This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of the Restoration
Order Issued to John P. Breese
Filed May 29, 2007
Minnesota Department of Natural Resources
File No. 6-2000-16096-2
Bruce P. Grostephan, Peterson, Engberg & Peterson, 700 Old Republic Title Building, 400 Second Avenue South, Minneapolis, MN 55401-2498 (for relator John P. Breese)
Lori Swanson, Attorney General, Jill D. Schlick, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent State/DNR)
Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Wright, Judge.
In this certiorari appeal, relator John P. Breese challenges the restoration order of the commissioner of the Department of Natural Resources requiring him to remove riprap that he had installed in 1992 from his shoreline on Lake Sylvia. Because the commissioner’s order is arbitrary and capricious and not supported by substantial evidence in the record, we reverse.
court may reverse or modify an agency decision if “the administrative finding,
inferences, conclusion, or decisions are . . . unsupported by substantial
evidence in view of the entire record as submitted; or . . . arbitrary or
An agency ruling is arbitrary or capricious if the agency “(a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency’s expertise.” CARD v. Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006).
to the record before us, relator installed riprap along the southern half of
his lakeshore in 1992. A hydrologist
from the Department of Natural Resources (the department) staked the ordinary
high water level (OHWL), which marks the boundary of the department’s
jurisdiction, and instructed relator that he could install riprap no further
than five feet lakeward from that line. In
1992, riprap could be installed without a permit, so long as it did not extend
more than five feet lakeward of the OHWL, had a minimum slope of 3:1, and
conformed to the natural shoreline. See
Although the administrative law judge (ALJ) concluded that the 1992 riprap conformed to the staking done by the department hydrologist, the commissioner deleted this conclusion, commenting in his short memorandum that the riprap boulders did not conform to the natural alignment of the shoreline and that they extended as far as 8.5 feet lakeward from the OHWL, a violation of the 1992 rule. The commissioner based his conclusion on a survey done by a department hydrologist, Patricia Fowler, which was submitted in the record as Exhibit 42. Fowler testified that she was unable to establish the natural alignment of the shoreline; she therefore established two endpoints that were at the natural OHWL elevation of 1050.1 feet and drew a straight line between them as the best evidence of the OHWL and the natural shoreline. The 1992 riprap extended as much as 8.5 feet lakeward from this straight line.
In his defense, relator submitted the testimony of a certified land surveyor, Dennis Taylor, who presented evidence regarding the natural alignment of the shoreline and the OHWL. According to relator’s Exhibits 1, 31, and 31A, the 1992 riprap conformed to the natural alignment of the shoreline and was within five feet of the OHWL. Because high water obscured the shoreline in both 2002 and 2003, relator also submitted a survey prepared by Taylor in 1991, which showed that Taylor’s 2004 survey was an accurate depiction of the shoreline.
The commissioner based his decision on Fowler’s testimony despite the fact that Fowler was unable to establish the natural shoreline and the OHWL, and thus had to create an arbitrary line. In doing so, the commissioner ignored Taylor’s testimony that affirmatively established the natural shoreline and OHWL. Our review of the exhibits submitted by the parties confirms that the certified survey establishes a natural shoreline, as opposed to the arbitrary straight line offered by the department, and that the natural shoreline is consistent with the 1991 survey done before installation of any riprap.
we generally defer to agency fact finding, “[t]he court will intervene . . .
where there is a combination of danger signals which suggest the agency has not
taken a hard look at the salient problems and the decision lacks articulated standards
and reflective findings.” MCEA v. Comm’r of MPCA, 696 N.W.2d 95,
determining whether an agency decision is based on substantial evidence, we
review the entire record as submitted. Pomrenke v. Comm’r of Commerce, 677
N.W.2d 85, 94 (