This opinion will be unpublished and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

C0-96-966

John C. Bronczyk, et al.,

Appellants,

vs.

State of Minnesota, et al.,

Respondents.

Filed December 10, 1996

Affirmed

Willis, Judge

Anoka County District Court

File No. C39414691

William H. Mellor, Clint Bolick, Dana Berliner, Institute for Justice, 1001 Pennsylvania Avenue N.W., Suite 200 South, Washington, D.C. 20004 (for Appellants)

Erick G. Kaardal, Trimble and Associates, 11700 Wayzata Boulevard, Minnetonka, MN 55305 (for Appellants)

Hubert H. Humphrey, III, Attorney General, Matthew B. Seltzer, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for Respondents)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

WILLIS, Judge

John and Josephine Bronczyk commenced this action in district court, asking for declaratory judgment on issues regarding the public waters wetland on their property. The Bronczyks challenge the district court's grant of summary judgment to respondents. We affirm.

FACTS

The Bronczyks own 280 acres, most of which is wetland, in Anoka County. The Minnesota Department of Natural Resources (DNR) utilizes the wetland classification system set out in U.S. Fish and Wildlife Circular 39 (1979), which divides wetlands into eight types. Generally, only types 3, 4, and 5 wetlands are covered by water. A portion of the Bronczyks' land is covered by Columbus Lake, a type 4 wetland.

In 1982, the DNR issued a list of public waters and wetlands, which designated Columbus Lake a protected wetland.[1] The boundary of a public waters wetland is defined by its ordinary high water level. Minn. Stat. § 103G.005, subd. 14 (Supp. 1995). The DNR has not determined the exact boundary of the Columbus Lake public waters wetland, but it is conceded for purposes of this lawsuit that Anoka County Road 23, which abuts the northern boundary of the Bronczyks' property, is lower than the ordinary high water level of Columbus Lake.

The Bronczyks became concerned that because the ordinary high water level of the Columbus Lake public waters wetland intersects with County Road 23, the public would be able to gain legal access to their property. They filed suit in district court asking for a declaration, in the alternative, that (1) the ordinary high water level is not the boundary of the Columbus Lake public waters wetland; (2) they may exclude the public from the types 1, 2, 6, and 7 wetlands that are included in the Columbus Lake public waters wetland; or (3) if they have lost their right to exclude the public, a taking has occurred for which just compensation is required.

The district court granted summary judgment in favor of respondents, finding (1) the ordinary high water level is the boundary of the Columbus Lake public waters wetland; (2) there was no justiciable controversy as to the right to exclude because respondents admitted that the Bronczyks had the right to exclude the public from their public waters wetland property, subject to the riparian rights doctrine; (3) the Bronczyks had not exhausted their administrative remedies to determine the boundary of the wetland; and (4) the takings question was moot.

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issue of material fact exists and whether the district court correctly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Here, the parties agree there is no genuine issue of material fact, so the question on appeal is whether the district court correctly applied the law.

The Bronczyks argue the district court erred in finding (1) there was no justiciable controversy regarding whether Minnesota statutes grant public use to public waters wetlands up to the ordinary high water level, and (2) administrative remedies were available to determine the ordinary high water level of the public waters wetland on their property.

1. Justiciability of the Controversy

Under Minnesota law, a court may render a declaratory judgment when a person whose rights are affected by a statute seeks a declaration of those rights. Minn. Stat. § 555.02 (1994). For a court to have jurisdiction, there must be a justiciable controversy. Seiz v. Citizens Pure Ice Co., 207 Minn. 277, 281, 290 N.W. 802, 804 (1940). A justiciable controversy

involves definite and concrete assertions of right and the contest thereof touching the legal relations of parties having adverse interests in the matter with respect to which the declaration is sought, and must admit of specific relief by a decree or judgment of a specific character as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.

Id. Whether a court has jurisdiction is a question of law, subject to de novo review. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

The Bronczyks argue there is a justiciable controversy (1) because respondents are not bound by their admission that the Bronczyks have the right under Minnesota law to exclude the public from the public waters wetland on their property, subject to the riparian rights doctrine, and (2) because if they wrongly exclude hunters, they will be subject to prosecution under the hunter harassment statute.

The doctrine of riparian rights controls the Bronczyks' right to exclude the public from the Columbus Lake public waters wetland. Riparian rights are rights to the use and enjoyment of water that arise from the ownership of shoreline. Johnson v. Seifert, 257 Minn. 159, 165, 100 N.W.2d 689, 694 (1960). Under the riparian rights doctrine as developed in Minnesota, riparian owners may make reasonable use of the entire surface of a body of water. Id. at 169, 100 N.W.2d at 696-97. The public has riparian rights when a public highway abuts a body of water. See Flynn v. Beisel, 257 Minn. 531, 539, 102 N.W.2d 284, 290-91 (1960) (explaining that public may be riparian owner and may possess riparian rights to lake that abuts public streets). Because the surface of Columbus Lake does not extend to County Road 23, however, the public has no right of access to the Bronczyks' property from the road.

Minnesota statutes expressly provide that existing rights of access to public waters are not altered by a public waters designation.

The designation of waters of this state as public waters does not: (1) grant the public additional or greater right of access to the waters; (2) diminish the right of ownership or usage of the beds underlying the designated public waters; (3) affect state law forbidding trespass on private lands * * * .

Minn. Stat. § 103G.205 (1994). The Bronczyks argue this statute is confusing as applied to their property because it was written with "bodies of water in mind, not land designated as water." The supreme court, however, has applied the statute to public waters wetlands. See In re Application of Christenson, 417 N.W.2d 607, 612 (Minn. 1987) (applying Minn. Stat. § 105.391, subd. 12, which was repealed by 1990 Minn. Laws ch. 391, art. 10, § 4, and reenacted in its current version at section 103G.205). Columbus Lake's status as a public waters wetland therefore does not affect existing riparian rights of access to Columbus Lake.

The Bronczyks argue Minn. Stat. § 103G.235 (1994) implies that in the absence of a local ordinance, the public has a right of access to a public waters wetland if it abuts a public road:

To protect the public health or safety, local units of government may by ordinance restrict public access to public waters wetlands from municipality, county, or township roads that abut public waters wetlands.

Minn. Stat. § 103G.235. But the statute does not grant any additional public right of access to public waters wetlands; it merely gives local units of government the power to restrict access to public waters wetlands to which the public already has legal access.

The district court correctly found there was no justiciable controversy as to the right to exclude because respondents' admission that the Bronczyks have the right to exclude the public from their property, subject to the riparian rights doctrine, is based on the statutory and common law of Minnesota, which is binding on respondents as well as on the Bronczyks. The precise facts on which any right to exclude might be based are not now known, so any opinion by the district court would be based on hypothetical facts and would therefore be advisory.

The Bronczyks assert that because they are unsure of the extent to which they may exclude the public from their property, they fear prosecution under Minnesota's hunter harassment law.[2] For this concern to create a justiciable controversy, there must be more than an imagined or speculative fear of prosecution. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 2309 (1979). Here, the threat of prosecution is minimal, because the statute does not protect a hunter who is on private land posted with signs prohibiting hunting,[3] and the public has no legal right of access to the Bronczyks' property because the surface water of Columbus Lake does not extend to County Road 23.

The Bronczyks argue the district court erred in finding the case lacked "suitable parties to properly defend such a sweeping judgment" because they have no dispute with their neighbors or the road authority and seek only a declaration of their statutory rights. The Bronczyks, however, asked the district court for a declaration not only of their statutory rights, but also that they may legally exclude the public from their types 1, 2, 6, and 7 wetlands. Because these areas are sometimes under water, such a declaration would necessitate not only an adjudication of statutory rights, but also a determination of the riparian rights of third parties, including the Bronczyks' neighbors and the Anoka County road authority.

2. Availability of Administrative Remedies

The Bronczyks argue the district court erred in finding they were not entitled to a declaratory judgment on the boundary of the public waters wetland. The district court noted that it was not necessary to make a finding on the exact location of the high water mark of Columbus Lake because there are administrative remedies available to the Bronczyks should they need such a determination.

The exact boundary of the Columbus Lake public waters wetland is relevant for regulatory purposes, such as obtaining a public waters work permit, and does not affect the Bronczyks' right to exclude the public. See Minn. Stat. § 103G.245 (1994) (providing circumstances under which public waters work permit is required and may be granted); Pratt v. State, Dep't of Natural Resources, 309 N.W.2d 767, 771 (Minn. 1981) (concluding a public waters designation does not confer ownership on the state in a proprietary sense, but merely confers powers of regulatory control and protection). If the Bronczyks sought and were denied a work permit, they would be entitled to a hearing before an administrative law judge. Minn. Stat. § 103G.311, subd. 5(a) (1994). The Commissioner's decision would be subject to review by this court. Minn. Stat. § 14.63 (1994). It was therefore not error for the district court to conclude that administrative remedies are available to the Bronczyks to determine the boundary of the wetland.

Affirmed.

[ ]1In 1991, the legislature changed the term "wetland" to "public waters wetland." 1991 Minn. Laws ch. 354, art. 6 § 5. The substance of the definition remained the same and currently reads:

"Public waters wetlands" means all types 3, 4, and 5 wetlands, as defined in United States Fish and Wildlife Service Circular No. 39 (1971 edition), not included within the definition of public waters, that are ten or more acres in size in unincorporated areas or 2-1/2 or more acres in incorporated areas.

Minn. Stat. § 103G.005, subd. 18 (1994).

[ ]2

A person who has the intent to prevent, disrupt, or dissuade the taking of a wild animal or enjoyment of the out-of-doors may not disturb or interfere with another person who is lawfully taking a wild animal or preparing to take a wild animal.

Minn. Stat. § 97A.037, subd. 1 (1994).

[ ]3Hunting is prohibited on private land if the owner, occupier, lessee, or authorized manager has not given permission and has posted signs in accordance with Minn. Stat. § 97B.001, subd. 4 (1994).