Ted I. Mittelstadt, et al., petitioners, Appellants, vs. Martin County, its Board of Commissioners, Respondents. C3-01-1335, Court of Appeals Unpublished, March 12, 2002.

This opinion will be unpublished and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

C3-01-1335

Ted I. Mittelstadt, et al., petitioners,

Appellants,

vs.

Martin County, its Board of Commissioners,

Respondents.

Filed March 12, 2002

Affirmed

Lansing, Judge

Martin County District Court

File No. C601372

Thomas G. Dunnwald, Attorney at Law, 400 Flour Exchange, 310 South Fourth Avenue, Minneapolis, MN 55415 (for appellants)

Terrence J. Foy, Joseph J. Langel, Ratwik, Roszak, & Maloney, 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents)

Considered and decided by Hanson, Presiding Judge, Lansing, Judge, Schumacher, Judge.

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

LANSING, Judge

The Martin County Board passed, but later rescinded, a resolution to conduct an environmental review of a proposed animal feedlot. Ted and Maureen Mittelstadt petitioned for a writ of mandamus to direct the county to conduct the review. We affirm the district court’s denial of the writ because the county did not have a clear and present official duty to conduct the review and Minn. Stat. § 116D.04, subd. 10 (2000) provides that decisions on the need for an environmental assessment worksheet are reviewed by a declaratory judgment action, not by mandamus.

F A C T S

On March 6, 2001, Louis, Darren, and Richard Maday (Maday brothers) applied for permits to construct and operate an animal feedlot in Martin County. The Minnesota Pollution Control Agency (MPCA) requires a short-form construction permit for an animal feedlot with a capacity of 300 or more animal units. Minn. R. 7020.0405, subp. 1D (2001). Martin County requires an animal feedlot permit for a new or expanding animal feedlot that contains more than 10 animal units. Martin County, Minn., Feedlot Ordinance ch. 4, subd. 1 (1999). Because the Maday brothers’ proposed feedlot would house 400 animal units, the Maday brothers applied for a combined permit from Martin County and the Minnesota Pollution Control Agency.

As part of the animal feedlot permit application, Martin County requires the applicant to submit a manure management plan that sets forth the number of acres needed for land application of manure generated by the proposed feedlot. Martin County Feedlot Ordinance ch. 4, subd. 2(3). The MPCA rules also require the applicant to submit a list of all existing and proposed manure storage areas. See Minn. R. 7020.0505, subp. 4(5) (2001). In the combined permit application, the Maday brothers stated that they would spread the manure from the feedlot on 78 acres of land that they owned and 417 acres that they rented. The application stated that the manure would be spread on the land surface with immediate tillage.

In compliance with Martin County’s feedlot ordinance, the Maday brothers notified adjoining landowners of the pending application, and, on March 12, placed a public notice in the Fairmont Sentinel, a Martin County newspaper. See Martin County, Minn., Feedlot Ordinance ch. 5, subd. 1 (1999). One week later, on March 20, the environmental services director for Martin County, Harry Jenness, issued the Maday brothers a building permit for construction of two hog barns to be used in the feedlot operation. That same day, Martin County’s feedlot-pollution officer, Pam Flitter, conducted an on-site inspection of the proposed site, and, in her capacity as delegate for the Minnesota Pollution Control Agency, issued the construction short-form permit. See Minn. R. 7020.1600 (2001) (allowing delegation of certain MPCA duties to counties).

On April 1, 2001, the Mittelstadts, who homestead near the proposed feedlot, submitted a petition to the Environmental Quality Board (EQB), requesting that an Environmental Assessment Worksheet (EAW) be completed on the proposed feedlot. See Minn. Stat. § 116D.04, subd. 2a(c) (2000) (outlining procedure for petition to request environmental review of proposed project). The petition was signed by 27 Martin County and Faribault County residents and raised issues of groundwater contamination, insufficient acreage for manure application, abandoned wells, excessive run-off, and air quality from dust and dirt from the proposed access road. On April 9, 2001, the EQB forwarded the petition to Harry Jenness in Martin County, stating the EQB had appointed Martin County as the appropriate governmental unit to decide the need for an EAW.

On April 4, before the EQB forwarded the petition to Martin County, Jenness, responding to a courtesy copy of the Mittelstadt petition, denied the EAW. Jenness stated two reasons for his denial: (1) the petition did not contain material evidence to substantiate the environmental impact claim; and (2) the petition was untimely because it was not submitted before the proposed feedlot received final approval on March 20.

The Mittelstadts and several other petitioners attended the April 17, 2001 county board meeting to express their concern about the proposed feedlot. In response to Maureen Mittelstadt’s request, the commissioners unanimously voted to have the MPCA perform an EAW on the proposed feedlot. At the next county board meeting on May 1, 2001, the Maday brothers’ attorney appeared and requested that the board rescind its resolution, arguing that, because the permits had been issued on March 20, the residents’ petition and the decision to conduct an EAW were untimely. A majority of the commissioners refused to rescind. But at the May 15, 2001 county board meeting, on the advice of the county attorney, the board voted to rescind their earlier decision to order an EAW, and instead directed the Martin County environmental services staff to complete a voluntary EAW on the proposed feedlot.

About two weeks later, the Mittelstadts petitioned the district court for a peremptory writ of mandamus requiring Martin County to order preparation of an EAW and to enjoin feedlot construction until the EAW was prepared and evaluated. The district court issued an alternative writ of mandamus, but after an evidentiary hearing, quashed the writ and denied the mandamus. The court concluded that because the petition was untimely, the county board did not have a clear duty to order an EAW and that the proper procedure to review denial of an EAW was by declaratory judgment, not by writ of mandamus.

D E C I S I O N

Mandamus is an extraordinary legal remedy that courts issue only when the right to require performance of an act is clear and no valid excuse for nonperformance is apparent. Minn. Stat. § 586.04 (2000); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989). No writ will issue in any case in which a plain, speedy, and adequate remedy is available in the ordinary course of law. Minn. Stat. § 586.02 (2000); McIntosh, 441 N.W.2d at 118.

On appeal from an order that denies mandamus and finally determines the action, we review de novo whether the elements of the mandamus test have been satisfied. McIntosh, 441 N.W.2d at 118-19; see also Schiltz v. City of Duluth, 449 N.W.2d 439, 441 (Minn. 1990) (mandamus is a special proceeding). Thus, our review focuses on (1) whether the county board had a clear and present duty to order an EAW, and (2) whether the Mittelstadts had an adequate remedy in the ordinary course of law that would make a writ of mandamus unnecessary.

The EQB may, prior to final approval of a proposed project, require preparation of an environmental assessment worksheet. Minn. Stat. § 116D.04, subd. 2a(d) (2000). An environmental assessment worksheet must also be prepared for a proposed action if, before the proposed project has received final approval by the appropriate governmental units, 25 individuals submit a petition accompanied by material evidence of potential significant environmental effects. Minn. Stat. § 116D.04, subd. 2(a)(c) (2000). The MPCA rules promulgated under this statute define “approval” as “a decision by a unit of government to issue a permit or to otherwise authorize the commencement of a proposed project.” Minn. R. 4410.0200, subp. 4 (2001). The district court found that the March 20, 2001, issuance of the Martin County building permit and the MPCA animal feedlot permit constitutes final approval of the Maday brothers’ feedlot project, and, therefore, the petition for the EAW submitted twelve days later was untimely.

The Mittelstadts maintain the proposed feedlot did not receive “final approval” until April 12, 2001, when Faribault County approved use of cropland located in its jurisdiction for spreading manure from the proposed Martin County feedlot. We find no error in the county board’s decision that final approval occurred on March 20, 2001. Martin County employees reviewed the application and information submitted by the Maday brothers, including proposed plans for disposal of manure, and accepted it as sufficient to issue the necessary permits on March 20. The Mittelstadts have never directly challenged either the permit process adopted by Martin County and the MPCA or the permit process used to issue the Maday brothers’ permit. The Faribault County approval of disposition of the manure was ancillary to construction and operation of the proposed feedlot. If the Maday brothers had not received approval from Faribault County to spread manure, they may have had to make other arrangements to dispose of the manure, but the permits issued on March 20, 2001, to construct and operate the proposed feedlot were still valid until revoked. It was thus within the authority of the county board to deny the petition as untimely; the board did not have a clear legal obligation to order an EAW.

The county board’s difficulty in charting a reasoned and responsible course through these proceedings demonstrates a shortcoming or an oversight in the statutory procedures that raises issues of procedural fairness. Neither the MPCA rules nor the Martin County feedlot ordinance provides a waiting period between the permit application and the permit approval. Because counties can act on behalf of the MPCA on certain proposed feedlots, see Minn. R. 7020.1600 (2001), it is conceptually possible that a permit could be approved on the same day it is submitted. This potential loophole would thwart the purpose of the petition process. See Minn. R. 4410.0300, subp. 4 (2001) (purpose of petition process is to provide public with systematic access to decision makers); see also Minn. Public Interest Research Group v. Minn. Envir. Qual. Council, 306 Minn. 370, 375-76, 237 N.W.2d 375, 379 (1975). In this case, however, the Mittelstadts did not raise issues of procedural fairness, and the record demonstrates that the Mittelstadts had one to two weeks before the permits were approved in which to gather signatures and supporting evidence.

In addition to the county board not having a clear duty to order an EAW, it did not have a “present” duty to order it. Mandamus does not lie to control or interfere with the exercise of discretion, but only to set the exercise of such discretion in motion. State ex rel. So. St. Paul v. Hetherington, 240 Minn. 298, 301-02, 61 N.W.2d 737, 740 (1953). The MPCA rules allow the responsible governmental unit selected by the EQB to evaluate the petition and consider whether an environmental assessment worksheet should be prepared for a proposed project. See Minn. Stat. §116D.04, subd. 2a(c); Minn. R. 4410.1100, subp. 6 (2001). Mandamus would be an inappropriate remedy to control this discretionary decision of the appointed responsible governmental unit.

Although not raised in this litigation and not dispositive of this appeal, the MPCA rules state that the EQB should not designate any governmental unit that has already made a final decision on granting permits or approval as the “responsible governmental unit” for deciding whether an EAW is necessary for a proposed project. See Minn. R. 4410.0500, subp. 3 (2001). Because Martin County had issued a final permit, neither Martin County nor its employees should have been appointed to decide the need for an EAW.

The denial of mandamus was also proper on the independent ground that an adequate alternative remedy was available to the Mittelstadts’ in the ordinary course of law. The statute outlining the petition process provides a specific means for obtaining judicial review of a decision on the need for an EAW:

[d]ecisions on the need foran environmental assessment worksheet * * * may be reviewed by a declaratory judgment action * * * within 30 days after the governmental unit makes the decision * * * .

Minn. Stat. § 116D.04, subd. 10.

In an apparent attempt to balance the needs of those proposing the project and those opposing the project, the statute provides a limited window of time in which to seek review of the decision. The Mittelstadts did not seek declaratory review of Harry Jenness’s April 4, 2001 decision to deny the EAW request. Mandamus is not available when the Mittelstadts had an adequate remedy in the ordinary course of law to review the decision to deny the EAW. See Minn. Stat. § 586.02 (mandamus shall not issue in any case “where there is a plain, speedy, and adequate remedy at law”); Victor Co. v. State, 290 Minn. 40, 46, 186 N.W.2d 168, 172-73 (1971) (since petitioner was afforded a statutory remedy authorizing appeal, it was not entitled to seek mandamus).

Affirmed.