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Smentek: Buffer law court challenges ramping up

March 8, 2018 / by Joe Smentek, Minnesota Soybean director of public affairs Categories: Association News, Minnesota Soybean Growers Association

Written by Joe Smentek, Minnesota Soybean director of public affairs

The latest challenges to the buffer law are taking place in Minnesota courts.

Joe Smentek, Minnesota Soybean director of public affairs

This week an unpublished – and therefore not precedent-setting – opinion was filed in the Minnesota Court of Appeals regarding the latest objections to the wording of the buffer law. The case answers some of the questions that arose about the buffer law when it was being debated in the legislature.  This challenge was brought by Gary Haugen, who was challenging the placement of a watercourse on the Public Water Inventory (PWI) by the Department of Natural Resources (DNR) in 1979. 

Haugen owns riparian land near an unnamed public watercourse in Big Stone County in West Central Minnesota.  This watercourse was part of a map supplied to the county back in 1979.  Big Stone County held a public hearing on the maps in March 1980; the DNR received no objections to placing the watercourse on the PWI.  In September that year, the DNR published a revised PWI list and map for the county in the official county publication.  The PWI again included the subject watercourse and no objection was filed.

In 2014, Haugen and other riparian land owners applied to excavate the watercourse. The DNR approved the excavation, but required the riparian landowners to place a 50-foot buffer along the watercourse due to its listing on the PWI.  The landowners challenged the 50-foot buffer, and the DNR amended the permit to allow a smaller buffer.  All of the landowners except Haugen withdrew their challenge and accepted the amended permit.

In January 2016, the Big Stone County Board of Commissioners, Big Stone County Soil and Water Conservation District Board of Supervisors, and the Upper Minnesota Watershed District Board of Managers petitioned the DNR to remove the watercourse from the PWI.  The DNR denied the request, citing “substantial evidence” supported the designation.  In August 2016, they again challenged the DNR, who refused to reconsider the PWI determination.

The Court cited Reserve Mining Co. v Herbst, 256 N.W. 2d 808, 824 (Minn. 1977), which stated “[D]ecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to agencies’ expertise and their special knowledge in the field[s] of their technical training, education, and experience.” This language puts anyone challenging an agency in court at a disadvantage, and Haugen was no different.

The Court found that Mr. Haugen’s petition was time-barred.  They found that the DNR had followed procedures necessary to put the watercourse on the PWI; they also concluded, since Big Stone County acted on the PWI maps and held the necessary hearings that the placement was proper. Haugen argued the DNR failed to properly notify landowners notice in 1980 and that the new buffer law constituted a taking.

The Court found that the argument the DNR failed to notify landowners the PWI may be the basis for the requirement of buffers at someday in the future. The Court found the DNR did not violate Mr. Haugen’s due-process rights “by failing to alert landowners in 1980 that, 35 years in the future, the PWI could inform the DNR’s designation of certain lands as a buffer areas.” The Court also found that Mr. Hugen’s takings claim failed because the DNR lacked authority to enforce the buffer law.

Rest assured, legal challenges to the buffer law will continue for the foreseeable future.

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