STATE OF MINNESOTA DISTRICT COURT

COUNTY OF LAKE SIXTH JUDICIAL DISTRICT

Case Type: Other Civil

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CASE TITLE: Court File No. C1-02-162

Minnesotans for Responsible Recreation,
Plaintiff, PLAINTIFF’S REPLY MEMORANDUM OF
LAW IN SUPPORT OF PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

v. (MINN.STAT.SEC. 116.04, SUBD. 10)

Minnesota Department of Natural Resources,  Defendant.

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Plaintiff Minnesotans for Responsible Recreation ("MRR") respectfully submits this Reply Memorandum of Law in Support of its Motion for Summary Judgment against Defendant Minnesota Department of Natural Resources’ ("DNR").

In their Opposition and Reply Memoranda, DNR argues that substantial evidence supports the DNR decision regarding wetland impacts from this Project and compliance by this Project with the Wetland Conservation Act ("WCA").

MRR submits this Reply Memorandum to direct the Court to decisions of our Minnesota Courts and of the U.S. District Court for the District of Minnesota that show the significance of the WCA to this action. MRR maintains that the record contains a lack of substantial evidence to support the DNR’s decision in this matter regarding environmental effects to wetlands, given that DNR estimated in the review process about 1,000’ of wetland impacts on trails and, in fact, the DNR determined that wetlands impacts of this Project are about 5 miles of trail. MRR further maintains that the failure of the DNR to address the wetland violations demonstrates the will of the agency to approve this Project, without regard for an analysis of significant environmental effects.

The DNR should have considered the extent of the environmental effects likely to result to wetlands and how those effects could be mitigated. Minn.R. 4410.1700, subp. 7C. MRR maintains that the DNR failed to consider the extent of environmental effects likely to result to wetlands from this Project. Pope County Mothers, 599 N.W.2d at 236.

Here, the DNR determined in about January 15, 2002 that MWMR Project required wetland delineation in order to make a reasoned decision about the environmental effects of the MWMR Project. Peters Affidavit, Exhibit E. DNR knew that wetland issues were significant, that parts of the trail involved filling wetlands, and knew that OHVs are particularly hard on wetlands because of their ability to churn up and destroy wetlands. DNR estimated that the Project would impact about 1,000’ of wetlands, the extent of the effects.

Where a private landowner allegedly violates WCA or Sec. 404 of the CWA, the DNR and the Army Corps will order the landowner to remove roads and restore wetlands, which order the U.S. District Courts will enforce. See, Bailey v. U.S. Army Corps. of Engineers, 2002 WL 31728947 (D.Minn. 2002). In Bailey, the Court affirmed an order requiring a landowner to remove about 1,200’ of road built on wetlands without a WCA or 404 permit.

Our Minnesota agencies will refuse to allow a landowner to maintain a ditch that would drain wetlands, without a replacement plan. Hentges v. Minnesota Board of Water and Soil Resources, 638 N.W.2d 441 (Minn.App. 2002). In Hentges, the Board ordered the landowner to obtain a replacement plan before performing maintenance on a ditch.

Likewise, our Minnesota agencies will take jurisdiction over newly created wetlands to prevent the draining of such wetlands without a replacement plan. Drum v. Minnesota Board of Water and Soil Resources, 574 N.W.2d 71 (Minn.App. 1998). In Drum, the Board ordered to landowner to obtain a replacement plan before repairing/replacing a drainage system.

MRR respectfully submits that the DNR engages in routine civil and criminal enforcement of WCA against private property owners. DNR enforcement action includes the issuance of civil restoration orders and criminal charges for violation of WCA.

The administrative record contains evidence of the WCA violations, with no substantial evidence that the DNR considered the extent of environmental effects from those violations. A person commented on the EAW that the project already had construction to "modify wetlands". R 836. A person commented on the EAW that: "Some wetlands have been filled in the past to accommodate other use and timber management." R 839. Another letter repeated this comment. R 849. Another person commented that the EAW was incomplete because: "there are existing conditions (i.e. filled wetlands, rutting, trail widening) that were not mentioned in the EAW". R 887. Another person commented that the project had already involved the filling of wetlands, as personal observation revealed, with a trail segment constructed with no culverts, with high water above the filled trail, low water downstream of the filled trail, and with plants dead on the downstream side because of the bulldozed material into a roadway without proper drainage. R 925. The record includes:

"Material (soil) had apparently been bulldozed from adjacent portions of trail into the swamp to create a roadway, thereby filing in the wetland for hundreds of feet along a trail that is 20-30 feet wide. The roadway is no acting as an impoundment and the water levels, seen as ice under the snow, have been raised on one side by approximately two feet and the northern white cedars on that side were all dead, evident by the dry, red leaves still hanging from the branches. The cedars on the side with lower water levels all appeared to be green and healthy". R. 925

The DNR estimated about 1,000’ of wetlands impacts from filling on this Project. During the delineation process, the DNR determined that the actual extent of the filling would be about 5 miles. The DNR grossly underestimated the extent of environmental effects from wetland filling on this project and failed to adequately analyze the extent of those effects.

The DNR failed to consider the extent of environmental effects caused by the WCA violations of record in this matter in violation of the Minnesota Rules and the case law, such as the Pope County Mothers decision of the Court of Appeals. Given the evidence of WCA violations in this matter, the DNR did nothing in response. This exhibits a double standard of analysis and enforcement, which ought to concern this Court. A regular landowner would have been civilly or criminally charged and ordered to remove the offending fill of wetlands without a replacement plan. Our jurisprudence exhibits numerous cases where landowners are required to comply with WCA and Sec. 404.

Moreover, the DNR failed to consider the extent of environmental effects caused by the wetland impacts from this Project, due to fill activity. During the environmental review process, the DNR had no idea that this Project would impact about 5 miles of trails. The DNR thought the extent of the impacts was about 1,000’. The administrative record fails to have substantial evidence to support the extent of wetlands effects from this Project, in violation of Minn.Stat. Sec. 116D.04.

For the foregoing reasons, Plaintiff Minnesotans for Responsible Recreation respectfully request that the Court issue an order directing the entry of summary judgment in its favor and directing the Department of Natural Resources to require an environmental impact statement on the MWMR Project pursuant to Minn.Stat. Sec. 116D.04.

PETERS & PETERS, PLC

Dated: December 16, 2002 By:_____________________________

James P. Peters – 177623
Karna M. Peters - 245975
Attorneys for Plaintiffs
507 N. Nokomis St., #100
Alexandria, MN 56308
(320) 763-8458