This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-31

 

Mark S. Gleason, et al.,

Appellants,

 

vs.

 

Metropolitan Airports Commission,

Respondent,

 

Minnesota Environmental Quality Board,

Respondent.

 

Filed June 27, 2000

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. MC9819439

 

Timothy J. Shields, Shields Legal Services, P.A., 33 Tenth Avenue South, Suite 110, Hopkins, MN 55343 (for appellants)

 

Thaddeus R. Lightfoot, Oppenheimer Wolff & Donnelly, L.L.P., 3400 Plaza VII Building, 45 South Seventh Street, Minneapolis, MN 55402; and

 

Thomas W. Anderson, Minnesota Airports Commission, 6040-28th Avenue South, Minneapolis, MN 55450 (for respondent MAC)

 

Mike Hatch, Attorney General, Linda Dong Sun Chung, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent MEQB)

 

            Considered and decided by Harten, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Appellant, alleging that the construction of a new runway at the airport will adversely impact the environment and that the environmental impact statement on the runway was illegally approved, challenges the summary judgment dismissing his claims against respondents Minnesota Environmental Quality Board and Metropolitan Airports Commission.[1]   Because we see neither a genuine issue of material fact nor an error of law, we affirm.

FACTS

 

            In 1996, the legislature directed respondent Metropolitan Airports Commission (MAC) to focus on expanding the existing airport by constructing a new 8,000-foot runway.  MAC prepared a draft Environmental Impact Statement (EIS) for the runway.  The City of Richfield (Richfield) complained that the draft EIS did not adequately address adequately the effect of ground noise and requested actual field measurements, which MAC took.

            MAC, with the Federal Aviation Administration (FAA), completed and made available to the public the final EIS on the new runway in May 1998.  This document addressed the problems raised by Richfield. The FAA approved federal funding for the runway in September 1998, after determining that it complied with the National Environmental Policy Act (NEPA).

            In October 1998, respondent Minnesota Environmental Quality Board (MEQB), at MAC’s request, met to determine the adequacy of the final EIS.  At this meeting Richfield again alleged that the EIS did not address the impact of low frequency noise on the city.  The matter of the adequacy of the EIS was tabled but addressed again at an MEQB meeting in November 1998.  Documents prepared by MAC’s noise consultant were not made available until shortly before this meeting, but Richfield had one day to review and comment on these documents, and did so.  No private citizens commented.  After discussion by Richfield and others, MEQB determined that the EIS was adequate.  MAC and Richfield subsequently entered into a Noise Mitigation Agreement and resolved their differences on the adequacy of the EIS. 

Appellant Mark Gleason, a Richfield resident and a state representative who attended neither the October nor the November MEQB meetings, later brought this action against MAC and MEQB.  Appellant’s complaint alleged in Count I that MAC and MEQB had incorporated documents into the EIS without following MEQB procedures; in Count II that MAC failed to address certain environmental effects, violating Minn. Stat. § 473.614, subd. 2a (1998); in Count III that MAC and MEQB prepared and approved an EIS that inadequately discussed the impact of low frequency noise and other issues; in Count IV that MAC’s approval of the new runway will cause pollution or destruction of natural resources in violation of the Minnesota Environmental Policy Act (MEPA), Minn. Stat. § 116D.04, subd. 6 (1998); in Count V that MAC’s approval of the new runway will cause pollution or destruction of natural resources in violation of the Minnesota Environmental Rights Act (MERA), Minn. Stat. § 116B.03, subd. 1 (1998); and in Count VI that MAC’s approval of the EIS violates the goals of MAC’s enabling statute, Minn. Stat. § 473.602(2) (1998), of the MEPA, Minn. Stat. § 116D.02, subd 2, (1998) and Minn. Stat. § 116D.04, subd. 6, (1998) and of the MERA, Minn. Stat. § 116B.04 (1998).

            MEQB moved for summary judgment on counts I and III; MAC moved for summary judgment or dismissal on all counts, and appellant cross-moved for summary judgment on count III.  The district court dismissed counts I, II, III, IV, and VI against MAC and granted summary judgment to MAC on count V and to MEQB on counts I and III.  The district court denied appellant’s motion for summary judgment on count III.  This left no claims surviving.  Appellant challenges the summary judgment.[2]

D E C I S I O N

 

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Appellant contends that genuine issues of material fact preclude summary judgment.  But

there is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

 

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

 

            In challenging summary judgment on count I, appellant contends that there is a fact issue as to whether parts of the EIS were added too late in the process.  The district court found:

Defendant MEQB determined that it was appropriate to incorporate additional documents into the EIS by reference although the MEQB was informed by legal counsel that there is no rule governing its propriety, nor has there been a case in the MEQB’s history where documents other than what the R[esponsible] G[overnmental] U[nit] says consists of the EIS have been incorporated into the EIS.  However, a review of the administrative record reflects that the City of Richfield did, in fact, either prepare or review the additional documents and comment thereupon.  The Court would additionally note that Defendant MEQB’s decision to incorporate the additional documents into the final EIS resulted in no modifications or alterations to the body of the EIS, but merely supplemented it, by adding to the official report other documents considered in the complete environmental review conducted in this case.   

           

Appellant does not dispute the district court’s finding that Richfield had the opportunity to review and comment on the additional material; nor does appellant identify any genuine issue of material fact in regard to the additional documents added to the EIS.

Appellant claims to identify another genuine issue of material fact in that he thinks the EIS is inadequate while MEQB has determined that it is adequate.  But the parties’ disagreement as to the adequacy of the EIS is not “a genuine issue of material fact.” Respondent MAC lawfully delegated to respondent MEQB responsibility for determining the adequacy of the EIS.  Appellant does not point to any specific discrepancy between the EIS and the relevant requirements; he simply alleges noncompliance and uses this allegation to argue that there is a genuine issue of material fact as to compliance.  We conclude that appellant’s bare disagreement with that determination does not raise a genuine issue of material fact.

Similarly, regarding the award of summary judgment to MEQB on count III, the conflict between appellant’s belief that the new runway will produce noise and MAC’s approval of the runway is not a genuine issue of material fact.  Appellant’s contention that runways produce noise is incontrovertible, but MAC’s approval is not an attempt to deny this contention; it is rather a quantitative and qualitative determination of how the environment will be affected.

            Finally, appellant challenges summary judgment for MAC on count V, claiming that the new runway will cause pollution or destroy natural resources in violation of MERA.  However, appellant’s assertion is broadly advanced in general terms; he fails to allege violations of any specific provisions of MERA.  This challenge creates nothing more than metaphysical doubt, insufficient to prevent summary judgment.  See DLH, Inc., 566 N.W.2d at 71.

            We conclude that no genuine issues of material fact precluded the grant of summary judgment.

            Affirmed.



[1] The State of Minnesota is also listed as an appellant but it has filed no brief and took no part in this appeal.

[2] Appellant says in his brief that he seeks an injunction halting construction of the runway, but does not address on appeal the criteria for granting an injunction and apparently did not address them before the district court.  We therefore do not consider his request for an injunction.  See Ganguli v. University of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (appellate courts may decline to address allegations unsupported by legal analysis or citation.)