This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed August 22, 2006
Affirmed; motions denied
Minnesota Pollution Control Agency
James P. Peters, Karna M. Peters, Peters & Peters, P.L.C., 507 North Nokomis Street, Suite 100, Alexandria, MN 56308 (for relators)
Jay T. Squires, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust
Mike Hatch, Attorney General, Richard P. Cool, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent Minnesota Pollution Control Agency)
Jack Y. Perry, Lisa M. Agrimonti, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent Finstuen)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
In these consolidated appeals from respondent Dodge County’s grant of an amended conditional use permit (CUP) (A05-1672) and respondent Minnesota Pollution Control Agency’s (PCA) grant of a Construction Short-Form Permit for a feedlot (feedlot permit) (A05-1780), relators argue that (1) our decision in Berne Area Alliance for Quality of Living v. Dodge County Board of Commissioners, 694 N.W.2d 577 (Minn. App. 2005), review denied (Minn. Jun. 28, 2005), ruled that a CUP granted to respondent Mark Finstuen in 2003 was void and therefore the county lacked the authority to amend that CUP; (2) Finstuen could not simultaneously apply to amend the 2003 CUP and to obtain a new CUP for the same feedlot project; (3) the physical capacity of Finstuen’s proposed feedlot exceeds 1,000 animal units (AUs); and (4) the PCA and the county each acted arbitrarily when they granted the feedlot permit and the amended CUP because they each failed to address environmental concerns adequately. We affirm the county’s grant of the CUP and the PCA’s grant of the feedlot permit, and deny the parties’ various motions.
Respondent Mark Finstuen applied to respondent Dodge County for a CUP to build a hog feedlot for 2,400 sows, the equivalent of 960 animal units (AUs). The county denied the application because of the possible presence of karst geological formations near the proposed feedlot site. Finstuen reapplied for a CUP for a hog feedlot with a new barn design and additional manure and odor controls. He also made two applications for feedlot permits—the first for 960 AUs; the other, with more barn space, for 995 AUs.
resulting disputes are described in Berne
Area Alliance for Quality of Living v. Dodge County Board of Commissioners,
694 N.W.2d 577 (Minn. App. 2005), review
denied (Minn. Jun. 28, 2005) (Berne
We summarize them here: Based on an environmental assessment worksheet
(EAW) that Finstuen submitted to the county, the county ruled that an
environmental impact statement (EIS) was not necessary for Finstuen’s project
and, in 2003, granted Finstuen a CUP and a feedlot permit. Relators Berne Area Alliance for Quality
Living, et al. (BAA), sued the county, seeking a declaratory judgment that the
county acted arbitrarily and capriciously in ruling that an EIS was not
required. The district court granted
summary judgment to the county, and BAA appealed. On appeal, we (1) recognized that, under
Minn. Stat. § 116D.04, subd. 2a (2004), government actions with a
potential for allowing “significant environmental effects” required an EIS
before the action could be taken; (2) noted the existence of an amendment to
this statute which, under certain circumstances, exempted feedlots with fewer
than 1,000 AUs from its requirements, but concluded that the physical capacity
of Finstuen’s proposed feedlot exceeded 1,000 AUs; (3) held that, because the
physical capacity of Finstuen’s proposed feedlot exceeded 1,000 AUs, Minn. R.
7020.0405, subp. 1A, B (2003), and 7020.1600, subp. 4aB(1) (2003), made the
PCA, rather than the county, the appropriate entity to decide whether to grant
a feedlot permit; and (4) reversed the county’s grant to Finstuen of a
Finstuen then revised his project and reduced the size of the barns by 10 percent. He applied to the county for an amendment of the 2003 CUP, stating that the physical capacity of his revised project was 960 AUs. Because BAA argued that Berne I invalidated the 2003 CUP, Finstuen also applied for a new CUP for the revised project. Further, because the county was the PCA’s delegate regarding applications for feedlot permits, Finstuen applied to the county for a new feedlot permit. To support his applications for an amended CUP, a new CUP, and a feedlot permit, Finstuen submitted the record from the prior proceedings, including the county’s grant of the 2003 CUP and its negative declaration on the need for an EIS. Finstuen also submitted the opinion of an agricultural expert that the maximum physical capacity of his revised project was 960 AUs.
The county planning commission held a public hearing on Finstuen’s revised project, after which it recommended approval of Finstuen’s applications to amend the 2003 CUP, for a new CUP, and for a feedlot permit. The county requested that the PCA address whether to grant Finstuen a feedlot permit. At a meeting on July 26, the county board granted an amendment of the 2003 CUP, finding, among other things, that “[t]he total physical capacity of the proposal is 2,400 animals, or 960 [AUs].” On August 10, the PCA granted Finstuen a feedlot permit, which stated that it was for “animal feedlots and manure storage areas having a capacity of 300 [AUs] or more and less than 1000 [AUs].” Two days later, BAA sought a contested case hearing on whether the PCA should grant Finstuen a feedlot permit.
On August 24, BAA appealed the county’s grant of the amended CUP, and on September 6, it appealed the PCA’s grant of the feedlot permit. We subsequently consolidated the appeals.
On September 16, the PCA denied BAA’s request for a contested case hearing regarding whether it should grant Finstuen a feedlot permit because BAA’s request was untimely.
In response to motions by the parties, the special term panel ruled, among other things, that BAA’s motion for a contested case hearing and the PCA’s September 16 order denying that request were not properly before us and would not be reviewed in this appeal. Other motions by the parties are currently pending before us and will be addressed.
D E C I S I O N
argues that Berne I invalidated the 2003 CUP and,
therefore, the county could not, in the 2005 CUP proceeding, amend the 2003
CUP. But Berne I did not
invalidate the 2003 CUP. A county’s
grant of a CUP is reviewable only by certiorari. United
Migrant Opportunity Servs., Inc. v.
initially sought an amendment of the 2003 CUP for his revised project and
later, because BAA argued that
parties also dispute whether the county granted Finstuen’s application to amend
the 2003 CUP or his application for a new CUP.
On this record, the county board granted Finstuen’s application to amend the 2003 CUP, based partially on its reading of Finstuen’s application for a new CUP as an application to amend the 2003 CUP. The county did not need to grant Finstuen a new CUP because reading the application for a new CUP as an application to amend the 2003 CUP functionally consolidated the applications. Also, any failure to formally consolidate the applications is irrelevant because granting the application to amend the 2003 CUP rendered moot any application for a new CUP for the same project.
“Except in an environmentally sensitive location where Minnesota Rules, part 4410.4300, subpart 29, item B applies, [a] proposed action is exempt from environmental review” under Chapter 116D of the Minnesota statutes and the associated rules if, among other things, the proposed action is “an animal feedlot facility with a capacity of less than 1,000 [AUs.]” Minn. Stat. § 116D.04, subd. 2a(d)(1)(i) (2004). BAA does not assert that the location of Finstuen’s revised project is an “environmentally sensitive area” under Minn. R. 4410.4300, subp. 29B, and Finstuen’s feedlot submissions show that the feedlot will not be located in an “environmentally sensitive area.” Rather, BAA asserts that Finsuten’s original project “was found in the prior proceedings by both the District Court and the Court of Appeals to substantially exceed 1,000 AUs and to equal about 1,400 AU[s].” BAA then notes that Finstuen’s revised project has 10 percent less barn space and infers that this means 10 percent fewer (140 fewer) AUs. BAA then posits that the revised project has a physical capacity of 1,260 AUs. Based on this reasoning, BAA contends that the capacity of Finstuen’s revised project exceeds 1,000 AUs, and the PCA’s failure to complete an environmental review of Finstuen’s revised project means that the amended CUP and feedlot permit are “void and of no effect.”
reasoning, however, is faulty. Neither Berne I nor the district court in the declaratory judgment action determined
that Finstuen’s project had a physical capacity of 1,400 AUs. The district court’s memorandum in the
declaratory judgment action noted that capacity was disputed. But consistent with the summary-judgment
stage of that proceeding, the district court did not make a factual finding as
to the number of AUs that Finstuen’s original project could house. It merely stated that, “given the record,
there is no material factual dispute that the feedlot in this case has a
capacity of over 1,000 [AUs].”
Similarly, Berne I did not identify the number of AUs that
Finstuen’s original proposed project could house, other than to say it had a
capacity of “significantly more than 1,000 [AUs].” 694 N.W.2d at 578; cf.
In the current appeal, Finstuen maintains that the 1,440 AUs figure mentioned in Berne I is the result of BAA, in the Berne I proceedings, mischaracterizing statements in the Berne I record as indicating that Finstuen would use only two-thirds of the capacity of his proposed project. Finstuen explains that what he actually represented was that his project called for applying the manure produced at the feedlot to fields each fall, that he intended to overbuild his project’s manure-storage capacity so that he would have a place to store extra manure if weather or other reasons precluded him from applying some or all of the manure one fall, and that he intended to use only two-thirds of the overbuilt capacity.
assertions are consistent with the fact that two-thirds of 1,440 AUs is 960
AUs. They are also consistent with
testimony before the planning commission by a veterinarian who is a feedlot
expert. The veterinarian testified that,
because of the space required per sow, it was not possible to house 1,260 AUs in
the revised project. The
veterinarian reiterated his conclusion in a letter dated June 13, 2005, which stated that (1) Finstuen’s revised project has a capacity of 960 AUs, (2) exceeding that capacity would require Finstuen to expand his facility, and (3) although Finstuen’s revised project contains transitional stalls, they do not increase the physical capacity of the revised project because they would not be occupied at the same time as the project’s gestational and farrowing stalls. The letter also noted that, even if the transitional stalls are included in determining the physical capacity of Finstuen’s revised project, the transitional stalls would raise the physical capacity of the revised project to 989 AUs. Finally, the findings supporting the county’s grant of the amended CUP twice state that “[t]he total physical capacity of the proposal is 2,400 animals or 960 [AUs,]” while the permit granted by the PCA states that it is for “feedlots and manure storage areas” with a capacity of between 300 and 1,000 AUs. Thus, BAA’s assertion that the physical capacity of Finstuen’s revised project is 1,260 AUs is unsupported by Berne I, the ruling in the declaratory judgment action, and the record before us. Accordingly, we decline to alter the rulings that the physical capacity of Finstuen’s revised project is less than 1,000 AUs. See Schwardt v. County of Watonwan, 656 N.W.2d 383, 386 (
makes several challenges to the grants of the feedlot permit and the CUP. We initially note that BAA’s reliance on the Berne I concurring opinion to argue that the environmental review that
occurred here was inadequate is unavailing.
Both the majority and the concurrence in
Review of the PCA’s grant of a permit is governed by Minn. Stat. § 14.69 (2004), under which an appellate court can affirm, or remand for further proceedings, or reverse, or modify any of the agency’s findings, inferences, conclusions, or decisions if they are affected by error of law, unsupported by substantial evidence in view of the entire record as submitted, or are arbitrary and capricious. The party challenging the decision of the agency has the burden of proof on appeal. The agency enjoys a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.
Deference is also given to the agency’s interpretation of its own rules
when the language subject to construction is so technical in nature that only a specialized agency has the experience and expertise needed to understand it, when the language is ambiguous or when the agency interpretation is one of long standing.
However, this court will not defer to the agency interpretation if the language of the regulation is clear and capable of understanding.
Minn. Ctr. for Envtl. Advocacy, 696 N.W.2d at 100-01 (quotations and citations omitted).
On appeal from a county’s grant of a CUP for a hog feedlot,
656 N.W.2d at 386 (citations omitted). CUP
approvals are given “a more deferential standard of review than CUP denials.”
The PCA’s determination that Finstuen’s project satisfies the relevant authorities for protecting karst features in the project area is supported by the record. The record establishes that, in 2002, a karst investigation of the project site and the land within 1,000 feet of the barn site did not show any sink holes in that area. The record also includes a 2005 updated karst-feature inventory reaffirming the 2002 findings. Further, the karst feature map required by Minn. R. 7020.2100, subp. 4A(7) (2005), was submitted with Finstuen’s feedlot application, and it shows no karst features within one-quarter mile of the barn site. Similarly, information submitted by Finstuen demonstrates that his project complied with the 300-foot sinkhole-setback requirement of Minn. R. 7020.2005, subp. 1 (2005). Not only does the record establish that the project’s manure pits comply with the structural and the separation-from-bedrock requirements of Minn. R. 7020.2100, subp. 2B(2), 3B(2) (2005), but the soil boring performed for the barn site exceeded the requirements of Minn. R. 7020.2100, subp. 4A(2), (4) (2005). Moreover, the county required that the excavations for Finstuen’s manure pits be inspected by both Finstuen’s engineer and county staff before pit construction started. On this robust record, BAA has not demonstrated that the PCA failed to investigate Finstuen’s project site adequately.
argues that the PCA “has no substantial evidence that the project will not
discharge manure into waters of the state in violation of Minn. R.
7020.2225.” Because Finstuen’s feedlot
permit requires him to “comply with the planning, design, construction, notification
and operation requirements of Minn. R. parts 7020.2000 to 7020.2225, and all
applicable requirements [of other authorities,]” BAA is either arguing that
Finstuen will not operate his feedlot in accordance with these conditions on the
grant of his feedlot permit or that Finstuen will operate his feedlot in accord
with the rule-based conditions but the rules generating those conditions are
inadequate to protect surface water and groundwater. The former assumes Finstuen is currently at
fault for something he has not done and may never do. The latter is a challenge to the rules
themselves, a challenge BAA did not make in the proceedings from which this
appeal arose. Neither argument is
properly before us, and we decline to address them. See
Thiele v. Stich, 425 N.W.2d 580, 582
Alleging an inadequate initial investigation of the fields into which the manure will be spread, BAA also argues that there has been “no further investigation of karst features in the manure spreading fields.” But Finstuen’s manure-management plan for the revised project addresses how manure will be applied to fields. The PCA, using a checklist addressing the requirements of Minn. R. 7020.2225, subp. 4D (2005), reviewed Finstuen’s manure-management plan and concluded that it satisfied the relevant aspects of the rules. This conclusion is supported by the record, including the fact that Finstuen’s manure-management plan demonstrates that the manure will be spread over 39 fields with 1,517.9 acres suitable for manure application, which is over 300 acres more than the county found was required for the amount of manure produced by the revised project. In addition, Finstuen’s manure-management plan contains 18 pages of field-by-field analyses of whether each field has “Sensitive Features and Conditions” and what “Management Practices” will be used to address any sensitive feature or condition in that field. Thus, the record establishes that each field has been evaluated not only for karst features, but also for other environmentally sensitive features. Further, the agronomic rate at which the manure will be applied to the fields will result in the application of nitrogen, phosphorus, and nutrients to the land at a rate that satisfies Minn. R. 7020.2225, subp. 3 (2005), because that rate will not exceed the rate at which crops use those substances. Finstuen will use field equipment with global positioning capabilities to locate sinkholes and satisfy the setback requirements of Minn. R. 7020.2225, subp. 8A (2005). Finally, the county conditioned the grant of a CUP on a condition that is stricter than the manure-application limitation in the applicable PCA rules. Accordingly, the CUP not only requires Finstuen to abide by relevant sinkhole-setback requirements, but also requires him to refrain from depositing manure up slope from any identified sinkhole.
Through the EAW process in the 2003 proceedings, concerns were raised about the nitrate levels in water from local wells. Finstuen’s current manure-management plan is designed to avoid increasing contaminant levels in local surface water and groundwater. The plan states that the manure application will be by knife injection and will be applied at an agronomic rate and in a manner respecting the various setback requirements. The rules for the land application of manure address both land application of manure generally and in “special protection areas” and near sinkholes, specifically. Minn. R. 7020.2225, subps. 6, 9 (2005). A condition of the CUP is that rule 7020.2225 “be followed for land application of manure.” And BAA has not shown that Finstuen’s application of manure under the provisions of the CUP will increase contaminant levels in the surface or groundwater.
We also reject BAA’s argument that Finstuen’s revised project will impair air quality to the extent that the feedlot permit or the CUP must be denied. BAA’s air-quality argument fails because it is speculative and without support in the record. Studies in the record establish that the bio-filtration system on Finstuen’s barns will reduce odor emissions from the barns by approximately 85 percent. Similarly, Finstuen’s application of the manure to the land will be by knife injection of the manure into the land, rather than a broadcast application of the manure onto the land. And studies in the record demonstrate that injection-related odor emissions are approximately 90 percent less than broadcast-related odor emissions.
BAA also argues that granting a CUP would violate the portion of Dodge County Ordinance § 1807 that forbids CUPs for projects that will “substantially diminish and impair property values within the area.” On the property-value question, however, there is conflicting evidence in the record. And it is not our province to reweigh the evidence under circumstances indicating that the county board diligently engaged in the decision-making process. See Schwardt, 656 N.W.2d at 388 (stating that “[t]he county board may discount evidence that lacks relevance or credibility”); Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn. App. 1999) (“A reviewing court will intervene only where there is a combination of danger signals [that] suggest the agency has not taken a hard look at the salient problems and has not genuinely engaged in reasoned decision-making.” (quotation omitted)). Also, the findings in support of granting the CUP state that “[t]he barns will be designed to accommodate bio-filters which will significantly reduce odor from the buildings[,]” and the conditions on which the CUP was granted include (a) “[o]dor reduction with the use of Bio-Filters”; (b) “[a]ll filter strips and buffers [will] be designed and installed to NRCS specifications”; and (c) “the bio-filters need to be installed and operational before occupation occurs.” Accordingly, BAA’s property-value argument fails.
The record contains substantial evidence supporting the grants of the feedlot permit and the CUP. That evidence addresses the project site, the fields to which manure will be applied, the manner by which the manure will be applied to those fields, and the impact on local water sources of applying manure to those fields in that manner, as well as local property values. We, therefore, affirm the PCA’s grant of the feedlot permit and the county’s grant of the CUP.
We next address the parties’ motions. In a civil case, the record on appeal is defined by Minn. R. Civ. App. P. 110.01. Rule 110 applies in certiorari appeals, to the extent possible. Minn. R. Civ. App. P. 115.04, subd. 1. The PCA moves to strike arguments and documents presented in the CUP proceedings from consideration in BAA’s appeal of the PCA’s grant of the feedlot permit. Because this court’s special term order already limits the record for appeal of the grant of the feedlot permit to the record that was before the PCA when it granted that permit, we deny the PCA’s motion to strike as moot.
The PCA and Finstuen move to strike various portions of BAA’s reply brief as improperly presenting arguments for the first time. Although the arguments were improperly made for the first time in BAA’s reply brief, because of our disposition of the case, we deny these motions as unnecessary.
moves to dismiss the appeals as moot because the PCA’s September 16 order
denying BAA’s motion for a contested case hearing contained findings addressing
the merits of the PCA’s grant of the feedlot permit, and the September 16 order
was not appealed. See In re Application of
Minnegasco, 565 N.W.2d 706, 710 (
Finstuen also moves to dismiss the appeals as moot because he has finished building his feedlot. Indeed, BAA failed to suspend Finstuen’s ability to build the feedlot pending appeal by obtaining a supersedeas bond, but the completion of the feedlot does not render the appeal moot. See Housing & Redev. Auth. ex rel. City of Richfield v. Walser Auto Sales, Inc., 641 N.W.2d 885, 891 (Minn. 2002) (stating in condemnation appeal that although changes to property occurring during challenge to public-purpose determination may be considered in deciding what relief is available, they are not dispositive of appeal and that some or all of condemned property could be ordered to be returned). We, therefore, deny this motion.
Finally, Finstuen argues that BAA’s appeal of the county’s grant of an amended CUP is moot because the county failed to address Finstuen’s application for a new CUP. Finstuen maintains that he is entitled to a new CUP under Minn. Stat. § 15.99 (2004), which states, in part, that a failure to act on an application within the relevant time period is a grant of that application. This argument is unavailing because, as discussed above, the county functionally consolidated Finstuen’s applications to amend the 2003 CUP and for a new CUP. Moreover, we note that the county’s decision to grant the amended CUP rendered Finstuen’s application for a new CUP moot.
Affirmed; motions denied.
 An “animal unit” is a unit of measure that allows comparison of the differences in the manure production of various types of animals by multiplying the number of animals of a particular type by a conversion factor. Minn. Stat. § 116.06, subd. 4a (2004). Because Finstuen’s proposed feedlot will house 2,400 sows weighing more than 300 pounds, and because the conversion factor for sows weighing more than 300 pounds is .4, Finstuen’s proposed feedlot would house 960 AUs. See id., subd. 4a(6)(i).
 Karst is “[a]n area of irregular limestone in which erosion has produced fissures, sinkholes, underground streams, and caverns.” The American Heritage Dictionary of the English Language 983 (3d ed. 1992).
 Finstuen started construction of his feedlot in September. Construction was completed in January 2006.
 BAA argues that “the record establishes” that Finstuen’s revised project uses nonstandard size stalls and that “the [project’s] actual physical capacity remains over 1,000 AUs.” Contrary to both Minn. R. Civ. App. P. 128.03 and caselaw, BAA improperly limited respondents’ ability to address the argument by not identifying the portion of “the record” to which it referred until its reply brief. See Cole v. Star Tribune, 581 N.W.2d 364, 372 (Minn. App. 1998) (noting that assertions of fact should be supported by citations to the record); Hecker v. Hecker, 543 N.W.2d 678, 681-82 n.2 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997) (same). And the parts of the July 6, 2005, transcript BAA ultimately identified include testimony by the revised project’s engineer that, while nonstandard-width construction slats were used, they “[would not] affect the number of [stalls in which sows are held].” Also, in his letter dated June 13, 2005, the veterinarian states that “[t]he size of the pens, number of pens and spacing of the pens in the facility comport with industry standards and are designed to house only 2400 animals.”
 BAA argues that, if 35 AUs of cattle allegedly owned by Finstuen are considered, Finstuen’s project has more than 1,000 AUs. Because this argument was not raised until BAA’s reply brief, it is not properly before us, and we decline to address it. Luke by Luke v. City of Anoka, 277 Minn. 1, 8 n.13, 151 N.W.2d 429, 435 n.13 (1967); McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990). Moreover, on its merits, the argument is unavailing.
 BAA argues that the
grant to Finstuen of a feedlot permit is defective because the process of
transferring the weaned gilts to a hog nursery not owned by Finstuen was, in
violation of Minn. R. 4410.1700, subp. 9 (2005), not analyzed by the PCA as a
“connected action.” Because this argument
was not raised until BAA’s reply brief, it is not properly before us, and we
decline to address it. Luke, 277
 BAA also
argues that (1) Finstuen’s feedlot application was defective because it did not
satisfy the requirements in Minn. R. 7020.2100 subp. 4A(7) (2005), that address
karst features within one-half mile of the project site, and (2) it was denied
a hearing by the PCA because, when BAA made its request for a contested case
hearing, it had not been informed that the PCA had already granted the feedlot
permit. These arguments also were not
made until BAA’s reply brief and are not properly before us. Therefore, we decline to address them. Luke,