Bartell v. State

No. 49148 (284 N.W.2d 834, 14 ERC 1263) (Minn. October 12, 1979)

ELR Digest

In an en banc decision, the Minnesota Supreme Court upholds a decision of a district court affirming an order of the Commissioner of the Department of Natural Resources that denied appellants' request for a retroactive permit authorizing past deposits of fill material into a lake. The court first rejects appellants' arguments that federal legislation has preempted the power of the state to regulate dredge and fill activities. Section 404 of the Federal Water Pollution Control Act expressly provides that it is not to be construed to limit state powers in this regard. The court remands the case, however, insofar as the district court affirmed the agency's order to appellants to remove the fill material in question. While the agency was explicitly given authority to issue such removal orders in 1973, there remains some doubt as to whether it may order the removal of material deposited before 1973. The district court was directed to reconsider this issue.

The full text of this opinion is available from ELR (4 pp. $0.75, ELR Order No. C-1209).

Counsel for Appellants
Wayne E. Gilbert, James Harper, Timothy O. Lee
Harper, Eaton, Peterson & Overon
1000 Alworth Bldg., Duluth MN 55802
(218) 722-2841

Counsel for Respondent
Warren Spannaus, Attorney General; C. Paul Faraci, Deputy Attorney General; Steven J. Johnson, Special Attorney General
102 State Capitol, St. Paul MN 55155
(612) 296-2591

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]