karen D. Olson, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Smith,

Judge.

UNPUBLISHED OPINION

SMITH, Judge

We reverse the department of natural resources’ decision that relators’ silica sand-

mining operation is subject to the setback-permit provision of Minn. Stat. § 103G.217

(2014) because relators’ silica sand-mining operation is not a “new project” within the meaning of the statute and because there is no indication that any environmental review

at the site had been noticed for public comment after April 30, 2013.

FACTS

In January 1992, Alan Thorson petitioned Houston County for a conditional use

permit (CUP) to allow him to mine silica sand on his property. At a public hearing, he

told the county planning commission that he was seeking to bid on a contract for a

bridge-construction project, and that, if successful, he would use the CUP to extract

8,000-10,000 cubic yards of sand for the bridge and “continue to use the pit after

completion of the bridge.” Although some neighbors raised aesthetic concerns, the

planning commission unanimously recommended that the county board of commissioners

issue the CUP. The county board approved the CUP, subject to the condition that the

sand mining operation be “permitted for 5 years subject to review for possible extension

beyond the 5 years.” The CUP did not state a limit on the volume of sand that could be

extracted from the site. The county “extended” the CUP in 1997, 2003, and 2008.

Relators Tracie and Michelle Erickson purchased the property in 2009. The

Ericksons contracted with Minnesota Sands, LLC, to extract 2 million cubic yards of

sand and process the sand onsite. Responding to concerns that activities on the

Ericksons’ property had “materially changed,” the county board held a hearing on

June 19, 2012. The board struggled to establish a baseline for determining whether there

had in fact been a material change in the sand mine’s operations in light of the lack of

documentation regarding activities at the mine at the time of the CUP issuance in 1992

and in each of its “renewal years.” A representative of neighboring property owners

2 testified that “his clients purchased property with a belief that an estimated 10,000 cubic

yards of material would be removed,” and that the proposed increase to 2 million cubic

yards was “a dramatic change and a change in the scope of the operation.”

In July 2012, the county enacted a moratorium on “the issuance of any conditional

use permit for new silica sand mining,” “the conversion of existing non-silica sand

mining operations into silica sand-mining operations,” and all sand processing operations

“not expressly authorized by the terms of an existing conditional use permit.” The

moratorium was later extended to 2014. The county’s environmental services director

later recalled that the ordinance was perceived as necessary to address the problem of

“operators . . . attempting to utilize old pre-existing permits for small construction sand or

shale quarry operations to end-run the moratorium.”

On July 10, 2012, the county board voted to order that sand-mining and sand-

processing work on the Erickson property be stopped, based on its finding that the

Ericksons’ arrangement with Minnesota Sands included “screening and crushing . . .

which is an expansion of the original CUP,” and its conclusion that “an [environmental

assessment worksheet] should have been required” in 1992 and “this requirement has not

been fulfilled.” On August 7, 2012, the county board voted to have an environmental

assessment worksheet (EAW) completed regarding sand-mining operations on the

Erickson property. The Ericksons and Minnesota Sands unsuccessfully moved the

district court for injunctive relief.

In November 2012, after receiving a letter from the county notifying them that the

CUP would expire on January 8, 2013, the Ericksons requested another five-year

3 extension of their original CUP. The county delayed considering the extension, pending

completion of the EAW.

The Ericksons and Minnesota Sands terminated their agreement in September

2013, and the Ericksons provided a copy of the termination agreement to the county on

February 27, 2014. The county then agreed to consider the Ericksons’ application for

extension of the original CUP because “the project to which environmental review

attached has been abandoned.” As part of the county board’s consideration of the CUP

extension, the county zoning administrator noted that extension approval delayed past the

“exact 5 year renewal deadline . . . happens quite often” in the county and that mines

were allowed to continue operating under a prior CUP during such a delay. On June 24,

2014, the county granted the Ericksons’ request to extend their CUP, finding that the

EAW requirement did not apply to the “limited mining allowed under the . . . 1992 CUP,

as renewed,” and that the county’s “moratorium involving silica sand, as amended, does

not apply to the proposed renewal because it is not new mining.” The county added,

however, a condition expressly limiting the extraction to 10,000 cubic yards per year.

Respondent Minnesota Department of Natural Resources (DNR) sent a letter to

the Ericksons to inform them of changes in state law that DNR contended would require

the Ericksons to obtain a trout stream setback permit before resuming silica sand mining.

DNR also wrote to the county zoning administrator, requesting confirmation that the

county had not extended the Ericksons’ CUP until after its expiration date. The zoning

administrator replied that, in the view of the county and in light of its practices and its

4 interpretation of state statutes, the CUP had not expired because the Ericksons’ had not

violated any of the CUP’s conditions and had timely filed an extension request.

Notwithstanding the zoning administrator’s opinion, DNR notified the Ericksons

that, because their 1992 CUP had lapsed, the mine “qualifies as a new project and is

subject to the setback permit requirements.” DNR ordered the Ericksons to cease mining

until they obtained the setback permit. On September 11, 2014, DNR issued its final

decision, rejecting the Ericksons’ and the county’s characterization of the CUP extension

and reiterating its finding that the Ericksons’ mine was a “new project” subject to the

setback permit requirement.

DECISION

I.

A. Standard of Review

The Ericksons challenge DNR’s determination that their sand mine is subject to

the setback-permit requirement in Minn. Stat. § 103G.217. When reviewing an agency’s

interpretation of a statute that it is charged with administering, we generally defer to the

agency when its determination “involv[es] application of an agency’s expertise, technical

training, and experience.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control

Agency, 644 N.W.2d 457, 463-64 (Minn. 2002). But we review de novo the

determination of whether an agency has the statutory authority to act at all in a particular

case. In re Hubbard, 778 N.W.2d 313, 318 (Minn. 2010); see also id. at 318 n.4

(expressly rejecting an agency’s argument that judicial deference should extend to “the

threshold question of whether the legislature has granted an agency the authority to take

5 the action at issue”). We still defer, however, to an agency’s factual findings, provided

that they are supported by substantial evidence. Saif Food Mkt. v. Comm’r, State, Dep’t

of Health, 664 N.W.2d 428, 430 (Minn. App. 2003).

Minnesota law requires a trout stream setback permit for any silica sand mine

located within the DNR Paleozoic plateau ecological section and within a mile of a

designated trout stream. Minn. Stat. § 103G.217(b). But the permit requirement applies

only to “new silica sand mining projects and projects for which environmental review

documents have been noticed for public comments after April 30, 2013.” 2013 Minn.

Laws ch. 114, art. 4, § 66, at 1732.

Although the parties implicitly agree as to the generally applicable standards of

review, they nonetheless disagree about which standard applies here. The Ericksons

contend that our review is de novo because the outcome depends entirely on our

interpretation of the legislature’s statement limiting application of the setback-permit

statute to new silica sand mining projects. See 2013 Minn. Laws ch. 114, art. 4, § 66, at

1732. DNR concedes that its authority applies only to new projects and projects with

properly noticed environmental review, but contends that the determination of what

constitutes a new silica sand mining project is a question of fact, and that its

determination is driven by application of its expertise and is therefore subject to this

court’s deference. But no issues of fact are disputed here. The parties agree that the

Ericksons’ sand mine is a silica sand mine, that it is located within the DNR Paleozoic

plateau ecological section, and that it is located within a mile of a designated trout

stream. They also agree about the nature of the activities occurring and proposed on the

6 Ericksons’ property and the dates of events surrounding their CUP. What the parties

disagree about is the meaning of those events, namely, whether the county’s delay in

processing the extension of their CUP means that the CUP lapsed, and whether any such

lapse in the CUP makes the Ericksons’ post-extension sand mining a new silica sand

mining project subject to the setback permit requirement in Minn. Stat. § 103G.217.

When the facts are thus undisputed, the question of whether they trigger a particular

statute is a question of law, reviewed de novo. City of Morris v. Sax Invs., Inc., 749

N.W.2d 1, 5 (Minn. 2008). Thus, our standard of review is de novo.

B. “New Project”

We turn next to determining whether the Ericksons’ sand mine is a “new project”

within the ambit of Minn. Stat. § 103G.217. We interpret statutes to give effect to the

intent of the legislature. Minn. Stat. § 645.16 (2014). “If the meaning of a statute is

unambiguous, we interpret the statute’s text according to its plain language. If a statute is

ambiguous, we apply other canons of construction to discern the legislature’s intent.”

Brua v. Minn. Joint Underwriting Ass’n, 778 N.W.2d 294, 300 (Minn. 2010) (citation

omitted). “A statute is only ambiguous when the language therein is subject to more than

one reasonable interpretation.” Am. Family Ins. Grp. v. Schroedl, 616 N.W.2d 273, 277

(Minn. 2000) (quotation omitted). The unambiguous, plain meaning of words in statutes

may be determined by reference to dictionaries. Larson v. Nw. Mut. Life Ins. Co., 855

N.W.2d 293, 301 (Minn. 2014).

7 1. Project distinct from CUP

The Ericksons contend that DNR’s determination that their sand mine was a “new

project” was erroneous because it was based on DNR’s erroneous beliefs that the

Ericksons’ CUP had lapsed in January 2013 and that the lapse means that the county’s

2014 granting of an extension was effectively a new CUP for a new silica sand mining

project. To determine whether the Ericksons’ mine is a new project, we must determine

the scope of their “project” and then determine if it is “new.” For the purposes of Minn.

Stat. § 103G.217, a project is defined as “a specific plan, contiguous activity, proposal, or

design necessary to accomplish a goal as defined by the local government unit.” Minn.

Stat. § 103G.005, subd. 14d (2014); see also id., subd. 1 (2014) (applying the definition

to all sections in chapter 103G). An “activity” is “[t]he collective acts of one person or of

two or more people engaged in a common enterprise.” Black’s Law Dictionary 38 (9th

ed. 2009). Something is “new” if it has “recently come into being” or is “[b]eginning

afresh.” Id. at 1140-41.

Applying these definitions, the Ericksons’ silica sand mine is not a new silica sand

mining project. The activity occurring at the Ericksons’ property is the mining of silica

sand for sale. This focus on the silica sand-mining nature of the activity is reinforced by

the legislature’s contextual use when providing that Minn. Stat. § 103G.217 applies only

to new silica sand mining projects, see 2013 Minn. Laws ch. 114, art. 4, § 66, at 1732,

not to new projects generally. The Ericksons’ sand-mining activity is not of recent

origin, as it formed the basis for the original CUP in 1992. The owners of the land have

also repeatedly sought extension of the CUP, demonstrating that sand-mining activity at

8 the site did not begin afresh in 2014. Although the Ericksons’ plans for the amount of

sand to be extracted and the end uses of the sand have varied,1 the nature of the activity at

the property has not. The acts undertaken—extracting sand for sale—define the scope of

the Ericksons’ project, and the undisputed fact that this activity has taken place for more

than 20 years means it is not new.

DNR argues, however, that the scope of a “project” in environmental-policy

matters is determined by the scope of governmental action, meaning that the time limits

on the Ericksons’ CUP define the scope of their project. But DNR’s argument is contrary

to both the plain meaning of the words in the statute defining “project” and to DNR’s

own definition of “project” for environmental-policy matters, which provides, “The

determination of whether a project requires environmental documents shall be made by

reference to the physical activity to be undertaken and not to the governmental process of

approving the project.” Minn. R. 4410.0200, subp. 65 (2013) (emphasis added). DNR’s

and Ericksons’ competing characterizations of the effect of the county’s 2014 granting of

the Ericksons’ request for a CUP extension are thus beside the point, as the activity

defines the scope of a project, not the CUP.

1 DNR implies that the original end use of the Ericksons’ sand—construction of a bridge—delimits the scope of their project. But this interpretation would lead to absurd results, as a sand-mine operator could be required to obtain a new permit each time it had a new customer for its sand. See Minn. Stat. § 645.17(1) (2014) (mandating the presumption that “the legislature does not intend a result that is absurd, impossible of execution, or unreasonable”).

9 2. CUP not violated

Even if the Ericksons’ CUP defined the scope of the project under Minn. Stat.

§ 103G.217, the purported expiration of the CUP did not render their sand mine a new

silica sand mining project. DNR insists that it is not bound by the county’s

characterization of the county’s 2014 action as an “extension” or “renewal” of an existing

CUP. But just as we would defer to DNR’s characterization of technical terms in its area

of expertise, see In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624

N.W.2d 264, 278 (Minn. 2001), we also defer to the county’s interpretation of terms

relevant to its areas of specialized authority. The decision to grant a CUP lies with the

county board. Minn. Stat. § 394.301, subds. 1, 2 (2014). Once granted, the CUP “shall

remain in effect for so long as the conditions agreed upon are observed.” Id., subd. 3

(2014).

DNR argues that the five-year renewal requirement in the Ericksons’ CUP was a

condition, the violation of which required that a new CUP be issued in 2014. Supported

by the county, the Ericksons respond that their timely request for extension of the CUP

means that they did not violate the five-year-renewal condition. Whether a CUP

condition has been violated is a finding of fact to which we must defer unless it is clearly

erroneous. See, e.g., NBZ Enters., Inc. v. City of Shakopee, 489 N.W.2d 531, 534 (Minn.

App. 1992), review denied (Minn. Sept. 30, 1992). Here, the county has consistently

stated that the Ericksons’ timely request to extend the CUP conformed to local practices

and that the county therefore did not view the delay in processing their extension request

as a violation of the CUP condition requiring a five-year extension. Since DNR points to

10 no facts contradicting the county’s implicit factual finding or legal authority invalidating

that determination as a matter of law, its assertion that the delay amounted to expiration

of the CUP does not render the county’s finding clearly erroneous. Thus, we conclude

that, even if the scope of the Ericksons’ project was defined by the continuation of their

1992 CUP, the county’s 2014 action was an extension rather than an issuance of a new

CUP, and the Ericksons’ sand mine was therefore not a new project within the ambit of

Minn. Stat. § 103G.217.

3. Remedial legislative intent inapplicable

DNR also argues that multiple projects may exist at a single mine and we should

therefore consider the legislature’s environmental-protection purposes and apply a

definition of “new” that applies to projects established at previously existing mines. But

DNR offers no support for its contention that multiple definitions of “new” exist such that

the legislature’s limitation on DNR’s authority is ambiguous. Although “[w]e construe

statutes to effect their essential purpose,” we “will not disregard a statute’s clear language

to pursue the spirit of the law.” Lee v. Fresenius Med. Care, Inc., 741 N.W.2d 117, 123

(Minn. 2007). The legislature has expressly provided that the setback-permit requirement

in Minn. Stat. § 103G.217 applies only to new silica sand mining projects, see 2013

Minn. Laws ch. 114, art. 4, § 66, at 1732, not to any projects which may impact the

environment generally or even designated trout streams in particular. We therefore

conclude that the DNR erred by determining that the Ericksons’ sand mine is a “new

silica sand mining project” subject to the setback-permit requirement in Minn. Stat.

§ 103G.217.

11 C. “Publicly Noticed Environmental Review”

DNR alternatively argues that the Ericksons’ mine is subject to the setback-permit

requirement because the proposed expansion of their mining operation to extract 2

million cubic yards of sand was the subject of a publicly noticed environmental review,

specifically, the county’s later-abandoned order that an EAW be completed regarding the

Ericksons’ mine. But we will reverse as arbitrary and capricious an agency decision that

is presented without reasons “because it represents the agency’s will rather than its

judgment.” Reserve Mining Co. v. Minn. Pollution Control Agency, 364 N.W.2d 411,

414 (Minn. App. 1985) (quotation omitted), review dismissed (Minn. June 10, 1985).

Here, although DNR mentioned the county’s EAW order in its decision, it did not

identify that EAW order as a reason supporting its determination that the Ericksons’ mine

was subject to the setback-permit requirement in Minn. Stat. § 103G.217.

Even if DNR had relied upon the county’s EAW order as the reason for its

decision, DNR cites no authority that a county’s EAW order, issued verbally at a county

board meeting, meets the requirement that the Ericksons’ mine be a “project[] for which

environmental review documents have been noticed for public comments after April 30,

2013.” 2013 Minn. Laws ch. 114, art. 4, § 66, at 1732. To the contrary, DNR offers no

evidence (and the record contains no indication) that any environmental review

documents were created in response to the county’s EAW order, let alone that they were

noticed for public comments. Cf. Minn. Stat. § 116D.04, subd. 2a(b) (2014) (requiring

that a “responsible government unit shall promptly publish notice of the completion of an

environmental assessment worksheet by publishing the notice” in a newspaper, on an

12 official web site, or by other authorized means). Accordingly, we conclude that the DNR

erred by determining that the Ericksons’ sand mine is subject to the setback-permit

requirement in Minn. Stat. § 103G.217, and we reverse the DNR’s decision.2

Reversed.

2 We note that this decision is based on the limited extraction of up to 10,000 cubic yards of sand per year and that nothing in this opinion addresses whether a “new silica sand mining project” would be present if the scope of sand mining on the Ericksons’ property were to be expanded in the future.