Zach Nubbe and Mineral Service Plus, LLC, Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1339

Zach Nubbe and Mineral Service Plus, LLC,
Appellants,

vs.

City of Waverly,
Respondent.

Filed May 6, 2019
Appeal dismissed
Rodenberg, Judge

Wright County District Court
File No. 86-CV-17-2582

Erik F. Hansen, Elizabeth M. Cadem, Burns & Hansen, P.A., Minneapolis, Minnesota (for
appellants)

Jason J. Kuboushek, Francine M. Kuplic, Iverson Reuvers Condon, Bloomington,
Minnesota (for respondent)

Bruce M. Kleven, Minneapolis, Minnesota (for amicus curiae Minn esota Water Well
Association)

Lloyd W. Grooms, LWG, P.A., St. Paul, Minnesota (for amicus cur iae National Ground
Water Association)

Considered and decided by Reilly , Presiding Judge; Rodenberg, Judge; and
Bratvold, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this appeal from the distri ct court’s summary judgment concluding that Waverly
City ordinance 17-04 is not preempted by state statute but enjo ining respondent City of
Waverly from enforcing the ordinance against appellants Zach Nubbe and Mineral Service
Plus LLC (MSP) as it relates to the construction of a private w ell on the Nubbe property,
appellants argue that the district court erred by concluding th at the ordinance banning
construction of wells is not preem pted by Minnesota Statutes ch apter 103I (2018). We
dismiss the appeal as moot.
FACTS
Appellant Nubbe hired appellant MSP to construct an irrigation well on his property
in Waverly, Minnesota. MSP submitted an application and well-n otification form to the
Minnesota Department of Health (MDH) on April 6, 2017. That same day, MSP notified
local utility operators, including respondent, of the well’s proposed location. MDH granted
MSP a permit to construct the well on Nubbe’s property. On April 7, J.W., a maintenance
supervisor for respondent, infor med appellants that respondent h a d i n p l a c e a b a n o n
groundwater-well construction. In fact, no such ban existed at that time.
On April 11, 2017, respondent held a public hearing to discuss a proposed ordinance
amendment banning private wells in the city. Ordinance 17-04 w as passed on April 11,
effective upon publication, making it unlawful for any person to install a new private well
on any lot within the city limits if the lot has “reasonable access to city water service” and
defining any lot within 150 feet of the city water system as having such reasonable access.

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See Waverly, Minn., Code of Ordinances ch. 51, § 51.10 (2017) (cod ifying Waverly City
Ordinance 17-04).
Appellants commenced this action on May 9, 2017, seeking a dec laratory judgment
that ordinance 17-04 is “invalid, null, and void, as local regu lation of well construction”
because it is preempted by Minneso ta Statutes chapter 103I, and further declaring that,
regardless of whether the ordinance is preempted, it has no ret roactive effect and cannot
bar appellants from constructing the proposed Nubbe well.
The parties presented the district court with cross-motions for summary judgment.
Appellants requested summary judgment for declaratory relief as described in their
complaint. Respondent argued t hat (1) the district court shoul d declare ordinance 17-04
valid and allow respondent to ban the installation of new priva te wells on lots that have
reasonable access to municipal water service, and (2) ordinance 17-04 applies to the
proposed well on Nubbe’s property because the ordinance did not take effect until April 17,
2017, but construction was not started before this date, and therefore respondent would not
be enforcing the ordinance retroactively.
The district court granted res pondent’s motion for summary jud gment in part,
determining that ordinance 17-04 is not preempted by state law. The district court granted
appellant’s motion for summary judgment in part, determining th at ordinance 17-04 may
not be applied retroactively to appellants, and it therefore en joined respondent from
enforcing the ordinance as it relates to the Nubbe well.
Appellants properly filed an appeal on August 14, 2018, challe nging the district
court’s determination that the ordinance is not preempted. Res pondent filed a notice of

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related appeal (NORA) with the district court on August 28, 201 8, seeking review of the
district court’s grant of injunctive relief concerning the proposed Nubbe well. Respondent
served the notice on appellants’ counsel, but did not file the NORA with the Clerk of the
Appellate Courts. On October 5, 2018, appellants filed their principal brief. Respondent,
in turn, filed a brief which was not captioned as a cross-appel lant’s brief. Respondent’s
brief, in part, challenges the district court’s determination e njoining application of the
ordinance to the Nubbe well. Appellants moved to strike the portion of respondent’s brief
addressing the retroactivity issue on the ground of respondent’ s failure to properly file a
NORA. We granted appellants’ mo tion to strike the portion of r espondent’s brief
addressing the retroactivity issu e decided adversely to respond ent because respondent
failed to perfect a related appeal. See Arndt v. Am. Family Ins. Co., 394 N.W.2d 791, 793
(Minn. 1986) (affirming the court of appeals’ refusal to address an issue decided adversely
to respondent where respondent failed to file a NORA).
After striking respondent’s argum ent concerning the retroactivi t y i s s u e , w e
questioned both of counsel at oral argument whether this appeal is now moot. Because of
this additional issue raised by th e court, we provided counsel with an opportunity to file
supplemental briefing regarding the mootness question. Supplemental briefs were received
and reviewed.
D E C I S I O N
“The presence of a justiciable controversy is essential to the exercise of our
jurisdiction.” In re Dahlgren Twp., 906 N.W.2d 512, 520 (Minn. App. 2017). An appellate
court must consider whether a justiciable controversy exists, regardless of whether the issue

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has been raised by the parties. Izaak Walton League of Am. Endowment, Inc. v. State, Dep’t
of Nat. Res., 252 N.W.2d 852, 854 (Minn. 1977); see also In re Schmidt, 443 N.W.2d 824,
826 (Minn. 1989) (explaining that the court must consider the issue of mootness, because
it is a constitutional prerequisite to the exercise of jurisdic tion, even if not briefed by the
parties). If the appellate court cannot grant “effectual relief,” then the issue is deemed moot
and results in dismissal of the appeal because appellate courts do not issue advisory
opinions or decide cases merely to establish precedent. Schmidt, 443 N.W.2d at 826; see
Twin Cities Metro. Pub. Transit Area v. Holter , 249 N.W.2d 458, 460 n.3 (Minn. 1977)
(“That a party must be aggrieved in order to appeal remains fundamental to . . . Rule 103.03,
Minnesota Rule of Civil Appellate Procedure.”). A controversy is only justiciable when it
involves the concrete assertion of a legal right. See Minn. Ass’n of Pub. Sch. v. Hanson ,
178 N.W.2d 846, 850 (Minn. 1970 ). Merely possible or hypotheti cal injury does not
involve the concrete assertion of a legal right. State v. Colsch, 284 N.W.2d 839, 841-42
(Minn. 1979). Generally, if an event occurs that resolves the issue, the issue will be
dismissed as moot. Isaacs v. Am. Iron & Steel Co. , 690 N.W.2d 373, 376 (Minn. App.
2004), review denied (Minn. Apr. 4, 2005).
“[M]ootness can be described as the doctrine of standing set in a time frame: the
requisite personal interest that must exist at the commencement of the litigation (standing)
must continue throughout its existence (mootness).” Kahn v. Griffin, 701 N.W.2d 815, 821
(Minn. 2005) (quotation omitted). “Standing is the requirement that a party has a sufficient
stake in a justiciable controversy to seek relief from a court, ” and may be acquired in two
ways: “either the plaintiff has suffered some ‘injury-in-fact’ or the plaintiff is the

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beneficiary of some legislative enactment granting standing.” State by Humphrey v. Philip
Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996). The purpose of the standing requirement
is to ensure that issues coming before the court are vigorously and adequately represented.
Id.
Although the district court enjoined respondent from enforcing the ordinance as to
the Nubbe well, that issue is not before us on appeal because n o related appeal was
perfected. The district court ruled that appellants “are legal ly entitled to construct a well
on [Nubbe’s] property” and that r espondent “is enjoined from en forcing the new well
construction ban of Ordinance 17-04” as it relates to Nubbe’s well. We interpret this as an
active injunction against responde nt from enforcing the relevan t ordinance against the
building of a well on the Nubbe property. Consequently, the preemption issue is now moot.
Appellants have not suffered—nor have they alleged—any additional injury beyond their
desire to construct a well on the Nubbe property, and there is no relief that we can provide.
See Doran v. Indep. Sch. Dist. No. 720 , 831 N.W.2d 1, 4 (Minn. App. 2013) (explaining
that a case is moot “if the party seeking relief has already obtained it” (quotation omitted)).
MSP argues that it may be injured by being precluded from constructing other wells in the
city of Waverly, but the complaint contains no allegations concerning future (or past) plans
by either of the appellants to construct additional wells in th e c i t y o f W a v e r l y . A n y
argument concerning future injury MSP might suffer is based on assertions that are entirely
outside of the record on appeal. Deciding the question of whether respondent’s ordinance
is preempted by state law in the present procedural posture wou ld amount to an advisory
opinion.

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When there is no injury that a court can redress, the case must be dismissed for lack
of justiciability, except in certa in narrowly-defined circumstances. State ex rel. Sviggum
v. Hanson, 732 N.W.2d 312, 321 (Minn. App. 2007). Mootness is a flexibl e doctrine, as
opposed to a mechanical rule that is invoked automatically, and appellate courts “will not
deem a case moot if it implicates issues that are capable of re petition, yet likely to evade
review.” Kahn, 701 N.W.2d at 821. This occurs where there is a reasonable e xpectation
that the complaining party woul d be subject to the same action again and the duration of
the challenged action was too short to be fully litigated before it ceased or expired. Id. The
other circumstance in which a court may deem a case not moot an d retain jurisdiction is
where the case is “functionally justiciable” and presents an im portant public issue of
statewide significance that should be decided immediately. Id. at 821-22 (quotation
omitted). Neither of these exceptions are applicable here.
The capable-of-repetition-yet-evad ing-review exception is tradi tionally applied
where the nature of the challenged action is of inherently limited duration. See, e.g., State
ex rel. Doe v. Madonna , 295 N.W.2d 356, 361 (Mi nn. 1980) (reviewing the
constitutionality of three-day hold orders for mentally-ill app ellants who were no longer
subject to confinement at the time of their challenge). This case does not present an issue
that is capable of repetition, yet will evade review. A party seeking to construct a well in
Waverly who, unlike appellants, is prohibited from constructing the well can challenge the
ordinance and have that claim fully litigated before the issue expires. See Weinstein v.
Bradford, 423 U.S. 147, 149, 96 S. Ct. 347, 348-49 (1975) (determining that the capable-
of-repetition-yet-evading-review d octrine is limited to a situa tion where: (1) the

8
challenged action is too short in its duration to be fully litigated prior to its cessation, and
(2) there is a reasonable expectation that the same complaining party will be subject to the
same action again); cf. Klaus v. Minn. State Ethics Comm’n , 244 N.W.2d 672, 674-75
(Minn. 1976) (addressing disclosure requirements for candidates f o r p u b l i c o f f i c e e v e n
though the election was over).
The other possible mootness exception, providing discretion to review a case that is
functionally justiciable and pres ents an important question of immediate statewide
significance, is applied narrowly. See Dean v. City of Winona , 868 N.W.2d 1, 7 (Minn.
2015). While the issue here may be functionally justiciable, w e do not see this case as
presenting an issue of statewide significance that necessitates immediate resolution. Cf. In
re Guardianship of Tschumy, 853 N.W.2d 728, 740-41 (Minn. 2014) (reaching the merits
of a moot issue to clarify the scope of guardians’ authority to remove life-support from a
ward—“one of life’s most fundamen tal decisions”—because there w ere thousands of
wards under the state’s supervision); Verhein v. Piper, 917 N.W.2d 96, 100 (Minn. App.
2018) (deciding the merits of a technically-moot issue because the applicability and
constitutionality of statute affecting all persons who apply for medical assistance benefits
and have a felony drug conviction was an issue of statewide sig nificance that should be
decided immediately).
This case is similar to Dean, where appellants sued the city of Winona “after each
sought and was denied a standard rental license” for their properties. 868 N.W.2d at 4. A
city ordinance limited the number of lots on a block that are e ligible for certification as
rental properties. Id. at 3. The Dean appellants argued that the ordinance exceeded the

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city’s power. Id. By the time the case reached the Minnesota Supreme Court, none of the
appellants still owned property in Winona. Id. at 4. The supre me court dismissed the
action as moot, concluding that the challenge to the ordinance did not present a justiciable
question, because none of the appellants had any remaining inte rest in the outcome of the
litigation and neither exception to the mootness doctrine appli ed. Id. a t 3 , 5 - 7 . T h e
supreme court explained:
The right to rent one’s property is an important property
interest. But this case does not present the urgency and broad
impact that were present in cases determined to be functionally
justiciable and of statewide s ignificance that required an
immediate decision. Other municipalities impose rental
limitations. However, they do not operate in an identical
fashion. When, as here, the issues presented are limited to the
homeowners of one municipality, the case does not present the
urgency and impact that were present in other cases that we
have found functionally justic iable and of statewide
significance.

Id. at 7 (footnote omitted). The supreme court noted that other similar ordinances deserved
independent consideration. Id. at 7 n.2.
The parties to this appeal agree that several other municipali ties impose restrictions
on wells. Whether those ordinan ces operate in a fashion identi cal to respondent’s
ordinance 17-04 and would be similarly enforced elsewhere cannot be ascertained on this
record. As in Dean, the issue appealed here is limited to property owners, and potentially
businesses that construct wells, in one municipality. This case, like Dean, presents no issue
urgently requiring resolution. The Nubbe well can be constructed. Respondent is enjoined

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from applying the ordinance to that well.1 Issues pertaining to other wells and ordinances
of other municipalities can be resolved if and when a justiciable controversy appears.
Appeal dismissed.

1 A person constructing a water-supply well on property owned by the individual for either
farming or agricultural purposes, or for the individual’s place of abode, is only required to
notify MDH of the installation and location of the well, mailed to the commissioner within
ten days after the well is completed. Minn. Stat. § 103I.205, subd. 1(d). On this record,
there is no need for appellants to obtain any additional permit s to construct the proposed
well.