Amos Mast, et al., Appellants,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1375

Amos Mast, et al.,
Appellants,

vs.

County of Fillmore,
Respondent,

Minnesota Pollution Control Agency,
Respondent.

Filed June 8, 2020
Affirmed
Worke, Judge

Fillmore County District Court
File No. 23-CV-17-351

Brian N. Lipford, Law Offices of Southern Minnesota Regional Legal Services, Inc.,
Rochester, Minnesota; and

Charles H. Thomas, Law Offices of Southern Minnesota Regional Legal Services, Inc.,
St. Paul, Minnesota (for appellants)

Brett A. Corson, Fillmore Count y Attorney, Preston, Minnesota (for respondent Fillmore
County)

Keith Ellison, Attorney General, Christina M. Brown, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Connolly, Pr esiding Judge; Worke, Judge; and
Rodenberg, Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellants argue that the district cour t erred by denying their claims for a
declaratory judgment that authorities manda ting the installation of subsurface sewage
treatment systems (septic systems) violate their freedom of conscience under the Minnesota
Constitution, Minn. Const. art. I, § 16, and the Religious La nd Use and Institutionalized
Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc-2000cc-5 (2018). We affirm.
FACTS
Appellants Amos Mast, Menno Mast, Ammon Swartzentruber, and Sam Miller
(appellants) are all members of an Amish co mmunity in Fillmore County. In May 2015,
members of the community submitted a letter to respondent Minnesota Pollution Control
Agency (MPCA) stating their opposition, on religious grounds, to the requirement that they
use gray-water-treatment systems to dispose of their household wastewater.
A septic system is comprised of three main components: a septic tank, a drain field,
and oxygenated treatment soil. Gray water first flows out of the house and into the septic
tank. The septic tank functions as a sett ling chamber, wherein heavy solids in the
wastewater sink to the bottom of the tank and light oils, greases, and soaps float to the top.
After these heavy and light elements are separated, the gray water next flows into the drain
field, which is comprised of a series of pe rforated pipes that distribute the wastewater
across the field for absorption by the oxygenated topsoil. The drain field must contain at
least three feet of nonsaturated soil above th e bedrock so that the oxygen in the soil can

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aerobically purify the remaining contaminates in the gray water be fore it enters the
groundwater.
The MPCA is directed to adopt rules for “ the design, location, installation, use,
maintenance, and closure of [septic systems].” Minn. Stat. § 115.55, subd. 3(a) (2018).
The MPCA rules for individual septic systems are set fort h in chapter 7080 of the
Minnesota Rules. Minn. R. 7080.1050-.25 50 (2019). “The prope r location, design,
installation, use, and maintenance of an in dividual [septic system] protects the public
health, safety, and general welfare by the disc harge of adequately treated sewage to the
groundwater.” Minn. R. 7080.1050.
Sewage is defined as “was te produced by toilets, bathing, laundry, or culinary
operations or the floor drains associated with these sources.” Minn. R. 7080.1100, subp.
73. Gray water is defined as “sewage that does not contain toilet wastes.” Id., subp. 37.
“Sewage discharged from a dwelling . . . mu st be treated according to applicable
requirements.” Minn. R. 7080.1500, subp. 1.
Counties are required to adopt ordinances that comply with the MPCA rules. Minn.
Stat. § 115.55, subd. 2(a) (2018). Respondent Fillmore County adopted the relevant MPCA
rules in their entirety. F illmore County, Minn., Sub-Surface Sewage Treatment System
Ordinance (FCO) § 501 (2013).1

1 The ordinance also provides specific alternative standards for members of the local Amish
community, which allow for a smaller septic system based on a flat-usage measurement of
100 gallons per day. FCO § 502.

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Instead of the generally statutor ily prescribed septic systems, 2 appellants
implemented their own experimental gray-water-treatment systems on their properties. In
appellants’ alternative-treatment systems, called mulch basins, the gray water flows from
the house, through a pipe, and into a large ea rthen basin dug into the ground and is filled
with wood chips. The wood-ch ip mulch functions in a manne r similar to a septic tank,
filtering out solids and grease, and providing surge capacity until the discharged gray water
can be absorbed by the soil at the bottom of the basin. The oxygenated soil at the bottom
of the mulch basin aerobically purifies the wa stewater in a manner similar to the soil
beneath a drain field in a septic system.
In April 2016, the MPCA filed administ rative enforcement actions against Amish
families in Fillmore County. In April 2017, appellants file d a complaint in district court,
seeking a declaratory judgment that applic ation of state and county rules generally
mandating the installation of septic systems to treat gray water violates appellants’ freedom
of conscience under the Minnesota Constitution and RLUIPA.3 4

2 In addition to the septic syst ems set forth above, gray water can also be treated in what
are termed type-five systems. So long as certain minimum standards are met, type-five
systems allow a licensed engineer to design a system and bear the risk that it will function
properly. See Minn. R. 7080.2400. Appellants did not propose that their alternative gray-
water-treatment systems satisfied rule 7080.2400, and therefore these types of systems are
not implicated on appeal.
3 Appellants also brought a claim for asserted violations of their rights under the United
States Constitution, which they later withdrew.
4 The county filed a countercla im seeking an order that a ppellants bring their properties
into compliance with state and local zoning and wastewater-treatment rules, and if they fail
to do so within six months, an order that their homes be rendered uninhabitable. By
agreement of the parties, the bench trial wa s limited to appellants’ declaratory-judgment
claims, and the district court deferred ruling on the county’s zoning-enforcement actions.

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Following a bench trial, the district c ourt determined that the general statutory
mandate for septic systems substantially burd ened appellants’ sincerely held religious
beliefs. However, the district court also conc luded that respondents met their burden of
establishing that septic systems—not mulch basins—are the least-restrictive means of
meeting the government’s compelling interest of protecting public health and the
environment. The district court therefore denied appellants’ request for declaratory relief.
This appeal followed.
D E C I S I O N
The interpretation of the constitution is a legal issue that this court reviews de novo.
Cruz-Guzman v. State , 916 N.W.2d 1, 7 (Minn. 2018). This court also reviews the
interpretation of a statute de novo. Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn.
2016). “On appeal, a [district] court’s findings of fact are given great deference, and shall
not be set aside unless clearly erroneous. . . . If there is reasonable evidence to support the
[district] court’s findings of fact, a review ing court should not disturb those findings.”
Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (citation omitted).
Appellants assert that laws generally requi ring them to install septic systems violate
their freedom of conscience under the Mi nnesota Constitution and their rights under
RLUIPA. Minnesota courts use a four-prong test to determine whether a governmental
regulation impermissibly burdens the freedom of conscience: “[1] whether the objector’s
belief is sincerely held; [2] whether the state regulation burdens the ex ercise of religious
beliefs; [3] whether the state interest in th e regulation is overriding or compelling; and
[4] whether the state regulation uses the least restrictive means.” Hill-Murray Fed’n of

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Teachers v. Hill-Murray High Sch. , 487 N.W.2d 857, 865 (Min n. 1992). Claims for
violations of RLUIPA are analyzed under an essentially similar four-prong test. See Holt
v. Hobbs , 574 U.S. 352, 362, 135 S. Ct. 853, 862-63 (2015); see also 42 U.S.C.
§ 2000cc(a)(1).
The district court found that requiring ap pellants to install septic systems on their
properties substantially burdened their sincerel y held religious belie fs. Respondents did
not appeal these findings. Under bot h the Minnesota Constitution and RLUIPA,
respondents bore the burden of demonstrating the existence of a compelling state interest
and that the regulation at issue is the least-restrictive means of achieving that interest. See
Holt, 574 U.S. at 363, 135 S. Ct . at 863 (regard ing RLUIPA); State v. Hershberger, 462
N.W.2d 393, 395 (Minn. 1990) (regarding the Minnesota Constitution).
Appellants argue that the district court erroneously identified the compelling state
interest implicated by the state’s regulati on of household-wastewater treatment.
Appellants also assert that the district court made erroneous findings of fact regarding the
feasibility of their proposed alternative gray-water-treatment systems, and thus the district
court’s legal conclusion that the state demonstrated that statutorily mandated septic systems
are the least-restrictive means of protecting public health was also incorrect.
Compelling state interest
Appellants first argue that the district court erroneously identified the compelling
state interest implicated by the state’s regulation of household-wastewater treatment. The
district court found that “untreated or inadequately treated gray water presents substantial
and serious danger to public health and risk to the environment, and that the [g]overnment

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has a compelling interest in protecting agai nst those dangers.” Appellants acknowledge
that they stipulated to this governmental interest, but assert that they did not stipulate that
the government has a compelling interest in imposing the use of septic systems to treat gray
water.
During trial, the district court sought to clarify the terms of the parties’ stipulation.
The district court stated that it was “not sure th at [the] stipulation goes so far as to be an
agreement . . . that gray water and its treatment pose significant risk to the public safety of
our water.” Counsel for the MPCA informed the district court that appellants did not
stipulate to the fact that “gray water was an imminent threat[,]” but they admitted “that
protecting Minnesota’s groundwater from cont amination and protecting the health of
Minnesota citizens are both compelling state inte rests.” Appellants did not object to this
characterization of the stipulation.5
The district court’s finding regarding th e government’s compelling interest is
comprised of two separate clauses. The firs t clause states that untreated or improperly
treated gray water is a threat to public he alth and the environment. This finding is
supported by the record and therefore is not clearly erroneous. See Fletcher, 589 N.W.2d
at 101. One of the MPCA’s experts, Dr. Sara Heger, testified that numerous published
studies indicate that there are potentially milli ons of bacteria and viruses present in 100

5 The MPCA argues that this issue regard ing the proper characterization of the
government’s compelling interest was not raised below and should be deemed forfeited on
appeal in accordance with Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). However,
as this on-the-record exchange shows, the di strict court raised th e issue sua sponte and
attempted to clarify the contours of the pa rties’ agreement and where additional findings
would be required. On this basis, the argument is not forfeited.

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milliliters of gray water as indicated by the presence of fecal-coliform bacteria. She
characterized gray water as “a contaminant source that needs to be treated[,]” and stated
that surface water and groundwater need to be protected from inadequately treated gray
water.
The second clause of the district court’s finding recites that the government has a
compelling interest in protectin g against the dangers of untreat ed or inadequately treated
gray water. Appellants stipulated th at protecting Minnesota’s groundwater from
contamination and prot ecting the health of Minnesota citizens are both compelling state
interests. Thus, the district court did not err in its identification of the relevant compelling
governmental interest, which was consistent with the terms of the parties’ stipulation and
based upon a finding that was adequately supported by the record.
Least-restrictive means
Appellants next argue that the district court erred by finding that their mulch-basin
system did not provide a less-restrictiv e means of accomplishing the government’s
compelling interest. Appellants assert that the district court improperly placed the burden
on appellants to demonstrate that their altern ative worked, failed to consider appellants’
professionally designed mulch-basin system, an d made findings that ignored evidence in
the record which supported the feasibility of their mulch-basin system.
The burden was on respondents to show th at appellants’ mulch-basin system did not
adequately satisfy the government’s compelling interest in protecting public health and the
environment. See Hershberger, 462 N.W.2d at 399 (stating that the state failed to prove
that the white reflective tape and lanterns us ed by the Amish to mark their slow-moving

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buggies did not adequately protect public safety). Here, the district court correctly placed
the burden on respondents to demonstrate that the mulch-basin system did not adequately
protect public health and the environment. Th e district court stated that “the burden of
proof is on the [g]overnment to establish that its compelling state interest cannot be served
by a ‘less intrusive alternative.’”
Appellants concede that their experimental mulch basins overflowed. Minn. Stat.
§ 115.55, subd. 5a(b) (2018), provides that if an inspector finds that sewage discharges to
the ground surface, or if sewage backs up, “then the system constitutes an imminent threat
to public health or safety.” However, appellants maintain that even though their
experiments were not successful at preventing sewage from seeping back onto the surface,
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the evidence at trial establis hed that mulch basins have th e potential to provide a less-
restrictive alternative to the government’s septic systems, and thus respondents failed to
meet their burden.
Appellants assert that the district court sh ould have considered the feasibility of their
professionally designed mulch-basin system, whic h utilized an interc onnected series of
four basins, rather than thei r homemade experimental single- basin system. Contrary to
appellants’ assertion, the dist rict court did consider their professionally designed system,
finding that even though resp ondents asserted that they were prejudiced by the late
disclosure of the professionally designed system, it was admissible because the new system

6 Appellants point out that the same statutory provision that identifies a backed-up system
as an imminent public-health threat also allows the owner up to ten months to repair,
upgrade, or replace their septic system following the receipt of a notice of noncompliance.
See Minn. Stat. § 115.55, subd. 5a(b).

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“is simply an enlarged version” of the experimental system installed on appellants’
properties. The record therefore demonstrates that the district court properly placed the
burden on respondents to dem onstrate that none of appella nts’ proposed alternative
systems, including the professionally designed system, adequately protected public health
and the environment.
The remainder of appellants’ arguments pert ain to their assertion that the district
court should have given more credit to the evidence that supported the feasibility of mulch
basins to adequately treat gray water and less credit to the evidence that demonstrated that
mulch basins were not feasible in Fillmore County. However, when considering whether
a district court’s findings are clearly errone ous, this court does not reconcile conflicting
evidence. Porch v. Gen. Motors Acceptance Corp. , 642 N.W.2d 473, 477 (Minn. App.
2002), review denied (Minn. June 26, 2002). Similarly, appellants argue that the district
court should not have discredited the test imony of their expert witness while finding
respondents’ experts credible. However, “[t]he assessment of a witness’ credibility is the
unique function of the trier of fact.” Pelowski v. K-Mart Corp., 627 N.W.2d 89, 93 (Minn.
2001).
The district court’s findings regarding th e unfeasibility of appellants’ mulch-basin
system are all supported by the record, and therefore are not clearly erroneous. The district
court found that Dr. Heger credibly testifie d that the biggest prob lem with appellants’
proposed alternative “is finding a system that you can put in subsurfacely that has three
feet of soil treatment.” She added that even if a suitable location with enough separation
could be found on appellants’ properties, “we’ d also have to think about more ingenious

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ways to try to spread out the water. . . . [T ]he issue is it would seal up relatively quickly
across the bottom because . . . there wasn’t a septic tank.” If the bottom of the basin did
seal, the only remedy would be “to move to another location unless you take that soil off,
and then there’s the risk of smearing and comp acting that soil. When you do that, it may
not take water as well again.” This testimony goes to the general unworkability of mulch
basins in Fillmore County, not just the specific failures of appellants’ experimental system.
Finally, appellants assert that the acceptab ility of mulch basins in 20 other states,
and under the Uniform Plumbing Code—the re levant portions of wh ich have not been
adopted in Minnesota—demonstrates that the district court incorrectly concluded that
mulch basins do not provide a less-restrictive means of disposing of gray water in a manner
conducive to protecting public health and the environment. See Holt, 574 U.S. at 368-69,
135 S. Ct. at 866 (“That so many other prisons allow in mates to grow beards while
ensuring prison safety and security suggests that the Department could satisfy its security
concerns through a means le ss restrictive than denyi ng petitioner the exemption he
seeks.”). However, the district court set forth the factual bases that support its
determination not to rely on the practices of other states.
The district court distinguished the prac tices in California and Arizona from the
situation in Fillmore County, because the climates “are so dissimilar in average temperature
and precipitation to Minnesota’s, that the [district court] can take little guidance from the
experience of those states.” Regarding the practices of more environmentally compatible
states, such as Montana and W yoming, the district court found that “little or no evidence
was presented about the extent of use, regul ation, and performance of mulch systems in

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those states. On this record, mulch systems in Montana and Wyoming provide the [district]
court no direction.” The district court also found that no evidence or information regarding
Wisconsin’s practices, which may permit mulch systems, was offered at trial. Based on
these findings, the district cour t did not err by declining to re ly on the practices of other
states as persuasive authority for the feasibility of appellants’ proposed system in Fillmore
County.
Because the district court’s findings of fact are supported by the record, and thus are
not clearly erroneous, the district court prop erly concluded that “ev en with the capacity
expansion and siting improvements to which [appellants] are agreeable, [the mulch basins]
would not accomplish the [g]ove rnment’s compelling public health and environmental
safety purposes.” Therefore, the district co urt appropriately concluded that respondents
met their burden of demonstrating that appellants’ mulch-basin system does not provide a
less-restrictive means of accomplishing the government’ s compelling interests of
protecting public health and the environment.
Affirmed.