In re Big Stone County Request for Review of Public Watercourse - Section 13, T 123 N, 46W, Almond Township.

This opinion will be unpublished and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
A17-1255

In re Big Stone County Request for Review of
Public Watercourse - Section 13, T 123 N, 46W, Almond Township.

Filed March 5, 2018
Affirmed
Reilly, Judge

Minnesota Department of Natural Resources

Gary Haugen, Clinton, Minnesota (pro se relator)

Lori Swanson, Attorney General, Philip S. Pulitzer, Assistant Attorney General, St. Paul,
Minnesota (for respondent Department of Natural Resources)

Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
In this certiorari appeal, relator-landowner Gary Haugen challenges a determination
of the Minnesota Department of Natural Resources that an unnamed public watercourse in
Big Stone County was properly included in the state’s Public Waters Inventory, and
dismissing relator’s petition to remove the wate rcourse from the Public Waters Inventory
as untimely and without substantive merit. We affirm.

2
FACTS
Relator Gary Haugen is a riparian lando wner near an unnamed public watercourse
located in Section 13 of Almond Township in Big Stone Coun ty south of Basin 306 (the
Watercourse). In 1979, the Minnesota Depa rtment of Natural Resources (the DNR)
conducted an inventory of the state’s public waters and wetlands and made preliminary
designations as to which bodies constituted pu blic waters. The DNR designated these
public waters on a Public Wa ters Inventory (PW I), and provided PWI lists and maps to
each county. As part of this process, in December 1979, the DNR provided Big Stone
County with a PWI list and map designating certain waters and wetlands within Big Stone
County as public waters. The Watercourse wa s included in this pr eliminary designation.
The DNR advised Big Stone County that it had 90 days within which to review the DNR’s
materials, conduct a public information meeting, and present any recommendations
regarding the PWI to the DNR.
Big Stone County held a public hearing on the DNR’s preliminary designations in
March 1980. Following the hearing, the DNR received a number of comments from county
residents objecting to various aspects of the PWI. The DNR did not receive any objection
to the placement of the Watercourse on the PWI. In June 1980, the DNR notified the Big
Stone County Board of Commissioners that it had reviewed the public comments. The
DNR listed the comments from Bi g Stone County residents with which it agreed, and
changed the preliminary PWI to reflect those agreements.
On September 17, 1980, the DNR publishe d a revised PWI list and map for Big
Stone County in the official county news paper. The revised PWI list and map again

3
included the Watercourse. The notice invited anyone challenging a designation to “list the
reason(s) why the particular public water or wetland does not meet the statutory . . .
definition []” of a public water, and submit such challenge to the DNR within 90 days of
the publication date. The statutory appeal period to challenge the inclusion of the
Watercourse on the PWI commenced on Se ptember 17, 1980, and expired on
December 16, 1980. The DNR did not receive any petitions related to the Watercourse
during this 90-day petition period. In June 1984, the DNR published the final PWI list and
map for Big Stone County. The PWI list and map identify the Watercourse as a public
water.
In October 2014, relator and other ripari an landowners applie d for a permit to
excavate the Watercourse. The DNR auth orized the excavation but required the
landowners to install a 50-foot-wide riparian buffer to comply with the county’s zoning
ordinance. The landowners challenged the bu ffer requirement, and, in November 2015,
the DNR amended the permit to allow for a buffer of less than 50 feet. The landowners,
with the exception of relator, withdrew their request for a contested-case hearing and
completed the work authorized by the amended permit.
In January 2016, the Big Stone County Board of Commissioners, the Big Stone
County Soil and Water Conservation District Board of Supervisors, and the Upper
Minnesota Watershed District Board of Ma nagers petitioned the DNR to remove the
Watercourse from the PWI on the ground th at the DNR incorrec tly designated the
Watercourse as a public water. The DNR de nied the request in May 2016, determining
that “substantial evidence” supported the Watercourse’s designation as a natural

4
watercourse. The DNR concluded that the Watercourse was “properly included in the
public water inventory” and denied the petition to remove the Watercourse from the PWI.
In August 2016, the Big Stone County Board of Commissioners and the Big Stone
County Soil and Water Conservation District Board of Supervisors again requested that the
DNR remove the Watercourse from the PWI. In November 2016, the DNR notified the
county that it would not reopen its May 2016 determination.
In February 2017, relator requested that the DNR remove the Watercourse from the
PWI. On July 17, 2017, the DNR issued findings of fact, conclusions of law, and an order
denying relator’s request to remove the Wa tercourse from the PWI. The DNR held that
the challenge to the 1984 PWI determination was time-barred because petitioners failed to
object to the designation of the Watercour se as a public watercourse before the
December 16, 1980 expiration date. Furtherm ore, the DNR determined that substantial
evidence in the record supported the original designation of the Watercourse as a public
water.
Relator now appeals.
ANALYSIS
I. Standard of Review
“[D]ecisions of administrative agencies enjoy a presumption of correctness, and
deference should be shown by courts to the agencies’ expertise and their special knowledge
in the field[s] of their technical training, education, and experience.” Reserve Mining Co.
v. Herbst, 256 N.W.2d 808, 824 (Minn. 1977). Our role as a reviewing court is to determine
whether the agency has taken a “hard look” at the problems involv ed, and whether the

5
agency “genuinely engaged in reasoned decision-making.” Id. at 825 (quotations and
citations omitted). We defer to an agency’s factual findi ngs, provided the findings are
supported by substantial evidence. Saif Food Mkt. v. Comm’ r of Dep’t of Health , 664
N.W.2d 428, 430 (Minn. App. 2003). We w ill not disturb an agency’s decision unless it
reflects an error of law, the findings are arbitrary and capricious, or the findings are
unsupported by substantial evidence. Citizens Advocating Responsible Dev. v. Kandiyohi
Cty. Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006). If an agency engages in reasoned
decision-making, we will affirm the agency’s deci sion, even if we may have reached a
different result. Cable Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship , 356 N.W.2d
658, 669 (Minn. 1984). The pa rty challenging an agency de cision bears the burden of
proving grounds for reversal. In re Request for Issuance of SDS Gen. Permit, 769 N.W.2d
312, 317 (Minn. App. 2009).
II. Statutory Background
The State of Minnesota, through its police power, “has been defining and protecting
its public water resources since 1867.” In re Christenson, 417 N.W.2d 607, 609 (Minn.
1987) (citing Minn. Laws 1867, ch. 40). In 197 9, the Minnesota Legislature directed the
DNR to conduct an inventory of the state’s public waters and wetlands subject to the permit
authority of the DNR. Drum v. Minnesota Bd. of Water & Soil Res ., 574 N.W.2d 71, 74
n.1 (Minn. App. 1998); Minn. Laws 1979, ch. 199, § 7 (“[T]he commissioner shall
inventory the waters of eac h county and make a prelimin ary designation as to which
constitute public waters and wetlands. The commissioner shall send a list and map of the
waters which he has preliminarily designated as public waters and wetlands in each county

6
to the county board of that county for its review and comment.”). These public waters are
designated on the PWI, copies of which are then filed with the audito r of each county.
Drum, 574 N.W.2d at 74 n.1; see also Minn. Stat. § 103G.201 (2016) (“The commissioner
shall maintain a public waters inventory map of each county that shows the waters of this
state that are designated as public wate rs under the public waters inventory and
classification procedures pres cribed under Laws 1979, ch apter 199, and shall provide
access to a copy of the maps.”); see also In re Christenson , 417 N.W.2d at 609-11
(explaining inventory process). “Public waters” includes “natural and altered watercourses
with a total drainage area greater than two sq uare miles.” Minn. Stat. § 103G.005, subd.
15(9) (2016).
The legislature required the commissioner of natural resources, upon making his
preliminary designations, to submit a preliminary PWI list and map to each county board.
Minn. Laws 1979, ch. 199, § 7. The county boards were directed to conduct “at least one”
public informational meeting within their re spective counties to elicit public feedback on
the proposed PWI. Id. Within 90 days of the public meeting, the county boards presented
their recommendations to the commissioner, stating whether they disagreed with the
inclusion of a particular waterway on the PWI. Id. The commissione r reviewed the
recommendations of each county board and, w ithin 30 days, notified the county whether
its recommendations had been accepted or rejected. Id. The commissioner then filed a
revised PWI list and map with each county re corder, who was required to “cause the list
and map to be published in the official newspaper” of the county. Id. The published notice
was required to include a statement that “any person or any count y may challenge the

7
designation of specific waters as public wa ters or wetlands” by “filing a petition for a
hearing with the commissioner within 90 days following the date of publication.” Id. Upon
receipt of any such petition, the commissioner was required to hold a hearing in the nature
of a contested-case hearing and issue findings of fact and conclusions of law. Id.
III. Relator’s petition is time-barred.
We begin by addressing the DNR ’s assertion that relator’s challenge to the 1984
PWI determination is time-barred because “the time to file a petition objecting to the
designation of [the Watercourse] as a public water on the PWI expired on December 16,
1980” under a plain reading of Minnesota law. Statutory interpretation is a question of law
subject to de novo review. In re Minnesota Dep’t of Nat. Res. Special Permit No. 16868,
867 N.W.2d 522, 527 (Minn. App. 2015), review denied (Oct. 20, 2015).
Minnesota law required the DNR to conduct an inventory of the waters and wetlands
in each county and make a preliminary designation as to which bodies constituted “public”
waters and wetlands. Drum, 574 N.W.2d at 74 n.1. Th e DNR then provided these
preliminary designations to each county board, with instructions to conduct “at least one”
public informational meeting to gather public feedback. Minn. Laws 1979, ch. 199, § 7.
Following publication of the revised PWI li st and map, any landowner challenging the
designation of a body of water as a “public water” was requi red to petition for a hearing
with the DNR commissioner within 90 days of the date of publication. Id.
Big Stone County received the DNR’s pr eliminary PWI list and map in December
1979. The preliminary list included the Wate rcourse. The county held a public hearing
within 90 days as required, and the DNR collected a number of comments objecting to

8
certain aspects of the preliminary list. The DNR published a revised PWI list and map in
an official newspaper for Bi g Stone County in Septembe r 1980, directing that any
landowner challenging a designation should submit such challenge to the DNR within 90
days. The statutory time period expired in De cember 1980. It is uncontested that the
designation of the Watercourse as a public water was not challenged by relator or anyone
else within this statutory time period. Based on the plain and ambiguous language creating
a 90-day statutory time period, the DNR therefore determined that relator’s petition is time-
barred. We agree. Given the plain language of the law, and mindful of the deference
accorded to the DNR, In re Minnesota Dep’t of Nat. Res. Special Permit No. 16868 , 867
N.W.2d at 527, we conclude that the DNR’s decision that the petition is statutorily time-
barred must be affirmed.
Relator argues that the petition is not time- barred because the statute authorizes the
DNR to revise the PWI to correct errors. The Minnesota legislature granted the DNR
discretion to “revise the public waters inventory map of each county . . . as needed, to . . .
correct errors in the original inventory.” Minn. Stat. § 103G.201(e)(2)(i) (2016). Relator
argues that the DNR is acting arbitrarily and capriciously by denying his request to revise
the PWI under section 103G.201(e). Relato r’s argument ignores that the statute is
permissively framed to provide that the commissioner “may revise” the PWI. Minn. Stat.
§ 103G.201(e)(2)(i) (emphasis added); see also Minn. Stat. § 645.44, subd. 15 (2016)
(defining “may” as permissive rather than mandatory). A statute that uses the term “may”
is “permissive and imports the exercise of discretion.” State ex rel. Klimek v. Sch. Dist.
No. 70, Otter Tail Cty ., 204 Minn. 279, 281, 283 N.W. 397, 398 (1939). While the

9
legislature vested the DNR with the discretion to revise a PWI list to correct errors, it did
not compel the DNR to do so, and section 103G.201(e) does not prevent application of the
statutory time-bar here.
IV. Substantial evidence supports the DNR’s decision.
Because we determine that relator’s petiti on is time-barred, we need not address the
merits of the petition. Neve rtheless, we determine that the DNR’s decision is based on
substantial evidence and is neither arbitrary nor capricious.
A reviewing court will uphold the DNR’s decision if its factual findings are
supported by substantial evidence and the decision is not arbitrary or capricious. Citizens
Advocating Responsible Dev. , 713 N.W.2d at 832. Substan tial evidence consists of:
“(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. An agency’s decision is arbitrary and capri cious if the agency (1) relied
on factors the legislature never intended it to consider; (2) entirely failed to consider an
important aspect of the problem; (3) offered an explanation for the decision that runs
counter to the evidence; or (4 ) rendered a decision so implausible that it could not be
ascribed to a difference in view or the result of agency expertise. Watab Twp. Citizen All.
v. Benton Cty. Bd. of Comm’rs , 728 N.W.2d 82, 89 (Minn. App. 2007), review denied
(Minn. May 15, 2007).
Relator asserts that the DNR’s decision is flawed because the Watercourse is an
artificial—rather than public—watercourse. We disagree. “Public waters” include

10
“natural and altered watercourses with a total drainage area greater than two square miles.”
Minn. Stat. § 103G.005, subd. 15(9). An “altered natural watercourse” is a “former natural
watercourse that has been affected by artific ial changes to straighten, deepen, narrow, or
widen the original channel.” Id., subd. 3. An “artificial wate rcourse,” by contrast, is a
“watercourse artificially constructed by human beings where a natural watercourse was not
previously located.” Id., subd. 5.
During the preliminary designation phase in 1980, the DNR revi ewed the original
1871 plat map for the area, a public land surv ey from 1880, surveyor’s field notes, aerial
photographs of the area from 1938, 1955, an d 1971, and a U.S. geological survey
topographic map developed from 1971 aerial photographs. Using these tools, the DNR
calculated the drainage area for the Watercou rse as exceeding two square miles from the
confluence point, and determined that the Wa tercourse met the stat utory definition of a
“public water.” In response to relator’s petition, the DNR verified the 1980 drainage-area
calculation using “two separate modern met hods,” including the DNR’s Watershed Suite
(Level 8 Catchments) and the United States Geological Survey’s StreamStats Application
v. 4.1.3. The DNR also reviewed plat ma ps, surveyor notes, and aerial photographs to
verify the “accuracy and appr opriateness” of the 1984 PW I determination. The DNR
verified its interpretation of these material s with two experts, who confirmed the DNR’s
findings. Based on its review, the DNR calc ulated that the drainage area of the
Watercourse is 11.3 square miles—well in ex cess of the two-square-mile definition of a
“public water.”

11
Relator attempts to refute these fi ndings by presenting materials from an
engineering firm and county witnesses suggesting that the Watercourse was misclassified
as a public water in the 1984 PWI determination. The DNR rejected the engineering firm’s
findings on the grounds that they relied on unverifiable assumptions and were inconsistent
with the historic evidence. The DNR lik ewise rejected corresp ondence from county
witnesses, which failed to offer any substantive information bearing on the validity of the
1984 PWI determination. We discern no erro r in the DNR’s determination that relator’s
evidence was not compelling because it ran counte r to historical factual evidence present
in plat maps, surveyor notes, and aerial photographs.
In light of its review of historical documents from 1870, 18 71, 1938, 1955, and
1971, the DNR determined that the Watercourse is a natural watercourse and is properly
included on the PWI list and map as a public water. This determination is entitled to
deference, particularly in light of the fact that this subject matter falls within the DNR’s
area of expertise. See Reserve Mining Co. v. Herbst , 256 N.W.2d at 824. The DNR’s
July 17, 2017 decision to uphold the 1984 PWI determin ation as it relates to the
Watercourse is supported by substantial eviden ce in the record and is not arbitrary or
capricious. See Saif Food Mkt. , 664 N.W.2d at 430. We therefore affirm the DNR’s
decision denying relator’s petition.
V. Relator’s other arguments fail.
Relator asserts additional arguments in support of his petition, claiming that (1) the
DNR failed to provide proper notice to land owners in 1980; (2) changes in the law
requiring a 50-foot buffer along the wate rway constitutes a taking; and (3) a DNR

12
excavation permit was not required because the Watercourse is not a public water.
Relator’s failure to raise these issues to th e DNR in the first inst ance precludes appellate
review now. See E.N. v. Special Sch. Dist. No. 1, 603 N.W.2d 344, 348 (Minn. App. 1999)
(declining to address matters raised for the first time on appeal). This general rule extends
to appeals from administrative decisions. Id. However, this court ma y, in its discretion,
review any matter in the interest of justice. Agra Resources Coop v. Freeborn Cty. Bd. of
Comm’rs, 682 N.W.2d 681, 684 (Minn. App. 2004 ). We determine that relator’s other
arguments fail on the merits.
First, relator argues that the DNR failed to notify landowners that large amounts of
land would be taken at a later date in the form of 50-foot buffer strips along the waterway,
as a consequence of the PWI list. Relator argues that the DNR’s failure to provide notice
of the consequences of the Watercourse be ing designated as a public water amounts to a
due-process violation. “[T]he notice requ ired by due process will vary with the
circumstances and conditions of each case, making it impossible to draw a standard set of
specifications as to what is constitutionally adequate notice, to be mechanically applied in
every situation.” Application of Christenson , 417 N.W.2d 607, 611-12 (Minn. 1987)
(quotation omitted). And Minnesota courts r ecognize that it is “both unrealistic and
unnecessary under the law” to require the DNR to provide notice of “every possible
outcome” of an agency decision. Comm’r of Nat. Res. v. Nicollet Cty. Pub.
Water/Wetlands Hearings Unit, 633 N.W.2d 25, 31 (Minn. App. 2001). Here, the DNR
did not violate relator’s due-process rights by fa iling to alert landowners in 1980 that, 35

13
years in the future, the PWI could inform the DNR’s designation of certain lands as buffer
areas.
Next, we reject relator’s argument that Big Stone County’s bu ffer law amounts to
an unconstitutional taking under the United States and Minnesota Constitutions. The DNR
lacks authority to enforce the buffer law because Minnesota law grants the Board of Water
and Soil Resources (BWSR)—rather than the DNR—the authority to “coordinate the water
and soil resources planning an d implementation activities of counties, soil and water
conservation districts, watershed dist ricts, [and] watershed management
organizations. . . .” Minn. Stat . § 103B.101, subd. 9(1) (2016); see also Minn. Stat.
§ 103F.48, subd. 1(a), (b) (2016) (defining “Board” as “the Board of Water and Soil
Resources”). Minnesota law grants BWSR and local soil and water conservation districts
the authority to enforce compliance with riparian buffer zones. See Minn. Stat. § 103F.48,
subd. 7; see also Minn. Stat. § 103B.101, subd. 12a (authorizing BWSR or local county or
watershed district to issue penalty orders fo r “violations of the water resources riparian
protection requirements under section[] . . . 103F.48”). Thus, relator is not entitled to relief
against the DNR on these grounds.
Lastly, to the extent relator’s appeal at tacks the excavation permit, the proper course
of action was for relator to seek a conteste d-case hearing on the issuance of the permit
under Minnesota Statutes section 103G.311. An applicant challenging a permit may file a
demand for hearing. Minn. Stat. § 103G.311, subd. 5(a). The demand for hearing must be
filed within 30 days of receipt of the permit, and an order respecting a permit becomes final
after 30 days. Id. Because relator failed to file a demand for hearing within 30 days of

14
receipt of the permit, or challenge the perm it itself, he is precluded from attacking the
permit’s provisions for the first time on appeal now.
Affirmed.