This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-1150

 

In the Matter of Determining the Ordinary

High Water Level of Goose Lake,

Waconia Township, Carver County, and

Establishing and Maintaining Appropriate

Water Levels Thereon.

 

Harold E. Farnes,

Relator,

 

vs.

 

State of Minnesota,

Department of Natural Resources,

Respondent.

 

Filed October 30, 2001

Affirmed
Klaphake, Judge

 

Office of Administrative Hearings

File No. 6-2000-12801-2

 

Scott R. Timm, Timm Law Office, 41 West Second Street, Waconia, MN  55387 (for relator Farnes)

 

Mike Hatch, Attorney General, Peter L. Tester, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN  55101 (for respondent DNR)

 

Michael A. Fahey, Carver County Attorney, 600 East Fourth Street, Chaska, MN  55318 (for respondent Carver County)

 

William G. Peterson, 360 Minnesota Drive, Suite 880, Bloomington, MN  55435 (for respondent Goose Lake Property Owner’s Association)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Relator Harold Farnes challenges a decision by the Commissioner of the Department of Natural Resources (DNR) establishing an Ordinary High Water Level (OHWL) of 968.7 feet above sea level and a control elevation of 968.3 feet above sea level for Goose Lake in Carver County.  These levels were proposed by respondent DNR and are based on a 1999 DNR survey of the lake.  Relator, who is a lakeshore owner and advocated for a lower lake level, argues that the commissioner called the hearing in this matter for an improper purpose and that the focus should have been on investigating and removing an “illegal” control structure, which was built on the lake in the 1960s and was never granted a permit by the DNR.

            Also named as respondents are Carver County and the Goose Lake Property Owners’ Association.  Carver County indicated to this court that it would not file a brief on appeal.  The association asked the commissioner to adopt a “natural” OHWL, which it claimed would restore the lake to a pre-1940 level, prior to ditching that significantly lowered the level of the lake.  In its brief to this court, the association indicates that although it favors lake levels higher than that established by the commissioner, it prefers the levels established by the commissioner to the “destructively low levels” advocated by relator.

            Because the commissioner has broad statutory authority to set lake levels in order to “conserve or utilize” public waters of the state, he had the authority to call this hearing following complaints from lakeshore owners and increasing controversy over the lake levels.  See Minn. Stat. § 103G.401(b) (2000).  Because an OHWL is defined as the “highest water level that has been maintained for a sufficient period of time to leave evidence upon the landscape,” determination of an OHWL does not require that long-standing ditches or outlet structures be ignored or removed, even if those devices were originally unpermitted.  See Minn. Stat. § 103G.005, subd. 14(1) (2000).  Finally, because the commissioner’s findings are supported by substantial evidence and because those findings amply support the conclusions reached regarding the OHWL and control elevation for the lake, we affirm the commissioner’s decision.

D E C I S I O N

            Our review of the commissioner’s order is narrow in scope and deferential in nature.  See White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  We must assume that the commissioner’s decision is correct and may reverse only upon “an error of law or when the findings are arbitrary and capricious or unsupported by substantial evidence.”  Crookston Cattle Co. v. Minn. Dep’t of Natural Res., 300 N.W.2d 769, 777 (Minn. 1980) (citation omitted); see also Minn. Stat. § 14.69 (2000).

I.

            By statute, the commissioner is authorized to administer

(1) the use, allocation, and control of waters of the state; (2) the establishment, maintenance, and control of lake levels and water storage reservoirs; and (3) the determination of the ordinary high water level of waters of the state.

 

Minn. Stat. § 103G.255 (2000).  In addition, the commissioner is specifically authorized to “initiate proceedings to establish and maintain the level of public waters” in order to “conserve or utilize the water resources of the state.”  Minn. Stat. § 103G.401(b).

            Relator argues that the commissioner lacked authority to initiate these proceedings.  The commissioner has always had broad authority to initiate investigations, hearings, and projects to preserve and enhance the public waters of this state, including the establishment of lake levels.  See, e.g., In re Lake Elysian High Water Level, 208 Minn. 158, 161, 293 N.W. 140, 141-42 (1940); In re Determining the Natural Ordinary High Water Level of Lake Pulaski, 384 N.W.2d 510, 517-18 (Minn. App. 1986); Lindberg v. Dep’t of Natural Resources, 381 N.W.2d 494, 496 (Minn. App. 1986).[1]

            Under the broad power to “conserve or utilize” public waters, the commissioner continues to have the authority to initiate proceedings to establish lake levels when necessary to serve public interest and to address activities that affect public waters.  As one DNR employee testified at the hearing before the administrative law judge (ALJ), the public interests at stake include the DNR’s goal of maintaining lake levels so as not to alter the OHWL of the lake, to maintain the types of recreational uses that have traditionally occurred on the lake, and to resolve the dispute between landowners over the control structure on the lake.  When presented with these issues and concerns, the commissioner had the authority to initiate these proceedings.

            Relator further argues that Minn. Stat. § 103G.401(b) requires the commissioner to not only to “conserve or utilize” water resources, but also to “maintain” any water level established by the commissioner.  Relator criticizes these proceedings because nothing in the commissioner’s order addresses maintenance of the proposed control level, which he claims involves “extensive dam construction, pumps [or] wells” and which “would logically be reserved to matters of state-wide concern * * * as opposed to accommodating the agenda of private parties.”

            When establishing the lake levels, the commissioner necessarily considered that these levels existed and could be maintained under current lake conditions, both natural and artificial.  As the ALJ stated, one of the reasons he adopted the DNR’s proposed levels is because the DNR considered the current lake conditions.  The ALJ further stated that the higher, historic OHWL of 973.3 would be “unattainable” unless the ditch was filled in or unless “a substantial new dike or water control structure were built at the outlet,” options which were not presented or considered at the hearing.  Thus, the commissioner necessarily concluded that the control elevation of 968.3 could be “maintained” under current lake conditions.

II.

            Relator argues that because the outlet structure was never permitted, it is an “illegal” structure that must be removed.  He describes it as a “flow-through fish barrier,” and ignores its use since the 1960s as a way to manipulate lake levels disturbed by ditching in the 1940s, which was also unpermitted and unauthorized.  Throughout the hearing and here before this court, relator continues to argue that this proceeding should address and be limited to investigating and removing this illegal structure.

            Early in the hearing, the ALJ made it clear that this proceeding was intended to establish the OHWL and the control elevation for the lake, and that the legality or illegality of the control structure would not be addressed. The ALJ indicated that he would consider evidence regarding the manipulation of the planks to the extent that it affected the lake levels, but that he was not interested in hearing evidence regarding who was responsible for this activity.

            The purpose of this proceeding was to establish the OHWL of the lake, which is defined as 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) (2000).  The ALJ properly considered the ditching and the control structure to the extent that they have been maintained and used for a sufficient period of time so as to have influenced the water levels, which in turn have left evidence on the landscape.  As the commissioner explained, the procedure for establishing an OHWL does not require that the level be adjusted so that illegal or unpermitted structures are disregarded:

[Relator] argues the DNR’s procedures for establishing the OHWL should not have been based upon “artificial” data created in part by man-made devices, for which no permits were issued.  The method used by the DNR to establish the OHWL * * * was appropriate and consistent with the Department’s Technical Paper No. 11, Guidelines for Ordinary High Water Level (OHWL) Determinations.  Nothing in the guidelines requires an adjustment to the OHWL if long-standing water control devices were installed without a permit.  The DNR process in establishing the OHWL has been recognized as the appropriate method by Minnesota courts.

 

We therefore reject relator’s argument that the levels adopted by the commissioner are somehow flawed because they are based on water levels influenced by the control structure.

            Finally, we note that the extensive, detailed findings and conclusions of the ALJ and the commissioner are not directly challenged by relator here.  We conclude that substantial evidence in the record supports those findings and that those findings support the conclusions reached by the commissioner.  See Lake Pulaski, 384 N.W.2d at 517 (commissioner, not this court, determines weight to be given to testimony and inferences to be drawn therefrom); Lindberg, 381 N.W.2d at 497 (substantial evidence is “[s]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion”).

            The decision of the commissioner is affirmed.

            Affirmed.