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2 ELR 20324 | Environmental Law Reporter | copyright © 1972 | All rights reserved Freeborn v. Bryson(Minn. Dist. Ct. January 17, 1972)The County of Freeborn will not be enjoined from condemning privately owned marshland for use as highway right-of-way in a suit brought under the Minnesota Environmental Rights Act of 1971. The statute's prohibition of "any conduct which materially adversely affects . . . the environment," except where there is no feasible and prudent alternative and the conduct is necessary to promote the public welfare, is not made applicable specifically to a county's exercise of the power of eminent domain by the language of the statute. In an order issued with its memorandum opinion (2 ELR 20079) the court certifies to the Minnesota Supreme Court the questions of whether a county's power of eminent domain is affected by the 1971 Act and whether the scope of judicial review of the "necessity" for a taking is changed by the Act. Counsel for Freeborn County Counsel for Bryson Counsel for Sierra Club, Intervenors Counsel for the State, Intervenor Foley, J. In the landmark case of Marbury against Madison, Chief Justice John Marshall spoke of "the peculiar delicacy of this case, the novelty of some of its circumstances and the real difficulty attending the points which occur in it". The language used by Justice Marshall in the celebrated case which occurred in the early history of this Country applies with like force to the case at bar. The County of Freeborn, Minnesota, through its Board of County Commissioners, has filed a Petition for Condemnation under its general power pursuant to Minnesota Statutes 143.02 and 117.01 to condemn certain interests in the lands of William H. Bryson and Arlene Bryson, his wife, for the purpose of constructing an all-weather County highway designated as County Road Number 8. The law of eminent domain as it has been evolved and developed in this State over the years is challenged by the Landowners Bryson, and the State of Minnesota and the Sierra Club as Intervenors, each of whom contend that the "Environmental Rights Act", Chapter 952 of the Laws of 1971 for the State of Minnesota compel a finding that the Petition for Condemnation seeking establishment of a County highway across the Bryson land as now proposed, be denied. Some reference to the factual situation with respect to the need of the establishment of County Road Number 8 and some reference to the factual situation with respect to the use of the land by Bryson will lead to a better understanding of the total case. The County of Freeborn has determined that it is necessary to build a new highway designated County Road Number 8 running in a generally north-south direction to better accommodate the traveling public; to eliminate existing curves on township roads now serving the general area and the Village of Alden in the County of Freeborn, a short distance to the west of the proposed road. The evidence establishes that a new Interstate Highway in the area of the proposed County Road 8 and existing County 74 would be more accessible to the traveling public by the construction of new Highway 8 as set out in the Petition. County Road 74, the east-west road which County Road 8 would connect with at its southerly point as a T-intersection, would be the principal highway to the interchanges of Interstate 90 to the east and west. The more critical part of the building of the new highway would occur northerly of the Bryson land. Bryson's own a 120-acre tract in Freeborn County and the new road would run north to south for a quarter mile through the north 80 acres of the tract and through and southerly a quarter mile long the westerly side of the southeast quarter of said tract, terminating at County Road 74; the Bryson farm being laid out as an inverted L. The road as constructed through the Bryson property would contain no curves and would be an all-weather blacktop County road with a total easement width and right-of-way of 100 feet. The testimony of the County Engineer reasonably established that constructing the new road through the Bryson land and the Peterson farm immediately to the west of the Bryson land was the least extensive for the County and would provide the most direct route and was the best alternative of the various routes in the area that might be established. The Brysons' use the north 80 of their property principally for agricultural purposes and the growing of corn, but a portion of said land is used as nesting cover for wild birds. In addition to the right-of-way sought by the County of Freeborn, [2 ELR 20325] about 1.6 acres of land is being acquired for slope easement. The total taking in fee on the Brysons' land involves 4.5 acres of land. Various alternative routes for the building of the new Highway Number 8 were inquired into at length at the trial, and the Engineer testifying for the County testified that the safest and most direct route with the least expense is that which is proposed through the Bryson land. He further testified that approximately 400 cars a day would move over and across the new road; that said road would be a blacktopped surface year round road and that the new road would meet the standards of both the State and the Federal Government. There is a County Road Number 12 running north and south about a mile and a half easterly from the proposed new County Number 8, and County Road Number 12 intersects County 74. The Engineer also testified that consideration was given to the fact that public utility poles and wires would not have to be moved for construction of the road as proposed across the Bryson land. The total road, including the portion of the highway proposed to be built through the Bryson land, is a three and a half mile project. The total acreage apart from slope easement being acquired from the Bryson's is 4.5 acres contained in a 50-foot roadway east and west as the road passes a quarter mile through the north 80, and a 50-foot easement from the southeast quarter of the Bryson land; the other 50 foot in the southern quarter mile being acquired from the neighbor to the west, Peterson. The principal challenge to the County's Petition to Condemn has to do with the routing of the road through a tract of land which the Bryson's and the Intervenors contend is a "natural resource" protected by the Environmental Rights Act of 1971, Chapter 952, Laws of 1971. Bryson's purchased their 120-acre tract in 1965 and took possession in 1966. The north 80 acres has been tiled. Bryson has set aside 19 acres of the 120-acre tract (in the southeast 40) since he acquired the property, as a wildlife area, although none of his land has been dedicated to the public or established as a park or wildlife game refuge. Mr. Bryson has particularly interested himself in working with Conservation groups, the Sierra Club, the National Audubon Society and has held offices in some of these groups. The tiling which Bryson estimated to be between 5,000 and 6,000 feet in length through the north 80 added about 19 acres of crop land since he acquired ownership, which said farm had not enjoyed before and which, as stated, is principally in corn. Evidence as to the 19 acres of marsh land reflects that there are various ponds in a portion of the Bryson land described as an east pond, a center pond and a west pond, where Mr. Bryson has observed wildlife of various kinds and species. Mr. Bryson permits hunting on his property to selected individuals. Westerly of the marsh property on the Bryson land there is a marsh area on the Peterson farm and southerly of the Peterson farm and across Highway 74 there is a marshy area, as well. Northerly and easterly of the Bryson land there is additional marsh areas so that there exists in that general area from the Peterson farm, across the Bryson farm and to the east and the north, what is generally described as a marsh complex. It should be observed at this point in the Memorandum, however, thatt the owners of the Peterson farm to the west of Bryson's have not in any manner challenged the Petition for Condemnation. The Peterson farm north and westerly of the marsh area is productive farm land. The east pond on the Bryson land is about 900 feet from the proposed road and there is a waterway connecting the central pond and the east pond. There is a portion of the wildlife area in the northeast corner of the northeast 40 consisting of about nine acres, and the proposed Road Number 8 does not in any manner interfere with that area. By the drainage practice through the substantial tiling which Mr. Bryson placed on his farm, he increased his crop land from 80 acres to 96. And to improve his crop land since he acquired ownership and possession, Mr. Bryson had drained some wetlands and cut some trees. The principal area disturbed by the new road would be along the fence line as the road passes north to south along the westerly edge of the southeast 40. This would disturb nesting and brooding areas for game birds. The area affected then is approximately 1.4 acres. It is the contention of the landowner and Intervenors that any disturbance of any part of the marsh area constitutes material impairment and destruction of a natural resource under the 1971 Act and must be enjoined and the County ordered and directed to find an alternative route for the highway. It has not been the intention nor design of the Court to attempt to particularize each, all and every item of evidence that was presented at the trial, but to present the matter in a sufficiently clear way to illustrate the contentions of the parties and to present a sufficient picture of the problem so that it will be easier to understand the legal issues raised by this evidence. The Court is attaching to this Memorandum a picture of the scene which fairly well illustrates the lay of the land and the various ponds that are described in the evidence. * County's Exhibit 4, which was received without objection, is one of the better exhibits that portrays the situation. The Order to which this Memorandum is made a part sets forth two questions which are certified to the Supreme Court because it is the sincere conviction of the undersigned that because of the compelling public interest in matters affecting the environment, an early expression by the Minnesota Supreme Court interpreting the new Act of 1971 is essential. The County is not prejudiced by the delay because no contracts have been let and there are sufficient existing roads in the area to take care of the present needs of the traveling public pending a determination and answer to the questions certified. We shall discuss first the Condemnation Petition. It requires no recitation or citation of authorities to establish that a public highway is a public use, and the Court so found at the time of trial. The question of necessity has been firmly established by our decision law to be a legislative one, not subject to judicial review unless it is so provided by the Constitution or by legislative act. See: Fairchild vs. City of St. Paul, 46 Minn. 540, 49 N.W. 325. State vs. Houghten, 144 Minn.1,174, N.W. 885, 176 N.W. 159. School District No. 40, Rock County vs. P.J. Bosstad, 121 Minn. 376, 141 N.W. 801. "It is without question that the power of eminent domain is a sovereign power, inherent in government, resting in the legislature, unlimited except as the Constitution guarantees compensation, exercisable directly by the legislature or by a body to which it delegates the power, the act of such body in taking being the act of the state. The question of necessity is a legislative one, not subject to judicial review, unless it is so provided by the Constitution or by legislative act. The view adopted is that the state, by the statute, delegates to school districts the power to select a site, and when such selection is made, in the authorized way, the necessity of acquiring the site comes, and with such necessity the court has nothing to do. The question of necessity is a legislative one, definitely and finally determined by the school district by virtue of the power delegated to it. The pertinent language now quoted from Fohl v. Common Council of Sleepy Eye Lake, 80 Minn. 67, 70, 82 N.W. 1097, involving the condemnation of land for streets, under a different statute, expresses in a general way the thought of the majority in this connection: 'The power and authority to establish and lay out streets and highways is legislative, and all questions of expediency and necessity are exclusively committed to that branch of the government. The power may be delegated to municipalities or municipal boards or commissioners, and their conclusion and determination as to the propriety and necessity of a proposed street or highway is as final and conclusive as though the legislature itself had determined the same. Such questions are not open to judicial review. The whole subject of the right of eminent domain [2 ELR 20326] for the purpose of taking private property for public use, such as laying out and establishing streets and highways is, within certain constitutional limitations and restrictions, one of exclusive legislative cognizance; the proceedings, of course, being guided and regulated by legal rules and principles.'" One of the leading cases which has never been overruled in Minnesota, which sets out the test for determining necessity, is Northern States Power Co. against Oslund, 236 Minn. 135, 51 N.W.2d 808, 52 N.W.2d 717. In the last cited case the Court said: "Although lands may not be taken by eminent domain unless such taking appears to be necessary, it is well settled in this jurisdiction that there need be no showing of absolute or indispensable necessity, but only that the proposed taking is reasonably necessary or convenient for the furtherance of the end in view." See: IN RE Condemnation by Dairyland Power Cooperative, 248 Minn. 556, 82 N.W.2d 56. The firm position which the Minnesota Court has consistently adhered to with respect to the matter of necessity is set out in Town of Lebanon, Dakota County against Land Holding Company et al, 274 Minn. 558, 143 N.W.2d 60, and more particularly footnote Number 1 on page 559. The last cited case is a condemnation case and the Court said: "It may be noted that we have infrequently, upon a proper showing, exercised our discretionary authority to review similar orders by certiorari. Housing & Redevelopment Authority v. Minneapolis Metropolitan Co., 259 Minn. 1, 104 N.W.2d 864; State ex rel. Ford Motor Co. v. District Court, 133 Minn. 221, 158 N.W. 240. Had appellants requested such review and had the request been granted, the order would have been upheld upon this record because it clearly appears (1) that the petitioner is vested with the power of eminent domain to condemn land for public use (Minn. St. 365.02); (2) that the question of the necessity for taking is not subject to judicial review (School District No. 40 v. Bolstad, 121 Minn. 376, 141 N.W. 801); and (3) that the power to take the property was exercised in the manner authorized by statute and was neither fraudulent, arbitrary, nor capricious, and the evidence abundantly supports the court's finding that the taking serves a public purpose. Housing & Redevelopment Authority v. Minneapolis Metropolitan Co., supra." A leading case with respect to the matter of legislative function and judicial review is Housing & Redevelopment Authority against Minneapolis Metropolitan Company cited in the Town of Lebanon case, supra. In Housing & Redevelopment Authority against Minneapolis Metropolitan Company, supra, the Minnesota Court adopts the position and statement of the U.S. Supreme Court in Berman against Parker, 234 U.S. 26, 35, 99 L.Ed. 27, 39. "It is not for the Courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch." See: Housing & Redevelopment Authority vs. Coleman's Service, Inc., 281 Minn. 63 (67, 71), 160 N.W.2d 266. The Minnesota Court said in the last cited case, referring to Housing & Redevelopment Authority against Minneapolis Metropolitan Company, supra: "As stated in that case, we are precluded from substituting our judgment for that of the authority as to what may be necessary and proper to carry out the purpose of the plan." In view of the fact that the matter of necessity is almost exclusively left to the judgment of the condemning authority, the only judicial review, apart from compensation, is judicial review of arbitrary or capricious action. A recent expression of this rule is contained in State, by Head against Christopher, 284 Minn. 233, 170 N.W.2d, 95, where the Court again, citing Housing & Redevelopment Authority against Minneapolis Metropolitan Company, supra, with approval said: "* * * Courts may interfere only when the Authority's actions are manifestly arbitrary or unreasonable. The acts of an authority vested with legislative determination in a particular area are manifestly arbitrary or unreasonable where they are taken capriciously, irrationally, and without basis in law or under conditions which do not authorize or permit the exercise of the asserted power. The Court is precluded from substituting its own judgment for that of the Authority as to what may be necessary and proper to carry out the purpose of the plan. We do not understand that it is the function of the Court to decide between conflicting opinions of the parties as to the advisability of a discretionary act. The question before us is one of the power of the Authority to exercise its judgment in making a determination where the power so to do has been conferred by statute." The Christopher case is cited in 284 Minn. 233, and in speaking of the power of eminent domain, the Court said: "The powers of the state are preeminent because of the state's sovereign authority. It is not correct to equate the sovereign right of the state to condemn land for a public purpose with rights of lesser subdivisions of the government or public or private utility corporations to exercise the right of eminent domain. Moreover, it may be broadly stated that the rationale of the authorities which holds that public lands of the state may be taken under the power of eminent domain only when authority is expressly, or by necessary implication, granted by the legislature comprehends that the rights should not be exercised where the desired purpose may be accomplished by a slight deviation or change of course." (Italics supplied.) See: Minnesota Power & Light Company vs. State, 177 Minn. 343, 225 N.W.2d 164. It should be observed that in the presentation of the case for the County of Freeborn much inquiry was made with respect to possible alternative routes for County Road Number 8 to that route which is sought by the County in its Petition. The evidence reasonably establishes that the route proposed in the County's Petition is the most desirable of all alternatives present, although the County Engineer did testify that as the new road enters the Bryson land on the north, an alternative to the route proposed would be a deviation to the west and back southeasterly, but the totality of the Engineer's testimony suggests that he considered the present route to be the most reasonable and suitable and convenient for the purpose intended. See: Northern States against Oslund, supra. It ought to be emphasized at this point in the Memorandum that the Landowner Bryson did not present any evidence to suggest, from the standpoint of expertise engineering other than cross-examination of the County Engineer, contradictory evidence concerning the matter of alternative routes. Before proceeding to a discussion of the phase of the case involving the Environmental Rights Act, the Court feels compelled to observe that there was a thorough discussion by both direct and cross-examination of the County Engineer concerning all alternative routes and it is reasonable to conclude that the County did not proceed in an arbitrary fashion in violation of the rule laid out in Housing and Redevelopment Authority against Minneapolis Metropolitan Company, supra. It seems to the Court that the consistent adherence by the Minnesota Court to the rule determining necessity established in Northern States Power Company against Oslund, supra, compels adherence by the trial court to that standard; namely, "That there need be no showing of absolute or indispensable necessity, but only that the proposed taking is reasonably necessary or convenient for the furtherance of the end in view." It is clear that the County of Freeborn is proceeding in this matter under its general power to condemn lands, such power having been delegated by the legislature to a County under the authority of Minnesota Statutes 163.02 and 117.01. The right and power to condemn land or an interest in land is limited and restricted by Article 1 — Sectionn 13 of the Minnesota Constitution which guarantees that "just compensation be paid". (Apparently, the general power to condemn land is restricted if there is specific legislative authority for a different use, but if the two uses are not inconsistent with each other they may both stand.) See: St. Paul, Minneapolis & Manitoba Railway Co. vs. City of Minneapolis, 35 Minn. 141. The Minnesota Supreme Court in Dynes against Town of Kilkenny and others, 153 Minn. 11 (14), 189 N.W. 439, said: "Plainly, a court should not enjoin a necessary public improvement merely because it will cause damage to private property any more than it should enjoin the exercise of the right of eminent domain because it will cause damage. The compensation clause of the Constitution contemplates both, and this clause of the Constitution is a method designed to make good the landowner in both cases." The instant case would seem to require a clarification of the "necessity rule" as laid down in Northern States against Oslund, supra, and the "slight deviation rule" set out in State, by Head against Christopher, supra. It is observed that the condemning authority in Northern States against Oslund is a public utility; the condemning authority in the case at bar is the County of Freeborn. The law of Minnesota in eminent domain cases where the nature of the taking was for a public highway has seemingly been so firmly established to permit the condemning authority to establish routes and make all of the legislative determinations that are necessary to the taking that only the matter of compensation was really left to the courts for review. A court, however, may always review the action of a County Board or administrative agency to determine if the action taken by such board or agency was arbitrary or capricious, and apply the standard laid down in Housing & Redevelopment Authority against Minneapolis Metropolitan Company, supra, which appears to be one of the leading cases in Minnesota dealing with judicial review of determinations by a legislative body. The fact that the County of Freeborn did consider various alternative routes would seem to be a sufficient basis for holding thatt the action of the Board in running the highway through a portion of the marsh was not an arbitrary act. The mere fact that the road goes through 1.4 acres of the Bryson marsh does nto establish arbitrariness where alternative routes were considered and deemed in the totality of circumstances not the best to accomplish the purposes which the County Board had in mind in determining to build a road in the first instance. Even if the course of the County Highway were to be only slightly changed so as to avoid the Bryson marsh, there is every likelihood it would probably have to go through the Peterson marsh, so that it would not seem that anything would really be accomplished by this change of direction, except thatt the Peterson land would be more directly affected by the new highway rather than Bryson. There is also a total absence of any engineering data to support a finding that such a change from the present proposed route is a more suitable one. It thus strikes the Court that unless the Environmental Rights Act of 1971 expressly or by implication restricts the general power of the County to condemn land, the Petition for Condemnation ought to be granted. The Landowners Bryson and Intervenors State of Minnesota and Sierra Club vigorously assert that the Act, as it will be called hereinafter in this Memorandum, of 1971 applies to the instant case and contends also that pursuant to that Act a prima facie case has been established which compels the Court to place the burden of going forward in the matter on the County of Freeborn. One of the most pressing concerns of our time and age is that of preserving the environment and our natural resources. No reasonable person would take issue with that statement. It is a matter of paramount concern to legislators, property owners and the courts. See: Environmental Defense Fund, Inc. against Corps of Engineers, 324 Fed. Supp. 878, 880 (D.C.) The Minnesota Legislature by Chapter 952 in the regular session adopted the Act herein referred to and stated in Sectionn 1 its purpose. "116B.01 Purpose. The legislature finds and declares that each person is entitled by right to the protection, preservation, and enhancement of air, water, land and other natural resources located within the state and that each person has the responsibility to contribute to the protection, preservation, and enhancement thereof. The legislature further declares its policy to create and maintain within the state conditions under which man and nature can exist in productive harmony in order that present and future generations may enjoy clean air and water, productive land, and other natural resources with which this state has been endowed. Accordingly, it is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction." Included in its definitions in Sectionn 2 is the word "person". "Subd. 2. 'Person' means any natural person, any state, municipality or other governmental or political subdivision or other public agency or instrumentality, any public or private corporation, any partnership, firm, association, or other organization, any receiver, trustee, assignee, agent, or other legal representative of any of the foregoing, and any other entity, except a family farm, a family farm corporation or a bona fide farmer corporation." Subdivision 4 defines a natural resource. "Subd. 4. Natural resources shall include, but not be limited to, all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources. Scenic and esthetic resources shall also be considered natural resources when owned by any governmental unit or agency." Subdivision 5 defines pollution, impairment or destruction. "Subd. 5. 'Pollution, impairment or destruction' is any conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, regulation, rule, order, license, stipulation, agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof which was issued prior to the date the alleged violation occurred or is likely to occur or any conduct which materially adversely affects or is likely to materilly adversely affect the environment; provided that 'pollution, impairment or destruction' shall not include conduct which violates or is likely to violate, any such standard, limitation, regulation, rules, order, license, stipulation agreement or permit solely because of the introduction of an odor into the air." Subdivision 6 defines a family farm. "Subd. 6. 'Family farm' shall mean any farm owned by a natural person, or one or more natural persons all of whom are related within the third degree of kindred according to the civil law, at least one of whose owners resides on or actively operates said farm." By Sectionn 116B.03 authority is granted for commencement of [2 ELR 20328] suits seeking equitable relief to prevent "pollution, impairment or destruction of a natural resource". Authority is likewise granted for intervention by the Attorney General and other interested parties. Burden of proof is defined in Sectionn 116B.04 and more particularly the second paragraph thereof reads as follows: "In any other action maintained under Sectionn 116B.03, whenever the plaintiff shall have made a prima facie showing that the conduct of the defendant has, or is likely to cause the pollution, impairment, or destruction of the air, water, land or other natural resources located within the state, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative and the conduct at issue is consistent with and reasonably required for promotion of the public health, safety, and welfare, in light of the state's paramount concern for the protection of its air, water, land and other natural resources from pollution, impairment or destruction. Economic considerations alone shall not constitute a defense hereunder." The Landowners and Intervenors contend that under the authority of the Act and the various sections thereof which were set out above that a prima facie case under "The Act" has been established requiring the Court to place the burden of going forward on the County of Freeborn. More specifically then, the Landowners Bryson contend that a prima facie case has been established; that the proposed road, County Road Number 8, running through a portion of the Bryson marsh, constitutes conduct "which materially adversely affects or is likely to materially adversely affect the environment." It is a conceded fact in the case and no claim is made that "any environmental quality standard, limitation, regulation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof" was violated. It is the view of the undersigned that all evidence received at the trial may be considered by the Court in determining whether a prima facie case under the Act has been established. It should be observed here that the Landowner Bryson asserted the provisions of the Act as an affirmative defense in his answer filed to the Petition for Condemnation, and the Court has every right to consider under the pleadings which have been filed in this consolidated matter, and the evidence received at the single trial, whether the Land-owners and Intervenors have made out a prima facie case. In approaching this task, Sectionn 116B.04 in the second paragraph thereof dealing with burden of proof does not preclude the Court from considering the evidence relative to alternate routes which were presented under the County's Petition for Condemnation. This was a single trial and all evidence in the case ought to be considered on all issues where such evidence is material and relevant. It might have been a simple matter for the County of Freeborn to have suggested when the Landowner and Intervenors rested that the evidence submitted with respect to the Petition for Condemnation and the various routes considered for the laying out of the road that such evidence might apply with like force to that portion of the case where Landowners and Intervenors presented their evidence under the Act, but notwithstanding the absence of such a statement by the County of Freeborn, there is evidence in the case which deals with various routes and all facts which legitimately bear on the case ought to be considered. See: Jury Instructions Guide Number 70. New Orleans & NER Co. v. National Rice Milling Co., 234 U.S. 80. The test or definition of prima facie case is set out in Topinka against Minnesota Mutual Life Insurance Company, 189 Minn. 75 (81), 248 N.W. 660. "A prima facie case or prima facie evidence does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. * * * The burden of proof continues to rest upon the party who either as plaintiff or as defendant asserts the fact necessary to enable him to prevail. He must ultimately establish that fact before he can become entitled to a finding or verdict in his favor. The burden of maintaining the affirmative 'is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial.' If all he hasis a prima facie case, his opponent need not overcome it by a preponderance of the evidence. The latter prevails if only he can 'equalize' or counterbalance his adversary's case. First National Bank versus Ford, 30 Wyo. 10, 119, 216 P. 691, 31 A.L.R. 1441." Tested by the above rule, the Court again states that all of the evidence in the case is considered with respect to the issues raised by the pleadings. The prima facie case must be established in law, as well as in fact. As the Court approaches a further discussion of the Act of 1971, he has in mind the canons of constructions set out by Minnesota Statutes 645.08, 645.16 and 645.17, Subdivision 1, reading: "The legislature does not intend a result that is absurd, impossible of execution or unreasonable", and Subdivision 5 thereof, reading, "The legislature intends to favor the public interest as against any private interest." We are confronted with an action for injunctive relief to restrain the County of Freeborn from building a needed public highway across 1.4 acres of marsh land, but the Court is compelled to observe that the Landowner Bryson, by virtue of the Act, seeks to have it enforced against the County to restrain the building of the highway as now proposed and compel an alternative route, not-withstanding the fact that the Landowners Bryson in the operation of their farm are exempt from application of the Act as to their own use of their lands. It is to be observed also that Bryson's have not dedicated any portion of their lands which constitute the marsh or wildlife habitat, as it has been described, to the public, and only those persons who are authorized as guests of Bryson's may hunt on the premises. Significant, too, is the fact that it is only that portion of the marsh through which the highway would pass and which constitutes approximately 1.4 acres which is "likely to be materially affected" by the proposed construction of the highway, and the balance of Bryson's marsh land to the east and north is in no manner affected by the taking. Also, it is observed that the Peterson marsh, westerly of Bryson, is farm land that is exempt from provisions of the Act, and the land lying southerly of County Highway 74 is likewise farm land that is exempt from application of the Act. Certainly, the Court favors protection of the "birds of the air" and animals such as the deer and the muskrat, and the environment in general. The Intervenors contend that notwithstanding the exemption enjoyed by Bryson, the interest of the State at large and all its people in the conservation of natural resources, that injunction ought to lie, but it is a pressing concern to the Court as to whether the Intervenors have greater standing in this matter than the Landowner himself. It does not strike the Court that the State could enjoin Bryson from changing his land use. While the Intervenors argue that there is no evidence to suggest that Bryson might do so, the fact remains that the owner of the family farm has the power to do so. If the Court understands the Landowner's and Intervenors' position clearly, it would seem that it is their view thatt any interference with the habitat area is directly related to the entire marsh complex, including the Peterson land to the west, the three ponds on the Bryson land east and northerly, and indirectly could have a serious and far-reaching effect on marsh land and wildlife areas in all of Freeborn County and all the way to Freeborn Lake to the north, and conceivably by a natural extension of the argument, to all of North America. Because of the fact that areas suitable for wildlife habitat are declining, the Court must view the phrase "material impairment or destruction" in a realistic fashion. By far the greater portion of the Bryson complex is unimpaired by the proposed highway, and will be enjoyed by the ducks and the game as well in the future as they are at present. The Court is mindful of the fact that the legislature can limit the authority given to a municipality or can modify the power given to a municipality such as the County of Freeborn. See: Monaghan against Armatage, 218 Minn. 108, 15 N.W.2d 241. City of Trenton against New Jersey, 262 U.S. 182. Hunter against City of Pittsburgh, 207 U.S. 161. While the above cited cases amply demonstrate that the legislature may modify the powers of a county, it likewise is established law in Minnesota "that courts cannot supply that which the legislature purposely omits or iandvertently overlooks." See: Wallace against Commissioner of Taxation, 289 Minn. 220 (230), 184 N.W.2d 588. Martinco against Hastings, 265 Minn. 490, 122 N.W.2d 631. State against Moseng, 254 Minn. 263, 95 N.W.2d 6. In the Act of 1971, Chapter 952, no special reference is made to a limitation of or restraint upon a county or other municipal government with respect to the exercise of the power of eminent domain. The question is presented, therefore, whether the Court may infer that the legislature intended, by its adoption of the Environmental Rights Act, to restrict the exercise of the power of eminent domain. The phrase "any conduct" included in Minnesota Statute 116B.01, Subdivision 5, needs interpretation and clarification. Absent a specific reference in the Act to a restriction of the power of eminent domain, the Court would have to construe the phrase "any conduct" as sufficiently broad to limit the exercise of the power of eminent domain if the public project were likely to materially adversely affect the environment. It strikes the undersigned, however, thatt the legislature perhaps iandvertently overlooked including a specific limitation upon the exercise of the power of eminent domain by failure to include such specific limitation in the Act. While the Stevens County Ditch case, decided by the Minnesota Supreme Court October 7, 1971 dealt with a fact situation that preceded the adoption of the Environmental Rights Act, nonetheless, it is important because of the fact that a needed public improvement was involved. The Minnesota Supreme Court held that the State was entitled to compensation, which is precisely the fact situation in the case at bar. The State in the cited case "between 1957 and 1961 . . . acquired the 480 acres known as the 'Grace Marshes' for propagating game birds and permitting public hunting. Almost $50,000.00 has been spent on the project." The Court there said, relating to wildlife area: "We discern a legislative policy of preserving wherever possible wetland conservation areas designed to prevent the depletion of wildlife as the pressures of hunting increase. Minnesota Statute 106.671 imposes on the county the duty of considering the 'conservation of oil, water, forests, wild animals, and related natural resources before determining whether a drainage project will be a public benefit.' The legislature has left little doubt as to its intent by adopting the language of Minnesota Statute 111.82. It is the policy of the State to promote the retention and conservation of all water precipitated from the atmosphere in the area where it falls as far as practicable. Whereas here, the state has acquired 480 acres of wetlands for conservation purposes at a cost approaching $50,000.00 and it is undisputed that the county drainage project will seriously impair the effectiveness of the area for conserving wildlife, we hold that the state has suffered a compensable loss." (italics supplied.) There is no contention in the case at bar that the County would not pay just compensation to the Bryson's for damages sustained by them as a result of this taking, and the Constitution compels such payment. See Dynes v. Town of Kilkenny, supra. By statutory canons of construction and decision law it is the present law in Minnesota that the public interest be favored in resolving problems involving governmental functions. See: Knopp against Gutterman, 258 Minn. 33, 102 N.W.2d 689 Lenz against Coon Creek Watershed District, 278 Minn. 1 (12), 153 N.W.2d 209. The recitation of the County Ditch case just referred to does not suggest that any injunctive relief was even sought, and the principal issue in the case had to do with whether or not the State of Minnesota was entitled to compensation for a taking that affected that public hunting marsh. Canon 645.17, Subdivision 1, already cited, is mentioned here again for emphasis and reads as follows: "(1) The legislature does not intend a result that is absurd, impossible of execution or unreasonable." Because of the uncertainty which exists because no reference is made to a limitation of the power of eminent domain, the Court must conclude that the legislature did not intend to stifle the construction of necessary public improvements absent arbitrary or capricious action. The Landowners and Intervenors lay heavy stress upon the following two cases: Minnesota Power and Light Company against State, 177 Minn. 343, 225 N.W. 164, and Texas Eastern Transmission Corporation against Wildlife Preserves, Inc. 48 N.Jer. 261, 225 At.2d 130 (1966). Landowners and Intervenors rely heavily on Minnesota Power and Light Company, supra, because that case dealt with the issue of determining what constitutes a material interference with a prior public use. The undersigned has no difficulty in determining that what constitutes a material or substantial interference with a prior public use is a fact issue. It is the view of the undersigned that Minnesota Power and Light Company against State is distinguishable from the case at bar. In the cited case the Utility Company sought to condemn a perpetual easement over state-owned lands in the Jay Cooke State Park for a power line for transmitting electric current. the state appealed from an adverse ruling in the trial court, contending that lands owned by the state and dedicated and used as a State Park can be [sic] taken under the right of eminent domain by a public service corporation, and contended, also, that no such express or implied authority for a taking of that kind was authorized. The Minnesota Supreme Court said: "It is well settled that property owned by the state cannot be taken under the right of eminent domain, except under authority expressly conferred by the legislature or clearly implied from statutory provisions. A general power to condemn lands is not sufficient." Further in the opinion the Court said, in reversing the trial court: "When we come to land dedicated by the state or one of its governmental agencies for a specific public use, and actually in use for the specified purpose, the rule is that general authority to condemn state-owned lands is not sufficient. In such case there must be legislative authority, expressly given or clearly implied, to take lands so dedicated and used." Further in the opinion the Court said: "The rule against taking property by right of eminent domain, without special authority, where such property is already devoted to a public use is generally held not to apply where the second use does not materially or seriously interfere with the first use, or where the second use is not [2 ELR 20330] inconsistent, and the two uses may be enjoyed together without serious injury to or interference with the first use." Finally, near the end of the opinion the Supreme Court said: "Where it becomes necessary for public service corporations, counties, towns or municipalities to run railways, highways or other lines through State Parks, general or special legislative authority should be obtained." (Emphasis supplied.) While Minnesota Power and Light Company, supra, is cited in State, by Head against Christopher, supra, it is distinguishable from the case at bar in view of the fact that the Bryson property was not devoted to a prior public use as that therm is used in Minnesota Law. See: Minnesota Canal & Power Company against Koochiching County, 97 Minn. 429, 107 N.W. 405. In Minnesota Canal and Power Company, just cited, appellants sought to condemn lands for erection of a water power plant. The trial court found the intended use by the condemner to provide only a public benefit and stated: "With the exception of a line of cases which have grown out of particular conditions and apparent necessity, the authorities consistently recognize the fact that a public use means a public use by the public." 107 N.W. 405, 411. A public use as against public benefit is illustrated, likewise, in a Nebraska case, Burger against City of Beatrice, 147 N.W.2d __ (1967). The Supreme Court of Nebraska, in reversing a trial court's denial to an injunction to the landowner, reasoned: "It is undoubtedly true that the location of the Phillips and Cominco Plants is an asset to Beatrice. It will furnish some employment and increase business in the area, but such a public interest does not constitute a public purpose under the power of eminent domain. If it did, there would be no limit to the exercise of the power for the benefit of private enterprise. . . The use put to the water by Phillips and Cominco is private and wholly within their control." The Court must, however, view public use and public benefit as those terms are used in our case law in the light of today's events and in light of the Act to protect the environment that has just been enacted by the Minnesota Legislature during this recently concluded session. Preservation of our natural resources is a benefit to all. See: Lien vs. Board of County Commissioners, 80 Minn. 58, 82 N.W. 1094. Undoubtedly, the Act referred to so often in this Memorandum seeks to accomplish that very worthy objective, but after expressing its intention in this regard, the legislature might very well have frustrated the implementation of the Act by omitting specific reference to the power of eminent domain. With this in mind, and absent a situation where particular lands are dedicated to the public, the uncertainty created by the statute compels a finding that would more realistically bespeak the intention of the legislature; and that is, that absent arbitrary action, needed public improvements are not to be enjoined under the Act where the improvement affects a family-owned farm. While the County of Freeborn indicated in its brief a reservation of the right to challenge the constitutionality of the statute for vagueness, the Court is not required to determine the constitutionality of the statute, but presumes it to be valid, except thatt absent a clear expression by the legislature to the contrary, eminent domain affecting family-owned farms partially used as a private wildlife game refuge is not to be enjoined. Particularly should this be the finding where alternate routes were considered, and arbitrary action is nto established. As to vagueness, see State vs. Target Stores, Inc. 279 Minn. 447 (472), 156 N.W.2d 908. The phrase "any conduct" is so general that it is reasonable to conclude ". . . that men of common intelligence must guess at its meaning and differ as to its application." See: State against Northwest Poultry & Egg Co., 203 Minn. 438, 281 N.W. 753, (and whether it refers to eminent domain.) In Texas Transmission Corporation, supra, also heavily relied upon by the Landowner and Intervenors, the appellate court reversed in a case involving a public service corporation and remanded the case for trial relative to the alternate route theory. In that case it was claimed that a proposed pipe line would interfere with the wildlife preserve established by a charitable corporation. "Qualitatively, for purposes of the present type of proceeding, the status might be de cribed as lower than that of a public utility, but higher than that of an ordinary owner who puts his land to conventional natural use." The New Jersey Court also held that a private property-owner may present the issue of arbitrariness in connection with the taking (which is also the law in Minnesota.) "Under the circumstances and although plaintiff's right to condemn land in this area for the pipe line is clear, we believe for additional reasons to be stated that Wildlife Preserves is entitled to have a plenary trial of its claim. That a satisfactory alternate route is available to plaintiff which will not result in such irreparable damage to the Preserve." See: County Highway Commissioners of Rutherford County against Smith, 454 S.W.2d 124 (129, 130, (Tenn.), which distinguishes the Texas Eastern case. In the case at bar, as previously mentioned in this Memorandum, the various routes that could be utilized and established by the County Board were thoroughly explored and the one which was the best of all alternatives is that which crosses the Bryson property. The game experts who testified for Landowners and Intervenors contend that the road passing through the 1.4 acres of Bryson marsh constitutes a material and substantial interference with the entire marsh complex all theway up through to Freeborn Lake to the north. The evidence does not support this finding since only 1.4 acres of the marsh is affected. Furthermore, it should be observed that if a different route were to be required for the building of County Road 8, more productive farm land might possibly be affected than will be interferred with by the building of the road as now proposed, and it is to be observed that in the Environmental Rights Act of 1971 productive land is to be protected, as well as other aspects of the environment and this is set out in the Statement of Purpose in 116B.01. For a case where injunction was denied where suit was brought by a Sierra Club involving a public improvement, see: Sierra Club vs. Resor, 329 Fed.Supp. (Wis.) 890. Brooks vs. Volpe, 329 Fed.Supp. 118 (Wash.) (1971). In the last cited case injunction was denied to conservation organizations in a case involving a proposed interstate highway. It is to be observed in the cases involving proposed public improvements under Federal Law or where Federal funds are involved that prior to construction of any such public improvement, including highway construction, it is necessary that an "Environmental Impact Statement" be filed before any section of road receiving Federal funds can be approved. In some cases where injunction issues against construction of Federal highways it is because an Environmental Impact Statement has not been filed as required by Federal Law. (See Federal cases above cited.) It should also be observed that the Act, Chapter 952, involved in the instant case does not require an Environmental Impact Statement to be filed before a public project can proceed. It is also a conceded fact in the case at bar that no Federal funds are involved in the proposed county highway. However, it would seem that when the Act is applicable the Court must determine as a fact question if the improvement is "likely to materially adversely affect the environment", and in this [2 ELR 20331] respect the Act would be similar to the Federal policy requiring the filing of an Environmental Impact Statement. It would seem that the legislature would have to review the Act with respect to exemption provisions in order to raise the use to which Bryson puts his land to the status of that described in the Texas Eastern case, supra. To capsule the holding in this Memorandum, it seems to the Court that the present Minnesota Law dealing with "necessity" as announced in Northern States Power Company against Oslund, supra, ought to be reviewed if the trial court is to have a greater role in reviewing the determination of necessity. A clearer expression in the Supreme Court is needed with respect to the "slight deviation rule" set out in State, by Head against Christopher, supra, when county government is involved. Further, it strikes the undersigned that certification of this case as important and doubtful is essential to clarify for county and municipal governments whether eminent domain is in any manner restricted as to them by the Environmental Rights Act of 1971. Particularly is this important where it involves agricultural land and the public improvement passes over farm land, and a portion of such land might qualify as a natural resource which the Environmental Rights Act seeks to protect and preserve. Undoubtedly, the legislature enacting the Environmental Rights Act was highly motivated to take a positive step to protect the environment into the future and was not acting for the expediency of the passing hour. Finally, it is the view of the Court that because of the exemption provisions in the Act protecting family-owned farms, the Intervenors State of Minnesota and Sierra Club have no greater standing against the County than does Bryson, and that their case must stand or fall with Bryson. The Intervenors contend in their brief that their interests are different than that of the Landowner Bryson, but the evidence at the trial was presented jointly and in no sense was an adverse posture taken by the Intervenors against the Landowner. Furthermore, if Bryson has full liberty and power to change his land use from what it is presently being utilized for to some other use (and the same would be true of Peterson's to the west) there is no conceivable circumstance that the undersigned is aware of by which the State or any Conservation Group could prevent such change of use. If the legislature has in mind restricting the governmental functions such as that sought to be performed by the County of Freeborn in the case at bar then the statute ought to clearly say so, and uncertainty in the law be removed. See: State versus Northwest Poultry & Egg Co., supra. The Court repeats what he said at the outset of the Memorandum that the issues involved are sufficiently important and doubtful and so far-reaching in their effect that it is a proper case to be certified for early review by the Supreme Court. In Minnesota Power and Light, supra, it is emphasized that what constitutes a "material impairment" of the environment is a fact issue, but this should not limit our consideration of the Act of 1971 to just fact issues. Issues of law are equally important. If changes are needed in the new law, as the undersigned believes, to better protect the environment and make the Act more effective then the Court should point out in which areas the Act be improved to give it more effectiveness, and this appears to be a good case to review the Act and make such determinations. The Minnesota Legislature does not meet again until 1973 (absent a Special Session prior to that time) and it is important to have a full and as fruitful as possible review of the Act to guide the legislature when it next meets and considers this important and progressive piece of legislation. Finally, in this day and age with the heavy emphasis on the preservation of natural resources, and the environment having such a prominent place in our national life, it is most desirable that all efforts be made to preserve, protect and conserve natural resources in all forms and including wetlands and duck marshes, and however desirable or popular it might be to suggest that the County go out of its way to avoid interferring with any part of the Bryson marsh by going around to the west, to the north or to the east with its new highway, nonetheless, that is a matter exclusively reserved under the present state of the law to the wisdom of the County Board, and with the exercise of that wisdom the Court may not interfere. What was said by the Minnesota Supreme Court in Starkweather against Blair, 245 Minn. 371 (395), 71 N.W.2d 869, seems appropriate to be repeated here. "It should be said in passing that it is not for us to determine the wisdom of the legislation involved. Whether our sympathies lie with plaintiff is beside the point . . . A matter of this kind is of too great importance in preserving the proper function of the Judicial branch of government as a check upon the Legislature to permit our judgment to be influenced by our sympathies for any one individual no matter how deep those sympathies may run. While we should not hesitate to strike down an act of the Legislature when it fails to heed the limitations placed upon it by the Constitution, we should be equally careful not to interfere with any power it has, no matter what we personally may think about the wisdom of the legislation involved." What the Supreme Court said of the Legislature applies to the acts of a County. In the meantime, the status quo is preserved. The within Memorandum is made a part of the foregoing Order. 2 ELR 20324 | Environmental Law Reporter | copyright © 1972 | All rights reserved |