Freeborn v. Bryson

(Minn. Dist. Ct. January 17, 1972)

The County of Freeborn will not be enjoined from condemning for use as a county highway lands which include wetlands used as a private game refuge not dedicated to public use. However, the questions of whether the power of eminent domain has been affected by the Minnesota Environmental Rights Act of 1971 (Chapter 952, Laws of 1971) and whether the scope of judicial review has been changed by that act, are certified for decision by the Minnesota Supreme Court.

Counsel for Freeborn County
Robert C. Tuveson Freeborn County Attorney
146 West Clark Street
Albert Lea, Minnesota 56007

Counsel for Bryson
Rolf O. Slen
Henry Savelkoul
Christian, Slen, Savelkoul, Johnson and Broberg
222 East Main Street
Albert Lea, Minnesota 56007

Counsel for Sierra Club, Intervenors
Michael J. Mollerus
1214 First National Bank Building
Minneapolis, Minnesota 55402

Counsel for the State, Intervenor
Geoffrey Jarpe Special Assistant Attorney General
St. Paul, Minnesota 55103

[2 ELR 20079]

Foley, J.:

The above entitled matters as consolidated came duly on for trial before the Court sitting without a jury at Albert Lea, [2 ELR 20080] Minnesota, on September 20, 1971, continuing through September 24, 1971 and thereafter on October 4, 1971 and continuing through October 6, 1971.

Plaintiff-Defendant County of Freeborn and Board of County Commissioners, Freeborn County, Minnesota, was represented by Robert C. Taveson, Freeborn County Attorney and Bob A. Goldman, Assistant Freeborn County Attorney, Albert Lea, Minnesota. Defendants-Plaintiffs William H. Bryson and Arlene Bryson were represented by Christian, Slen, Savelkoul, Johnson and Broberg, Albert Lea, Minnesota, with Mr. Rolf O. Slen and Mr. Henry Savelkoul in attendance. Intervenor State of Minnesota was represented by Mr. Geoffrey Jarpe, Special Assistant Attorney General, St. Paul, Minnesota. The Intervenor Sierra Club was represented by Mr. Michael J. Mollerus, Attorney at Law, Minneapolis, Minnesota.

Pursuant to pretrial order, the County of Freeborn presented its evidence, including oral testimony, with respect to its Petition for Condemnation of certain lands for highway purposes.

When the County rested its case with respect to its Petition for Condemnation the Respondent Bryson moved for a dismissal of said Petition, but said motion was denied as premature, Respondent Bryson's having based much of their motion upon the "Environmental Rights Act of 1971" upon which no evidence had been offered to that point of the consolidated trial.

Respondents Bryson, together with Intervenors State of Minnesota and the Sierra Club, then proceeded to present evidence, including oral testimony, on their Complaint and action for injunctive relief against the County of Freeborn and the Freeborn County Board of Commissioners to restrain said County from acquiring rights across the Bryson land as proposed in its Petition for Condemnation to build, construct and maintain a County highway, contending that such highway would materially and adversely affect the environment, to-wit, a wetland area which conduct in building such highway it is claimed is prohibited by the Act of 1971, Chapter 952, entitled "Environmental Rights Act".

After jointly presenting their evidence with respect to the injunction action, the Respondents Bryson, as well as Intervenors State of Minnesota and the Sierra Club, rested their case. The County of Freeborn has moved for dismissal of said action for injunction, contending that Bryson's and Intervenors State of Minnesota and Sierra Club have failed to present sufficient evidence to sustain their burden of proof in order to establish a prima facie case.

The Court has taken the motion for dismissal under advisement and has had the benefit of briefs of Counsel and the matter was finally submitted on the 17th day of November, 1971.

The Court having carefully considered all of the evidence in the trial, together with briefs of Counsel and upon all the files and proceedings herein, IT IS ORDERED:

1. The motion of Defendant County of Freeborn and Freeborn County Board of Commissioners, is granted and the action for injunction brought by the Bryson's, together with the State of Minnesota and Sierra Club as Intervenors, each is dismissed with prejudice for failure to establish a prima facie case for injunctive relief, subject, however, to the certification of the following questions to the Minnesota Supreme Court as important and doubtful:

A. Is the general power of a county under Minnesota Statutes 163.02 and 117.01 to exercise the power of eminent domain for a public use; to wit, a highway, limited by the provisions of Chapter 952, Laws of 1971, (The Environmental Rights Act) where such highway would affect a family-owned farm, a portion of which includes wetlands used as a private game refuge and no part of such lands are dedicated to the public?

B. Is the scope of Judicial Review of the "necessity" for a taking changed as a result of Chapter 952, Laws of 1971?

2. The Court retains jurisdiction over further proceedings in connection with the Condemnation Petition of the County of Freeborn pending an answer by the Minnesota Supreme Court to the certified questions set forth in this order.

3. County of Freeborn is entitled to costs and disbursements subject, however, to the certification herein ordered.