By DAVE ORRICK | dorrick@pioneerpress.com | Pioneer Press

PUBLISHED: April 22, 2019 at 5:01 pm | UPDATED: April 22, 2019 at 5:18 pm

The Minnesota Court of Appeals has overturned a court decision regarding White Bear Lake’s fluctuating water levels.

Monday’s decision — split 2-1 by a panel of three appellate judges — is a victory for the Department of Natural Resources and local municipalities and a loss for property owners and residents who believe the state has hurt the lake by allowing too much water to be pumped out of the ground.

The issue of the lake’s water levels might have lost some of the urgency it once had, as water levels have rebounded recently. But the case is hardly over, and its implications are far-reaching.

IMMEDIATE IMPACT

The immediate impact is this: Nothing happens.

In 2017, following a trial, Ramsey County Judge Margaret Marrinan ruled in favor of the property owners in a sweeping decision that said the DNR had shirked its duty to protect groundwater, put a freeze on new groundwater pumping permits within five miles of the lake, raised the specter of future water restrictions, and seemed to set a path toward many communities switching to surface water, probably via the Mississippi River. (A plan in the Legislature to fund that transition has never gained enough traction to become law.)

Monday’s reversal of Marrinan’s decision means that’s all on hold.

An attorney for the property owners said they’ll appeal Monday’s decision to the Minnesota Supreme Court.

MAJOR ISSUES AT STAKE

Assuming the Supreme Court takes up the case — and attorneys on both sides believe that’s likely — critical statewide questions of groundwater sustainability could be answered once and for all.

Among those critical questions:

·       What happens when we — as a society — pump too much water from underground wells? Arguably, that’s what has happened around White Bear Lake, which can actually have water sucked out of it via underground aquifers from miles away. The wells tap into those aquifers, but water from the lake can actually come out the tap, scientists have discovered.

·       Does the DNR have a duty to protect groundwater in the same way that it protects surface water? Marrinan essentially said that it does, but the majority of the appellate panel said groundwater is different because it’s not publicly owned.

·       What if the DNR fails to enforce existing environmental-protection laws? Can the public sue the agency over that? The property owners did, but the appellate panel ruled that they can’t. Not in a wholesale way. Instead, the judges sided with the DNR’s argument that people who object must object to each individual water permit.

APPELLATE COURT: 2 PROBLEMS

Marrinan retired after reaching her 2017 decision but came out of retirement last year to hear a post-verdict request by the DNR to stay the decision.

She rejected that request in a stern rebuke of the agency.

“For more than 20 years the leadership of the DNR has failed to discharge its clearly defined duties by ignoring them,” Marrinan wrote. She added that “the DNR’s lengthy past history of failing to comply with state laws and rules designed to protect the environment is stunning.”

In Monday’s reversal, the appellate court concluded Marrinan had made two errors. The DNR had lodged nine objections, but once the appellate court majority determined those two errors, the other seven became irrelevant, legally, and the case was reversed and remanded.

Here are the two errors, according to Monday’s decision, written by Judge John Rodenberg.

ERROR 1: PUBLIC-TRUST DOCTRINE

Marrinan had found the DNR violated what’s known as the “public-trust doctrine” by not protecting White Bear Lake and the Prairie du Chien Jordan Aquifer, an ancient underground waterway that is connected to the lake.

The public trust doctrine is a principle of common law, adhered to throughout the United States, that holds that natural resources, such as wildlife, rivers and lakes, are owned by everyone. Thus, the government must protect them.

It can be a bit amorphous when it comes to applying specific laws, and in Monday’s decision,  Rodenberg concluded: “In Minnesota, the common-law public-trust doctrine applies to navigable
waters and does not apply to groundwater withdrawals.”

Unlike navigable waters, he said, groundwater rights are tied to private property ownership, much like mineral rights. Groundwater has never been held in the public trust in Minnesota, he said, and the appellate court isn’t the proper body to change that.

“To extend the reach of the public-trust doctrine to groundwater would vest in the state ‘absolute title’ in essentially all groundwater, and would run contrary to the entire history of Minnesota law concerning groundwater.”

However, he noted, the state Supreme Court could conceivably change that.

DISSENT ON PUBLIC TRUST

Judge Diane Bratvold wrote a lengthy dissent to Monday’s opinion that is likely to be seized upon by property owners in their appeal.

In it, she said the public-trust doctrine has — and should — apply in the White Bear Lake case.

That’s because, Bratvold wrote, the pumping of groundwater around White Bear Lake can harm the lake itself — and the lake is clearly held in the public trust.

ERROR 2: MINNESOTA ENVIRONMENTAL RIGHTS ACT

The second error the appeals court found was largely a procedural one: Because the issue here is permitted water pumping, the remedy is in challenging each of those permits — not suing the agency in court.

In some ways, it’s simply a technical reading of the state’s Environmental Rights Act.

Chad Lemmons, an attorney representing White Bear Township, applauded the decision. State law allows, he noted, for the creation of water-management districts, which provide another layer of input for the DNR when considering water permits. The DNR used that law to create one of the first such districts in the state surrounding White Bear Lake.

But the Minnesota Environmental Protection Act — and its portion that allows anyone in Minnesota to sue over an alleged violation — is widely recognized in the environmental community as being a bedrock principle.

In her dissent, Bratvold said that what the property owners did — sue the DNR to get the agency to follow a state law — “is consistent with MERA’s purpose, which the supreme court has described as promoting citizen action.”

APPEAL COMING

Katie Crosby Lehmann, an attorney representing the property owners, said that they’ll appeal and that it’s appropriate the case reach the state’s highest court.

“Of course we’re disappointed,” Crosby Lehmann said Monday. “But this is an issue that everyone should want to get decided by the Minnesota Supreme Court because it’s about sustainable-water issues.”

DNR: WE’RE ON TOP OF THIS

Barb Naramore, DNR deputy commissioner, issued a statement Monday that didn’t get into the merits of either side in the case.  But she defended the DNR, saying the agency has improved its understanding of how the lake is affected by groundwater pumping.

“In October 2018, the DNR published an extensive sustainability analysis using a new, state-of-the-art groundwater model,” the statement read, in part. “That model indicated that current groundwater use in the White Bear Lake area meets state sustainability standards, but also that current use patterns can impact recreational uses of the lake under some conditions. The DNR will use this analysis, and other available information, in further reviewing the matter upon remand pursuant to today’s Appeals Court ruling.”