In the Matter of the Improper Inclusion of Certain Water Courses within Public Waters Inventory Maps for 71 Counties.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0904

In the Matter of the Improper Inclusion
of Certain Water Courses within
Public Waters Inventory Maps for 71 Counties.

Filed April 23, 2018
Appeal dismissed
Peterson, Judge

Minnesota Department of Natural Resources

Leigh K. Currie, Elise L. Larson, Kevin Reuther, Minnesota Center for Environmental
Advocacy, St. Paul, Minnesota (for relator Minnesota Center for Environmental
Advocacy)

Lori Swanson, Attorney General, Max Kieley, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Natural Resources)

Mehmet K. Konar -Steenberg, St. Paul, Minnesota (for amici curiae Minnesota
Conservation Federation, et al.)

Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this certiorari appeal, r elator challenges the respondent agency’s order directing
the removal of certain watercourses from public waters inventory maps . We dismiss th e
appeal for lack of jurisdiction.

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FACTS
In 1979, the Minnesota Legislature directed the commissioner of the Minnesota
Department of Natural Resources (the DNR) to inventory the waters of each county and
make a preliminary designation of all public waters and wetlands and send a list and a map
of the designated waters and wetlands to each county board for its review and comment .
1979 Minn. Laws ch. 199, § 7, at 336 -37. The legislature defined “public waters” and
“wetlands.” 1979 Minn. Laws ch. 199, §§ 2-3, at 334 -35. The legislat ure also set forth
specific procedures for compiling the public waters inventory (PWI) lists and maps, which
included public meetings, notices, reviews, hearings, appeal s, revisions, and publication
procedures. 1979 Minn. Laws ch. 199, § 7, at 336 -37. The commissioner is required to
maintain a PWI map for each county , and, when a map is revised, send a notification or
map to the auditor of the affected county. See Minn. Stat. § 103G.201(a) (2016).
When the commissioner performed the original PWI, approximately 640 miles of
watercourses that fit within the definition of public waters were designated on the PWI
maps as public ditches. On the PWI maps, these watercourses were designated by heavy
dashed lines, which combined the symbols for public waters—a heavy dark line—with the
symbol for public ditches —a dashed line , because it was believed that they were part of
public ditch systems and were also altered natural watercourses within the statutory
definition of “public wa ters.” Public ditches were assumed to be under the authority of
public drainage authorities. See Minn. Stat. § 103E.005, subds. 9, 12 (2016) (defining
“drainage authority” to include “the board or joint county drainage authority having

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jurisdiction over a drainage system or project” and “drainage system” to include ditches).
These watercourses with dual designation were not included on the PWI lists.
In 2015, the legislature enacted legislation to protect public waters and water quality
by establishing buffer zones between bodies of water and land-based activities. 2015 Minn.
Laws 1st Spec. Sess. ch. 4, art. 4, § 79, at 2054 -58 (codified as amended at Minn. Stat.
§ 103F.48 (Supp. 2017)). The legislation established different widths of mandatory buffer
zones, the widest of which was for zones next to public waters. Minn. Stat. § 103F.48,
subd. 3(a)(1). The legislature directed the commissioner to establish and maintain maps of
the buffer zone areas. Minn. Stat. § 103F.48, subd. 1(d). The buffer -zone law was
amended in 2017 to define “public waters” as “public waters that are on the public waters
inventory as provided in section 103G.201.” 2017 Minn. Laws ch. 93, art. 2, § 105, at 704
(codified at Minn. Stat. § 103F.48, subd. 1(i)).
In the course o f establishing the buffer -zone maps, the DNR noticed that the
watercourses with dual designation on the PWI maps had not been included on the PWI
lists. The DNR believed that some landowners had not received notice that watercourses
on their land were designated as public waters because they were not included on the PWI
lists, and as a result, the landowners may have failed to object to the original designation
of these watercourses as public waters. The DNR concluded that this resulted in errors in
the original PWI.
The commissioner has authority to revise the PWI map for each county “as needed,
to . . . correct errors in the original inventory.” 2005 Minn. Laws ch. 138, § 1, at 1168
(codified a t Minn. Stat. § 103G.201(e)(2)(i) (2016) ). In March 201 7, the DNR began

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examining how to convert watercourses improperly labeled as public ditches to
watercourses designated as public waters. After a preliminary review, the DNR believed
that some of the disputed watercourse segments should remain as public wa ters but some
should not; the DNR decided to use a process in which all of the disputed segments would
be removed from the PWI maps, after which the DNR would “evaluate a smaller portion
of the segments that might warrant adding back to the PWI [maps].” There were 559
disputed segments totaling about 670 miles.
Following this internal investigation , the commissioner adopted findings of fact ,
conclusions of law, and an order directing “revisions to the relevant PWI maps in order to
correct errors in the original inventory process.” The revisions removed certain
watercourses from the county PWI maps and from the buffer -zone maps. On the same
date, April 13, 2017, the DNR administrative group issued an explanation and directives
to staff. All of the actions surrounding the removal of the watercourses were taken within
the DNR ; persons and entities were notified of the DNR’s actions only after the
commissioner signed the order. The DNR held no public meetings and did not solicit
comments.
On May 16, 2017, relator Minnesota Center for Environmental Advocacy (MCEA)
requested by formal letter that the DNR revoke its order and give relator an opportunity to
comment on its actions. The DNR denied this request on June 8, 2017. On June 9, 2017,
relator, by writ of certiorari, challenged the DNR’s decision. This court sought further
briefing to determine whether it has jurisdiction to hear this certiorari appeal.

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D E C I S I O N
Appellate jurisdiction is a question of law subject to de novo review. Howard v.
Svoboda, 890 N.W.2d 111, 114 (Minn. 2017). “Certiorari is an extraordinary remedy only
available to review judicial or quasi-judicial proceedings and actions; conversely, it is not
available to review legislative or administrative actions.” Minn. Ctr. for Envtl. Advocacy
v. Metro. Council , 587 N.W.2d 838, 842 (Minn. 1999) (MCEA) (quotation omitted); see
also Honn v. City of Coon Rapids , 313 N.W.2d 409, 414 (Minn. 1981) (stating that
certiorari is used to permit “review [of] the proceedings of a tribunal exercising judicial or
quasi-judicial functions . . . [but] is not appropriate to review legislative acts”).
The supreme court has recognized three indicia of quasi -judicial actions:
“(1) investigation into a disputed claim and the weighing of eviden tiary facts;
(2) application of those facts to a prescribed standard; and (3) a binding decision regarding
the disputed claim.” MCEA, 587 N.W.2d at 842. In contrast, a quasi -legislative action
“affect[s] the rights of the public generally,” rather than individually. Anderson v. County
of Lyon, 784 N.W.2d 77, 81 (Minn. App. 2010), review denied (Minn. Aug. 24, 2010). An
agency exercises a legislative function “by balancing competing concerns and choosing
among public policy alternatives.” Meath v. Harmful Substance Comp. Bd., 550 N.W.2d
275, 280 (Minn. 1996) (Anderson, J., concurring specially).
The commissioner’s order bears indicia of legislative action. The decision did not
arise out of an investigation into a disputed claim; there was no identifi ed party opposing
the action and offering competing evidence. MCEA argues that the DNR reacted to
comments or complaints, but “such opposition does not convert a legislative decision -

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making process into a quasi -judicial process involving the consideration of a disputed
claim.” Anderson, 784 N.W.2d at 82 (quotation marks omitted). The DNR undertook an
investigation; but an investigation that weighs costs and priorities and even “favorable and
unfavorable public input” is legislative action. Id.
The commissioner’s order did not involve the application of facts to a prescribed
standard. The order reflects a policy choice of how to deal with the potential of multiple
individual lawsuits arising from errors in the original PWI in light of the new buffer -zone
law. The order does not create a decision binding on the legal rights of any party ; it
establishes a process for examining and determining rights.
Because the challenged order is a quasi-legislative action that is not reviewable by
certiorari, we dismiss this appeal.
Appeal dismissed.