This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-96-1004

State of Minnesota
by Douglas J. Schaller,
Appellant,

vs.

County of Blue Earth,
Respondent.

Filed August 6, 1996
Affirmed
Peterson, Judge

Blue Earth County District Court
File No. C5-96-260

Karl O. Friedrichs, Friedrichs & Marsh, P.A., 237 Belgrade Avenue #200, North Mankato, MN 56003 (for Appellant)

Lawrence A. Maloney, Joel E. Abrahamson, Doherty, Rumble, & Butler, Professional Association, 3500 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402-4235 (for Respondent)

Ross E. Arneson, Blue Earth County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Davies, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

Appellant claims the district court erred by (a) granting summary judgment on appellant's claim of a potential violation of the Minnesota Environmental Rights Act (MERA) in the year 2010; (b) ruling that appellant did not establish a prima facie case that construction of a highway will materially damage natural resources; and (c) not applying certain federal statutes to this case. We affirm.

FACTS

In 1988, respondent County of Blue Earth started to investigate the possibility of building a new highway. The county chose a route that requires land owned by the Schallers as well as land that is part of a park. The highway will initially have two lanes and is planned to expand to four lanes. Douglas J. Schaller sued the county in February 1996, claiming that the highway would violate MERA because there would be a potential infraction of noise standards in the year 2010 if the highway were expanded to four lanes. He also claimed that the highway would adversely impact natural resources. In April 1996, the trial court granted the county summary judgment on the noise claim. After trial, the trial court granted the county's motion for a directed verdict on Schaller's claims regarding the natural resources. This appeal followed.

D E C I S I O N

1. Some land along the proposed highway route may, in the year 2010, be subject to noise that would violate current noise standards. The county claims that Schaller lacks standing to make a noise claim because the Schaller land is not among the parcels subject to the potential noise violation. "Standing may be conferred by statute." In re Sandy Pappas Senate Comm., 488 N.W.2d 795, 797 (Minn. 1992). MERA allows suits by "[a]ny person residing within the state." Minn. Stat. ' 116B.03, subd. 1 (1994). Therefore, we review the standing issue de novo. See Metropolitan Property & Casualty Ins. Co. v. Metropolitan Transit Comm'n, 538 N.W.2d 692, 695 (Minn. 1995) (statutory construction is a legal question reviewed de novo).

MERA's definition of "person" is not limited to persons who suffer damage that differs from the damage suffered by the public. Minn. Stat. ' 116B.02, subd. 2 (1994). The county, by claiming that Schaller lacks standing because the Schaller property is not projected to suffer excessive noise, attempts to read such a limitation into the statute. We reject the county's argument. See Wallace v. Commissioner of Taxation, 289 Minn. 220, 230, 184 N.W.2d 588, 594 (1971) ("courts cannot supply that which the legislature purposely omits or inadvertently overlooks"). [1]

2. The trial court ruled that a potential noise violation in 2010 was "too speculative, premature, and minimal" to establish a prima facie case on the noise issue and granted summary judgment on that issue. Schaller claims the noise issue should have gone to trial because the county's documents show a potential for a noise violation in 2010. On appeal from a summary judgment, we ask whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Also, we view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Schaller must show that the county's conduct violates or is "likely to violate" the noise standard. Minn. Stat. ' 116B.04. Schaller's assertion of a noise violation is premature. There is no current noise violation. Also, the record shows that Schaller's assertion of a future noise violation in 2010 is unduly speculative because (a) the potential violation is projected to occur in 2010; (b) the final environmental impact statement describes the noise violation as "potential" rather than certain; and (c) the potential violation assumes both that the noise standards will be the same in 2010 as they are now and that the county will not get a variance. Furthermore, the highway to be constructed is a two-lane highway, and the projected noise violations assume a four-lane highway. Thus, even viewing the record in the light most favorable to Schaller and ignoring the county's evidence, Schaller has not shown that a future noise violation is "likely" and has not presented a prima facie case for a noise violation. See Geiger v. Geiger, 470 N.W.2d 704, 708 (Minn.App. 1991) (prima facie case requires sufficient proof to support a finding if evidence to the contrary is disregarded), review denied (Minn. Aug. 1, 1991). Because Schaller's noise claim is premature and too speculative to create a fact question, the trial court did not err in granting summary judgment on the noise claim.

3. A directed verdict should be granted only where the evidence, viewed as a whole, would require the trial court to set aside a contrary verdict or where the law precludes a contrary verdict. Peterson v. Little-Giant Glencoe Portable Elevator, 366 N.W.2d 111, 115 (Minn. 1985). In granting the county's motion for a directed verdict [2] the trial court applied a test set out in State ex rel Wacouta Township v. Brunkow Hardwood Corp., 510 N.W.2d 27, 30 (Minn. App. 1993) and ruled that Schaller failed to establish a prima facie case for a MERA violation because he did not show that the damage to natural resources likely to be caused by the highway was material.

Under Brunkow, a four-factor test is used to determine whether judicial intervention is proper because of the pollution, impairment, or destruction of a natural resource:

(1) whether the natural resource involved is rare, unique, endangered, or has historical significance, (2) whether the resource is easily replaceable, (for example, by replanting trees or restocking fish), (3) whether the proposed action will have any significant consequential effect on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed), and (4) whether the direct or consequential impact on animals or vegetation will affect a critical number, considering the nature and location of the wildlife affected.

Brunkow, 510 N.W.2d at 30 (citation omitted). Here, (a) neither Schaller nor his experts claimed that the resources at issue were rare, endangered, or threatened; (b) as found by the trial court and noted in Brunkow, trees can be replanted; (c) the impact on surrounding resources is limited because a two-lane highway will necessitate only about 17 acres of the 31 acres condemned; and (d) expert testimony indicated that, in Blue Earth County, the most abundant type of land in its original condition is woodland, which is the type of land the highway will run across on the Schaller property. To the extent Schaller claims that the family farm is a historical resource, he admitted that the farm would retain its "century farm" designation after the highway was completed. Absent satisfaction of the Brunkow test, judicial intervention via MERA is not proper. Brunkow, 510 N.W.2d at 30.

Schaller claims that we must overrule Brunkow because it is inconsistent with MERA. Schaller notes that MERA protects "all" natural resources. Minn. Stat. ' 116B.02, subd. 4 (1994). He then argues that Brunkow is inconsistent with MERA because it allows construction projects that alter the environment and any authority that does so, does not protect all natural resources. This reading of MERA was rejected in Brunkow. 510 N.W.2d at 30. Also, it improperly deletes from the statutory definition of "[p]ollution, impairment, or destruction" the requirement that damage be material. See Minn. Stat. '' 116B.02, subd. 5 (definition of "pollution, impairment or destruction" includes materiality requirement); 645.16 (1994) (a law is construed, if possible "to give effect to all its provisions"). We decline to overrule Brunkow.

4. The thrust of Schaller's claim that the principle of non-proliferation applies here is that public policy discourages damage to natural resources. That policy is embodied in MERA. See 116B.01 (1994) (stating legislative findings and MERA's purpose). Thus, the non-proliferation question is one of whether MERA is satisfied.

5. Schaller claims that because the highway is partially federally funded, (1) federal law applies and (2) the highway cannot be put through the park unless "there is no feasible and prudent alternative and the harm to the park is minimized. See 23 U.S.C. ' 138 (1994 (forbidding the United States Secretary of Transportation from approving highway construction projects requiring park land unless "there is no prudent and feasible alternative" and damage to the park land is minimized); 49 U.S.C. ' 303(c) (1994) (stating same). [3] Schaller claims that the trial court did not consider whether there were "feasible and prudent" alternatives and that the case must be remanded. This action is not a federal action and was not brought against the Secretary of Transportation.

6. Because we affirm the trial court on other issues, we do not address the county's claim that Schaller's action is barred by laches.

Affirmed.


Footnotes

[1]The county cites United States v. Reserve Mining Co., 412 F.Supp. 705, 713 (D. Minn. 1976) to support its argument. Reserve is distinguishable. There, the court addressed a motion by the city of Duluth for reimbursement of certain expenses. In doing so, the court noted in passing that because the city was injured by Reserve's conduct, it (the city) had standing to sue under MERA. Id. The specific question of whether a MERA plaintiff had to be injured differently from the general public was not addressed. Id. Thus, Reserve is not dispositive on this issue. See Nadeau v. Melin, 260 Minn. 369, 375, 110 N.W.2d 29, 34 (1961) ("[a] decision must be construed in the light of the issue before the court").

[2]The county claims that the trial court applied the wrong standard in addressing its motion for a directed verdict. This claim was not raised in the county's notice of review and is beyond our scope of review. Larson v. New Richland Care Center, 520 N.W.2d 480, 483 (Minn. App. 1994).

[3]Schaller actually cites 49 U.S.C.' 303, subd. 4(f), which was repealed and replaced by the statute cited above, and 16 U.S.C. ' 4602(8)(f)(3), which does not exist.