IN COURT OF APPEALS
Commissioner of Natural Resources,
Filed September 27, 2005
Minnesota Department of Natural Resources
OAH No. 1-200-15779-2
William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, #800, Bloomington, MN 55435 (for relator)
Mike Hatch, Attorney General,
David P. Iverson, Assistant Attorney General, 900 NCL Tower,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
S Y L L A B U S
The commissioner of natural resources properly applied the public water resources rules in Minnesota Rules chapter 6115 by denying a permit for inland excavation when substantial evidence supported the commissioner’s determination that the excavation was intended to extend riparian rights to nonriparian lands and to promote the subdivision and development of nonriparian lands.
O P I N I O N
In an administrative proceeding, the
commissioner of natural resources denied Warren Bloomquist’s application for a
permit to excavate a channel extending from
F A C T S
Warren Bloomquist owns thirty acres of land
acquired his property in 1961. The same
year Frank Schram, a neighboring property owner, applied for and received a
permit from the
A 2003 survey showed that the channel was not
located on the Schram-Breen property, but was in fact on Bloomquist’s
property. Before the survey was
completed, Bloomquist signed a purchase agreement for the sale of his land to
Northern Lakes Company.
Bloomquist then applied for a permit to “remove blockage in [the] channel to allow boat traffic.” In July 2003 the DNR sent Bloomquist a letter that formally denied his permit application. The denial restated the reasons listed in the earlier letter with more specificity and also stated that, because the channel was completely filled in with large shrubs and other vegetation, the DNR considered the application to be for new excavation rather than maintenance.
Bloomquist requested a hearing on the denial of his permit application, and an administrative law judge (ALJ) conducted a contested-case hearing. The ALJ made detailed findings on the history of the channel and on the reports and testimony of technicians, hydrologists, and a limnologist. The ALJ concluded the proposed project reasonably required a new permit rather than maintenance authorization, Bloomquist had not established he had vested riparian rights that could be asserted against the state, Bloomquist had demonstrated that the excavation would likely not be detrimental to significant fish and wildlife habitat or protected vegetation, and Bloomquist had shown that the proposed project was reasonable, practical, and would adequately promote the public welfare. Based on these findings, the ALJ recommended the DNR grant the excavation permit.
The commissioner adopted the majority of the ALJ’s factual findings and legal conclusions but denied the permit. The commissioner based the denial on three grounds: (1) the prohibition against “excavation intended to extend riparian rights to nonriparian lands or to promote the subdivision and development of nonriparian lands”; (2) the failure of the project to “conform to state, regional, and local water and related land resource management plans” and to comply with applicable shoreland ordinances; and (3) Bloomquist’s alternative access to Whitefish Lake that “would result in less environmental impact.”
In this certiorari appeal, Bloomquist contends that the commissioner’s determination was based on errors of law because it failed to take into account his vested riparian rights and did not provide legally sufficient grounds for the denial. He also argues that the decision was arbitrary and capricious because it fails to provide adequate reasons for rejecting the ALJ’s recommendation, treats similarly situated property differently, and does not address the permit’s effect on the natural habitat.
I S S U E S
I. Did the commissioner err by denying the permit on legally insufficient reasons?
II. Was the commissioner’s decision arbitrary and capricious?
A N A L Y S I S
We may reverse or modify an agency’s decision
only if it is in violation of a constitutional provision, in excess of the
agency’s statutory authority or jurisdiction, made upon unlawful procedure,
affected by other error of law, unsupported by substantial evidence, or
arbitrary and capricious.
Bloomquist’s primary contention is that the commissioner’s bases for denying the permit are not legally sufficient. Within the framework of appellate authority to modify or reverse, we interpret this contention as a claim that the commissioner’s determination is unsupported by substantial evidence or relies on an error of law.
Bloomquist first challenges the commissioner’s
determination that he did not have vested riparian rights in the channel
connecting the pond to
Bloomquist claims he has prescriptive riparian
rights to use the channel. A party may
acquire a right by prescription if the claimant can prove open, continuous,
actual, hostile, and exclusive use for a period of fifteen years. Heuer
v. County of Aitkin, 645 N.W.2d 753,
759 (Minn. App. 2002); see also Minn.
Stat. § 541.02 (setting statutory period at fifteen years). Although use may presumptively be hostile or
adverse, this presumption is rebutted by evidence that the use was
permissive. Ehle v. Prosser, 293
The facts and the law do not support Bloomquist’s claim of prescriptive riparian rights. First, his use of the channel, since inception, was permissive. The 1961 permit stated that it was “permissive,” that it did not confer any “property rights either in real estate or material, or any exclusive privileges,” and that it authorized Schram to maintain the channel subject to DNR approval. The 1983 permit also authorized Schram’s estate to excavate and maintain the channel and contained the same permissive language as the 1961 permit. Consequently, Bloomquist’s use was never hostile or adverse and he acquired no prescriptive rights, riparian or otherwise, in the channel.
Second, Bloomquist cannot acquire rights in
public property by prescription, and the channel, when it existed, was part of
a public waterway. See Minn. Stat. § 541.01 (2004) (“[N]o occupant of a public
way, levee, square, or other ground dedicated or appropriated to public use
shall acquire, by reason of occupancy, any title thereto.”); Heuer, 645 N.W.2d at 757 (applying
prohibition against acquiring title to public land by adverse possession to
acquiring use of public land by prescriptive easement). The 1961 permit states that any “extension of
Bloomquist next challenges each of the commissioner’s
reasons for denying the permit, arguing that they were based on errors of law
and unsupported by substantial evidence.
The DNR limits the excavation of materials from the beds and
shorelines of public waters to preserve their natural state, to ensure
compatibility with the water’s capabilities, to assimilate the excavation, and to
protect the public waters from adverse effects.
Minn. R. 6115.0200, subp. 1 (2003).
The DNR limits the nature, degree, and purpose of excavations.
commissioner first determined that the DNR may not issue the permit because the excavation was “intended to extend riparian
rights to nonriparian lands, or to promote the subdivision and development of
nonriparian lands.” This determination
is supported by the record. Bloomquist
seeks the permit for development of his property, and this development could
create subdivided plots that are adjacent to the pond. The effect of establishing a channel between
the pond and
The commissioner also rejected the permit
application because of its failure to conform to “state, regional and local
water and related land resource management plans” and the inconsistency with
applicable “shoreland . . . management standards and
ordinances for the waters involved.” The
record supports these conclusions. The
evidence shows that the excavation of the channel would violate a
The commissioner’s third basis for denying
the permit is Bloomquist’s existing access to
The record shows that Bloomquist currently
has access to the lake through an existing dock situated on the lake. This dock has been used as his exclusive
means of obtaining access to
Bloomquist secondarily contends that the commissioner acted arbitrarily and capriciously by (1) rejecting the ALJ’s report without explanation, (2) treating similarly situated properties differently, and (3) denying the permit without making a finding that it would be detrimental to significant fish and wildlife habitat.
An agency’s decision is arbitrary and capricious
if it is an exercise of the agency’s will, rather than its judgment, Markwardt v. State, Water Res. Bd., 254
N.W.2d 371, 374 (Minn. 1977), or if the decision is based on a whim, or is
devoid of articulated reason. Mammenga v. State, Dept. of Human Servs.,
442 N.W.2d 786, 789 (
Although an agency is not bound by the
findings, conclusions, and recommendations of the ALJ, the agency should not
take lightly the ALJ’s findings. In re Orr, 396 N.W.2d 657, 662 (
The commissioner adopted almost all of the ALJ’s factual findings, and each of the modifications and additions were supported by references to the record. The commissioner also produced a five-page memorandum, explaining the deviations from the ALJ’s report and articulating a rational connection between the factual findings and legal conclusions. This careful consideration precludes a determination that the commissioner acted in an arbitrary and capricious manner.
Bloomquist also argues that the commissioner
treated similarly situated properties differently by granting a permit to
Driftwood Resorts to excavate a channel connecting a bay to
Finally, Bloomquist challenges the commissioner’s rejection, without explanation, of the ALJ’s conclusion that the excavation would not be “detrimental to significant fish and wildlife habitat.” This finding, however, is not necessary for denial of a permit application because it is only one factor among multiple factors that prohibits issuance of a permit. See Minn. R. 6115.0200, subp. 3 (listing factors that prohibit issuance of excavation permit). The commissioner provided a detailed explanation of the existence of three limiting factors. It is not necessary to address every reason that would weigh against granting the permit.
D E C I S I O N
The commissioner properly concluded that the permit applicant has no vested riparian rights to the channel. Substantial evidence supports the commissioner’s conclusion that the permit would impermissibly extend riparian rights to nonriparian lands and is intended for the purpose of development. Additionally, substantial evidence supports the commissioner’s conclusion that the excavation would violate local requirements and that the applicant has alternative access to the lake. The denial of the permit application was not arbitrary and capricious because the commissioner’s order incorporated reasoned fact-finding and the conclusions were supported by the record and applicable legal authority. Because the commissioner correctly applied the law and relied on substantial evidence in the record, we affirm.