This opinion will be unpublished and

may not be cited except as provided by

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







Carl L. Kristufek, for himself and

as Representative of Petitioners of Subject Petition

for an Environmental Assessment Worksheet,





City of Breezy Point,



Breezy Point International, Inc.,



Whitebirch, Inc.,



Filed June 12, 2007

Affirmed; motion denied

Hudson, Judge


Crow Wing County District Court

File No. C7-05-2061


Richard B. Bates, Bates Law Office, 1985 Grand Avenue, St. Paul, Minnesota 55105 (for appellant)


Paul D. Reuvers, Jason J. Kuboushek, Iverson, Reuvers, LLC, 9321 Ensign Avenue South, Bloomington, Minnesota 55438 (for respondent City of Breezy Point)


Bruce D. Malkerson, Howard A. Roston, Patrick B. Steinhoff, Malkerson, Gilliland, Martin, LLP, 1900 U.S. Bank Plaza South, 220 South Sixth Street, Minneapolis, Minnesota 55402 (for respondents Breezy Point International, Inc. and Whitebirch, Inc.)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


On appeal in this Environmental Assessment Worksheet (EAW) dispute, appellant petitioner argues that (1) the district court erred by refusing to consider evidence that was not in the record before the city council; (2) the district court erred by concluding that the city acted reasonably when it denied the petition for an EAW; and (3) the city failed to consider whether the project fell into a mandatory EAW category as required by the Minnesota Rules.  We affirm the decision and deny the city’s motion to dismiss.



            In 1981, respondent Breezy Point International, Inc./Whitebirch, Inc. (BPI) proposed a project for the redevelopment of Breezy Point Resort on Pelican Lake in Crow Wing County.  An Environmental Assessment Worksheet (EAW) regarding the project was submitted to the Minnesota Environmental Quality Board (MEQB) in February 1981, and the City of Breezy Point (the city) subsequently determined that an Environmental-Impact Statement (EIS) was not needed.

On June 3, 2005, appellant Carl Kristufek, on behalf of himself and a group of citizens, submitted a petition for an EIS regarding the Breezy Point Resort to the MEQB.  The petitioners alleged that since the 1981 EAW, many changes had occurred “with little consideration for what was originally approved” that do not “allow[] for modern consideration for the environmental impact on the surrounding area.”  The MEQB treated the petition as a petition for an EAW because there is no procedure by which citizens can petition for an EIS. 

The petition submitted to the MEQB consisted of a citizen petition with 82 signatures and the petition itself, which outlined the proposed project and its potential environmental effects, and a copy of the 1981 EAW.  The petition included a section entitled “Material Evidence,” which basically stated that the 1981 EAW was outdated because so many changes had been made to the project.  The petition did not include any sworn affidavits, testimony, or other evidence.     

In accordance with rule 4410.1100, subp. 5 (2005), the MEQB designated the city as the responsible government unit (RGU) and notified the city of its decision on June 20, 2005.  When the MEQB forwarded the petition to the city, it attached a cover letter outlining the procedures involved in reviewing a petition for an EAW.  The RGU assignment was also published in the “EQB Monitor,” an MEQB publication available to the general public.  Once notified of an EAW petition, the RGU must act within 30 days.  Minn. R. 4410.1100, subp. 7 (2005). 

On July 1, 2005, the Breezy Point city council published the agenda for its July 5, 2005 meeting on its website.  The agenda included the review of appellant’s EAW petition.  Respondent BPI contacted the city council a week before the meeting and therefore knew in advance that the petition was scheduled to be reviewed on July 5.  Appellant did not learn that the petition was scheduled to be heard until the morning of July 5.  

Appellant attended the city-council meeting and asked the council members to postpone the hearing because expert witnesses were unavailable to testify in support of the petition.  Two motions were made to postpone consideration of the EAW petition, but both motions died for lack of a second.  After some discussion, the council voted to declare the EAW unnecessary.  The council specifically adopted the following findings: (1) an EAW had already been completed on the project; (2) there was no reason to believe that the project would significantly affect the environment; and (3) the Thirty Lakes Watershed “signed off” on the project.

            Pursuant to Minn. Stat. § 116D.04, subd. 10 (2006), appellant filed a declaratory action with the Crow Wing County district court on August 3, 2005, seeking review of the Breezy Point city council’s decision.  On December 12, 2005, respondent BPI joined the action as an intervenor.  All three parties moved for summary judgment.

Following a hearing, the district court denied appellant’s motion for summary judgment, granted the city’s motion for summary judgment, and granted BPI’s motion for summary judgment.  The district court concluded there were no issues of material fact and that (1) the proposed project had already received final government approval; (2) the city council acted reasonably and followed MEQB regulations when it denied the petition; (3) the city properly considered whether the proposed project fell into a mandatory EAW category; (4) the petition did not contain material evidence showing that the project would have a significant effect on the environment; and (5) the city made sufficient findings on the record to support its denial of the petition.  This appeal follows.

On January 29, 2007, the city filed a motion to dismiss the appeal for lack of subject-matter jurisdiction and/or mootness.  We affirm the decision and deny the motion to dismiss.



            While the proceedings generating this appeal were occurring, persons opposed to the restaurant portion of the proposed development, certain time-share owners (TSOs), sued the city in district court, challenging the city’s approval of the restaurant portion of the project.  The TSOs’ suit was assigned to the same district-court judge hearing appellant’s suit.  In a September 8, 2006 order in TSOs’ suit, the district court enjoined further work on the restaurant until BPI obtained a conditional use permit (CUP) for the restaurant from the city.  BPI obtained the required CUP in December 2006.  The city and BPI now argue that because the CUP was the final approval for the restaurant portion of the expansion, this appeal challenging the denial of the EAW is moot because a final approval precludes further environmental challenges.[1]  See Minn. Stat. § 116D.04, subd. 2a(c) (2006) (requiring EAW petition to be submitted “before the proposed project has received final approval by the appropriate governmental units”).  We reject this argument for two reasons.

            First, the current appeal addresses the denial of a new EAW for the entire project, of which the restaurant is a part.  The district court’s TSO ruling and the city’s subsequent issuance of a CUP, however, addressed only the restaurant.  Thus, the city seeks to dismiss an appeal addressing more than just the restaurant based on restaurant-specific rulings.  Second, any attempt to dismiss only the restaurant portion of the appeal assumes that the restaurant portion of the EAW dispute is severable from the rest of that dispute.  Both the city’s original and current EAW decisions, however, were based on an evaluation of the entire project without differentiation among its various parts.  Therefore, to dismiss only the restaurant portion of this appeal, this court would have to recast the questions being reviewed to something not previously addressed by either the city or the district court, and find its own facts regarding what portions of the record weigh for and against an EAW for the nonrestaurant portions of the expansion.  Neither activity is appropriate for this court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts address only questions presented and considered by the district court); Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (stating that appellate courts do not find facts on appeal).  Accordingly, we deny the motion to dismiss the appeal as moot.


            Appellant argues that the district court erred by refusing to consider various affidavits and evidence that were not in the record before the city council.  Appellant concedes that the record of the city council meeting is an accurate reflection of what transpired during that meeting, but argues that the district court erred because “[t]he proper question is not whether the record before the district court accurately reflected what transpired before the City Council, but rather whether the record before the City Council was complete.” 

Here, the district court found that the “City Council proceedings on July 5, 2005, were fair” and that the record before it “comprise[d] a clear and complete record of the City Council meeting.”  The district court acknowledged that appellant had less time to prepare for the city-council meeting than respondents, but found that “[appellant] has neglected to offer a good reason for the failure to produce these affidavits at the City Council meeting; the Court cannot consider them on review of the Council decision.”  We agree.

First, appellant does not cite any relevant legal authority to support his position, and the language of Swanson v. City of Bloomington directly contradicts his argument:

Where the municipal proceeding was fair and the record clear and complete, review should be on the record.  Where the municipal body has proposed formal findings contemporaneously with its decision and there is an accurate verbatim transcript of the proceedings, the record is likely to be clear and complete.


When the review is conducted on the record, the district court should receive additional evidence only on substantive issues raised and considered by the municipal body and then only on determining . . . that there were good reasons for failure to present it at the municipal proceedings.  The standard of review is whether the municipal body’s decision was unreasonable, arbitrary or capricious, with review focused on the legal sufficiency of and factual basis for the reasons given.


421 N.W.2d 307, 313 (Minn. 1988) (emphasis added).

Second, as noted by the district court, it is the responsibility of the petitioners to monitor the progress of a petition for an EAW.  The MEQB’s Guide to Minnesota Environmental Review Rules states that once a petition for an EAW has been submitted and the MEQB has sent the petition on to the appropriate RGU, “petitioners should contact the RGU directly to check the petition’s status and to provide further input before a decision is made.”  Envtl. Quality Bd., Guide to Minnesota Environmental Review Rules 7 (1998).  Additionally, while a 30-day public-comment period is contemplated by the rules, the rules state that “[a] hearing or testimony is not required.”  Id. at 8.  

            We conclude that the district court did not err by concluding that the proceedings before the city council were fair and that the record of the proceedings was clear and complete, or by limiting the record to the materials that were before the city council.



            Appellant argues that the district court erred by concluding that the city acted reasonably when it denied the petition for an EAW and by granting summary judgment in respondents’ favor.  Appellant argues that the city acted arbitrarily and capriciously and failed to consider all the relevant evidence. 

“On appeal from summary judgment, appellate courts review the governmental body’s EAW determination on the basis of whether it was unreasonable, arbitrary, or capricious, without according deference to the district court’s review.”  Watab Twp. Citizen Alliance v. Benton County Bd. of Comm’rs, 728 N.W.2d 82, 89 (Minn. App. 2007), review denied (Minn. May 15, 2007).

An agency’s decision is arbitrary or capricious if the agency (a) relied on factors the legislature never intended it to consider, (b) entirely failed to consider an important aspect of the problem, (c) offered an explanation for the decision that runs counter to the evidence, or (d) rendered a decision so implausible that it could not be ascribed to a difference in view or the result of agency expertise. 


Id.  An agency’s decision will be reversed “if its findings are unsupported by substantial evidence.”  Id. 

            The MEQB has promulgated rules governing the review of petitions for EAWs by RGUs.  See Minn. R. 4410.1100 (Petition Process); .4300 (Mandatory EAW Categories); .4500 (Discretionary EAW); .4600 (2005) (Exemptions).  Under these rules, a petition for an EAW must include “material evidence indicating that, because of the nature or location of the proposed project, there may be potential for significant environmental effects.”  Minn. R. 4410.1100, subp. 2(E).  The rules also state that an RGU shall grant a request for an EAW when

the evidence presented by the petitioner, proposers, and other persons or otherwise known to the RGU demonstrates that, because of the nature or location of the proposed project, the project may have the potential for significant environmental effects.  The RGU shall deny the petition if the evidence presented fails to demonstrate the project may have the potential for significant environmental effects.  The RGU shall maintain, either as a separate document or contained within the records of the RGU, a record, including specific findings of fact, of its decision on the need for an EAW.


Id., subp. 6.  Rule 4410.1100 is promulgated under Minn. Stat. § 116D.04 (2006).  Citizen Alliance, 728 N.W.2d at 90.  An EAW shall be prepared for a proposed action

whenever material evidence accompanying a petition by not less than 25 individuals, submitted before the proposed project has received final approval by the appropriate governmental units, demonstrates that, because of the nature or location of a proposed action, there may be potential for significant environmental effects.


Minn. Stat. § 116D.04, subd. 2a(c).  Therefore, “[t]he threshold requirement under the EAW statute is whether there is material evidence that the project may have the potential for significant environmental effects.”  Citizen Alliance, 728 N.W.2d at 90 (concluding that absent the presentation of material evidence on the issue, there was no basis to conclude that a portion of the proposed project would significantly affect the environment).  In Citizen Alliance, this court addressed the meaning of the phrase “material evidence” and concluded that

under Minn. Stat. § 116D.04, subd. 2a(c), “material evidence” is evidence that is both admissible in an administrative proceeding before a state agency and relevant and consequential to whether the project may have the potential for significant environmental effects.  Allegations of vague or generalized fears and concerns are therefore not sufficient under the statute. 



Appellant argues that the city’s decision was arbitrary and capricious because many historical documents regarding the proposed project were available to the city council at the time of its meeting and were not considered.  Relying on the language of rule 4410.1100, subp. 6, appellant maintains that the city council was required to consider any evidence presented to it and any evidence “otherwise known” to it.  Without citing any other legal authority, appellant argues an RGU must engage in an exhaustive examination of all historical documents relevant to an EAW petition, including those not actually presented to the RGU, because otherwise, “any RGU could easily ‘cherry pick’ evidence, or otherwise manipulate evidence, so as to support a favored position.”  We disagree.

Appellant would require the city council to cull through approximately 24 years’ worth of documents to find information relevant to the petition he submitted.  We believe that appellant’s interpretation of the rules is unduly burdensome to an RGU and does not accurately reflect the law.  The statutory language makes clear that the petitioner bears the burden of presenting material evidence to support a petition for an EAW, not the municipality.  Minn. Stat. § 116D.04, subd. 2a(c).  Furthermore, even if appellant’s interpretation of the language of the rules were accurate, it would not relieve a petitioner of his or her burden to present material evidence.  Here, the petitioner failed to meet the material-evidence standard set out by Citizen Alliance.  

Appellant does not address his failure to include any of the relevant historical documents in the petition submitted to the MEQB, nor does he address his failure to present those documents at the city-council meeting.  Through discovery initiated after the meeting, appellant obtained many documents he claims should have been considered by the city council when making its decision.  Appellant does not explain why he did not initiate discovery before filing the petition or before the city-council meeting.  Appellant also does not offer any evidence showing that the documents that he obtained through discovery were “known to” the RGU at the time of the city-council meeting. 

            Appellant argues that Minn. R. 4410.1100, subp. 6, controls the scope of evidence to be considered by an RGU when reviewing a petition for an EAW.  But Minn. Stat. § 116D.04 states that an RGU’s decision should be based on “material evidence accompanying a petition” that “demonstrates that, because of the nature or location of a proposed action, there may be potential for significant environmental effects.”  Minn. Stat. § 116D.04, subd. 2a(c).  The statute does not contain the phrase “otherwise known to the RGU.”  Id.  The plain language of the rule does not suggest that an RGU has an affirmative obligation to gather any evidence relevant to a petition for an EAW.  Additionally, “an administrative agency may not adopt a rule that conflicts with a statute.”  J.C. Penney Co. v. Comm’r of Econ. Sec., 353 N.W.2d 243, 247 (Minn. App. 1984); see also Minn. R. 1400.2100D (2005) (stating that a rule must be disapproved if the rule “exceeds, conflicts with, does not comply with, or grants the agency discretion beyond what is allowed by, its enabling statute or other applicable law”).  Therefore, to the extent that rule 4410.1100 conflicts with section 116D.04, it should be disregarded. 

Appellant also argues that the city failed to consider whether the project fell into a mandatory EAW category as required by the Minnesota Rules.  Appellant argues that the proposed project falls into several of the mandatory EAW categories, including wetlands, marinas, and mixed residential and industrial-commercial construction.  The district court concluded that the city council properly considered this issue.  In its memorandum, the district court noted that “[t]here was no evidence presented at the City Council meeting supporting the argument that an EAW was mandatory under the Minnesota Rules.”  The record supports the district court’s conclusion.

First, appellant did not raise this issue in his EAW petition or at the city-council meeting.  Second, the evidence cited in his appellate brief to support his argument was not before the city council.  We conclude that appellant has not carried his burden of providing material evidence that is both admissible and relevant regarding whether the project fell into a mandatory EAW category.  Citizen Alliance, 728 N.W.2d at 89–90.

Finally, we note that, in addition to the reasons stated above, the project is also exempt from EAW review because an EAW had already been completed in 1981.

Based on the record that was before the Breezy Point city council and the relevant statute and rules, and because appellant’s petition did not satisfy the threshold requirement of providing material evidence, we conclude that the district court did not err when it concluded that the Breezy Point city council did not act arbitrarily or capriciously by denying appellant’s petition for an EAW. 

            Affirmed; motion denied.


[1] The city’s motion states that this court lacks subject-matter jurisdiction over this appeal because the appeal is moot.  Lack of subject-matter jurisdiction precludes a court from addressing an entire class or category of cases.  Bode v. Minn. Dep’t of Natural Res., 594 N.W.2d 257, 259 (Minn. App. 1999), aff'd, 612 N.W.2d 862 (Minn. 2000).  Mootness however, is “a flexible discretionary doctrine, not a mechanical rule that is invoked automatically.”  Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 439 (Minn. 2002) (quotation omitted).  Thus, that a case involves a moot question does not necessarily preclude a court from addressing that question.  See Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005) (describing exceptions to doctrine of mootness).  The city’s argument here is that events in a parallel proceeding render it unnecessary for this court to grant relief in this appeal, not that this court lacks the ability to address the questions presented.  Therefore, the city’s motion involves mootness, not subject-matter jurisdiction.