This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Dan Zander, et al.,



William R. Trahms, et al.,

Respondents Below.



Filed December 14, 2004


Halbrooks, Judge



Waseca County District Court

File No. C4-03-606



Mike Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)


Paul R. Haik, Krebsbach & Haik, Ltd., 225 South 6th Street, Suite 4320, Minneapolis, MN 55402 (for appellants)




            Considered and decided by Wright, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            This is an appeal from the district court’s decision granting respondent Minnesota Department of Transportation’s (MnDOT’s) petition to condemn private property for highway expansion.  In challenging the district court’s decision, appellant-landowners argue that (1) MnDOT should have exhausted its administrative remedies under the doctrine of primary jurisdiction before litigating eminent-domain issues; (2) the Wetlands Conservation Act and the Endangered Species Act limit the necessity rule and thereby limit the power of MnDOT to act in this quick-take proceeding; and (3) the district court erred in approving MnDOT’s quick-take petition where MnDOT failed to secure DNR permits to protect possible threatened or endangered species of plants.  Because we conclude that the district court did not err in granting respondent’s condemnation petition, we affirm.  


            Appellants Dan and John Zander own property in Waseca County, a portion of which lies within a planned highway expansion of Trunk Highway 14 (TH-14).  The existing TH-14 is a busy two-lane highway between Mankato and Owatonna.  The highway is located just north of the Dakota Minnesota & Eastern (DM&E) railroad tracks.  Completion of the expansion project will eventually turn the existing two lanes into four.  In order to realize this project, MnDOT determined that it needed to acquire property from adjoining landowners, including “parcel 42,” the disputed land owned by appellants.

            In 1992, MnDOT began the process of designing the TH-14 project, extending from Eagle Lake to Owatonna.  The new four-lane divided highway will separate eastbound and westbound traffic.  After MnDOT defined the purpose and need for the project, it developed a “scoping document,” which evaluated various alternative highway alignments.  MnDOT then considered the alternatives and evaluated several factors, including environmental, historical, social, land use, and economic considerations.  Over a period of five years, the various alternatives were narrowed down to four, all of which were evaluated in environmental impact statements (EIS).  A final EIS was then prepared and approved, and a preferred alignment was selected by the transportation commissioner.  This preferred alignment runs adjacent to the south side of the DM&E railroad tracks and formed the basis for the condemnation petition in this case.

            After MnDOT’s preferred route was approved, MnDOT received information that DM&E had plans to build a large railroad switchyard on the south side of the tracks.  In response, MnDOT considered an alternative plan so as to avoid the possibility of acquiring DM&E’s proposed switchyard.  This alternative plan would have avoided appellants’ property.  But in the end, DM&E did not construct its switchyard.  In response, MnDOT abandoned the alternative plan because of its potentially adverse impact to adjoining landowners, public safety, and agricultural land.  MnDOT then moved forward with the transportation commissioner’s preferred alignment for TH-14.

            In its condemnation petition, MnDOT sought to acquire the affected land under the quick-take provision of Minn. Stat. § 117.042 (2002).  MnDOT properly served notice of the condemnation petition on the various landowners, including appellants.  In response, appellants filed an answer challenging the condemnation.  At the condemnation hearing, and over respondent’s objection, a variety of experts testified to the possible existence of two threatened plants—Sullivants milkweed and valerian—on appellants’ property.  But no witnesses were able to confirm or deny the existence of the plants on appellants’ property.  The district court concluded that appellants had not established that an endangered or threatened species of plant existed on parcel 42.

            Wetlands also exist on appellants’ property.  But the wetlands are degraded by the presence of the railroad track, a highway, agricultural land, and an industrial facility.  They also contain a very low biodiversity of plant species.  MnDOT approved a wetland replacement plan and articulated steps to avoid, minimize, and mitigate impact of the highway-expansion plan on the wetlands.  Appellants’ appeal of MnDOT’s approval was subsequently denied by the Board of Water & Soil Resources (BWSR).  That administrative decision is now the subject of a separate appeal.  We denied a motion to consolidate that appeal with this one.  In the Matter of the Wetland Conservation Act Appeal, Nos. A04-314 & A04-496 (Minn. App. Apr. 27, 2004) (order).  In addition, we denied a motion by the appellants to stay implementation of the wetlands-replacement plan during the BWSR appeal.  In the Matter of the Wetland Conservation Act Appeal, No. A04-314 (Minn. App. Sept. 27, 2004) (order).  Finally, in a third action, appellants have challenged aspects of the highway project under the Minnesota Environmental Rights Act (MERA).  The district court recently granted the state’s motion for summary judgment and dismissed appellants’ MERA action in its entirety.

Here, the district court approved MnDOT’s petition and granted its motion for quick-take of appellants’ property.  The district court made several findings of fact and ultimately concluded that MnDOT “ha[d] shown that the taking of [p]arcel 42 [was] for a public use and purpose and [was] necessary and convenient to effectuate the public purpose of MnDOT’s [TH-14] project.”  It further concluded that appellants had “failed to meet their burden of proof that MnDOT’s actions [were] manifestly arbitrary or unreasonable.”  This appeal follows.


            Our review of condemnation proceedings is “very narrow.”  County of Dakota v. Lakeville, 559 N.W.2d 716, 719 (Minn. App. 1997).  We review only whether the taking serves a public purpose and is necessary.  City of Duluth v. State, 390 N.W.2d 757, 763, 764 (Minn. 1986).  The supreme court has further explained:

Great weight must be given to the determination of the condemning authority, and the scope of review is narrowly limited.  If it appears that the record contains some evidence, however informal, that the taking serves a public purpose, there is nothing left for the courts to pass upon. . . .  The court is precluded from substituting its own judgment for that of the [public body] as to what may be necessary and proper to carry out the purpose of the plan.


Id. at 763 (quoting Housing & Redev. Auth. v. Minneapolis Metro. Co., 259 Minn. 1, 15, 104 N.W.2d 864, 874 (1960)).  Public purpose and necessity are questions of fact, and the district court’s decision on these matters will not be reversed on appeal unless clearly erroneous.  State by Humphrey v. Byers, 545 N.W.2d 669, 672 (Minn. App. 1996); see also Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (explaining that a district court’s findings of fact will not be set aside unless clearly erroneous). 

To find a public purpose in support of condemnation under the eminent-domain statutes requires a finding that the purpose “can be attained.”  Itasca County v. Carpenter, 602 N.W.2d 887, 890 (Minn. App. 1999) (citing Minn. Canal & Power Co. v. Fall Lake Boom Co., 127 Minn. 23, 33, 148 N.W. 561, 564 (1914)).  Accordingly, “[j]udicial deference to a legislative determination that land being condemned is for a public use is . . . ‘required until it is shown to involve an impossibility[,]’” legal or otherwise.  City of Duluth, 390 N.W.2d at 762. 

It is with this restrictive standard in mind that we review appellants’ challenge to the district court’s grant of MnDOT’s condemnation petition. 


As a preliminary matter, we address appellants’ argument that the district court should have applied the doctrine of primary jurisdiction and dismissed the condemnation petition so that MnDOT could have first exhausted the environmental-regulatory schemes in order to obtain decisions compliant with the Wetlands Conservation Act (WCA) and the Endangered Species Act (ESA).  We disagree and conclude that the doctrine is inapplicable here.

The doctrine of primary jurisdiction allows a district court to stay its proceedings until an administrative agency can rule upon a matter within its expertise.  See City of Rochester v. People’s Coop. Power Ass’n, 483 N.W.2d 477, 480-81 (Minn. 1992) (declining to apply the doctrine in a quick-take proceeding).  The doctrine is used “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.”  Id. at 480 (quoting United States v. W. Pac. R.R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 164-65 (1956)).  

Review of a district court’s determination of primary jurisdiction is subject to an abuse-of-discretion standard.  See Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996) (district court’s refusal to defer case to environmental protection agency subject to abuse-of-discretion standard of review), cert. denied, 521 U.S. 1103, 117 S. Ct. 2478 (1997).  This standard of review derives from the district court’s exercise of discretion in structuring and coordinating administrative and judicial proceedings.  Id. at 789 n.24; see W. Pac. R.R. Co., 352 U.S. at 64, 77 S. Ct. at 165 (“[n]o fixed formula exists for applying the doctrine of primary jurisdiction”).

            The doctrine is not waived by the failure of the parties to present it to the district court or on appeal.  Atlantis Express, Inc. v. Standard Transp. Servs., Inc., 955 F.2d 529, 532 (8th Cir. 1992).  Nevertheless, in this case, we note that appellants, themselves, requested that the district court—and not a specialized administrative agency—hear their environmental claims over respondent’s ongoing objection.  Appellants now challenge the district court’s very ability to hear their arguments when they themselves chose to submit a plethora of environmental evidence to the court.  From the record before us, we conclude that the district court did not abuse its discretion in not deferring review to administrative agencies and hearing the case within the context of a limited condemnation proceeding.  We also note that appellants’ argument suggests that this court should apply the doctrine in order to dismiss the petition so that MnDOT can first exhaust the regulatory schemes to obtain decisions compliant with the ESA and WCA.  But the district court found no evidence to suggest that endangered species existed on appellants’ property at the time of the condemnation petition, and this finding was not clearly erroneous.  Fletcher, 589 N.W.2d at 101; Byers, 545 N.W.2d at 672.  For these reasons, we determine appellants’ jurisdictional argument to be without merit. 


Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Appellants broadly challenge the district court’s condemnation decision by arguing that the WCA and ESA limit the necessity rule and thereby have the effect of limiting the quick-take power of Minn. Stat. § 117.042 (2002).  The quick-take power focuses on timing—when the government can condemn and take land—not how or if it actually can.  See In re Condemnation by City of Minneapolis, 632 N.W.2d 586, 587 (Minn. 2001) (explaining that quick-take procedures “allow a condemning authority to acquire immediate title to and possession of property even before damages for the taking are determined”).  In this action, appellants do not challenge the authority of the state to condemn their land but maintain that its condemnation must comply with certain environmental laws in order to do so.

To support their position, appellants argue that the rationale of County of Freeborn v. Bryson, which addresses the impact of the Minnesota Environmental Rights Act (MERA) on eminent-domain proceedings, should be extended to the WCA and ESA.  297 Minn. 218, 210 N.W.2d 290 (1973).  In Bryson, the appellant-landowners brought an action in response to condemnation proceedings initiated by a county, alleging that a proposed highway-construction project would materially and adversely affect portions of a natural wildlife marsh.  Id. at 220, 210 N.W.2d at 292.  The supreme courtheld that “the legislature intended in appropriate cases that the power of eminent domain possessed by governmental subdivisions—including the power of a county to condemn land for a public highway—was to be limited by the provisions of [MERA].”  Id. at 227, 210 N.W.2d at 296.  Bryson explained that when MERA is successfully asserted in litigation for the purpose of limiting the taking of lands through eminent domain, the necessity rule is also limited.  Id.  Since MERA can limit the power of the government in eminent-domain proceedings, appellants argue that the WCA and ESA similarly limit the state in condemning appellants’ property.   

It is true that MERA “impose[s] limitations on the exercise of the power of eminent domain by prohibiting conduct having materially detrimental effects upon the environment.”  Coop. Power Ass’n v. Aasand, 288 N.W.2d 697, 700 (Minn. 1980) (emphasis added); see also State by Schaller v. County of Blue Earth, 563 N.W.2d 260, 266-67 (Minn. 1997) (explaining that conduct may be enjoined under MERA which is likely to “materially adversely affect the environment” and setting forth a five-part test to analyze “materially adverse affects”).  But this appeal is not a MERA action and appellants have already brought a MERA action before the district court. 

Moreover, the distinctions between Bryson and the present appeal are marked, including (1) appellants’ failure to consolidate their separate MERA action with the condemnation petition; (2) appellants’ failure to seek injunctive relief under MERA; (3) MnDOT’s satisfaction of a number of environmental requirements beyond those of MERA’s, including a final EIS; and (4) the state’s support of the landowners’ MERA claim against the county in Bryson.  In addition, and in contrast to the land involved here, the land at issue in Bryson, “contain[ed] abundant and varied plant and animal life.”  297 Minn. at 220, 210 N.W.2d at 293.  Expert witnesses in that case agreed that “the construction of the proposed highway would have a significant detrimental effect on the marsh area’s value as a wildlife area because it would eliminate some of the area’s natural assets, destroy the quietness and solitude of the marsh, increase animal and bird fatalities, and have other adverse effects.”  Id. at 221, 210 N.W. 2d at 293.  Such is not the case here, where the district court found no evidence of threatened or endangered species on appellants’ property and also found that appellants’ property was environmentally degraded. 

Further, we find no language in either the WCA or ESA that would limit the transportation commissioner’s broad authority to oversee the trunk highway system.  See Minn. Const. art. 14, § 1 (the state is authorized to “construct, improve and maintain public highways”); Minn. Stat. § 161.20, subd. 2 (2002) (the transportation commissioner “is authorized:  (1) to acquire by purchase, gift, or by eminent domain proceedings as provided by law . . . all lands and properties necessary in laying out, constructing, maintaining, and improving the trunk highway system”). 

Moreover, Minnesota’s eminent-domain laws specifically provide for the recovery of costs and expenses “if a condemnation proceeding is dismissed because a court has held that condemnation shall not lie based on a challenge made under [MERA].”  Minn. Stat. § 117.195, subd. 2 (2002) (emphasis added).  In light of Bryson, if the legislature intended any of the state’s other environmental statutes to limit condemnation actions, it could have amended the remedies section to mention the WCA, ESA, or environmental statutes in general.  It did not, and we are unable to do so here.  See Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating “[i]f there is to be a change in the statute, it must come from the legislature”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).

Appellants also cite Minn. Stat. § 645.17 (2002), which expounds various presumptions in ascertaining legislative intent.  Among them, “when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matterintends the same construction to be placed upon such language.”  Minn. Stat. § 645.17(4).  While MERA, WCA, and ESA arguably involve “the same subject matter” in generally protecting the environment, neither the legislature nor the supreme court have extended Bryson beyond its MERA context and we decline to do so.  See Martinco, 265 Minn. at 497, 122 N.W.2d at 638; Tereault, 413 N.W.2d at 286.  Here, it is enough to say that private citizens retain the ability to challenge the state’s construction projects under MERA.  Appellants have done so and have litigated the matter before the district court. 

            Accordingly, we decline the invitation to extend Bryson to permit the WCA or ESA to limit a condemnation proceeding.  As a result, unlike MERA, neither the WCA nor the ESA limit the necessity rule in an eminent-domain proceeding and the district court did not err in granting MnDOT’s condemnation petition.


Under the court’s limited standard of review, the decision of the condemning authority may be overturned only “if it [is] ‘arbitrary, unreasonable, or capricious, or [if] the evidence against the necessity or public use is overwhelming.’”  City of Duluth, 390 N.W.2d at 764 (second alteration in original) (emphasis omitted).  It has been said that a condemning authority acts arbitrarily or unreasonably if it “disregard[s] the best interests of the public, or [acts] upon an erroneous theory of the law.”  See Metro. Sewer Bd. v. Thiss, 294 Minn. 228, 230, 200 N.W.2d 396, 397 (1972). 

Appellants’ more specific argument centers around their contention that the district court erred when it found that MnDOT did not have to secure endangered-species permits prior to its taking where that taking might have involved two protected species of plants.  We disagree and determine that appellants’ argument is premature and misplaced in this challenge to the district court’s condemnation decision.  

Appellants cite a variety of administrative rules governing permit requirements when endangered species are threatened.  For example, Minn. R. 6212.1800 (2003) requires a DNR permit in order to take endangered species.  It reads, “A person may not take, import, transport, purchase, sell, dispose, or possess a threatened or endangered species of plant or animal without a permit from the commissioner.”  Id., subp. 1.  Moreover, “[a] replacement plan for activities that involve taking species listed as endangered or threatened . . . must be denied unless the commissioner issues a permit pursuant to part 6212.1800 or Minnesota Statutes, section 84.0895, subdivision 7.”  Minn. R. 8420.0548, subp. 2 (2003).  In addition, “[a] landowner intending to drain, excavate, or fill a wetland . . . shall obtain approval of a replacement plan from the local government unit before beginning draining or filling.”  Minn. R. 8420.0230, subp. 1 (2003) (emphasis added). 

Appellants rely heavily on Minn. R. 8420.0230.  Pursuant to that rule, a landowner must obtain approval of a replacement plan before he begins draining or filling.  But here, the state was not yet the landowner of parcel 42 at the time of the condemnation petition.  As a result, and from a pragmatic standpoint, MnDOT could not have reasonably been expected to obtain the necessary permits from the DNR since it did not own parcel 42 at that time. 

It is therefore reasonable and in accordance with the administrative rules to conclude that DNR endangered-species permits cannot be obtained until (1) the condemnation petition has actually been approved and title is transferred; and (2) an endangered or threatened species has actually been identified on the landin question.  Since neither event had occurred at the time of the condemnation proceeding, any endangered-species permit request by MnDOT would have been premature.  See County of Dakota, 559 N.W.2d at 718, 720 (implying that the condemning authority need not establish compliance with all possible environmental regulations before actually condemning the property); see also Robinson v. Kunach, 251 N.W.2d 449, 454-55 (Wis. 1977) (denying injunctive relief as premature where there was no basis for assuming that the condemning authority would not make timely application for DNR permits prior to construction). 

Even if permits were somehow required, the facts simply do not support appellants’ argument.  At the condemnation hearing, the evidence suggested that neither Sullivants milkweed nor valerian—the two threatened species potentially at issue here—existed on parcel 42.  In granting MnDOT’s condemnation petition, the district court found that, based on the fact that an endangered species did not appear to exist on appellants’ property, it was not necessary for MnDOT to obtain a permit from the DNR.  The court explained:

The DNR has no evidence that Sullivants milkweed exists anywhere on [appellants’] property.  MnDOT has voluntarily agreed to perform a survey of [appellants’] property prior to construction and there is no reason to suspect that MnDOT will not follow through with its promise.  Additionally, a DNR permit could not be obtained until it was known there was something there that was going to be destroyed so the DNR would not entertain a permit unless it knew there was something there.


The district court’s conclusion was supported by testimony from both MnDOT and DNR officials.  In essence, the court found appellants’ challenge to be premature because no endangered or threatened species had yet been identified on appellants’ property, making application for a DNR permit unnecessary at that time.  It concluded that appellants had “failed to meet their burden of proof that MnDOT’s actions [were] manifestly arbitrary or unreasonable.” 

Since there is reasonable evidence to support the district court’s findings of fact here, we will not disturb those findings on appeal.  Fletcher, 589 N.W.2d at 101; Byers, 545 N.W.2d at 672.  We conclude that the district court did not err in finding that the DNR permits were not required before condemnation of the land at issue and did not err in granting MnDOT’s condemnation petition.