In the Matter of the Reestablishment of Big Stone County Ditch 21 Drainage System Records.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1370

In the Matter of the Reestablishment of
Big Stone County Ditch 21 Drainage System Records.

Filed September 20, 2021
Reversed; motion granted
Reyes, Judge

Big Stone County Board of Commissioners

Keith Ellison, Attorney General, Christina M. Brown, Assistant Attorney General, St. Paul,
Minnesota (for relator Minnesota Department of Natural Resources)

Gerald W. Von Korff, John C. Kolb, Rinke Noonan, Ltd., St. Cloud, Minnesota (for
respondent Big Stone County Board of Commissioners)

Joy R. Anderson, Elise L. Larson, Minnesota Center for Environmental Advocacy, St. Paul,
Minnesota (for Amicus Curiae Minnesota Center for Environmental Advocacy)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Florey,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this certiorari appeal, relator argues that respondent-drainage authority exceeded
its statutory authority, acted arbitrarily or capriciously, and made a decision unsupported
by substantial evidence when it ordered reestablishment of drainage records for a drainage
ditch in its jurisdiction. Relator also moves to supplement the record on appeal. We grant
relator’s motion to supplement the record, and we reverse.
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FACTS
Legal background
There are several types of drainage proceedings, including improvement s, repairs,
and record reestablishment. See Minn. Dep’t of Nat. Res. v. Chippewa/Swift Joint Bd. of
Comm’rs, 925 N.W.2d 244, 249 (Minn. 2019) (referring to improvement and repair
proceedings). Improvements, which are initiated by petition of “at least 26 percent” of
affected landowners, include tiling, enlarging, extending, straightening, or deepen ing an
established and constructed ditch. Minn. Stat. § 103E.215, subds. 2, 4 (2020). Relator the
Minnesota Department of Natural Resources (DNR) plays an advisory role in improvement
proceedings and must conduct environmental review if required for an improvement.
Minn. Stat. § 103E.255 (2020) (requiring the DNR to make preliminary survey report) ;
Minn. Stat. § 116D.04, subd. 2a (2020) (requiring detailed environmental impact statement
when “there is potential for significant environmental effects”).
In contrast, r epairs are initiated either by petition or based on the report of an
inspector and are undertaken “to restore all or part of a drainage system as nearly as
practicable to the same hydraulic capacity as originally constr ucted and subsequently
improved.” Minn. Stat. § 103E.701, subds. 1, 4 (2020). Before conducting a repair, the
drainage authority must notify the DNR only “if the repair may affect public waters” or the
state is an affected landowner. Minn. Stat. §§ 103E.701, subd. 2 (2020), 103E.715, subd.
3 (2020).
In In re Petition of Zimmer, the supreme court concluded that the as-constructed or
subsequently improved condition of a ditch, rather than its original design, determines
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whether proposed maintenance or changes to the ditch constitute repairs or improvements.
359 N.W.2d 266, 271 (Minn. 1984). However, because many drainage records are more
than 100 years old, a record of the as -constructed or subsequently improved condition of
some ditches may be lost or incomplete. The statu tory record -reestablishment process
allows a drainage authority to reestablish those records to recreate a baseline. Minn. Stat.
§ 103E.101, subd. 4a (2020).
The record-reestablishment process begins by the drainage authority’s motion or a
landowner petition. Minn. Stat. § 103E.101, subd. 4a(b). The drainage authority must first
find that drainage system records establishing certain parameters, such as ditch depth,
width, and slope, are “lost, destroyed, or otherwise incomplete.” Id., subd. 4a(a). Then, a
professional engineer must investigate the existing records and evidence and prepare a
report. Id. The drainage authority must notify interested parties, including the relator
Minnesota Department of Natural Resources , and hold a public hearing regarding record
reestablishment. Id., subd. 4a(c). Based on information gathered through the engineer’s
report and at the public hearing, t he drainage authority may then reestablish records .
Together with the existing records, the reestablished records must “define the alignment;
cross-section; profile; hydraulic structure locations, materials, dimensions, and elevations;
and right-of-way of the drainage system.” Id., subd. 4a(a).
History of Big Stone County Ditch #21
Big Stone County Ditch #21 (CD21) was designed and constructed around 1917
primarily as a tile ditch. The ditch designs called for CD21’s main branch to include 7,300
feet of tile ditch and 700 feet of open ditch. However, the tile system soon failed, becoming
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clogged with sand and mud. In December 1919, landowners filed a petition demanding
that the “ditch be constructed forthwith strictly in accordance with the plans and
specifications and contract on file” to answer to its purpose. The record contains no
information regarding a response to this petition by the drainage authority, respondent Big
Stone County Board of Commissioners (the board). However, the design engineer’s final
estimate for CD21, filed on January 5, 1921, indicates that tile was “in place” for the main
branch of CD21.
The present dispute
The record contains little information regarding CD21 from 1921 until this action.
In 2019, landowners petitioned the board to commence record reestablishment for CD21
in preparation for potential repairs or improvements. The board commissioned Big Stone
County Engineer, Todd Larson, to review CD21’s records, which Larson found to be
incomplete. The board adopted a resolution to reestablish records under Minn. Stat.
§ 103E.101, subd. 4a (2020). La rson investigated the existing records and evidence and
issued a report (engineer’s report), concluding that the tile in CD21 had been removed and
that CD21 had been “left as open channel.” He noted the existing parameters of CD21 and
recommended several “repairs,” such as widening the ditch bottom to align with the
original ditch width and establishing side slopes and buffers per statutory requirements for
open ditches.
On July 28, 2020, the board notified the DNR of a public hearing regarding record
reestablishment for CD21. The next day, the DNR asked for the engineer’s report, which
the board provided. On August 17, 2020, the day before the public hearing, the DNR
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submitted a public comment letter objecting to record reestablishment. The DNR asserted
that (1) the engineer’s report did not rely on all available data ; (2) all historical records in
the board’s possession should be part of the record; (3) record reestablishment is improper
because the board possesses the original design plans; and (4) any conversion of CD21 to
an open ditch did not follow improvement procedures. The DNR did not participate in the
public hearing, but the board read its comment letter into the record.
The board issued an order reest ablishing records on September 1 , 2020. It found
that there is no evidence of “significant modifications” to CD21 since its construction, but
that the evidence demonstrates that CD21 has “existed as maintained open ditch since at
least 1919.” It concluded that CD21 had been “repaired” to open ditch , such that CD21’s
as-constructed or subsequently improved condition was an open ditch. It therefore ordered
reestablishment of records regarding CD21 aligning with Larson’s findings and
recommendations.
The DNR petitioned this court for a writ of certiorari seeking review of the board’s
order for record reestablishment. On appeal, the DNR argues that the board exceeded its
authority, made a decision unsupported by the record, and acted arbitrarily and capriciously
by ordering record reestablishment; and that the engineer’s report did not comply with
statutory requirements. The DNR also moves this court to supplement the record.
DECISION
I. Standard of review
A drainage authority’s order to reestablish records is a quasi -judicial decision
subject to certiorari review. Minn. Dept. of Nat. Res. v. Chippewa/Swift Joint Bd. of
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Comm’rs, 925 N.W.2d 244, 250 (Minn. 2019) (Chippewa/Swift). On certiorari appeal, we
review a local authority’s order for issues “affecting the jurisdiction of [the local authority],
the regularity of its proceedings, and . . . whether [its] order or determination . . . was
arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or
without any evidence to support it.” Eneh v. Minnesota Dep’t of Health, 906 N.W.2d 611,
614 (Minn. App. 2018) (quotation omitted).
An agency’s ruling is arbitrary if it, among other things, “entirely failed to consider
an important asp ect of the problem” or “offered an explanation that runs counter to the
evidence.” Citizens Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713
N.W.2d 817, 832 (Minn. 2006) ( CARD). “We will not retry facts or make credibility
determinations, and we will uphold the decision if the lower tribunal furnished any legal
and substantial basis for the action taken.” Staeheli v. City of St. Paul , 732 N.W.2d 298,
303-04 (Minn. App. 2007) (quotation omitted).
II. We grant the DNR’s motion to supplement the record.
The DNR moves to supplement the record with documents that it argues show that
the board failed to consider information relevant to its decision. We agree.
The documents the DNR seeks to add include: (1) handwritten notes referring to
CD21 as tile; (2) the county engineer’s 2006 letter to landowners regarding whether to
abandon CD21, calling it a “tile ditch [that] stopped functioning just a few years after it
was put into service”; (3) documents attached to the county engineer’s 2006 letter showing
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no damages, which are usually associated with open ditches 1; (4) a 2006 report on ditch
repair costs listing costs for 7,300 feet of tile; (5) a letter to a landowner indicating no
damages in 2007; and (6) an estimate for highway repairs including “road boring” which
the DNR states is usually associated with crossing tile systems , not open ditches
(collectively, supplementary documents).
“[T]he record in a certiorari appeal consists of the pape rs filed, the exhibits, and
transcripts.” In re Block, 727 N.W.2d 166, 176 (Minn. App. 2007) (citing Minn. R. Civ.
App. P. 110.01). The government body bears the burden of providing a sufficient record
for this court to review on certiorari appeal. Dokmo v. Indep. Sch. Dist. No. 11, 459 N.W.2d
671, 676 (Minn. 1990); see also Trout Unlimited, Inc. v. Minn. Dept. of Ag. , 528 N.W.2d
903, 907 -08 (Minn. App. 1995) (stating that disputed documents available and in
possession of agency are part of record and sh ould have been considered by agency) ,
review denied (Minn. Apr. 27, 1995).
On certiorari review of a quasi -judicial decision, we usually do not consider
materials outside the record developed before the decisionmaker, unless the supplementary
materials sup port the decision below. Block, 727 N.W.2d at 176. However, we may
consider evidence outside the administrative record “when, among other circumstances,
‘the agency failed to consider information relevant to making its decision.’” In re Air
Emissions Permit No. 13700345-101 for PolyMet Mining, Inc. , 943 N.W.2d 399 , 406-07

1 Landowners whose land is required for an open ditch channel must be paid damages for
loss of use of that land. Minn. Stat. § 103E.315, subd. 8(a)(1) (2020). The record
considered by the board also reflects that damages have never been assessed for CD21.
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(Minn. App. 2020) ( PolyMet I) (quoting White v. Minn. Dept. of Nat. Res. , 567 N.W.2d
724, 735 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997)) , rev’d and remanded
on other grounds, 955 N.W.2d 258 (Minn. 2021) (PolyMet II); see also Crystal Beach Bay
Ass’n v. County of Koochiching , 243 N.W.2d 40, 43 (Minn. 1976) (considering extra -
record evidence in appeal from declaratory judgment action in district co urt based on
“inherent power to look beyond the record where the orderly administration of justice
commends it”). On review, the Minnesota Supreme Court noted that , when deciding a
motion to supplement, the court of appeals may look to federal administrat ive law, which
states that supplementing the record may be appropriate in limited cases when documents
should have been considered by the agency. PolyMet II, 955 N.W.2d at 269 n.6.
Similarly, in another certiorari appeal, we allowed supplementation of the record
when the decisionmaker, the city council, received a relevant letter prior to its decision but
a councilmember denied the existence of th at letter. Rostamkhani v. City of St. Paul , 645
N.W.2d 479, 483 -84 (Minn. App. 2002) ; see also Minn. R. Civ. App. P. 110.05 (stating
that appellate court may allow supplemental record if material portions of record are
omitted or misstated). We did so even though the letter supported reversal of the city
council’s decision. Rostamkhani, 645 N.W.2d at 483-84.
Here, the supplementary documents show that the board and county engineers
referred to CD21 as a tile ditch , proposed repairs to CD21 listing costs to repair a tile
system, and assessed none of the damages that are typical for open ditches . If CD21 had
been “repaired” to an open ditch, the board and engineers would have referred to it as an
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open ditch, rather than as a tile ditch that failed. Likewise, it is more likely that the record
would reflect damages determinations if CD21 had been repaired to an open ditch.
Further, in its comment letter, the DNR requested that the board make all historical
records part of the record at the public hearing , which it did not do . The board had the
supplementary documents in its possession, but deemed them irrelevant and consequently
did not make them part of the administrative record. But l ike the city council in
Rostamkhani, the board should have included the supplementary documents t o create a
comprehensive record. 645 N.W.2d at 483 -84; Dokmo, 459 N.W.2d at 676. To deny the
motion would allow the board to benefit from its failure to include documents relevant to
CD21’s construction and history . In sum, because the supplementary documents are
probative of whether the board failed to consider evidence relevant to its decision, we grant
the DNR’s motion to supplement the record. White, 567 N.W.2d at 735.
III. The board exceeded its authority, made a decision unsupported by substantial
evidence , and acted arbitrarily by ordering record reestablishment.

The DNR asserts that (1) the board lacked authority to conduct the record
reestablishment process and (2) the board’s conclusion that CD21 was “repaired” to open
ditch in 1919 is unsupported by the record and is arbitrary. We agree.
As this court established in Zimmer, the as -constructed or subsequently improved
condition of a ditch serves as the baseline for future maintenance and changes to a ditch
and determines whether the maintenance and changes constitute repairs or improvements .
359 N.W.2d at 271. If the records of the as -constructed or subsequently improved
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condition of a ditch are lost or incomplete , the drainage authority may conduct record
reestablishment proceedings. Minn. Stat. § 103E.101, subd. 4a(a).
Here, the parties agree that CD21 was designed and constructed as a tile system,
that the tile system malfunctioned, and that landowners petitioned to fix CD21 . This
dispute centers on the board’s conclusion that, after the 1919 landowner petition, CD21
was repaired or converted to open ditch but the records of that change are lost, destroyed,
or incomplete.
A. The board exceeded its authority by proceeding with record
reestablishment.

The board properly commenced the record -reestablishment process after receiving
a landowner petition. Id., subd. 4a(b). However, to continue with the record -
reestablishment process , the board must conclude that records of the as -constructed or
subsequently improved condition of a ditch are “lost, destroyed, or otherwise incomplete.”
Id., subd. 4a(a). Here, the board possesses the records that define how CD21 was
constructed. And, as discussed below, it failed to establish that CD21 was repaired or
subsequently improved to open ditch. As a result, it cannot, on this record, conclude that
records of CD21’s as-constructed or subsequently improved condition are lost, destroyed,
or incomplete. It therefore lacked authority to proceed within the record -reestablishment
process.
B. The board’s conclusion that CD21 was repaired to an open ditch is not
supported by substantial evidence and is arbitrary.

The board concluded that CD21 was re paired to open ditch based on: (1) the 1919
landowner petition to have CD21 “answer the purpose” for which it was constructed ;
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(2) the fact that the board had statutory authority around the time CD21 was constructed
to, on its own initiative, make what today would be considered improvements as “repairs”;
and (3) its finding that CD21 “has existed” as an open ditch since 1919. But these findings
do not support the board’s conclusion. In fact, some cut against its conclusion.
First, the board’s emphasis on the language of the 1919 landowner petition ignores
the landowners’ specific request that CD21 be fixed “strictly in accordance” with CD21’s
original design , which was a tile system . Further, the landowners’ request that CD21
“answer the purpose” for which it was constructed mirrors statutory language that refers to
the general purpose of ditch-drainage systems. See, e.g., Minn. Gen. Stat. § 5552 (1917)
(stating that drainage authority should maintain ditch to “answer its purpose”). The
purposes of drainage systems include draining certain shallow lakes and providing flood
control. Id., § 5523 (1917). Nothing in the record or statutes suggests that the landowners
requested an open ditch rather than a tile ditch to “answer the purpose” for wh ich CD21
was constructed.
Second, it is true that the board had broader authority to conduct more substantial
maintenance and changes on its own initiative under historical statutes. See, e.g., Minn.
Gen. Stat. § 5552 (1921) ( stating that county board m ust keep ditch in proper repair and
may assess costs and benefits of “deepening, widening , and extending . . . [the ditch]”
against properties benefitted by the ditch). Similarly, it may well be true that ditch design
engineers frequently made in-the-field changes to ditch design in response to unexpected
construction conditions. See Minn. Gen. Stat. § 6678 (1923) (stating that design engineer
may, with board or court approval and “as circumstances may require,” modify plans and
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specifications); see also State v. Watts , 133 N.W. 971, 974 (Minn. 1911) (noting that
engineer may make in-field changes to ditch specifications). But that the board and design
engineers had authority to alter CD21 does not mean that such alterations took place. The
board points to no documents or other evidence showing that it repaired or altered CD21
to open ditch following the 1919 landowners’ petition.
Third, even if it is true that CD21 has existed as an open ditch since the early 1900s,
that does not mean it was “repaired” to an open ditch in 1919. Instead, its “existence” as
an open ditch may result from the failed tile system being left in place for many years.2
Not only do the se findings not support the board’s conclusion that CD21 was
repaired to open ditch , other documents in the record contradict that conclusion. The
design engineer’s final estimate lists that 7,400 feet of tile were in place, 100 feet “over ,”
presumably meaning 100 feet more than the original estimate . This document suggests
that CD21 was completed or reconstructed in 1921 as a tile system after the landowner
petition and undermines any argument that a repair or mid-construction alteration to open
ditch occurred at that time.
Additionally, as discussed in part II, the supplementary documents show that the
board has called CD21 a tile system , construed “repair” for CD21 to mean tile system
repair, and never determined damages typically associated with open ditch systems for

2 We note that Larson’s engineer’s report seems to contradict his later declaration on this
point. The engineer’s report asserts that the tile system was removed. But in h is
declaration, Larson states that CD21 “exists as an open ditch system, with the tile that the
contractor tried to install a century ago.”
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CD21. These documents also contradict the board’s conclusion that CD21 was “repaired”
to open ditch.
In sum, the board’s conclusion that CD21 was “repaired” to an open ditch is not
supported by substantial evidence in the record. Eneh, 906 N.W.2d at 614. Further, its
decision is arbitrary because it failed to consider all the records in its possession and its
conclusion runs counter to the comprehensive record. CARD, 713 N.W.2d at 832. As a
result, the board’s finding that records of CD21’s as-constructed or subsequently improved
condition were lost is likewise not supported by substantial evidence and is arbitrary. Its
ultimate decision to reestablish records was , therefore, not supported by substantial
evidence and is arbitrary.
IV. We need not address whether the engineer’s report complied with Minn. Stat.
§ 103E.101, subd. 4a(a).

The DNR argues that Larson’s engineer’s report does not comply with statutory
requirements because it fails to include (1) aerial photographs and soil borings or test pits;
(2) current culvert dimensions and invert elevation measurements ; or (3) LiDAR data. 3
The board argues that the DNR forfeited this argument by failing to raise it in its comment
letter. But because we reverse the board’s decision on other grounds, we need not address
the DNR’s argument that the engineer’s report did not comply with the statutory criteria.4
Reversed; motion granted.

3 LiDAR stands for Light Detection and Ranging, which is a remote sensing method used
to measure distances.
4 Nevertheless, we are concerned about the dearth of information supporting the engineer’s
report. We encourage drainage authority engineers to attach all information and data they
consider to their reports in record-reestablishment proceedings.