This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







State of Minnesota, et al.,

plaintiffs and third party defendants,





Rice Creek Watershed District,



City of Hugo,

intervenor defendant and third party plaintiff,



Margaret Waller, et al.,

trustees/applicants for intervention,

Appellants (A06-737),


George Schtowchan, et al.,

applicants for intervention,

Appellants (A06-800),


Francis Miron, et al.,

applicants for intervention,

Appellants (A06-782),




State of Minnesota,

ex rel. Minnesota Center for Environmental Advocacy,



Minnesota Conservation Federation, et al.,





Rice Creek Watershed District, et al.,



Glenn Rehbein Excavating, Inc., et al.,



Filed April 17, 2007

Appeal dismissed

Klaphake, Judge


Washington County District Court

File Nos. C6-05-6047, C6-05-6050


Lori Swanson, Attorney General, David P. Iverson, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent State of Minnesota, et al.)


Louis N. Smith, Smith Partners PLLP, Old Republic Title Building, 400 Second Avenue South, Suite 1200, Minneapolis, MN  55401; and


Thomas M. Scott, Campbell Knutson, 317 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN  55121 (for respondent Rice Creek Watershed District)


David K. Snyder, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1809 Northwestern Avenue, Stillwater, MN  55082 (for respondent City of Hugo)


Paul R. Haik, Krebsbach and Haik, Ltd., 225 South Sixth Street, Suite 4320, Minneapolis, MN  55402 (for appellants Margaret Waller, et al.)


Patrick J. Kelly, Trevor S. Oliver, Kelly & Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN  55101 (for appellants George Schtowchan, et al.)


Christopher D. Johnson, Erin K. Turner, Johnson & Turner, P.A., 56 East Broadway Avenue, Suite 206, Forest Lake, MN  55025 (for appellants Francis Miron, et al.)


Janette K. Brimmer, 26 East Exchange Street, Suite 206, St. Paul, MN  55101 (for respondent Minnesota Center for Environmental Advocacy)


William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 800, Bloomington, MN  55435 (for respondents Minnesota Conservation Federation and Minnesota Fish and Wildlife Legislative Alliance)


            Considered and decided by Klaphake, Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellants Margaret and John Waller, Francis and Mary Ann Miron, and George and Kathleen Schtowchan challenge the district court’s order denying their motion to intervene.  Because the underlying action has been dismissed by the parties to the suit, we dismiss this appeal as moot.


            Respondent State of Minnesota brought this declaratory judgment action and request for temporary and permanent injunctive relief against defendant Rice Creek Watershed District (RCWD), in order to enforce a water level restoration order for Rice Lake issued by the Commissioner of the Department of Natural Resources (DNR).  The lake is within the boundaries of the City of Hugo, which was permitted to intervene in the action.  The district court issued a temporary injunction ordering RCWD to restore the water level of the lake, which had fallen after RCWD took certain actions to maintain an outlet of the lake, Judicial Ditch No. 2.  By October 12, 2005, RCWD had made repairs that restored the water level of the lake to the DNR’s satisfaction.  The parties then began to discuss settlement of this action.

            On or after that date, appellants sought to intervene as of right.  The district court denied appellants’ motions to intervene, and this appeal followed.  Appellants thereafter moved to stay any further proceedings in district court during the appeal; by order issued August 22, 2006, this court refused to stay proceedings, given the potential for prejudice to resolution of the underlying action.

            On January 11, 2007, the district court dismissed the underlying action based on a stipulation of dismissal without prejudice that was entered into between the DNR, RCWD, and the city.


            An appellate court hears only live controversies; “[i]f, pending an appeal, an event occurs which makes a decision on the merits unnecessary or an award of effective relief impossible, the appeal will be dismissed as moot.”  In re Inspection of Minn. Auto Specialties, Inc., 346 N.W.2d 657, 658 (Minn. 1984).  Appellants seek intervention; the action into which they seek to intervene, however, has been settled and dismissed without prejudice.  We cannot make an effective award of intervention in a suit no longer before the district court.

            In order to determine if a matter is moot, we compare the relief demanded with the circumstances of the case at the time of the decision.  In re Application of Minnesgasco, 565 N.W.2d 706, 710 (Minn. 1997).  We note that appellants’ claims of a constitutional taking, trespass, and property and ditch rights go far beyond the narrow scope of the permit enforcement action that was the basis of the underlying suit, which has been resolved.

            Appellants argue that because their counterclaims are still pending, dismissal of the action is prohibited under Minn. R. Civ. P. 41(b).  Until appellants are permitted to intervene, they are strangers to the lawsuit. 

            While appellants are denied a final appellate disposition on their motion to intervene, we express no opinion on the viability of a new action against the DNR, RCWD, or the City of Hugo.          

            Appeal dismissed.