This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed December 31, 2002
Robert H. Schumacher, Judge
Bradley C. Warner, Moore, Warner & Kruger, Two Pine Tree Drive, St. Paul, MN 55112 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Finlyason Township (the township) appeals the district court's denial of its summary judgment motion. The township claims that statutory discretionary immunity protects it from a lawsuit brought by respondent Happy Land Tree Farms, Inc. for damages caused by flooding. We affirm.
Happy Land is a wholesale grower of trees and runs a tree farm in the township. A township road runs along the southern border of the farm. The southern portion of the farm is low-lying land and has had flooding problems in the past.
Surface water on the property runs from the northwest to the southeast. The township has a drainage ditch that runs on the north side of the road at the south of Happy Land's property. A culvert running under the road takes water to the south side of the road. From there, the surface water passes southward into a wetland located on private property.
Beaver dams in the wetland had been a problem, backing water up in the road ditch and, at times, causing water to pass over the road. In order to prevent damage to the road, the township would ask permission from the owner of the wetland to enter and dynamite the beaver dams. But the beavers would then rebuild the dams and the flooding problem would return.
Beginning in 1998, Happy Land experienced an unusual amount of flooding in an area where it had planted trees. The flooding occurred again in 1999, and by the spring of 2000 more than 1000 trees had died.
After the 1998 flooding, Happy Land notified Gary Koland, a township supervisor, of the problem with the flooding and inadequate drainage. In the fall of 1999, the township undertook a major beaver dam removal project in the area. The township board passed a resolution for the project. As a result, the township went onto the wetland with heavy equipment and removed the dams. The cost of the project was approximately $10,000, 12.5% of the total township budget. The removal project solved the flooding problem.
Happy Land filed a lawsuit against the township claiming that the township's negligence in allowing the flooding caused the damage to Happy Land's trees. The township brought a motion for summary judgment claiming that it was protected by statutory discretionary immunity because the township's decisions in dealing with the flooding were discretionary in nature. The district court denied the motion.
Although an order denying summary judgment is usually not appealable, an order denying an immunity-based motion for summary judgment may be appealed. City of Woodbury v. Woodbury Township Co., 254 N.W.2d 385, 387 n.3 (Minn. 1977); McNamara v. McLean, 531 N.W.2d 911, 914 (Minn. App. 1995).
Our review of a denial of summary judgment based on a claim of immunity focuses on the legal issue of immunity and presumes [that] the facts alleged by the nonmoving party are true.
Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).
Under the doctrine of statutory immunity, municipalities are immune from liability for claims "based upon the performance or the failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused." Minn. Stat. § 466.03, subd. 6 (2002). This is an exception to the general rule that
every municipality is subject to liability for its torts and those of its officers, employees and agents acting within the scope of their employment or duties whether arising out of a governmental or proprietary function.
Minn. Stat. § 466.02 (2002). The discretionary function is interpreted narrowly. Conlin v. City of St. Paul, 605 N.W.2d 396, 400 (Minn. 2000).
Statutory immunity only protects planning level conduct and not operational decisions. Id.
Planning level decisions are those involving questions of public policy, that is, the evaluation of factors such as the financial, political, economic, and social effects of a given plan or policy.
Id.(quotation omitted). We must first identify the conduct at issue. Id. The township claims the conduct at issue is "[its] failure to improve water flow through a wetland on private property where beaver dams were backing up the water." Happy Land claims the conduct at issue is the township's
failure to properly maintain and repair its drainage system, including the failure to remove beaver dams within the system, when it was on notice that significant problems existed in the vicinity of [Happy Land's] property and that [Happy Land's] property was being flooded.
Happy Land's owner Kenneth Olson testified at deposition and through affidavit that the cause of the flooding was the township's failure to properly maintain the drainage ditch. He also testified that he informed the township of the problem in 1998. Because on appeal we presume the facts presented by Happy Land to be true, the conduct at issue is how the township managed the flooding after Happy Land informed it of the problem.
The next step in the analysis is to determine if the conduct in question was discretionary. The township claims that its decisions on how to deal with the flooding over the road and onto Happy Land's property was a planning level decision in which it considered the financial implications of removing the beaver dams from the southern property. But the township has not produced any evidence to suggest that any decision involved the balancing of political and economic factors.
"Discretionary immunity protects the government only when it can produce evidence its conduct was of a policy-making nature involving social, political, or economic considerations * * * ." Conlin, 605 N.W.2d at 402 (quoting Steinke v. City of Andover, 525 N.W.2d 173, 175 (Minn. 1994)). The burden is on the township to show it engaged in protected conduct and is entitled to immunity. Id. The township has failed to meet this burden.
The only evidence the township has produced to suggest a policy-based decision is that it spent a relatively large sum of money to remove beaver dams south of Happy Land in 1999. The township claims that the project was 12.5% of the total township budget for the year. But the expenditure alone does not show that the township weighed political and economic factors in dealing with the flooding on Happy Land's property. There is no evidence explaining the reasons why the township waited a year to do anything about the flooding from its ditch onto Happy Land's property after it was notified in 1998 of the problem.
 The township has a duty to maintain its drainage ditches and provide repairs necessary to make it efficient. Minn. Stat. § 103E.705, subd. 1 (2002).