This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Charles G. Born,



Commissioner of Natural Resources,


Filed January 20, 1998


Schumacher, Judge

Department of Natural Resources

File No. 7-2000-10424-2

Gerald W. Von Korff, Rinke-Noonan, 700 Norwest Center, P.O. Box 1497, St. Cloud, MN 56302 (for relator)

Hubert H. Humphrey III, Attorney General, Matthew B. Seltzer, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.



Relator Charles G. Born appeals from the denial of his application for a permit by respondent Commissioner of Natural Resources, arguing the decision was arbitrary and capricious and against the substantial evidence in the record. We affirm.


This case is about Willis Lake (the Lake). Willis Lake is a small, shallow, meandered lake located in Waseca County that is surrounded by higher land to the north, south and west. Approximately one-quarter to one-half mile to the east is the much larger Lake Elysian. A marsh is situated between the two lakes.

The Born and Strohl families have lived on farmland surrounding the Lake for most of this century. In 1919, the Strohl and Born families installed drainage tile in the eastern end of the Lake to drain some low-lying land for farming. The tile ran easterly, under County Road 18, and into the marsh next to Lake Elysian. Born's father installed a sump pump to move the water from the marsh into Lake Elysian.

As a result of this new system, the water level of the Lake became very low and the marsh was almost completely drained. In 1966, a neighboring landowner complained that illegal pumping was draining the Lake. The DNR subsequently blocked a cattlepass under County Road 18 and plugged the 1919 drain tile. In the intervening years, the water level continued to rise, and in 1993 flooded County Road 18. As a result, an outlet pipe was installed and the water level has remained below County Road 18 ever since.

In 1995, Born applied to the DNR for a permit to lower the water level of the Lake to 1016.5 feet above sea level. The DNR denied Born's application, concluding the ordinary high water level (OHWL) was 1023.7 feet. Born petitioned for a contested case hearing. On August 21, 1996, an administrative law judge affirmed the denial of Born's permit application, but concluded that the ordinary high water level (OHWL) should be measured at a "stain line," which was at a lower elevation than 1023.7 feet.

The DNR appealed the ALJ's alternative OHWL determination to the Commissioner of Natural Resources. The commissioner reversed the ALJ's decision, concluding the OHWL of the Lake was 1023.7 feet. Born appeals.


Upon review of a contested case hearing, this court may reverse or modify an agency's decision if the administrative findings, inferences, conclusions, or decisions are "[u]nsupported by substantial evidence" or are "[a]rbitrary or capricious." Minn. Stat. § 14.69 (1996). An agency ruling

is arbitrary and 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.

Minnegasco v. Minnesota Pub. Utils. Comm'n, 529 N.W.2d 413, 418 (Minn. App. 1995), rev'd on other grounds, 549 N.W.2d 904 (Minn. 1996).

This court will affirm the commissioner's findings if they are based upon substantial evidence in the record. See Minn. Stat. §§ 103G.315; 14.69(e) (1996). This court defers to the commissioner's reasonable inferences, unless manifestly unjust, "even though it may appear that contrary inferences would be better supported." Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977). Substantial evidence is:

(1) [s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) [m]ore than a scintilla of evidence; (3) [m]ore than some evidence; (4) [m]ore than any evidence; and (5) [e]vidence considered in its entirety.

Cable Communications Bd. v. Nor-West Cable Communications Partnership, 356 N.W.2d 658, 668 (Minn. 1984).

1. Born argues the commissioner's decision is arbitrary and capricious because the commissioner did not review the audiotapes of the contested case hearing. See In re Hutchinson, 440 N.W.2d 171, 176 (Minn. App. 1989) (addressing whether failure to read entire transcript of ALJ hearing rendered decision arbitrary and capricious), review denied (Minn. Aug. 9, 1989). Born argues the commissioner could not determine that Joe Strohl's testimony about an outlet to the Lake was "dubious" without reviewing the audiotapes.

Minn. Stat. § 14.62, subd. 1 (1996) requires that all administrative decisions be based on the record. In a contested case hearing, the record consists of

all pleadings, motions, and orders; evidence offered or considered; offers of proof, objections, and rulings thereon; the judge's findings of fact, conclusions, and recommendations; all memoranda or data submitted by any party in connection with the case; and the transcript of the hearing, if one was prepared.

Minn. R. 1400.7400, subp.1 (1995). A transcript is prepared only if requested by the agency, a party, or the chief ALJ. Minn. Stat. § 14.58 (1996). No transcript was prepared in this case; only audiotapes were made. In contested case hearings, the Office of Administrative Hearings is required to send the record, "except for the audiomagnetic recordings of the hearing," to the agency after the ALJ's decision. Minn. R. 1400.7400, subp.1 (1995) (emphasis added).

The commissioner in this case received all of the record he was supposed to receive because the Office of Administrative Hearings was not required to send the audiotapes and no transcript of the testimony was prepared. While Born argues the DNR should have ordered the audiotapes or a transcript because it was the DNR who took exception to the ALJ's decision, the DNR is not legally required to do so.

In addition, based on our reading of the commissioner's decision, we conclude the commissioner did not evaluate Strohl's credibility, but only weighed the demonstrative evidence to determine whether the Lake was landlocked. We conclude the commissioner's decision was not arbitrary and capricious.

2. Born argues the commissioner's decisions that the Lake is landlocked and that the OHWL is 1023.7 feet are contrary to the substantial evidence in the record.[1]

First, the record shows the elevation of the bed of the Lake at around 1015-16 feet. Other evidence shows the average water depth was 1.5 feet in 1947, and only in 1993 did the level top 1025 feet. The elevations on the eastern end of the Lake vary between 1023 to 1030 feet. The record also shows that before 1919, there was an old stone bridge that let water flow under Old County 18 and into the marsh. In 1947, the Born and Strohl families called that watercourse a "ditch." We conclude there is sufficient evidence to support the commissioner's conclusion that the Lake was landlocked.

Second, establishing a control elevation for a landlocked lake below the OHWL for that lake requires a permit from the Commissioner of Natural Resources. Minn. Stat. § 103G.405 (1996). The commissioner is authorized to determine the OWHL of public waters. See Minn. Stat. §§ 103G.401, 103G.405 (1996). OWHL means the boundary of public waters and

is an elevation delineating the highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape, commonly the point where the natural vegetation changes from predominantly aquatic to predominantly terrestrial.

Minn. Stat. § 103G.005, subd. 14(1) (1996).

In determining the OHWL, the commissioner is not limited to any particular time period as long as there is reliable evidence available for the time period used. See In re Determining Natural Ordinary High Water Level of Lake Pulaski, 384 N.W.2d 510, 516 (Minn. App. 1986) (holding commissioner did not err in considering evidence over a 150-year period where evidence was reliable). Moreover, the commissioner is not limited to determining the OHWL based solely on the elevation where the natural vegetation changes from predominantly aquatic to terrestrial. See Lindberg v. Department of Natural Resources, 381 N.W.2d 494, 496 (Minn. App. 1986) (holding commissioner may use "other evidence * * * which has been maintained for a sufficient period to leave evidence upon the landscape.").

The record includes a DNR Technical Paper by John Scherek and Glen Yakel on "Guidelines for Ordinary High Water Level (OHWL) Determinations" (the Guidelines). The Guidelines explain that

[t]he OHWL is a line of equal elevation surrounding a basin. The primary evidence of the OHWL are physical features on the landscape that indicate the presence and action of water upon the bed and banks of a basin. * * * The primary physical features searched for are (in order of importance) A) tree evidence, B) water-formed evidence and C) other vegetative evidence.

The OHWL should be based on tree evidence, except for landlocked lakes, which are based on water-formed evidence if found at a higher elevation than the tree evidence.

The record shows the commissioner properly examined the evidence in accord with the Guidelines. Because the commissioner is not bound by the ALJ's report and the agency's expertise is entitled to deference, Reserve Mining Co., 256 N.W.2d at 824-25, we conclude the commissioner's decision that the OHWL is 1023.7 feet above sea level is supported by substantial evidence in the record.


[1] Born's contention that the commissioner's decision of the OWHL at 1023.7 feet is an unconstitutional taking is unfounded.

A determination of the [OWHL] does not constitute a taking, for the Commissioner is merely determining which elevation constitutes "the highest water level which has been maintained for a sufficient period of time to leave evidence upon the landscape * * * ."

In re Determining Natural Ordinary High Water Level of Lake Pulaski, 384 N.W.2d 510, 517 (Minn. App. 1986) (quoting Minn. Stat. § 105.37, subd. 16).