This opinion will be unpublished and

may not be cited except as provided by

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






Eugene J. Carda,


Kanabec County,


Filed November 13, 2007


Crippen, Judge*


 Kanabec County District Court

File No. 33-CV-06-99


Thomas F. Pursell, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eight Street, Minneapolis, MN  55402 (for appellant)


Scott T. Anderson, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN  55402 (for respondent)


            Considered and decided by Peterson Presiding Judge; Klaphake, Judge; and Crippen, Judge. 

U N P U B L I S H E D   O P I N I O N


            Appellant Eugene Carda seeks a writ of mandamus to compel respondent Kanabec County to grant his wetland replacement plan application; he argues that respondent failed to “approve or deny” his application within the 60-day period permitted by statute.  Appellant further argues that the proceedings before the Board of Water and Soil Resources (BOWSR) did not create an additional 60-day period for action by respondent.

            Because respondent’s rejection of appellant’s application was a denial under the statute and because respondent was given an extension under the statute after BOWSR remanded the matter, we affirm summary judgment for respondent.


            Appellant and his wife own approximately 6.57 acres of property located on the shore of Knife Lake in Kanabec County.  In June 2004, respondent delineated a small wetland on the site.  Appellant submitted an application for a wetland replacement plan to respondent, requesting authorization to fill the wetland in exchange for creating another, larger wetland on property he owns adjacent to the Knife River, upstream of Knife Lake.  This first application was denied, and no appeal was taken.

            In July 2005, county staff noticed a sump pump in the wetland and reported it to the Minnesota Department of Natural Resources (DNR).  On July 12, 2005, the DNR issued a cease-and-desist order, which also advised appellant that unless he applied for and received an exemption, replacement plan, or no-loss determination from respondent by September 20, 2005, the DNR would order him to restore the wetland.  On August 23, 2005, the DNR issued a restoration order that reiterated the requirements of the cease-and-desist order and notified appellant of the additional option of submitting a complete “after-the-fact” replacement plan within 21 days.  Although appellant challenged the DNR order,[1] it became final after he failed to appeal BOWSR’s decision to this court.

            On December 15, 2005, appellant submitted a wetland replacement plan application to respondent.  On December 22, respondent notified appellant that it “cannot accept a Replacement Plan Application for this wetland due to the existing violation concerning this wetland.”  Appelalnt was referred to the DNR enforcement division.

            On December 29, 2005, appellant filed an appeal of respondent’s decision to BOWSR.  On January 26, 2006, BOWSR remanded the matter to require respondent to issue a decision based on the wetland replacement standards set out in Minn. R. 8420.0500-.0630 (2005).

            On March 17, 2006, respondent notified appellant that it was extending the time to act on the BOWSR remand to May 26, 2006, because additional information was needed from BOWSR, the DNR, and the Minnesota Attorney General’s Office.  Respondent thereafter denied appellant’s application on April 21, 2006.

            Appellant commenced this action on April 14, 2006, seeking a writ of mandamus to require respondent to immediately grant his application under Minn. Stat. § 15.99 (2004). The district court subsequently granted summary judgment to respondent.


            When the facts are undisputed and the issuance of a writ of mandamus turns on purely legal determinations, this court need not defer to the district court’s decision.  Allen v. City of Mendota Heights, 694 N.W.2d 799, 801 (Minn. App. 2005), review denied (Minn. June 14, 2005).  The party requesting mandamus relief must show that (1) respondent “failed to perform an official duty clearly imposed by law”; (2) he “suffered a public wrong” and was specifically injured by respondent’s failure; and (3) he has “no other adequate legal remedy.”  Breza v. City of Minnetrista, 725 N.W.2d 106, 109-10 (Minn. 2006) (quotations omitted). 

            Minn. Stat. § 15.99, subd. 2 (2004), provides that the county “must approve or deny within 60 days a written request relating to . . . soil and water conservation district review.”  The agency’s failure “to deny a request within 60 days is approval of the request.”  Id.  And if the agency “denies the request, it must state in writing the reasons for the denial at the time that it denies the request.”  Id.  The agency “may extend the time limit in subdivision 2 before the end of the initial 60-day period by providing written notice of the extension to the applicant.”  Id., subd. 3(f) (2004).  “The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days[.]”  Id.

            Appellant argues that because respondent did not rule on the merits of his application, respondent’s refusal to act was not a denial for purposes of Minn. Stat. § 15.99.  In its December 22, 2005 letter, respondent notified appellant that it “cannot accept a Replacement Plan Application for this wetland due to the existing violation concerning this wetland,” and referred appellant to the DNR enforcement division.  By this letter, respondent gave him a decision and provided him with its reason for rejecting his application; the letter did not leave appellant waiting for an answer on the merits from respondent, a situation that Minn. Stat. § 15.99 was meant to avoid.

            Consistent with the impact of respondent’s action, the parties treated the letter as a decision by respondent denying appellant’s application.  Appellant sought review of the decision under Minn. R. 8420.0250, subp. 1 (2005) (allowing appeal from local government unit’s decision to “approve, approve with conditions, or reject” replacement plan).  And BOWSR treated the letter as a decision by respondent, considered the appeal, and remanded for further action.  Thus, respondent’s letter informing appellant that it could not “accept” his application was a denial, for purposes of Minn. Stat. § 15.99.

            Following his premise that no action occurred in December, appellant further argues that following BOWSR’s remand order, respondent had only 24 days within which to make its decision or extend its time for decision because the 60-day period was not restarted.  Minn. R. 8420.0250, subp. 3 (2005), provides that “[i]f an appeal is remanded [by the board], the public agency must make a decision within 60 days unless the remand order, or a subsequent order, specifies a longer period.”  Thus, once the board remanded the matter on January 26, 2006, respondent had 60 days within which to make a decision.[2] 

            Finally, we note that the district court did not address whether the county was correct in refusing to consider Carda’s application, based on the ongoing DNR enforcement proceeding.  While the parties do not fully address this issue, we note that automatic approval of a wetland replacement plan application under Minn. Stat. § 15.99 cannot exceed the county’s substantive authority to approve such an application.  See Breza, 725 N.W.2d at 114 (approval of wetland exemption application under Minn. Stat. § 15.99 cannot exceed city’s substantive authority to approve such applications).

            Once the DNR issued its restoration order, that order was binding on appellant until a court either affirmed or reversed it or until the DNR decided to rescind the order.  See Minn. Stat. § 103G.2372, subd. 1(b) (2004).  Thus, it is questionable whether respondent had the authority to approve appellant’s application for a wetland replacement plan without encroaching on the DNR’s authority to issue and enforce orders.

            We affirm the district court’s summary judgment for respondent.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Appellant challenged the DNR’s restoration order in an appeal to BOWSR, which issued an order on November 7, 2005, denying his appeal and affirming the DNR’s restoration order; the restoration order became final after appellant failed to appeal BOWSR’s decision to this court.  See Minn. R. 8420.0280 (2005).  On November 18, 2005, the DNR issued an extension of the restoration order and gave appellant until December 15, 2005, to “complete the required restoration on [his] property,” warning appellant that he needed to satisfy the Restoration Order requirements “to avoid any criminal and civil action.”  The DNR issued appellant a citation on December 20, 2005, and on April 11, 2006, he pleaded guilty and agreed to restore the wetland by August 1, 2006.  Appellant thereafter complied and has received a certificate of satisfactory restoration.



[2] Within that 60-day period, on March 17, 2006, respondent extended its time limit for an additional 60 days; the parties do not dispute the district court’s conclusion that the extension was permitted under Minn. Stat. § 15.99, subd. 3(f).  See Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 314 (Minn. 2001) (agency must simply give reason in writing, along with duration of extension).  Respondent thus had until May 26, 2006, to make a decision, and it did so on April 21, 2006, when it denied appellant’s application.