Protect Our Minnetonka Parks, Inc., Relator,

This opinion will be unpublished and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
A18-1503

Protect Our Minnetonka Parks, Inc.,
Relator,

vs.

City of Minnetonka,
Respondent.

Filed June 17, 2019
Affirmed
Schellhas, Judge

City of Minnetonka
Resolution No. 2018-094

Marshall H. Tanick, David Robbins, Meyer Njus Tanick, P.A., Minneapolis, Minnesota
(for relator)

George C. Hoff, Shelley M. Ryan, Hoff Barry, P.A., Eden Prairie, Minnesota (for
respondent)

Considered and decide d by Schellhas, Presiding Judge; Jesson, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Relator challenges respondent’s denial of its petition for an environmental -
assessment worksheet i n connection with a proposed mountain -bike trail system on the

2
basis that respo ndent’s denial is not supported by substantial evidence, is arbitrary and
capricious, and is based on an error of law. We affirm.
FACTS
In the summer and fall of 2016, staff of the City of Minnetonka and the Minnetonka
Park & Recreation Board worked together to prepare a proposal for more trails, including
mountain-bike trails, in the city. After a city resident requested that the park board add
mountain-bike trails to the city’s park system (the project), the city staff created a feasibility
study and concept plans for the project for consideration by the park board . In February
2018, the park board directed city staff to further study and develop a concept plan for the
project. City staff then prepared the Minnetonka Mountain Bike Study for development of
the project at Lone Lake Park (the park). The park is a 146 -acre community park and
preserve, with 14 acres of developed land for public use. The study included an
independent biological assessment of natural resources at the park. In June 2018, the park
board voted unanimously to recommend approval of the project to the city council. The
project includes construction of 4.7 miles of 18 -24 inch-wide mountain-bike trails. After
the park board recommended the project, the city reviewed the park and identified more
than three miles of informal trails that had developed over the years within the wooded
slope of the park.
In July 2018, appellant Protect Our Minnetonka Parks, Inc. (POMP), petitioned the
Minnesota Environmental Qualit y Board (EQB) , requesting that the c ity be required to
prepare an environmental -assessment worksheet (EAW) before approving the project.

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POMP alleged in the p etition that the project may have the potential for significant
environmental effects at the park and cited a number of concerns.
The city council addressed POMP’s petition at its August 6, 2018 meeting. The city
heard testimony from the city’s recreation-services director, the city attorney, the city’s
natural-resources manager, an environmental co nsultant, and multiple citizens ; reviewed
the independent biological assessment, the Mountain Bike Study, numerous articles, and a
technical memorandum conducted by an independent environmental -consulting firm on
behalf of POMP ; and reviewed correspondence from various state and federal agencies.
On a four-to-two vote, the city council resolved that none of the criteria in POMP’s petition
required the preparation of an EAW and denied the petition.
This certiorari appeal follows.
D E C I S I O N
“The Minnesota Environmental Policy Act (MEPA) requires that government
agencies contemplating taking action . . . on a proposed project must first consider the
project’s environmental consequences.” Citizens Advocating Responsible Dev. v.
Kandiyohi Cty. B d. of Comm’rs, 713 N.W.2d 817, 823 (Minn. 2006) (footnote omitted)
(CARD). MEPA establishes a “project -specific review, where a proposed project is
reviewed to determine whether it has the potential to cause significant environmental
effects.” Id. This process may involve preparation by a responsible government unit (RGU)
of an EAW, which is a “brief document which is designed to set out the basic facts

4
necessary to determine whether an environmental impact statement is required for a
proposed action.”1 Id. at 824 (citing Minn. Stat. § 116D.04, subd. 1a(c)).
Rules adopted by the EQB under MEPA govern the necessity of conducting an
EAW. Minn. Stat. § 116D.04, subd. 2a(b) (2018) (directing EQB to establish categories of
projects requiring EAW); Minn. R. 4410.4 300 (2018) (establishing categories of projects
requiring EAW). An RGU must conduct an EAW when material evidence accompanying
a petition signed by more than 100 citizens “demonstrates that, because of the nature or
location of a proposed action, there may be the potential for significant environmental
effects.” Minn. Stat. § 116D.04, subd. 2a(e) (2018). “Material evidence” means “evidence
that is both admissible ” and “relevant and consequential to whether the project may have
the potential for significant environmental effects.” Watab, 728 N.W.2d at 90.
An RGU “shall deny” an EAW petition “if the evidence presented fails to
demonstrate the project may have the potential for significant environmental effects.”
Minn. R. 4410.1100, subp. 6 (2017). In consideri ng the need for an EAW, a n RGU
considers:
A. type, extent, and reversibility of environmental effects;

B. cumulative potential effects. The RGU shall consider the
following factors: whether the cumulative potential effect is
significant; whether the contr ibution from the project is
significant when viewed in connection with other contributions
to the cumulative potential effect; the degree to which the
project complies with approved mitigation measures
specifically designed to address the cumulative potent ial

1 A “government unit” includes “any general or special purpose unit of government in the
state including” towns and cities. Minn. Stat. § 116D.04, subd. 1a(e) (2018).

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effect; and the efforts of the proposer to minimize the
contributions from the project;

C. the extent to which the environmental effects are subject to
mitigation by ongoing public regulatory authority. The RGU
may rely only on mitigation measures that are specific and that
can be reasonably expected to effectively mitigate the
identified environmental impacts of the project; and

D. the extent to which environmental effects can be anticipated
and controlled as a result of other available environmental
studies undertaken by public agencies or the project proposer.

Minn. R. 4410.1700, subp. 7 (2017) (incorporated by Minn. R. 4410.1100, subp. 6)).
We review an RGU’s denial of a petition for an EAW to determine whether it is
unreasonable, arbitrary or capricious, or unsupported by substantial evidence. 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). This standard is “generally deferential.” In re Envtl.
Assessment Worksheet for the 33rd Sale of State Metallic Leases , 838 N.W.2d 212, 216
(Minn. App. 2013) (quotation omitted), review denied (Minn. Nov. 26, 2013); see also
CARD, 713 N.W.2d at 832 (stating that appellate court’s “role when reviewing [RGU]
action is to determine whether the [RGU] has taken a hard look at the problems involved,
and whether it has genuinely engaged in reasoned decision making” (quotation omitted)).
I.
Raising a number of concerns, POMP argues that the city’s denial of its EAW
petition was not based on substantial evidence. We disagree. “Substantial 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

6
than any evidence; and (5) evidence considered in its entirety.” CARD, 713 N.W.2d at 832
(quotation omitted). On appeal, POMP bears the burden of proving that the city’s decision
was not supported by substantial evidence. See Friends of Twin Lakes v. City of Roseville,
764 N.W.2d 378, 381–82 (Minn. App. 2009) (stating that appellant had “not met its burden
of proving that respondent’s decision was unsupported by substantial evidence” where it
failed to point out “evidence to the contrary”). We address each of POMP’s environmental
concerns in turn.
Detrimental effect on the park’s water resources
POMP argues that it presented evidence at the city-council hearing that the project
would have a detrimental effect on the park’s water resources . A park-board empl oyee
explained that the project trails will not cross any wetlands or waterways. The city found
that “[n]o wetland imp acts are proposed” because the p roject would not cross any waters
and the “trails will be located far enough away from surface waters that sedimentation is
unlikely to occur.” We conclude that substantial evidence supports the city’s findings. See
CARD, 713 N.W.2d at 833 (concluding material evidence existed based on testimony from
RGU’s staff).
Soil erosion
POMP alleged in its petition that the project would cause soil erosion and claimed
that the project would involve “extremely steep slopes (25 -35% grade s),” which w ill
“diminish the ca pacity of the soil to retain rainfall.” Referencing various articles and
manuals about how to properly construct and maintain mountain-bike trails, the park board
advised the city council that the project will follow the National Park Service’s best

7
practices for mountain -bike-trail construction and management , and that the project, in
fact, will contain only 10% grade slopes. POMP presented no evidence that these
techniques or plans will be insufficient to prevent a significant environmental impact. See
Watab, 728 N.W.2d at 90 (stating that “[a]llegations of vague or generalized fears and
concerns are . . . not sufficient” to defeat RGU’s conclusion of no potential for significant
environmental impact). The c ity found that as “a result of the use of field location of the
trail, use of appropriate design and construction methods, and imposition of seasonal use
restrictions, soil erosion and compaction will not be signific ant.” We conclude that
substantial evidence supports the city’s finding.
Disturbance to wildlife and tree populations
POMP alleged at the city-council hearing that a number of wildlife species and their
habitats will be disturbed, displaced, and fragmented , and that the tree population could
decline. The city’s natural -resources manager state d that, while individual animals could
be displaced, the project will not significantly impact the “overall population.” The park-
board’s staff advised that potential “habitat loss is minimal” based on the fact that the park
contains 132 acres and construc tion of the project would only take up 1.7 acres. The city
found that the pote ntial “habitat loss due to the [p] roject is minimal,” and while it could
have an impact on “individual animals,” it “will not have significant adverse effects on the
overall population of any animal class.” Additionally, the natural-resources manager stated
that “some small trees will be removed,” but the project will “avoid” areas of larger trees
and their root zones. The city found that the project “will result in minimal tree r emoval,”
that “only smaller trees will be removed” while trees “of significant size will not be

8
removed,” and that the “overall tree removal will not alter the existing closed canopy of
trees in the park.” We conclude that substantial evidence supported the city’s findings. See
Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 881
(Minn. App. 1995) (deferring to “discretion of the county” when proposed project would
leave “over 100 acres of forest cover” in a 250-acre woodland, and stating that when “there
are technical disputes and uncertainties, the court must assume that the agency or RGU has
exercised its discretion appropriately”), review denied (Minn. July 28, 1995).
Ecological degradation of the long-eared bat and rusty-patched bumble bee
POMP alleged in its petition that the project could adversely affect and encroach
upon the “critical habitats” of “sensitive species,” specifically the long -eared bat and the
rusty-patched bumble bee. On these issues, the park board provided information, including
the biological assessment, along with testimony at the city council hearing. The city found
that the project will not affect the long-eared bat because the closest known habitat of the
long-eared bat is 16 miles away from the park . The city also found that any potential
impacts concerning the rusty-patched bee will “be fully and adequately addressed” by the
project’s coordination with the U.S. Fish & Wildlife Services (USFWS), which will work
onsite to identify nesting areas of the bee and assist with relocation of trails, as well as
advise on the “optimal season of the year, to avoid disturbance of the queen coming out of
hibernation” and the “foraging habitat while it is blooming.” The city found that city staff
will obtain “all permits as recommended or required by the USFWS.” The park-board’s
testimony and presentation identified and explained the intended mitigation efforts . The
city found that while the threat of invasi ve species, such as buckthorn and ga rlic mustard,

9
existed, a number of mitigation efforts will prevent further spread of these species. We
conclude that the city’s findings are supported by substantial evidence in the record. See
id. (deferring to RGU when project would potentially harm plant species “listed as ‘of
special concern’” but the effects of the project on the species were unknown ); cf. Twin
Lakes, 764 N.W.2d at 383 (holding that RGU “permissibly relied on existing regulator y
oversight to prevent significant environmental impact before it would occur,” and
discussed “mitigation measures to be put into place”).
Public-health concerns from drop in predatory-mammal populations
POMP alleged in its petition that disrupting the “bi odiverse” habitat of the park,
could cause the population of predatory mammals to drop, causing a rise in Lyme-Disease-
carrying mice, which could adversely affect public health in the area. The city found that
no evidence showed that populations of predatory mammals would drop and POMP points
to no evidence in the record to support a contrary finding. We conclude that the city’s
finding is supported by substantial evidence. See Iron Rangers, 531 N.W.2d at 881 (stating
that RGU “cannot be compelled to prepare an E[AW] on the basis of speculative factors”).
Possible damage to archaeological sites
POMP argues that it also presented information at the city-council meeting that the
project posed a threat to any yet -to-be discovered arc haeological sites in the area. The
record includes correspondence with the Minnesota State Historic Preservation Office, and
a state archaeologist, and the park board explained at the hearing that, because the park
previously existed as “disturbed ” ground, caused by agricultural and recreational -ski use,
the “potential for locating intact archaeological resources” was low. The city found that no

10
archaeological sites have been identified in the area and rejected POMP’s argument . We
conclude that substantial evidence supports the city’s finding.
Disturbance to quiet environment
POMP alleged in its petition that the project could disturb the “solitude for other
park users.” The city found that substantial evidence does not support POMP’s claim that
the project will cause a significant environmental impact. On appeal, POMP cites to no
material record evidence that supports its claim that a disruption of “park users’ experience
of serenity” will cause a significant environmental impact. And POMP cites no authority
to support its argument that the failure of an RGU to consider the solitude of other users of
a project area results in reversible error. See Minn. R. 4410.1700, subp. 7 (listing criteria
for determining the potential for significant environmental effects). We conclude that the
city’s finding is supported by substantial evidence.
The city’s findings and its conclusion that the project has no potential for significant
environmental impact are supported by substantial record evidence as a whole . We
therefore conclude that the city did not err by denying POMP’s petition for an EAW. See
Twin Lakes, 764 N.W.2d at 384 (“While appellant may disagree with this judgment, it has
failed to prove that [the RGU]’s findings are unsupported by the evidence as a whole. From
the record before us, it is clear that respondent took a hard look at the salient issues
presented by the proposed amendment. As a result, we defer to [the RGU]’s decision.”).
II.
POMP argues that the city’s denial of its petition for an EAW was arbitrary or
capricious. A decision is arbitrary or capricious if it “(a) relied on factors not intended by

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the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered
an explanation that runs counter to the evidence; or (d) the decision is so implausible that
it could not be explained as a difference in view or the result of the agency’s expertise.”
CARD, 713 N.W.2d at 832.
POMP first argues that the c ity’s decision was improper based on a
councilmember’s statement at th e city-council hearing about the cost of an EAW. And
POMP argues that some councilmembers based their decision on “anti-environmental”
motives. These arguments lack merit. The city’s resolution does not reference cost or “anti-
environmental” motives; it identifies POMP’s concerns, reviews the ev idence, and
concludes that the p roject will cause no significant environmental impact. See Reserve
Mining Co. v. Minn. Pollution Control Agency , 364 N.W.2d 411, 415 (Minn. App. 1985)
(“The court is interested in de termining the collective reasons of an agency’s action as
enunciated by the agency. Reading a transcript might give the court ideas of individual
member’s view, but one member’s views may not reflect the basis for the action of other
members.”), review dismissed (Minn. June 10, 1985).
POMP also argues that the city “blithely disregarded” evidence of the potential for
significant environmental impacts resulting from erosion, invasive species, and the threat
to the bee. In Twin Lakes, an organization challeng ed a city’s decision not to conduct an
environmental-impact statement, arguing in part that the city improperly examined pre -
existing regulatory oversight and other mitigation strategies. 764 N.W.2d at 382. This court
recognized that the Minnesota Rules sp ecifically require an RGU to consider “the extent
to which the environmental effects are subject to mitigation by ongoing public regulatory

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authority, id. (citing Minn. R. 4410.1700, subp. 7), and concluded that the city did not err
because it “studied the situation and determined that the project does not have a potential
for significant environmental effects because pre -existing regulatory oversight requires
mitigation measures,” id. at 383.
Similarly here, city staff explained how the project was subject to USFWS
regulation regarding the bee’s habitat, and that the city would receive all permits necessary
prior to commencing the p roject. Regarding soil erosion and potentia l for hydrological
damage, city staff stated that they would apply for and follow any permits by “all required
watershed districts.” Finally, while the city acknowledged that some impact on wildlife in
the area would occur, based on information in the biological assessment, it concluded that
the project would not have the potential to cause a significant impact on those populations.
We conclude that the c ity did not disregard POMP’s concerns and properly based its
decision on mitigation strategies under pre -existing regulatory oversight. See id. (“This
court has repeatedly recognized that such regulatory oversight weighs heavily in favor of
a finding of no significant impact.” (quotation omitted)); Watab, 728 N.W.2d at 92 (holding
that RGU’s determination of no significant environmental impact was supported by
substantial evidence when project that involved permitting and potential for hydrological
damage was subject to “ongoing regulatory review”).
POMP argues that the city failed to consider the cumulative effects of the previously
constructed pickleball courts in the park. In CARD, the supreme court concluded that when
considering the “cumulative potential effects of related or anticipated future actions” a n
“RGU must take into account outside projects that have the potential to cause significant

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environmental effects when considered in conjunction with the proposed project,” limited
to “specific projects actually planned or for which a basis of expectation has been laid,”
and “geographically to projects in the surrounding area that might reasonably be expected
to affect the same natural resources.” 713 N.W.2d at 830–32. Here, the city considered the
potential cumulative effects stemming from the pickleball courts and found that “no
significant cumulative potential effects” existed because the pickleball courts had been
constructed with USFWS oversight to mitigate water runoff, and that the city’s natural -
resources manager stated that during construction of the pickleball courts, staff “consulted
with the [USFWS], who determined that the pickleball courts would have no impact on the
[] bee.” And the USFWS verified that the pickleball project, in its entirety, would have no
effect on the bee , which was the only species that had been iden tified as potentially
affected. The city’s natural-resources manager also stated that, because the “land use in the
park will not change and this project will not cause changes in any adjacent property,” no
potential cumulative significant environmental effects existed. We conclude that the city
did not disregard this factor, and that finding is supported by substantial evidence.
POMP also argues that the city failed to consider th at its regular maintenance of
trails “over time” expands the width of the trails. But POMP cites to no material evidence
that shows that such widening was already occurring or how it would relate to the project,
especially in light of the fact that the project involves shutting down portions of trails that
are in disrepair to reclaim them. See id. at 835 (stating that RGU may “reasonably” consider
mitigation measures that “are specific, targeted, and are certain to be able to mitigate the
environmental effects”).

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We conclude that the city considered the requisite factors in determining whether to
conduct an EAW, and supported its decision with substanti al record evidence. The city’s
decision therefore was not arbitrary or capricious.
III.
POMP argues that the city made multiple errors of law, resulting in a reversible
decision. We review questions of law that arise from a denial of a petition for an EAW de
novo. Metallic Leases, 838 N.W.2d at 216. In determining the need for an EAW, an RGU
must review all material evidence to determine whether a proposed project may have the
potential for significant environmental effects. Watab, 728 N.W.2d at 91; Minn. Stat.
§ 116D.04, subd. 2a(e). POMP claims that the city e rroneously relied on the biological
assessment submitted by the park board. But the city’s resolution states that it considered
all information presented by POMP at the meeting, and that it incorporated the information
in its resolution . And POMP’s pet ition explicitly cites to the report of the city’s “own
consultant” and to the park-board’s Mountain Bike Study. We therefore conclude that the
city did not err in citing to this evidence in its resolution.
POMP also claims that the park-board’s evidence, relied on by the city , concludes
that the project may have the potential for significant environmental effects, citing findings
that: (1) the sec ondary impacts of tree removal “ are difficult to quantify until the trail is
sited,” (2) several woodland bird species “may” experience displacement, and ( 3) the
impact on the bee “is harder to quantify” based on a lack of knowledge about the extent of
its population. But, as noted above, the city’s natural-resources manager testified that staff
would engage in appropriate mediation through active management, construction best

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practices adopted by the U.S. National Park Service, and cooperation with the USFWS to
arrange for an expert from that federal agency to assist in protecting the bee’s habitat and
pollinating area.
POMP claims that the city’s resolution reflects that the city used an incorrect
standard when it concluded that the project will “not likely [] have significant
environmental impacts.” In referencing the type, extent, and reversibility of environmental
effects, the city concluded that the project will “have some environmental impacts,” but
that the “evidence demonstrates that the [p]roject is not likely to have significant
environmental impacts.” While the city’s resolution acknowledges the potential for some
environmental impact, substantial evidence supports the city’s conclusion that the project
will not have the potential for significant environmental impact. See Watab, 728 N.W.2d
at 91 (“Absent the presentation of [] material evidence, no basis exists to conclude that the
[proposed project] may have the potential to significantly affect the environment.”). We
conclude that the city used the proper standard in denying POMP’s EAW petition and did
not commit reversible error.
Affirmed.