A18-1953 A18-1958 A18-1959 A18-1960 A18-1961

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-1952
A18-1953
A18-1958
A18-1959
A18-1960
A18-1961

Court of Appeals Hudson, J.
Thissen, J., took no part

In the Matter of the NorthMet Project Permit
to Mine Application Dated December 2017
(A18-1952, A18-1958, A18-1959), and
Filed: April 28, 2021
In the Matter of the Applications for Office of Appellate Courts
Dam Safety Permits 2016-1380 and 2016-1383
for the NorthMet Mining Project
(A18-1953, A18-1960, A18-1961).

________________________

Monte A. Mills, Davida S. Williams, Greene Espel PLLP, Minneapolis, Minnesota; and

Jay C. Johnson, Kathryn A. Kusske Floyd, Venable LLP, Washington, D.C., for appellants
Poly Met Mining, Inc. and Poly Met Mining Corp.

Sherry A. Enzler, General Counsel, Minnesota Department of Natural Resources, Saint
Paul, Minnesota; and

Jon W. Katchen, Sarah M. Koniewicz, Holl and & Hart LLP, Anch orage, Alaska, for
appellant Minnesota Department of Natural Resources.

Paula G. Maccabee, Just Change Law Offices, Saint Paul, Minnesota, for respondent
WaterLegacy.

Ann E. Cohen, Elise Larson, Evan Mulholland, Minnesota Center for Environmental
Advocacy, Saint Paul, Minnesota, for responde nts Minnesota Center for Environmental

2
Advocacy, Duluth for Clean Water, Center for Biological Diversity, Friends of the Cloquet
Valley State Forest, Save Lake Superior Association, and Save Our Sky Blue Waters.

Vanessa L. Ray-Hodge, Sonosky, Chambe rs, Sachse, Mielke & Brownell, LLP,
Albuquerque, New Mexico; and

Sean Copeland, Tribal Attorney, Cloquet, Minnesota, for respondent Fond du Lac Band of
Lake Superior Chippewa.

Margo S. Brownell, Evan A. Nelson, Maslon LLP, Minneapolis, Minnesota, for respondent
Friends of the Boundary Waters Wilderness.

Dara D. Mann, Squire Patton Boggs LLP, Atlanta, Georgia, for amicus curiae Iron Mining
Association of Minnesota.

Byron E. Starns, Stinson LLP, Minnea polis, Minnesota, for amicus curiae
MiningMinnesota.

Lloyd W. Grooms, Minnesota Chamber of Commerce, Saint Paul, Minnesota; and

Jeremy P. Greenhouse, The Environmental Law Group, Ltd., Mendota Heights, Minnesota,
for amicus curiae Minnesota Chamber of Commerce.

Michael D. Madigan, Brandt F. Erwin, Megan J. Kunze, Christopher W. Bowman,
Madigan, Dahl, & Harlan, P.A., Minneapolis, Minnesota, for amicus curiae Sierra Club.

Eric E. Caugh, Zelle LLP, Minneapolis, Minnesota, for amici curiae Arne Carlson, John P.
Gappa, Ron Sternal, and Alan Thometz.

Gregory R. Merz, Lathrop GPM LLC, Minneapolis, Minnesota, for amici curiae Allan W.
Klein, Richard Luis, and Eldon G. Kaul.
________________________

S Y L L A B U S
1. Allegations that property owned by a person will be affected by the proposed
mining operations is sufficient to satisfy the standing requirement in Minn. Stat. § 93.483,
subd. 1 (2020), to file a petition for a contested case hearing.

3
2. The Minnesota Department of Natural Resources has discretion under Minn.
Stat. § 93.483, subd. 3(a) (202 0), to decide whether a contested case hearing will aid the
commissioner in resolving a disputed materi al issue of fact related to a completed
application for a permit to mine.
3. Under Minn. Stat. § 93.483, subd. 3(a)(3), when reviewing the
commissioner’s decision to deny a petition for a contested case hearing, the reviewing court
must determine whether the petitioner has shown that the deci sion by the Minnesota
Department of Natural Resources regarding a sp ecific disputed material issue of fact was
not reasonably supported by substantial evidence in the record.
4. Minnesota Statutes § 93.481, subd. 3( a) (2020), requires the commissioner
of the Minnesota Department of Natural Resources to set a definite, fixed term of years for
a permit to mine.
5. The court of appeals erred in reversing the dam-safety permits on the basis
that a contested case hearing was ordered on the permit to mi ne because the two permits
are governed by distinct statutory standards.
Affirmed in part, reversed in part, and remanded.
O P I N I O N
HUDSON, Justice.
On November 1, 2018, the Minnesota De partment of Natural Resources (DNR)
issued a permit to mine and two dam-safety permits to Poly Met Mining, Inc. (PolyMet) to
build and operate Minnesota’s first copper-nickel mine. The DNR’s Findings of Fact,

4
Conclusions, and Order of Commissioner1 for the permit to mine also denied respondents’
petitions for a contested case he aring on various factual i ssues related to PolyMet’s
completed permit to mine application. Respondents Minnesota Center for Environmental
Advocacy (MCEA),2 WaterLegacy, and Fond du Lac Ba nd of Lake Superior Chippewa
(the Band) appealed from the decisions to gr ant the permit to mine and the dam-safety
permits, and the decision to deny their contested case petitions. 3 After consolidating the
appeals, the court of appeals reversed the DNR’s decision to grant the permit to mine and
remanded to the DNR to hold a contested case hearing on the i ssues raised by the
respondents. In re NorthMet Project Permit to Mine Application Dated Dec. 2017 ,
940 N.W.2d 216, 238 (Minn. App. 2020). The court also reversed the decision to issue the

1 The terms “the DNR,” th e “DNR commissioner,” and “the commissioner” are used
interchangeably throughout the opinion. Each refers to the same entity, the DNR, and its
commissioner who has the final decision-making authority for the DNR. See Minn. Stat.
§ 84.027, subds. 1–2 (2020) (“The commissi oner of natural resources shall be the
administrative and executive head of the department. . . . The commissioner shall have
charge and control of all the public lands, parks, timber, waters, minerals, and wild animals
of the state and of the use, sale, leasing or other disposition thereof . . . .”).

2 References to “MCEA” in the opinion refers collectiv ely to the Minnesota Center
for Environmental Advocacy and the other environmenta l organizations it jointly
represented throughout the litigation, includ ing Duluth for Clea n Water, Center for
Biological Diversity, Friends of the Cloquet Valley State Fo rest, Save Lake Superior
Association, and Save Our Sky Blue Waters.

3 The Minnesota Center for Environmental Advocacy (on behalf of itself, the Center
for Biological Diversity, and the Friends of the Boundary Waters Wilderness) and
WaterLegacy petitioned for a contested case hearing. Respondent Fond du Lac Band of
Lake Superior Chippewa (the Band) did not, but it did ch allenge on appeal the DNR’s
decision to issue the permit to mine and dam-safety permits.

5
dam-safety permits in order to allow for reconsideration of those permits after the contested
case hearing on the permit to mine. Id.
We conclude that the court of appeals adopted an incorrect legal standard to evaluate
the DNR’s decision to deny the petitions for a contested case hearing. By disregarding the
DNR’s discretion, the court of appeals erred in its interpretation of Minn. Stat. § 93.483,
subd. 3(a) (2020). Under a subs tantial-evidence standard, we conclude that a contested
case hearing is required on the effectiveness of the proposed bentonite amendment for
PolyMet’s proposed tailings basin. Regard ing the other factual issues raised in
respondents’ petitions, however, we conclude that the DNR did not abuse its discretion in
denying the petitions for a contested case hear ing because substantia l evidence supports
those decisions. We further conclude that the court of appeals was correct in reversing the
decision to grant the permit to mine because the DNR erred by issuing the permit without
an appropriate fixed term. Finally, we conclude that the court of appeals erred in reversing
the two dam-safety permits. Accordingly, we affirm in part and reverse in part the decision
of the court of appeals and remand to the DNR to conduct the contested case hearing
required by this decision and, thereafter, to determine and fix the appropriate definite term
for the permit to mine as necessary.4

4 We recognize that, in a ddition to challenging the DNR’s denial of a contested case
hearing, respondents also challenged the legal sufficiency of the permit to mine and dam-
safety permits granted by the DNR. Our decision today focuses primarily on the DNR’s
decision to deny respondents’ petitions for a contested case hearing on the permit to mine.
Because we conclude that th e DNR must hold a contested case hearing on the proposed
bentonite amendment, we believe that a decision on the legal sufficiency of the permits is
premature. The DNR has the authority to id entify the issues and scope of the contested
case hearing, Minn. Stat. § 93.483, subd. 5 (2020), and may decide to address issues raised

6
FACTS
PolyMet proposes to develop a mine and associated processing facilities to extract
copper and nickel from the NorthMet Deposit in northeastern Minnesota. If approved, the
mine would be the first of its kind in the state. Minnesota has a long history of regulating
iron and taconite mining. Although years of study and regulatory activity have been
underway to prepare for copper-nickel mining, th is is the first permit to mine of its kind.
Further, the proposed NorthMet project bri ngs with it potential environmental impacts
unique to this type of mining. In particul ar, the mine waste generated by extracting and
processing sulfide ore has the potential to release acid rock drainage, which occurs if either
the sulfide ore or waste rock is exposed to oxygen or water. If so exposed, the sulfide ore
and waste rock would release toxic metals and sulfate that could seep into nearby surface
waters and groundwaters. As a result, the NorthMet project has generated significant
public interest and controversy.
The NorthMet Project. As proposed by PolyMet, th e NorthMet project will be
located along the eastern flan k of the Mesabi Iron Range, near the towns of Babbitt and
Hoyt Lakes in St. Louis County. The project would consist of three main facilities: a mine
about six miles south of Babbitt; an ore proc essing plant about six miles north of Hoyt
Lakes; and a transportation corridor connecting the two sites. The entire project would be
located within the St. Louis Wa tershed, which drains into Lake Superior. The proposed

by this appeal regarding the legal sufficiency of the permits. Therefore, we need not
remand to the court of appeals to address th e DNR’s decision to issue the permits. This
does not, of course, preclude respondents from renewing their challenges to the DNR’s
permitting decisions after the conclusion of the contested case hearing. Id.

7
open-pit mine site is a previously undisturbe d area; the plant site is a former taconite-
processing facility owned by LTV Steel Mining Company (LTV Mining). Over the
estimated 20-year life of the mine, approxim ately 533 million tons of ore and waste rock
would be removed from the open-pit mines and processed at a rate of up to 32,000 tons per
day.
Tailings, the waste by-product from ore processing, would be mixed with water and
pumped as a slurry into an existing, but upgraded, flotation tailings basin maintained at the
LTV Mining plant site.5 To contain these tailings, PolyMet plans to build a new dam atop
the existing LTV Mining tailings dam, using an upstream construction method.6 To keep
water and oxygen from reaching th e tailings, the exterior side of the dam, along with the
tailings basin beaches and basin bottom, would incorporate a bentonite-amended oxygen-
barrier layer (the bentonite amendment). Benton ite is a natural clay sealant. The project
would also use a containment system to coll ect water seepage from the tailings basin to
prevent surface water and ground water pollution.
After mining operations cease, the project calls for placing the tailings under a “wet
cover” (i.e., a man-made pond) to minimize the reactivity of ta ilings to oxygen.
Reclamation and closure following the expected 20-year mine life would include periodic

5 Tailings are produced when the econom ic mineral portion of the ore, the
“concentrate,” is separated from the non-econom ic mineral portion, the “tailings.” The
basin holds the tailings, which are deposited there post-processing.

6 The upstream construction method in volves adding materials to the dam in
successive “lifts” in a stairstep fashion toward the inside of the tailings basin. This is
opposed to a downstream construction method , which involves adding material to the
exterior of the dam.

8
monitoring and maintenance of water quality until conditions are deemed environmentally
acceptable. See Minn. Stat. § 93.44 (2020) (declari ng the State’s policy to provide for
reclamation of land subject to mining). Ac cording to PolyMet’s modeling, post-closure
maintenance is likely necessary for at least 200 years.
The Mine Permitting Application Process. Mining in Minnesota is regulated by
statute and administrative rules. The permitti ng process allows the State to balance its
interests in limiting the “possible adverse environmental effects of mining” and preserving
natural resources, against its interests in encouraging “the orderly development of mining,”
“good mining practices,” and the beneficial aspects of mining. Minn. Stat. § 93.44; Minn.
R. 6132.0200 (2019); see also Minn. Stat. § 93.001 (2020) (“It is the policy of the state to
provide for the diversification of the state’s mineral economy . . . .”). Mining must be
“conducted on sites that minimize adverse im pacts on natural resour ces and the public,”
Minn. R. 6132.2000 subp. 1 (2019), and th e mining operation must be “designed,
constructed, and maintained so that it is compatible with surrounding nonmining uses.”
Minn. R. 6132.2100, subp. 1 (2019).
There are two types of permits at issue in this appeal. The first, the permit to mine,
concerns the NorthMet project. See Minn. Stat. § 93.481, s ubd. 1 (2020) (requiring “a
permit to mine” from the DNR to “carry out a mining operation” in the state). The second,
the dam-safety permits, govern PolyMet’s proposed tailings basin dam and the facility
(referred to as a hydrometallurgical residue facility) that receives residue, mostly gypsum,

9
from ore processing activities.7 See Minn. Stat. § 103G.297, s ubd. 1 (2020) (authorizing
the commissioner to “issue water-use permits for the diversion, draining, control, or use of
waters of the state for mining”). The DNR granted the permit to mine and the dam-safety
permits on November 1, 2018.
The application for a permit to mine is a multi-phase process that begins after the
environmental review by federal and state regulators is complete. See Minn. R. 6132.4000,
subp. 1 (2019). The permitting process begins with a preapplication conference and site
visit by the DNR commissioner to review the proposed mining operation. Minn. R.
6132.1100, subp. 1 (2019). A preapplication meeting is also required to “outline chemical
and mineralogical analyses and laborator y tests to be conducted for mine waste
characterization.” Minn. R. 6132.1000, subd. 1 (2019).
A permit to mine application must include “a proposed plan for the reclamation or
restoration” of the affected mining area, a certificate of a “public liability insurance policy”
or “evidence that the applicant has satisf ied . . . state or federal self-insurance
requirements.” Minn. Stat. § 93.481, subd. 1. The application must also demonstrate that
public notice has been give n in the locality of the pr oposed mining operations. Id. The
applicant must also submit “such info rmation as the [DNR] may require.” Id.; see also

7 A “dam” is an “artificial barrier” that “does or may impound water and/or waste
materials containing water.” Minn. R. 61 15.0320, subp. 5 (2019 ). According to the
Commissioner’s decision on the dam-safety pe rmits, PolyMet’s proposed dams “will not
change or diminish the course, current or cross section of a public water” nor involve the
“construction, reconstruction, modification or removal of a dam on public water.”

10
Minn. R. 6132.1100–.1300 ( 2019) (requiring the applicant to address other relevant
matters).
The DNR reviews a permit to mine applica tion to determine if it is “complete.”
Minn. R. 6132.4000, subp. 1. Once the DNR declares the application complete, it publishes
notice in the State Register that “an applica tion for a permit to mine” has been received,
and the applicant publishes noti ce for four weeks in a newspa per that circulates in the
locality of the proposed mine, with deta ils regarding the proposed operations. Id.; Minn.
R. 6132.4900, subp. 1 (2019). After the applicant’s publication has run for four weeks and
the applicant submits verification of publicati on, the application is “considered filed.”
Minn. R. 6132.4000, subp. 1.
Within 120 days after the permit to mine application is “deemed complete and
filed,” the DNR must “grant the permit app lied for, with or with out modifications or
conditions, or deny the application unless a contested case hearing is requested or ordered.”
Minn. Stat. § 93.481, subd. 2.
Dam-safety permits are authorized by Minnesota Statutes chapter 103G (2020). The
permit application must include the information required by the DNR, see Minn. Stat.
§ 103G.301, subd. 1, and the applicant must serve the app lication on municipal bodies or
conservation districts if the proposed use is within or affects one of those bodies. Id.,
subd. 6. The permit application must also include a “prelimin ary report” with geological
conditions, preliminary design assumptions, and engineering deta ils, prepared by or
reviewed with an engineer who is “proficient in dam engine ering.” Minn. R. 6115.0410,
subps. 3, 5 (2019). Once the DNR accepts the preliminary report, the applicant must submit

11
a final design report that includes additiona l details on the projec t, such as geological
considerations, studies and analyses of seep age and stability issues, and “analytical and
design details,” among other requirements. Id., subp. 6.
The commissioner must notify the applicant within 30 days whether the application
is deemed complete and must “act on” the application within 150 days after it is deemed
complete, by either holding a h earing or by granting or deny ing the permit. Minn. Stat.
§ 103G.305, subd. 1.8 The permit decision is final 30 da ys after the decision is made and
“an appeal may not be taken” if no demand for a hearing is made. Minn. Stat. § 103G.311,
subd. 5(c)(1). A dam-safety permit may be issued, subject to conditions deemed necessary
to protect public interests, if the commissioner determines that (1) the proposed use is
necessary for the mining operation; (2) the proposed use will not “substantially impair” the
public interests in the State’s water resource s or the “substantial beneficial” public use of
those resources, or endanger public health; and, (3) the proposed mining operation is in the
public interest. Minn. Stat. § 103G.297, subds. 3, 7. The permit term is for the period that
the commissioner deems “reasonable and necessa ry for the completion of the proposed
mining operations.” Id., subd. 6; see also Minn. R. 6115.0390, subp. 1 (2019) (“Unless the
dam is removed, the owner shall perpetually ma intain the dam . . . to ensure the integrity
of the structure.”).

8 The commissioner can waive the heari ng provided for under section 103G.311,
which allows certain entities to demand a hearing, id., subds. 4, 5(a). If a hearing is held,
the DNR’s findings of fact must be base d on “substantial evidence.” Minn. Stat.
§ 103G.315, subd. 2.

12
PolyMet’s Permit Applications. The review process that culminated in the DNR’s
issuance of PolyMet’s permit to mine and dam- safety permits began in 2004, with a joint
federal-state environmental review. See In re Applications for Supplemental Envtl. Impact
Statement for Proposed NorthMet Project, No. A18-1312, 2019 WL 2262780, at *1 (Minn.
App. May 28, 2019) (summarizing the environmental review process), rev. denied (Minn.
Aug. 20, 2019). PolyMet has received the major state and fe deral permits needed for the
NorthMet project, including pollutant discharge and air-emissions permits. 9 In addition,
the Final Environmental Impact Statement (FEIS), which was deemed adequate in March
2016 under the National Environmental Po licy Act, 42 U.S.C. §§ 4321–47, and the
Minnesota Environmental Policy Act, Minn. Stat. ch. 116D (2020), was not appealed.
Because no appeal was taken from that adequacy determination, it is a final agency decision
that is no longer subject to judicial review . See Minn. Stat. § 116D.04, subd. 10
(authorizing an appeal).10

9 Challenges to the perm its issued by the Minnesot a Pollution Control Agency
(MPCA) are the subject of an appeal pending before the court of appeals, In re Denial of
Contested Case Hearing Re quests & Issuance of NPDES/SDS Permit No. MN0071013 ,
No. A19-0112. In a separate appeal, we re jected claims that th e permitting agency was
required to investigate whether PolyMet engaged in sham pe rmitting when receiving air-
emissions permits for the NorthMet project. See In re Issuance of Air Emissions Permit
No. 13700345-101 for Polymet Mining, Inc., 955 N.W.2d 258 (Minn. 2021).

10 MCEA and WaterLegacy appealed the deni al of their petitions for a supplemental
environmental impact statement (SEIS), through which they sought to address PolyMet’s
proposed change in the treatment of wastewater, disclosure under Canadian securities law
of information “about the financial viability of the NorthMet project,” potential expansion
of the project, and unconsidered alternatives for tailings disposal. The court of appeals
affirmed, concluding that the DNR properly applied the law in denying those petitions, and
its decision was supported by substantial evidence. In re Applications for a [SEIS] for the
Proposed NorthMet Project, 2019 WL 2262780, at *5.

13
The environmental review process precedes the permit application process because
it is intended to info rm the subsequent permitting and a pproval processes and, thus, the
DNR uses that process and the FEIS as “guides” during the permitting process. See Minn.
R. 4410.0300, subp. 3 (2019) (stating that environmental re views are “used as guides in
issuing, amending, and denying permits”). After the NorthMet FEIS was deemed adequate
and was not challenged, PolyMe t submitted its application for the dam-safety permits on
July 11, 2016, and submitted its permit to mine application on November 3, 2016.
Over the next year, the DNR and PolyMe t identified and resolved issues and
concerns raised by the agen cy and various public comments, with PolyMet submitting at
least three revised versions of its permit to mine application. By early 2018, the DNR had
developed 90 special conditions for the permit to mine to address operations, reclamation,
mitigation of wetland impacts, and financial assurances, among other issues.
The draft dam-safety permit applications were circulated to local and county
governments and tribal entitie s, and a 30-day p ublic comment period was opened in
September 2017. The DNR issued notice of the draft permit to mine application and
opened a public comment period on January 5, 2018. The DNR received more than 5,000
public comments on the dam-safety permit a pplications and more than 14,000 public
comments on the permit to mine application. The permit to mine application was deemed
complete and filed on January 29, 2018. Respondents MCEA and WaterLegacy each
submitted a timely petition for a contested case hearing on the permit to mine.11

11 Respondent WaterLegacy id entified eight issues on which it requested a contested
case hearing, including the “tailings waste storage facility,” the hydrometallurgical residue

14
On November 1, 2018, the DNR issued three decisions: the first denied respondents’
petitions for a contested case hearing and granted the permit to mine subject to the special
conditions; the second granted the dam-safety permits; and the third transferred the existing
permit for the LTV Mining tailings basin to PolyMet.12 The DNR supported its decision
on the permit to mine with a 177-page document containing over 800 findings of fact, in
addition to the commissioner’s conclusions. The decision granting the dam-safety permits
was similarly supported by extensive factual findings and conclusions. Based on its review
of the entire record, the DNR concluded that PolyMet’ s proposed dams and mining
operations are reasonable, practical, and will ad equately protect natural resources, ensure
public safety, and promote the public welf are. Thus, the DNR concluded that it was
required to grant the applicatio ns subject to the terms and co nditions in the permits. The
DNR also denied the petitions fo r a contested case hearing, concluding that respondents
lacked standing to seek such a hearing beca use they did not own property that would be
affected by the proposed mining operations. But assuming that they had standing, the

facility, waste storage and seepage contai nment technologies, elimination of the
wastewater treatment facility, the environmental liability insurance coverage, and the lack
of “information and specificity” concerning th e permit. Respondent MCEA also listed
eight issues for a contested case hearing, including the “adequacy of the permit,” the
tailings basin, “waste rock characterization,” the reactive qualities of that material, the
requirements for “waste rock storage piles,” the adequacy of the proposed monitoring wells
at the site, and financial assurances.

12 At the court of appeals, the Band challe nged this third decisi on, to transfer the
existing LTV Mining permit for the tailings basin to PolyMet, claiming that the DNR’s
decision was arbitrary and capricious. In re NorthMet, 940 N.W.2d at 238. The court of
appeals disagreed and affirmed the DNR’s decision to transfer that permit. Id. The Band
did not seek review of this issue and, thus, it is not before us.

15
commissioner nonetheless concluded that petitioners had not me t their burden of
demonstrating that a contested case hearing was necessary on the factual issues presented
in their petitions.
Judicial Proceedings. Respondents sought review of the DNR’s permit decisions
by filing six separate certiorari appeals in th e court of appeals: three from the DNR’s
decision to deny a contested case hearing and to issue the permit to mine (A18-1952,
A18-1958, A18-1959) and three from the DNR’s decision to issue the dam-safety permits
(A18-1953, A18-1960, A18-1961). The court of appeals consolidated the six appeals, and
while briefing was on-going, temporarily stay ed the permits pending a final decision on
the merits. In re NorthMet, No. A18-1952, Order at 7–9 (Minn. App. filed Sept. 18, 2019).
On January 13, 2020, the court of appeal s reversed the DNR’s decisions granting
the permit to mine and the dam-safety permits. In re NorthMet, 940 N.W.2d at 237 ‒38.
Interpreting Minn. Stat. § 93.483, the court of appeals held that the DNR is required to hold
a contested case hearing when a petition presen ts “probative, competent, and conflicting
evidence on a material fact issue.” Id. at 231. The court then identified five issues where
it found that respondents had produced such evidence: (1) upstream construction method
of the tailings basin dam; (2) bentonite amendment to the tailings basin; (3) alternatives to
wet closure of the tailings basin; (4) financ ial assurances; and (5) PolyMet’s relationship
to its largest shareholder, Glencore. Id. at 232–37. Thus, the court of appeals concluded
that the DNR erred by issuing the permits an d remanded to the DNR to hold a contested
case hearing. Id. at 237‒38. After concluding that a contested case hearing was required
on issues raised in the respondents’ petitions , the court of appeals declined to reach the

16
other arguments presented except for one. In the interests of administrative and judicial
efficiency, the court of appeals considered whether the DNR erred by issuing the permit to
mine without a definite term. Id. The court concluded that the plain language of Minn.
Stat. § 93.481, subd. 3(a), required the DNR to set a fixed term for the permit to mine and
“direct[ed] that, for any perm it issued following remand, the DNR shall determine and
impose an appropriate, definite term.” Id. at 238.
We granted the petitions for review filed by the DNR and PolyMet.
ANALYSIS
This appeal primarily concerns the c ontested case requirements in Minn. Stat.
§ 93.483 as applied to the issues raised by respondents in their petitions for a contested
case hearing on PolyMet’s permit to mine a pplication. Because the court of appeals
reversed the decision to grant the permits after concluding that the DNR is required to hold
a contested case hearing on the issues respon dents raised in their petitions, we focus only
on those issues addressed by the court of appeals.
I.
We begin with the question of who can file a petition for a contested case hearing.
“Any person owning property that will be affected by the pr oposed [mining] operation . . .
may file a petition” for a contested case hearing. Minn. Stat. § 93.483, subd. 1. In denying
respondents’ contested case h earing petitions, the DNR dete rmined that th e “vague and
speculative assertions” made by MCEA and WaterLegacy, and their members, were
“premised on the occurrence of adverse impacts” that were “not likely to occur.” Thus, the
DNR concluded that the organizations and their members lacked standing to file a petition for

17
a contested case hearing because no one owned property that will be affected by PolyMet’s
proposed mining operations.
The court of appeals rejected this interpretation of Mi nn. Stat. § 93.483, subd. 1,
concluding that the DNR’s interpretation suggested that only individuals owning property
“directly adjacent” to a proposed project would have a right to petition for a contested case
hearing. In re NorthMet, 940 N.W.2d at 228. The court concluded that the DNR applied an
“overly narrow interpretation” of the statute and that the member declarations established that
members’ properties will be affected—“that is, [a]cted upon, influenced, or changed”—by
the possible release of pollutants from the tailings basin or by the risk of dam failure. Id. at
229 (alteration in original).
This issue presents a question of statutory interpretation, which we review de novo.
See In re Restorff, 932 N.W.2d 12, 18 (Minn. 2019). We begin with the language of the
statute, giving words and phrases their plain and ordinary meaning. Id. at 19; see also Minn.
Stat. § 645.08 (1) (2020). We do not defer to agency interpretations of unambiguous language
in rules and regulations. In re Reichmann Land & Cattle, LLP, 867 N.W.2d 502, 506 (Minn.
2015).
The court of appeals concluded that the te rm “affected,” in th e statutory clause,
“property that will be affected,” Minn. Stat. § 93.483, subd. 1, is broad; it means to be acted
upon, influenced, or changed in some way. In re NorthMet, 940 N.W.2d at 229. We agree.
The court of appeals’ interpretation is consistent with the plain meaning of the word
“affected,” and consistent with the language describing the timing of that impact, “will be”

18
affected, either now or in the future. See The American Heritage Dictionary of the English
Language 28 (5th ed. 2011).
The DNR argues that the court of appeals erred, asserting that the Legislature intended
to extend the right to petition for a contested case hearing only to a narrow class of persons
based on the statutory requirement that property will be affected. The DNR’s position hinges
on the likelihood that a member’s property will actually be affected if any of the potential
adverse consequences actually come to pass, or that any effect, if it occurs, will be substantial.
This interpretation, however, asks us to add terms to the statute that the Legislature did not
include, which we do not do. General Mills, Inc. v. Comm’r of Revenue, 931 N.W.2d 791,
800 (Minn. 2019) (“We do not, however, add words to the plain language of a statute to fit
with an identifiable policy.”).
Instead, we consider whether respondents have alleged potential impacts from the
proposed mining operations that will affect their pr operty. The declar ations filed with
respondents’ petitions for a contested case hearing included numerous allegations about the
potential impact of the mining operations on state-wide natural resources—waters, fish and
wildlife populations—used by their members who own property in northeastern Minnesota.
These allegations, by themselves, do not satisfy the statutory standard to file a petition for a
contested case hearing because the members do not own the natural resources that they allege
will be affected by the NorthMet project.
On the other hand, at leas t one declaration filed by e ach petitioning organization
contained specific allegations about potential impacts to prop erty actually owned by the
declarant. For example, one declarant, who uses a well to supply his home with water for

19
drinking, washing, and bathing, began testing his well water for bacteria and chemicals to
establish a baseline for monitoring potential future groundwater pollution. Another declarant
explained that the real estate market in northeastern Minne sota, where her family owns
property, has been “destabilized” in the wake of PolyMet’s proposed mining operations. And
yet another property owner described intermittent streams that cross his property, which he
contends, in part, enhance the value of his property, and which he fears will be affected by
the proposed mine. Each of these declarants allege that property they own will be influenced
or impacted in some way by th e NorthMet project. Therefore, we agree with the court of
appeals: respondents have standing to file a petition for a contested case hearing under Minn.
Stat. § 93.483, subd. 1.
II.
Next, we consider the legal standard that governs the DNR’s decision on a petition for
a contested case hearing, including the standard that applies to judicial review of that agency’s
decision. The DNR “must grant” a contested case petition if the commissioner finds that:
(1) there is a material issue of fact in dispute concerning the completed
application before the commissioner;

(2) the commissioner has jurisdiction to make a determination on the
disputed material issue of fact; and

(3) there is a reasonable basis underlying a disputed material issue of fact so
that a contested case hearing would allow the introduction of information
that would aid the commissioner in reso lving the disputed facts in order
to make a final decision on the completed application.

Minn. Stat. § 93.483, subd. 3(a). The petitioner bears the burden of showing entitlement to
the requested hearing. In re N. States Power Co. (NSP ) Wilmarth Indu s. Solid Waste

20
Incinerator Ash Storage Facility, 459 N.W.2d 922, 923 (Minn. 1990). If th e petitioner’s
showing fails on any one of the three criteria in subdivision 3(a), the petition can be denied.
See Lennartson v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 662 N.W.2d 125, 130 (Minn.
2003) (noting that the use of the term “and” typically denotes a conjunctive rule).
The court of appeals conclude d that paragraph (3) of subdi vision 3(a) requires the
DNR to grant a contested case hearing “when there is probative, competent, and conflicting
evidence on a material fact issue.” In re NorthMet, 940 N.W.2d at 231; see also id.
(explaining that court’ s conclusion that the phrase “so that” in paragraph (3) reflects a
“legislative judgment that a contested-case hearing will be helpful in cases where there are
genuine, material disputes of fact” (emphasis added)). In reaching this conclusion, the court
of appeals rejected the DNR’s argument that the commissioner has the discretion to decide
whether to hold a contested case hearing as “inconsistent with the language of the statute and
the caselaw.” Id.; see also id. (“Nothing in the statutory language grants the DNR the
unfettered discretion it seeks to employ.”). The court of appeals acknowledged that the DNR
had already evaluated the issues presented in the petitions, including the construction method
for the tailings basin dam, th e use of bentonite, the clos ure method and other storage
alternatives, PolyMet’s financial assurances, and the ownership interests in PolyMet. Id. at
232‒37. Nonetheless, the court concluded that nothing in subdivision 3(a) “limits contested
case hearings to ‘new’ evidence,” and the issue is “not whether there is substantial evidence
to support the DNR’s decision,” but whether the petitions presented material fact issues, “such
that a contested-case hearing was required before the DNR made its decision.” Id. at 232,
237.

21
The DNR asserts that the cour t of appeals erred as a matter of la w in requiring a
contested case hearing based solely on a showing of factual disputes. The DNR contends that
section 93.483 gives the commi ssioner the discretion to deci de whether a contested case
hearing is needed in light of the issues presented in the petition and the application before the
agency. Thus, the DNR argues, the commissioner has the discretion to deny a petition for a
contested case hearing if the commissioner finds that such a hearing would not aid the DNR
in making a final decision on the completed application. PolyMet agrees, asserting that the
plain language of subdivision 3(a) allows the commissioner to decide whether a contested
case hearing would help to resolve factual disputes in making a final decision on the
completed application. Then, PolyMet contends that the decision to grant or deny a contested-
case petition is, as with other agency decisions, subject to judicial review under Minn. Stat.
§ 14.69 (2020). Respondents disagree. They assert that the plain language of section 93.483
requires the commissioner to hold a contested case hearing when a petition presents disputed
material facts because such di sputes make the information pr ovided at a contested case
hearing necessarily helpful to the commissioner in making a decision on the permit to mine
application.
We have not had occasion to address the requirements for a contested case petition
outlined in subdivisi on 3(a). Thus, we begin with th e plain language of the statute.
Subdivision 3 governs th e commissioner’s decision to hol d a contested case hearing.
Paragraph (a) lays out three distinct crit eria: there must be materi al facts in dispute; the
commissioner must have jurisdiction to make a decision on that factual dispute; and, there
must be a reasonable basis for those factual disputes such that new information introduced at

22
a hearing would aid the commissioner in making a final deci sion on the completed
application. Minn. Stat. § 93.483, subd. 3(a)(1)–(3). The commissioner must find that each
of these criteria are met. Id., subd. 3(a) (stati ng that a petition must be granted “if the
commissioner finds that” the criteria in the next three paragraphs are met).
The plain language of subdivis ion 3(a) requires more th an the mere existence of
material factual disputes to merit a contested case hearing. Subdivision 3(a) contains two
statutory requirements in addition to showing there are material facts in dispute. See Minn.
Stat. § 93.483, subd. 3(a)(2)–(3). The commissioner must find, in light of all three criteria,
that the information provided at the hearing “would aid” in re solving factual disputes and
making a final decision on the application. Id., subd. 3(a)(3). We have said that it is “not
enough to raise questions,” “pos e alternatives,” or identify ev idence of “beneficial
alternatives” to merit a contested case hearing. In re Amendment No. 4 to Air Emission
Facility Permit No. 2021-85-OT-1, 454 N.W.2d 427, 430 (Minn. 1990). Thus, we do not
agree that simply identifying factual disputes in a petition leads to the conclusion that a
contested case hearing necessarily will help the commissioner make a decision on a permit to
mine application.
Moreover, by focusing solely on the existe nce of material factual disputes without
regard for the Legislature’s decision to give the commissioner authority to find that a hearing
will be helpful, the court of appeals effectively collapsed paragraphs (1) and (3) into a single,
determinative inquiry: does the pe tition present disputed materi al issues of fact. This
interpretation cannot be correct because it renders the entirety of paragraph (3), which directs
the Commissioner to find a “rea sonable basis” underlying the identified factual disputes,

23
superfluous. See Minn. Stat. § 645.16 (2020) (“Every law shall be construed, if possible, to
give effect to all its provisions.”); Amaral v. Saint Cloud Hosp., 598 N.W.2d 379, 384 (Minn.
1999); see, e.g. , In re Reichmann Land & Cattle , 867 N.W.2d at 511 (adopting an
interpretation of a statute for a pollution discharge permit that gave effect to all its provisions).
There would be no reason for the Commissioner to find that a contested case hearing will
“aid” in resolving fact disputes and making a final decision if the existence of fact disputes
alone compels the commissioner to hold such a hearing.
Finally, our conclusion that the Commissioner must find, based on the three criteria in
subdivision 3(a), that a hearing will aid in making a final decision on the permit application,
preserves a discretionary agency decision that is evaluated deferentially by the judiciary under
a substantial-evidence standard. See Minn. Ctr. Envt’l Advoc. v. Minn. Pollution Control
Agency, 644 N.W.2d 457, 463–64 (Minn. 2002) (applying a substantial-evidence standard to
an agency’s decision to deny a request to prepare an environmental impact statement, noting
that a decision on environmental effects of the proposed project “is primarily factual” and
requires the agency’s “technical knowledge and expertise”); see also Minn. Stat. § 14.69(e)
(2020) (stating that agency deci sions subject to j udicial review must be supported “by
substantial evidence in view of the entire record as submitted”); In re Heron Lake BioEnergy,
LLC, No. A05-1162, 2006 WL 1806160, at *3 (Minn. App. July 3, 2006) (stating that an
agency “has wide discretion to determine whether the permit challenger has met its burden to
show that a contested-case hearing is warranted”), rev. granted (Minn. Sept. 19, 2006), appeal
dismissed (Minn. Jan. 31, 2007); Walser Auto Sales, Inc. v. Best Buy Co., No. C6-01-888,
2002 WL 172025, at *3 (Minn. App. Feb. 2, 2002) (“[R]eview of an agency’s refusal to hold

24
a contested case hearing on a permit application requires us to give the agency wide discretion
to determine whether the permit challenger has met its burden to show that a contested case
hearing is warranted.”). We will defer to the legislative judgment to allow the commissioner
to decide, based on the commissioner’s findings, whether to hold a contested case hearing.
See, e.g., Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 666
(Minn. 1984) (concluding that the initiation of a contested case hearing is within the agency’s
discretion when a rule allowed the agency to hold such a hearing if an “application is
substantially contested”).
Such deference is consiste nt with the authority th e commissioner holds under
subdivision 5. See Anderson v. Comm’r of Tax’n , 93 N.W.2d 523, 528 (Minn. 1958)
(explaining that statutes are “construed as a whole so as to harmonize and give effect to all its
parts”). Under this provision the commissioner identifies “the issues to be resolved and
limit[s] the scope and conduct of the hearing.” Minn. Stat. § 93.483, subd. 5. If the
commissioner has the discretion to identify issues and limit th e scope of a contested case
hearing, the commissioner must also have the discretion to determine whether a contested
case hearing will be helpful in reaching a deci sion on the complete d permit to mine
application.
The court of appeals’ decision In re City of Owatonna’s NPDES/SDS Proposed Permit
Reissuance, 672 N.W.2d. 921 (Minn. App. 2004), on which respondents rely, does not
support a different conclusion. There, the Minnesota Pollution Control Agency (MPCA)
reissued permits to two municipalities whose wastewater treatment facilities discharged into
streams flowing into Lake Byllesby, and also denied the MC EA’s petition for a contested

25
case hearing. Id. at 923, 925. The court of appeals reversed, deciding first that the agency
erred in reissuing the permits because it could not “conclude that the MPCA’s decision not to
apply the phosphorus rule was supported by substantial evidence.” Id. at 928; see also id. at
927‒28 (relying on the questions raised “concerning whether the MPCA engaged in reasoned
decision-making” and whether factors other than the agency’s rule were relied on). But,
because the court was “not prepared . . . to re-write the permits” to address the merits of
MCEA’s challenges to the permits, the court considered whether the agency erred by denying
MCEA’s petition for a cont ested case hearing. Id. at 928. Noting that the MCEA had
identified experts who challenged the agency’s methodology and interpretations, the court
concluded that when a “relator has raised a genuine question concerning whether the MPCA
adequately addressed the disputed fact issues . . . a presentation of these issues to a neutral
administrative law judge in a co ntested case hearing ‘will aid the agency in resolving the
disputed facts and making a final decision on the matter.’ ” Id. at 930 (quoting Minn. R.
7000.1900, subp. 1 (2001)).
But the concerns presented by the record in In re Owatonna are not present here. See
id. at 927–28 (questioning the agency’s modeling on phosphorus limits, noting the agency
announced its intent to reissue the permits before modeling was done, and stating that the
MCEA’s concerns were rejected in a “conclusory manner”). The record in this case is replete
with examples of the DNR soliciting input from the public and considering such input in a
deliberative manner, as evidenced by its 177-page findings of fact and conclusions of law
released alongside the permit to mine. We also question whether the court’s discussion of the
need for a contested case hearing in In re Owatonna was dicta because the court ultimately

26
concluded that the MPCA’s permitting decision lacked substantial evidence. See id. at 928
(concluding “that the MPCA’s decision not to apply the phosphorus rule” was not “supported
by substantial evidence”). Had the court of appeals concluded that the MPCA did not err in
denying MCEA’s petition for a contested case he aring, the outcome would not have
changed—the MPCA’s decision to reissue the permits would have been overturned based on
a lack of substantial evidence. See State v. Atwood , 925 N.W.2d 626, 631 (Minn. 2019)
(noting that the “paradigmatic example of nonessential dicta” is an alternative conclusion that
would not change the outcome of a case).
Finally, we are unpersuaded by the respondents’ policy arguments for requiring the
DNR to hold a contested case hearing whenever a petitioner presents probative evidence of
material fact disputes. Although evidence that is not probative in nature is unlikely to aid the
agency, the converse is not necessarily true: the presence of probative evidence may, but also
may not, aid an agency in making a final decision on the completed permit application. Every
petition for a contested case hearing must be considered in light of the evidence presented as
well as the record developed to that point. We disagree with the MCEA’s suggestion that a
contested case hearing is necessary to “build a robust record” for appellate review whenever
probative evidence of a disputed material issue of fact is presented. The record for appellate
review depends on the agency decision at issue—here, the decision to deny the petitions for
a contested case hearing. And at the time the DNR denies a petition for a contested case
hearing, a reviewing court has all the evidence it needs to determine whether such a decision
is supported by substantial evidence in the record. See, e.g., In re NSP Wilmarth, 459 N.W.2d
at 923 (“Our review of the extensive record developed . . . prior to issuance of the permit leads

27
to the conclusion that the agency decision [to deny a petition for a contested case hearing]
was supported by the requisite substantial evidence.”).
In sum, we hold that the DNR has the discretion to determine whether a hearing on the
factual disputes in a petition for a contested case hearing will “aid” the agency in making a
final decision on the completed application.
III.
We now turn to the merits of the DNR’s decision to deny the petitions for a contested
case hearing and whether that decision was based on substan tial evidence in the record.
See id. (applying a substantial-evidence standard to a decision to deny a petition for a
contested case hearing).
Under Minn. Stat. § 14.69, we may affirm, remand, or reverse an agency decision
if the agency’s findings of fact are unsupport ed by substantial ev idence, arbitrary or
capricious, or affected by an error of law. See In re Application Of Minn. Power for Auth.
To Increase Rates for Elec. Serv. In Minn., 838 N.W.2d 747, 753 (Minn. 2013) (discussing
the standard of review); In re Dairy Dozen-Thief River Falls, LLP, No. A09-936, 2010 WL
2161781, at *16 (Minn. App. June 1, 2010) (“Denials of contested case hearing requests
are also reviewed under Minn. Stat. § 14.69.”).
We have said that substantial evidence is relevant evidence that “a reasonable mind
might accept as adequate to support a conclusion,” and more than a “scintilla,” “some,” or
“any” evidence. Cable Commc’ns Bd., 356 N.W.2d at 668 (citing Reserve Mining Co. v.
Herbst, 256 N.W.2d 808, 825 (M inn. 1977)). Although we have used different
formulations, this standard reflects a singular legal principle: a substantial-evidence

28
analysis requires us to “determine whether the agency has adequa tely explained how it
derived its conclusion and whether that conclusion is reasonable on the basis of the record.”
Minn. Power & Light Co. v. Minn. Pub. Utils. Comm’n , 342 N.W.2d 324, 330 (Minn.
1983). This principle is rooted in the deference we show to matters that are properly within
an agency’s particular expertise. See Reserve Mining Co., 256 N.W.2d at 824 (explaining
that “deference should be shown by courts to the agencies’ expertise and their special
knowledge in the field of their technical tr aining, education, and experience”). “Our
guiding principle is that if the ruling by the agency decision-make r is supported by
substantial evidence, it must be affirmed.” In re Excess Surplus Status of Blue Cross &
Blue Shield of Minn., 624 N.W.2d 264, 279 (Minn. 2001).
With this standard in mind, we now turn to the specific material issues of fact
addressed by the court of appeals 13 to determine whether the DNR’s decision to deny
respondents’ petitions for a contested case hearing was supported by substantial evidence
in the record.

13 The court of appeals noted that “numer ous factual issues” were raised in the
contested case hearing petitions, “ including” the five issues specifi cally addressed in the
opinion. In re NorthMet, 940 N.W.2d at 232–36 (emphasis added). Consistent with that
decision and with the parties’ arguments to our court, we address these same five specific
issues. Further, given the subs tantial overlap in the petitions , the issues, and the themes
pursued by respondents—the tailings basin dam construction, the tailings basin itself, and
the bentonite amendment—we see no need to address other issues that, even though not
specifically raised in the briefs, might fall within these petitions.

29
The tailings basin dam
PolyMet proposes to build a new tailings basin dam using an upstream construction
method.14 Under Minnesota’s nonferrous mining rules, a tailings basin must, among other
requirements, be “structurally sound” and “m inimize hydrologic impacts.” Minn. R.
6132.2500, subp. 1 (2019). The Commissioner must also base the approval or denial of a
dam on “the potential hazards to the health, safety, and welfare of the public and the
environment,” and determine wh ether the proposed dam will be in “[c]ompliance with
prudent, current environmental practice throu ghout its existence.” Minn. R. 6115.0410,
subp. 8 (2019).
In denying the petitions for a contested case hearing, the DNR determined that
PolyMet’s proposed tailings basin dam will be structurally sound and satisfies the
applicable requirements, including safety f actors. MCEA and WaterLegacy contend that
these findings are erroneous because using an upstream construction method for the tailings
basin dam poses an unr easonable risk of dam failure. They provided expert opinions
critical of the upstream construction method a nd highlighted at least two recent incidents
where upstream tailings dams catastrophically failed, resulting in widespread pollution and
significant loss of life.15

14 The upstream construction method adds the building blocks of a dam over time, in
a stair-step fashion towards the center of the basin. In contrast, the downstream
construction method adds new da m sections to the exterior of the tailings basin dam. A
third type of construction, a centerline cons truction method, is a hybrid of the upstream
and downstream methods.

15 The court of appeals took judicial notice of another dam failure that occurred at the
Córrego do Feijão tailings dam in Brumadinho, Brazil on January 25, 2019, approximately

30
After a careful review of the DNR’s findings and the underlying record, we conclude
that substantial evidence supports the DNR’s decision to deny the contested case hearing
petitions on the proposed upstream construction design. The DNR’s findings explain that
selecting a construction approach is not a one-size-fits-all determination and that the proper
construction method should be based on the sp ecific circumstances of the proposed dam.
To that end, the DNR’s findings noted that one advantage of the upstream construction
method is that it creates a smaller footprint for the tailings basin dam, thereby minimizing
the impact on nearby wetlands. The findings also explained that PolyMet’s proposed dam
is to be constructed using the existing LTV Mining coarse tailings as building material,
which, due to its limited availability, we ighs against the downstream or centerline
construction methods. Fina lly, the DNR’s findings includ ed multiple references to
PolyMet’s Flotation Tailings Management Plan, which prov ided the engineering and

3 months after DNR issued the permits here. In re NorthMet, 940 N.W.2d at 233 n.22.
Based on this fact, the court of appeals directed the DNR to address “up-to-date information
on upstream construction and dam failures” on remand. Id. We question whether an
appellate court can require the DNR to addr ess updated information at a contested case
hearing, given that the Legislature conferred on the commissioner the authority to “identify
the issues to be resolved and limit the scope and conduct of the hearing in accordance with
applicable law, due process, and fundamental fairness.” Minn. Stat. § 93.483, subd. 5. In
addition, the commissioner has ample authority to investigate safety issues as they arise in
the context of perm itted activities. See, e.g., Minn. Stat. § 93.47, subd. 4(1) ‒(2) (2020)
(authorizing the commissioner, in enforcing mining regulations, to investigate and inspect
“as the commissioner deems nece ssary,” including by “enter[i ng] upon any parts of the
mining areas”); Minn. Stat. § 93.481, subd. 4(2)–(3) (2020) (allowing the commissioner to
modify a permit “to protect the public health or safety” or certain public interests, and to
“suspend operations” if necessary to “protect the public health or safety or to protect public
interests in lands or water”). Because we conclude that re spondents are not entitled to a
contested case hearing on the upstream construction method or stability of the tailings basin
dam, we need not decide whether the court of appeals erred in directing the DNR to address
updated, post-permit factual matters regarding other dams.

31
technical data showing that the tailings basin dam will be structurally sound. In these
findings, the DNR “adequately explained how it derived its conclusion” and “that [its]
conclusion [was] reasonable on the basis of the record,” satisfying the substantial-evidence
standard. Minn. Power & Light Co., 342 N.W.2d at 330.
Alternatives to wet closure of the tailings basin
Upon completion of mining activities, PolyMet proposes using wet closure to
achieve reclamation as required by Mi nnesota’s nonferrous mining rules. See Minn. R.
6132.3200, subp. 1 (2019) (“The mining area sh all be closed so that it is stable, free of
hazards, minimizes hydrological impacts, mi nimizes the release of substances that
adversely impact other natural resources, and is maintenance free.”). The proper closure
option is determined after “an examination of alternative practices,” such that the proposed
design presents “the most e ffective and workable means of achieving reclamation,
including being technologically, economically, and practically applicable.” Minn. R.
6132.0100, subp. 17 (2019).
As a reclamation method, “wet closure” entails covering the tailings in the basin
with water to create a 900-acr e pond to prevent oxygen from reaching the stored tailings.
In contrast, “dry closure” involves draining th e basin and placing the tailings under a dry
cover with bentonite amended over the entire surface of the tailings basin. Another
tailings-management method is “dry stacking ” or “filtered tailings,” which involves
dewatering and stacking the dried tailings on an exposed liner. MCEA and WaterLegacy
contend that dry closure or dry stacking are pr eferable to wet closure and that a contested

32
case hearing is necessary to consider whether PolyMet’s wet closure plan will adequately
protect natural resources or if there is a feasible or prudent alternative closure method.
In its findings, the DNR concluded that using wet closure has advantages over dry
closure or dry stacking, acknowledged the trade-offs associated with wet closure, and noted
that there is no ideal solution that complete ly eliminates all environmental risks and
impacts. The DNR’s findings explained that, alt hough dry stacking tailings conserves
water and does not require a da m, dry tailings are prone to wind erosion and can release
pollutants that become saturated in humid climates like Minnesota. As a result, the DNR
concluded that dry closure or dry stacking would not pres ent significant benefits over
PolyMet’s proposed wet closure method. Th e DNR fully evaluated the various methods
of mine closure, including dr y closure and dry stacking, and had access to a report by
outside experts who presented the DNR with six alternatives for covering the tailings basin
at closure. The report included a discussion of the benefits and risks associated with each
closure option, and provided support for the conclusion that wet closure would best serve
to protect nearby natural resources while also providing an acceptable factor of safety.
After a careful review of these findings and the underlying record, we conclude that
substantial evidence supports the DNR’s decision to deny the petitions for a contested case
hearing on the wet closure method. The re cord shows that the DNR was aware of, and
considered, the trade-offs associated with the alternative closure options. Specifically, the
DNR noted that “[w]hile dry closure has advant ages, it also must be stressed that it has
downsides, including the deleterious impacts to water quality based on the predictive water
modeling and more impacts to wetlands, sensitive habitats, and wildlife.” The findings

33
and the record demonstrate that the DNR’s e xplanation was adequately explained and its
conclusion was reasonable.16 Minn. Power & Light Co., 342 N.W.2d at 330.
Bentonite amendment to the tailings basin
For its proposed plan for the “reclamation or restoration” of the mining area, Minn.
Stat. § 93.481, subd. 1(1), PolyMet proposes applying a bentonite-soil mixture to the face
of the tailings basin dam, during construction; to the exposed beach areas on the interior of
the basin, at closure; and to the tailings basi n pond bottom, at closure (collectively, the
“bentonite amendment”). PolyMet’s proposed bentonite amendment is designed to satisfy
the DNR’s reactive waste rule. See Minn. R. 6132.2200, subp. 2(B)(2) (2019) (requiring
a facility to either modify the waste “such that the waste is no longer reactive,” or
“permanently prevent substantially all water from moving through or over the mine waste
and provide for collection and disposal of any remaining residual waters that drain from
the mine waste”). The commissioner may only approve mine reclamation techniques that
are “practical and workable under available technology.” Minn. Stat. § 93.481, subd. 2.

16 WaterLegacy also argues that a conteste d case hearing is necessary to consider
whether a better alternative site exists for tailings storage than the existing LTV Mining
tailings basin. The DNR cont ends that alternative sites for the tailings basin were
considered and that “dry stacking at a different site was not a preferable alternative because
it would require the conversion of additi onal green space and would not address the
existing tailings basin legacy issues that ar e addressed by the App lication.” The DNR’s
findings contain multiple references to th e FEIS, explaining that “reusing existing
infrastructure would minimize impacts . . . to wetlands, habitat, . . . wildlife” and “has
significant economic advantages.” These findings and references to the unchallenged FEIS
provide substantial evidence supporting th e DNR’s finding that there is no better
alternative site for tailings storage.

34
MCEA and WaterLegacy assert that a conteste d case hearing is required to address three
of the DNR’s findings related to the bentonite amendment.
First, MCEA and WaterLegacy challenge the DNR’s finding that bentonite is an
“available technology” under Minn. Stat. § 93.481, subd. 2.17 Respondents contend that,
because PolyMet’s proposed methods of applying bentonite are “untested and unproven,”
bentonite cannot be consider ed an “available technology.” We disagree. PolyMet’s
Adaptive Water Management Plan , included in its permit a pplication, explains that
“bentonite has been used for many years in a wide variety of applications,” including mine
tailings facilities. PolyMet also identified at least two companies th at provide bentonite-
based products for hydraulic barriers and ot her applications. MCEA and WaterLegacy
argue that the methods of application and usage are “untested and unproven”; but bentonite,
as a technology, exists and is commonly used as a barrier for reducing oxygen and water
infiltration. Thus, we conclude that substantial evidence in the record supports the DNR’s
decision to deny a contested case hearing on whether bentonite is an “available
technology.”
Second, MCEA and WaterLegacy challeng e the DNR’s finding that the bentonite
amendment is a “practical and workable” reclamation technique. See Minn. Stat. § 93.481,

17 The term “available technol ogy” is not defined in the stat ute. When a term is not
defined in the statute, we determine its common meaning by look ing to dictionary
definitions and applying them in the context of the statute. State v. Prigge, 907 N.W.2d
635, 638 (Minn. 2018). The word “available” commonly means “[p]resent and ready for
use.” The American Heritage Dictionary of the English Language 123 (5th ed. 2011).
Therefore, we conclude that, for Minn. St at. § 93.481, a technology is considered
“available” if it exists and is ready for use at the time of permit issuance.

35
subd. 2. They contend that there is no evidence in the record that the bentonite amendment
proposed by PolyMet has been tested nor is there any evidence that the methods for
applying bentonite will be effective at reducing oxygen and water infiltration into the stored
tailings. We agree.
The DNR supported its findi ngs that bentonite “has been tested” and “will be
effective” with various citations to the FEIS. But the referenc es to bentonite in the FEIS
consist of descriptions and objectives of the bentonite amendment and conclusory
statements about its effectiveness; there is no analysis of the scientific basis for the DNR’s
assumptions. Further, the single study on which nearly all the DNR’s findings of
effectiveness rely is not in the record.18
The contested case petitions, in contrast, presented a bevy of evidence, including
statements made by the DNR’s own experts and external consultants that contradicted the
DNR’s finding on effectiveness. For exampl e, one of the DNR’s external consultants
opined that “[t]he methods and assumptions used to place the bentonite and to control the
infiltration and tailings saturation are unsubst antiated, and wishful thinking. We do not

18 At oral argument, we inquired about the location of this bentonite study and other
evidence in the re cord on which the DNR relied for its finding regarding bentonite’s
effectiveness. Afterwards, the DNR moved fo r leave to supplement the record with the
study in question and two additional documents concerning the effectiveness of bentonite.
We denied the motion. In re NorthMet, No. A18-1952, Order at 3(Minn. filed Nov. 16,
2020). As explained in our order denying the motion, we generally do not base our decision
on matters outside the record on appeal. Id. at 2. In addition, up to the point of our inquiry
at oral argument, the DNR had represented that the record was complete and contained all
documents considered in its review of PolyMet’s permit applications. See In re Livingood,
594 N.W.2d 889, 895 (Minn. 1999) (denying a motion to supplement based in part on the
agency’s representation that the record on appeal was complete).

36
believe it will function as intended, because of the unproved applic ation methods.” In
addition, respondents submitted new evidence with their petitions that the proposed sodium
bentonite could react with multivalent cation species in the pond water, resulting in a cation
exchange that could reduce the effectiveness of the bentonite by up to seventy percent. The
DNR wholly failed to address respondents’ concerns about cation exchange in its findings,
the FEIS, or any other documentation in the record.
Nor can we conclude that the special conditions of the permit to mine, which require
PolyMet to prove the effectiv eness of the bentonite amendment before construction may
begin on the tailings basin dam, are an effe ctive substitute for the substantial evidence
required to support the DNR’s decision. The special conditio ns only require PolyMet to
demonstrate the effectiveness of the bentonite amendment in reducing oxygen infiltration
into the tailings basin beaches and dam face before construction begins; notably, those
conditions do not address how PolyMet will s ubaqueously apply be ntonite to the pond
bottom in a uniform manner or that the bentonite layer, even if uniformly applied, will be
effective at permanently maintaining a positive water balance of the pond. Even PolyMet’s
proposed pilot/field testing plan (included as Attachment I of Appendix 11.5 of the permit
to mine application) requires at least 2 years of deposited tailings to accumulate after
mining operations have begun before experimental test ing on the effectiveness of the
bentonite pond bottom cover could occur.
The effectiveness of the bentonite amendment is critical in preventing oxygen and
water from reaching the stored tailings and en suring the NorthMet project’s compliance
with the DNR’s reactive waste rule. See Minn. R. 6132.2200, subp. 2(B)(2). The DNR’s

37
findings about the effectiveness of the bentonite amendment on the beaches and dam face
rest on a study that is not part of the record. Further, the re cord is entirely devoid of any
evidence to support the DNR’ s finding that the pond-botto m bentonite cover will be
effective in reducing water infiltration and maintaining a permanent pond. Given this void,
we cannot conclude that substantial evidence supports the DNR’s decision to deny the
petitions for a contested case hear ing on bentonite’s effectivene ss. Instead, we conclude
that a contested case hearing is required to determine whether the bentonite amendment, as
proposed in the permit application, is a “pra ctical and workable” reclamation technique
that will satisfy the DNR’s reactive waste rule, Minn. R. 6132.2200, subp. 2(B)(2).
Third, MCEA and WaterLegacy challenge the DNR’s finding that the bentonite
amendment will not negatively impact the stability of the tailings basin dam. They contend
that the bentonite amendmen t will exacerbate erosion on the tailings basin dam face,
making the dam “geomorphically unstable” and increasing the likelihood of a catastrophic
dam failure. However, the DNR’s findings about bentonite’s effect on the stability of the
tailings basin dam are supporte d by a technical analysis cond ucted by third-party experts
that is summarized in the Geotechnical Data Package, included with the permit application.
That study included an analys is with equations, modeling, and review of scientific
literature, all of which found that the proposed bentonite-amended dam would meet state
and federal safety factors. Thus, the DNR adequately explained its conclusion and based
on the record, that conclusion is reasonable. Minn. Power & Light Co. , 342 N.W.2d at
330.

38
Financial Assurances
Minnesota’s nonferrous mining rules requi re permittees to submit evidence of
financial assurances that a source of funds is available to the DNR if the permittee (1) fails
to meet its closure and reclam ation obligations or (2) is required to take corrective action
by the commissioner for noncompliance with design and operation criteria. See Minn. R.
6132.1200, subp. 1 (2019); see also Minn. Stat. § 93.481, subd. 1 (requiring the applicant
to submit any other information “the commiss ioner may require”). The court of appeals
concluded that a contested case hearing is required to address whether PolyMet’s financial
assurances will be sufficient to cover reclamation and other long-term costs associated with
the project. See In re NorthMet, 940 N.W.2d at 235–36. In doing so, the court of appeals
dismissed PolyMet’s argument that respondents had forfeited this argument by not raising
it in their briefs. Id. at 236 n.26. The court concluded that “the issues were raised to the
DNR by MCEA, relate to matters of significant public concern, and are well briefed by
amici on appeal.” Id. The DNR maintains th at the issue of a contested case hearing on
financial assurances was raised solely by one group of amici, the Carlson amici, and that
the court of appeals erred by considering it.
We agree with the DNR. Under the principle of party presentation, we generally do
“not consider arguments raised for the first time on appeal” nor do we “decide issues raised
solely by an amicus.” Hegseth v. Am. Fam. Mut. Ins. Grp. , 877 N.W.2d 191, 196 n.4
(Minn. 2016). Amicus must accept the case before the court as it is and “ordinarily cannot
inject new issues into a case that have not been pr esented by the parties.” Kline v. Berg
Drywall, Inc., 685 N.W.2d 12, 23 n.9 (Minn. 2004). Although we have the authority to

39
“consider any issue if the interests of justice so require,” Hegseth, 877 N.W.2d at 196 n.4,
and we have occasionally consid ered issues raised solely by an amicus, we only do so if
the issue is one that we could raise sua sponte. See, e.g., League of Women Voters Minn.
v. Ritchie, 819 N.W.2d 636, 645 n.7 (M inn. 2012). The circumstances of this case, an
appeal on certiorari review of an agency decision that is subj ect to a deferential standard
of review, is not one of those rare instance s where we need to or should reach an issue
raised only by an amicus party.
MCEA may have raised issues related to PolyMet’s financial assurances in its
contested case petition. But MCEA, WaterLeg acy, and the Band did not raise or address
this specific issue in their briefs to the court of appeals.19 Indeed, the only party who argued
for a contested case hearing on the issue of financial assurances before the court of appeals
was the Carlson amici. 20 Therefore, we conclude that because the question of whether a
contested case hearing on financial assurances was raised and argued solely by an amicus
before the court of appeals, that issue is not properly before us. See Hegseth, 877 N.W.2d
at 196 n.4 (“[W]e generally will not decide issues raised solely by an amicus.”).

19 The phrase “financial assu rance” appears only once, in passing, in the briefs filed
by MCEA and the Band. And while WaterLegacy’s brief at the court of appeals included
a section related to financial assurances, that argument was made to challenge the legal
sufficiency of the DNR’s decision to issue th e permit to mine in light of the financial
assurances proposed by Poly Met, not as a reason why th e DNR erred in denying the
contested case petitions.

20 We also note that the Commissioner ha s the authority to annually review a
permittee’s financial assurances, Minn. Stat. § 93.49 (2020), and may suspend, revoke, or
modify a permit if the financial assurance requirements are not met. Minn. R. 6132.1200,
subp. 7.

40
Glencore
Minnesota’s nonferrous mining rules require that “[w]hen two or more persons are
or will be engaged in a mining op eration, all persons shall join in the application, and the
permit to mine shall be issued jointly.” See Minn. R. 6132.0300, subp. 2. Respondents
argue that a contested case hearing is requir ed to determine whet her Glencore, a Swiss-
based company that owns a substantial interest in PolyMet’s stock and has provided much
of the funding for the NorthMet project, sh ould be considered “engaged in a mining
operation” with PolyMet and listed as a co -permittee on the permit to mine. The DNR
argues that the court of appeals lacked jurisdiction to order a contested case hearing related
to Glencore because the issu e was not raised in respondents’ timely filed petitions.
Moreover, PolyMet argues that judicial review is confined to the record, and the court of
appeals should not have considered post-permit factual developments related to Glencore’s
increased ownership interest.21
We agree with the DNR and PolyMet. Ne ither of respondents’ timely filed petitions
requested a contested case hearing on Glencore’s ownership interest in PolyMet. Because
PolyMet’s permit to mine application was deemed completed and filed on January 29,
2018, any petition for a contested case he aring was required to be submitted by

21 When addressing the issues related to Glen core, the court of appeals took judicial
notice that Glencore’s intere st in PolyMet’s total issued outstanding common shares
increased from 40.3 percent to 71.6 percent on June 28, 20 19, approximately 7 months
after DNR issued the permit to mine. In re NorthMet, 940 N.W.2d at 237 n.29. The court
of appeals then determined that “the c ontested case hearing held on remand should
encompass up-to-date information on Glencore’s interest in PolyMet and involvement with
the NorthMet project.” Id. For the same reasons outlined above regarding the Brazil dam
collapse, we reject the court of appeals’ reasoning here. See supra note 15.

41
February 28, 2018. See Minn. Stat. § 93.483, subd. 1 (requiring that a petition for a
contested case hearing be filed “within 30 da ys after the application is deemed complete
and filed” in order to be considered by the commissioner). The issue of Glencore’s
ownership interest in PolyMet was raised for the first time in a supplemental petition filed
by WaterLegacy on April 5, 2018, over 1 month after the deadline to file a contested case
petition had passed. Thus, because the supplemental petition was untimely filed, the DNR
properly denied respondents’ request for a contested case hearing on issues related to
Glencore.
Nor can we agree with the court of appe als that “the DNR had an independent
obligation to determine whether a cont ested case hearing is required.” In re NorthMet,
940 N.W.2d at 236 n.28. The criteria in Minn. Stat. § 93.483, subd. 1, for a contested case
hearing, including a timely petition, must be met. See id., subd. 1 (requiring a petition to
be filed within “30 days after the applicatio n is deemed complete and filed”). Requiring
the commissioner to “independen tly evaluate” every factual i ssue related to a completed
permit application and determin e “whether the statutory cr iteria for a contested-case
hearing were met,” In re NorthMet, 940 N.W.2d at 230, would relieve petitioners of the
statutory requirement to identify specific disputed issues of material fact in a timely
petition. See Minn. Stat. § 93.483, subd. 1 (outlining procedure for filing a petition for a
contested case hearing); Amaral, 598 N.W.2d at 384 (“Whenever it is possible, no word,
phrase, or sentence should be deemed superfluou s, void, or significant.”) Thus, because
the supplemental petition raising issues re lated to Glencore was not timely filed in

42
accordance with Minn. Stat. § 93. 483, subd. 1, the court of a ppeals lacked jurisdiction to
decide those issues.
IV.
Next, we must decide whether the DNR erred by issuing a permit to mine without a
definite, fixed term. The DNR must include in the permit “the term determined necessary
by the commissioner for the completion of the proposed mining operation, including
reclamation or restoration.” Minn. Stat § 93.481, subd. 3( a). The DNR’s rules provide
that the permit term “shall be the period determined necessary by the commissioner for the
completion of the proposed mining operation including postclosure maintenance, based on
information provided under part 6132.1100.” Minn. R. 6132.0300, subp. 3.
The permit to mine issued to PolyMet states that the NorthMet project, including
mining and reclamation activities, would “be completed in approximately the year 2072.”
Maintenance and “active water treatment” would continue at the site “until such time that
continued compliance with th e Minnesota Rules 6132.2000 to 6123.3200 has been
established and the necessity for postclosure maintenance ha s ceased.” Reviewing this
language, the court of appeals concluded that “the DNR erred by issuing a permit without
a fixed term, and direct[ed] that, for any permit issued fo llowing remand, the DNR shall
determine and impose an appropriate, definite term.” In re NorthMet, 940 N.W.2d at 238.
We review de novo an agency decision th at “turns on the meaning of words in a
statute or regulation.” St. Otto’s Home v. Minn. Dep’t of Human Servs., 437 N.W.2d 35,
39‒40 (Minn. 1989). “In considering such questions of law, reviewing courts are not bound
by the decision of the agency and need not defer to agency expertise.” Id. Thus, we “may

43
substitute [our] own judgment” for that of the agency when the language at issue “is clear
and capable of understanding.” Id. at 40.
The DNR argues that the plain meaning of the word “term” does not require a permit
term to be for a fixed, calendar-based duration. Instead, the DNR asserts that an indefinite,
performance-based term is appropriate because Minnesota’s mining rules contemplate that
reclamation and post-closure activities may last for an indefinite period. In the alternative,
the DNR argues the word “term” in the statute is ambiguou s and, therefore, its own
interpretation is entitled to deference.
We disagree with the DNR on both counts . In interpreting a statute, we construe
words “according to their common and approved usage.” Minn. Stat. § 645.08(1). Because
the Legislature did not define the word “term,” we may determine its common meaning by
looking to dictionary definitions. State v. Prigge, 907 N.W.2d 635, 638 (Minn. 2018). The
court of appeals relied on the definition of “ter m” as “[a] limited or established period of
time that something is supposed to last.” In re NorthMet, 940 N.W.2d at 238 (quoting The
American Heritage Dictionary of the English Language, 1796 (5th ed. 2011)). The notion
that a “term” is a fixed period of time is uniform across various dictionaries. See, e.g.,
Webster’s Third New International Dictionary 2358 (1968) (defining “term” as “a limited
or definite extent of time;” “the time for which something lasts”); The New Oxford
American Dictionary 1750 (2001) (defining “term” as “a fixed period or limited period of
time for which something . . . lasts or is intended to last”); Term, Black’s Law Dictionary
(11th ed. 2019) (defining “term” as “[a] fixed period of tim e”). Consistent with these

44
definitions, we conclude that the word “term, ” as used in section 93.481, means a fixed,
definite period of time.
The DNR and supporting amic i contend that a permit te rm may be fixed by an
increment other than years. For example, amicus Iron Mini ng Association of Minnesota
contends that a “life term” is a term that is fixed to an indefinite length (i.e., the life of the
individual). But, in that phrase, the word “life” modifies and limits the meaning of the
word “term.” We are not convinced that th e phrase “determined necessary . . . for the
completion of the proposed mining operation, including reclamation” modifies and limits
the meaning of “term” in section 93.481 in a si milar way. We interpret that language as
simply describing what will happen during the permit term, not as setting the length of that
term.
The DNR also argues that the definition of “term” is susc eptible to multiple
reasonable interpretations and, th erefore, its interpretation is entitled to deference. As a
threshold matter, we only defer to an agency’s interpretation of an ambiguous statute if we
determine the agency’s inte rpretation is reasonable. In re Cities of Annandale & Maple
Lake NPDES/SDS Permit Issuance , 731 N.W.2d 502, 516 (Minn. 2007)
. E v e n i f
ambiguous, we only defer to the agency’s expertise if the “language is so technical in nature
that the agency’s field of technical training , education, and experience is necessary to
understand the [statute].” Id.
We do not find the DNR’s indefinite, perfo rmance-based term to be a reasonable
interpretation of the word “term” as used in the context of the statute. But even if we did,
the word “term” is not the type of language that is so technical in na ture that we need to

45
rely on the DNR’s expertise to discern its meaning. In Annandale, for example, we
determined that the phrase “cause or contribute to the violation of water quality standards”
merited deference to the interpretation supplied by the MPCA. Id. at 517; see also Minn.
Ctr. Env’t Advoc., 644 N.W.2d at 464 (holding that the phrase “significant environmental
effects” required application of MPCA’s te chnical knowledge and expertise). The same
reasoning does not apply to the word “term,” which has a consistent, plain meaning across
multiple references.
Finally, the DNR argues that, as a matter of public policy, se tting a fixed permit
term at the time of issuance would upend its ability to ensure reclamation because a
permittee could simply complete its mining ac tivities, wait for the pe rmit to expire, and
walk away from its reclamation responsibilities. This argument presumes that the DNR is
powerless to enforce reclamation requirements beyond a permit’s term. That presumption
is simply incorrect. The Legislature gave the DNR broad enforcement powers to correct
violations of mining statutes and rules by assessing civil penalties and seeking criminal
penalties or injunctive relief. See Minn. Stat. § 93.51, subds. 1–2 (2020). In addition, the
DNR retains the power to amend the permit if a permittee fails to achieve reclamation
within the proposed term. See Minn. R. 6132.4200-.4300 (2019).
In sum, we conclude that the meaning of “term” in Minn. Stat. § 93.481 refers to a
fixed period of time covering a precise number of years. And we agree with the court of
appeals that the DNR erred in issuing a permit that did not include a fixed term.

46
V.
Finally, we must determine whether the court of appeals erred by reversing the
DNR’s decision to issue the two dam-safety permits for the NorthMet project. The DNR’s
decision to waive a contested case hearing on the dam-safety permits went unchallenged.
Cf. Minn. Stat. § 103G.311, subd. 5(a) (allowi ng only the permit a pplicant and certain
government entities to petition for a contested ca se hearing on factual issues related to a
dam-safety permit). On appeal, MCEA and WaterLegacy challenged the DNR’s decision
to issue these permits, asserting that the dam- safety permits do not meet the standards set
forth in Minn. Stat. § 103G.315, subd. 3.
The court of appeals did not separately evaluate whether the DNR’s decision to issue
the dam-safety permits was based on subs tantial evidence nor did it find any legal
deficiencies with the dam-safety permits. Instead, the cour t reversed the DNR’s decision
to issue to the dam-safety permits, relyin g on the DNR’s explan ation that there was
“substantial overlap between the permit-to-mine and the dam-safety permits as each permit
was issued to the same permittee for the same project and is based on the same underlying
factual analysis.” In re NorthMet, 940 N.W.2d at 237 n.31. The DNR asserts that the court
of appeals erred by reversing the dam-safety permits without making any finding that those
permits were factually or legally deficient.
We agree with the DNR. The court of a ppeals’ decision to reverse the dam-safety
permits, without considering the record on which the DNR relied for those permits, was an
error of law. In reversing the dam-safety permits based on the decision that a contested
case hearing on the permit to mine is necessa ry, the court of appeals acted prematurely—

47
it presumed that a contested case hearing on fa ctual issues related to the permit to mine
would inevitably affect the validity of the dam-safety permits. But the two types of permits
are governed by different statutory standards. Compare Minn. Stat. § 93.44 (allowing
mining where possible adverse environmental effects are controlled), Minn. Stat. § 93.481,
subd. 2 (requiring the DNR to “d etermine that the reclamati on or restoration planned for
the operations complies with lawful requirements”), and Minn. R. 6132.0300, subp. 1
(requiring the permittee to show it has the ca pital and financial resources to conduct the
mining), with Minn. Stat. § 103G.315, subd. 3 (authorizing the commissioner to issue dam-
safety permits if the applicant’s plans are “reasonable, practical, and will adequately protect
public safety and promote the public welfare”). The court of appeals did not explain why,
in light of these different standards, the DNR would be required to reconsider the dam-
safety permits based on the outcome of a contested case hearing on the permit to mine.22
Thus, we conclude that the court of a ppeals erred in reversing the dam-safety
permits to allow for reconsider ation after a contested case he aring on the permit to mine.
If reconsideration of the dam-safety permits is necessary after the DNR holds a contested
case hearing on the permit to mine, the DNR may, in its discretion, modify the dam-safety

22 In addition, it is not clear that the DNR would be required to reconsider the dam-
safety permits simply because a contested case hearing is held on the permit to mine. A
contested case hearing results in recommendations that the DNR may, but is not obligated
to, accept. See Minn. Stat. § 14.62, subd. 2a (2020) (stating that an administrative law
judge’s decision is final unless the agency modifies or rejects it); In re Excess Surplus,
624 N.W.2d at 278 (stating that an agency “owes no deference to any party in an
administrative proceeding, nor to the findi ngs, conclusions, or recommendations of the
[administrative law judge]”). Thus, it is not clear why the DNR would be required to
reconsider the dam-safety permits; the deci sion to require additio nal proceedings on one
permit does not necessarily force additional proceedings on the other.

48
permits as allowed by the mini ng statutes and regulations. See Minn. R. 6115.0500(B)
(2019) (stating that the DNR can “modify a [dam-safety] permit at any time if the
commissioner deems it necessary for any cause for the protection of the public interests”).
CONCLUSION
For the foregoing reasons, we affirm in pa rt, reverse in part, and remand to the
Department of Natural Resources to conduct the contested case hearing required by this
decision and, thereafter, to determine and fix the appropriate definite term for the permit
to mine as necessary.
Affirmed in part, revers ed in part, and remanded.

THISSEN, J., took no part in the consideration or decision of this case.