may not be cited except as provided by
Minn. Stat. sec. 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Stephen L. Quade of the Department
of Natural Resources' Limited Permit
No. 95-11002 to Construct Three Wildlife
Ponds in Wetland 29-310W,
Hubbard County, Minnesota.
Filed February 17, 1998
File No. 9200099842
Gerald T. Carroll, Jr., Carroll & Carroll, P.A., 100 South Fifth Street, #2250, Minneapolis, MN 55402 (for relator)
Hubert H. Humphrey, III, Attorney General, David P. Iverson, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
Relator Stephen Quade challenges the jurisdiction of the Department of Natural Resources (DNR) to regulate a proposed project on his land. The DNR commissioner found that the DNR had jurisdiction over the project. We affirm.
In October 1994, Quade applied to the DNR for a permit to construct three wildlife ponds on his land. In November 1994, he added a request to reconstruct the berm to a width of twelve feet, to be used as a roadway to the island. The DNR authorized the construction of the ponds, but denied Quade's request to install the roadway. The DNR found that it had jurisdiction over the project because almost all of the proposed roadway would be below the ordinary high water level (OHWL) of a protected wetland.
In 1996, a contested hearing to determine the OHWL was held before an administrative law judge (ALJ). John Scherek, a DNR expert, testified that trees provide the best evidence for determining OHWL, and that they are primary evidence of OHWL under DNR guidelines. The tree method is considered reliable because of the permanent character of trees and because trees would die if they were inundated with water for a long period. OHWL can vary across a sloping wetland. Scherek determined that the Badoura Bog is a sloping wetland and did a site-specific survey in the area of the proposed roadway. He found that the OHWL was 1,401.9 feet mean sea level and that most of the berm (and thus the proposed roadway) was located below the OHWL.
The ALJ concluded that the DNR did not meet its burden of establishing the OHWL by a preponderance of the evidence. The ALJ found that the lateral ditch would flow east if the culvert were not blocked. Therefore, she looked at aerial photographs and recomputed the OHWL, finding it to be below 1,400 feet. The ALJ concluded that Quade's proposed roadway would be above the OHWL and that the DNR lacked jurisdiction over this project.
The DNR commissioner disagreed and found that the OHWL is 1,401.9 feet, as indicated by DNR experts. The commissioner also decided that because the impact of the blocked culvert is unclear, Quade was entitled to a limited permit to build the roadway. The commissioner found that the ALJ improperly shifted the burden of proving the OHWL to the DNR. It further found that the ALJ's determination did not follow DNR guidelines, was not supported by the testimony, and that the ALJ inappropriately substituted her judgment for that of the agency.
The commissioner reviews the entire record, of which the ALJ's recommendation is only one part. City of Moorhead v. Minnesota Pub. Utils. Comm'n, 343 N.W.2d 843, 847 (Minn. 1984). The ALJ's recommendation is not binding on the commissioner. Hymanson v. City of St. Paul, 329 N.W.2d 324, 326 (Minn. 1983).
We may reverse or modify agency decisions if the findings, inferences, conclusions, or decisions are not supported by substantial evidence or are arbitrary or capricious. Minn. Stat. § 14.69(e), (f) (1996). Substantial evidence means:
"1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; 2) more than a scintilla of evidence; 3) more than `some evidence'; 4) more than `any evidence'; and 5) evidence considered in its entirety."
Reserve Mining Co., 256 N.W.2d at 825 (citing with approval the district court). An agency decision is arbitrary and capricious when it represents the agency's "`whim, improper influence, or misplaced zeal.'" Id. at 825 (quoting Greater Boston Television Corp. v. F.C.C., 444 F.2d 841, 852 (D.C. Cir. 1970)). Id.
The OHWL is defined as the boundary of a public waters wetland and
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). If a proposed project will lie below the OHWL, then the construction will be on a wetland, and the DNR has jurisdiction to grant or deny a permit for the project.
The parties disagree about which of them has the burden of proof. The ALJ placed the burden on the DNR; the commissioner placed it on Quade. Notwithstanding placement of the burden, the commissioner affirmatively found that the OHWL is 1,401.9 feet, and therefore, the DNR has met any burden that it had.
Quade argues that the tree method for determining OHWL is flawed and that it is not used by anyone in the scientific community other than the Minnesota DNR. He argues that the ALJ correctly determined the OHWL and therefore the decision of the commissioner should be reversed.
We defer to the commissioner and do not look to the ALJ except for matters of credibility. See Matter of Hutchinson, 440 N.W.2d 171, 175-76 (Minn. App. 1989) (deference is owed to commissioner and not to ALJ, but closer scrutiny may be given to ALJ's findings on credibility), review denied (Minn. Aug. 9, 1989). There is substantial evidence to support the commissioner's decision that the tree method is sufficiently accurate and produced reliable results in this case. Scherek has been determining water levels for 26 years using the method set out in DNR guidelines. Several witnesses testified that they had confidence in his determination. Scherek's testimony provides substantial evidence that the OHWL is 1,401.9 feet and that almost all of the proposed roadway would lie below the OHWL.
Quade next argues that the tree method yields an artificially high water level because the flow of the ditch is blocked. Quade's expert witness testified that, but for the obstructed culvert, Lateral No. 3 would operate to carry water east to the main ditch. Thus, the ditch would drain the land, and the water level on Quade's property would be lower. The commissioner did not agree with this theory. There is testimony to support the commissioner's conclusion that Quade did not conclusively establish that the water would flow east if the culvert were not blocked. There was no evidence of what the OHWL would be if the culvert were open. The witnesses agreed that the ditch was designed to flow east, but many stated that ground elevations make it appear that the water would flow west or that they had not seen any movement in the ditch.
Moreover, the statute defines OHWL as an elevation that "has been maintained for a sufficient period of time to leave evidence upon the landscape," and the culvert obstruction has been in place for a "sufficient period." See Minn. Stat. § 103G.005, subd. 14 (1996) (defining OHWL). Witnesses testified that the culvert appears to have been blocked for years. Therefore, evidence supports the conclusion that the OHWL was lawfully determined even though the culvert has been blocked; substantial evidence supports the commissioner's finding of uncertainty with respect to the flow of the water. It was reasonable for the commissioner to accept the DNR's determination of the OHWL despite the blocked culvert.
Quade also argues that Minnesota ditch law supports his position. He argues that judicial ditches can be altered only by a legal proceeding. See Minn. Stat. § 103E.811, subds. 1-5 (1996) (procedure for abandoning a drainage system includes a petition by property owners and a hearing). Quade claims that Lateral No. 3 has not been abandoned and still must be considered a ditch, that he has the right to maintain it, and that any control by the state is subordinate to his rights.
Quade's arguments stretch the law. Landowners who have been assessed for benefits arising from a public ditch have a property right in the ditch. Petition of Jacobson v. Kandiyohi County, 234 Minn. 296, 299, 48 N.W.2d 441, 444 (1951). This property right cannot be damaged or taken away without due process of the law. Id. But the property right protects owners only from changes in the ditch system, it does not include a right to rebuild an inoperable ditch. The ditch authority has the duty to maintain a drainage system. Minn. Stat. § 103E.705, subd. 1 (1996). No law gives power to an individual property owner to rebuild a public ditch. Thus, Minnesota ditch law does not affect this case and does not divest the DNR of jurisdiction over Quade's proposed project.
In sum, the parties presented conflicting testimony about the method of determining OHWL and the effect of the blocked outlet. The commissioner decided the matter. There is substantial evidence in the record to support the commissioner's findings.
Quade also requested attorney fees. Because Quade did not prevail in this action, we do not consider his request.
 Because the commissioner granted Quade a permit to build the roadway, the DNR argues that this appeal is moot. We disagree because the commissioner placed several conditions on the construction and ongoing use of the roadway. Quade challenges both those conditions and the DNR's right to exercise control over his property.