In the Matter of the Public Waters Restoration Order Issued to Timothy Maciej.

This opinion is nonprecedential except as provided by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
A21-0544

In the Matter of the Public Waters Restoration Order Issued to Timothy Maciej.

Filed January 10, 2022
Affirmed
Reilly, Judge

Office of Administrative Hearings
File No. 21-2002-36351

William A. Erhart, Erhart Legal, LLC, Anoka, Minnesota (for relator Timothy Maciej)

Keith Ellison, Attorney General, Peter J. Fa rrell, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Natural Resources)

Considered and decided by Reilly, Presiding Judge; Jesson, Judge; and Kirk, Judge.
*
NONPRECEDENTIAL OPINION
REILLY, Judge
In this administrative appeal, relato r-landowner challenges the public-waters-
restoration order issued by respondent-agency requiring relator to remove fill that he placed
on two trails on his property. Relator argues that the agency’s decision should be reversed
because (1) the trails are not public waters; (2 ) relator’s placement of fill on the trails did
not violate agency rules; (3 ) the commissioner erred by denying him an after-the-fact

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
permit; and (4) the agency’s i nvestigation methods violated his constitutional rights. We
affirm.
FACTS
Relator Timothy Maciej owns real proper ty in Anoka County. Maciej bought the
property in 2003. At that time, several trails existed on the property, including the two
trails at issue in this case (Trail 1 and Trail 2).
In November 2017, respondent Departme nt of Natural Resources (the DNR)
received notice that trails on Maciej’s propert y appeared to cut across a public wetland.
After investigating the matter, the DNR issued a public-waters-restoration order, which
determined that Maciej had placed fill—cons isting of rock, soil, and plastic netting—in
public waters in violation of DNR rules. The restoration order required Maciej to remove
all fill used to construct the trails and to repair the bed of the public waters. Maciej
appealed the restoration order, and the case eventually proceeded to a contested-case
hearing.
Before the hearing, the parties stipulated to the following facts about Maciej’s use
and maintenance of the trails. Maciej traveled along the trails by foot and with motorized
vehicles. In 2009, firefighters used the tra ils while fighting a fire that broke out on the
Carlos Avery Wildlife Management Area, which is next to the property. Maciej mowed
the trails twice a year “to prevent them from becoming overgrown with vegetation,
including cattails.” Maciej placed wood chips and limestone on Trails 1 and 2 “to control
vegetation and facilitate their co ntinued use for transport by mo tor vehicle or foot.” In
2016, Maciej installed plastic erosion control netting on Trail 1, with river rock on top of
3
the earth netting. The purpose of the netting and rock was to prevent the trail from sinking
or getting washed out.
An administrative-law judge (ALJ) held a contested-case hearing in May 2020. The
next paragraphs summarize the evidence presented at the hearing.
Contested-Case Hearing
The ALJ heard testimony from multiple witnesses who worked with the DNR
during the investigation. Ar ea hydrologist Jason Spiegel te stified that the DNR first
learned about the trails on Maciej’s property after he was contacted by a worker at the Coon
Creek Watershed District. Based on the photogr aphs of the property that the watershed
district worker sent him, Spiegel believed there was a potential public-waters violation.
To investigate the potential violation, Spiegel first examin ed the public-waters
inventory available on an electronic program known as ArcGIS. Ar cGIS is a geographic
information system that produ ces aerial images of proper ty and shows the approximate
boundaries of public waters. Spiegel explained that, when the DNR first inventoried all
public waters in Minnesota in the 1970s and 1980s, the DNR generated maps for each
county, and the inventory maps and the Ar cGIS maps reflect the same approximate
boundaries of public waters. Based on his initial review of the ArcGIS maps, Spiegel
determined that the trails appeared to have been built within the boundaries of public
waters.
Spiegel visited the property with conservation officer Anthony Salzer to conduct an
initial onsite inspection. They observed that cattails—an aquatic species—were growing
on either side of the trails and that the trails appeared to connect to higher areas above the
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wetland. Trail 1 consisted of large rocks with plastic netting underneath, and the trail was
big enough to drive a vehicle on it. Trail 2 wa s made up of smaller gravel. Spiegel also
viewed historical aerial images of the property. Aerial images from 2008 and March 2016
did not show any trail where Trail 1 was lo cated. But an April 2017 image showed “a
newly constructed road” that was not visible in the March 2016 image. Aerial images also
showed a “mowed trail” where Trail 2 was located as early as 2008.1
In July 2018, DNR workers re turned to the property to conduct an onsite survey.
Spiegel testified that, for purposes of the DNR’s jurisdiction, the boundary of a public
water is the ordinary high-water level. He explained that the inventory maps and ArcGIS
maps are merely approximations of the boundary; the only way to determine the boundary
is to physically survey the property to determine the ordinary high-water level.
Kurt Woodrich, the supervisor of the survey crew and lake monitoring unit, led the
survey. Woodrich testified that the ordinary high-water leve l is “the highest water level
maintained for a sufficient peri od of time to leave evidence on the landscape,” which is
“generally the point where vegetation changes fro m . . . aquatic to terrestrial.” Woodrich
explained that the DNR workers looked for different types of ev idence when conducting
the ordinary-high-water-level survey. The workers relied mainly on “tree evidence.” They
looked for trees that were the most water-intolerant, such as hardwoods, and measured the
elevation at the base of the tr ees. These types of trees typically grow above the ordinary

1 DNR workers also exam ined two other trails on Maciej’s property but determined that
those trails were in upland areas above the ordina ry high-water level and were thus not
subject to the restoration order.
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high-water level. The workers also relied on water-formed evidence, which included “stain
lines, wash lines, [and] debris lines left on the landscape based on water being there a
substantial amount of time to leave that ev idence,” as well as vege tative evidence, which
was “the edge of the aqua tic field where the aquatic vegetation meets the upland
vegetation.” Relying on these methods, the DNR workers determined that the ordinary
high-water level for Maciej’s property was 902.9 feet above sea level.
After determining the elevation of the ordinary high-water level, the DNR workers
collected topographic data to identify the location of the fill in relation to the ordinary high-
water level. They determined that fill on Trails 1 and 2 had been placed below the ordinary
high-water level. Although the top edge of the trails was above the ordinary high-water
level, this was because the fill had raised the area above that level. Woodrich testified that
the trails “connected two pieces of high ground to a low area that was below the ordinary
high[-]water level.” Thus, th e DNR concluded that the tra ils violated agency rules
prohibiting the placement of fill in public waters, and that violation justified the restoration
order.
Maciej and his son also testified at the hearing. They testified that the trails existed
on the property since before Maciej bought the property in 2003 and that they have used
the trails regularly. The trails were developed by the previous owner during the 1970s and
1980s. According to Maciej, the previous owner regularly mo wed the grass on the trails
and placed wood chips and a gravel mix on the tr ails. Maciej testifie d that he continued
this practice and that the wood chips were help ful “so [he] didn’t have to cut the grass as
much.”
6
Maciej and his son testified that a fire swept through the area in 2009 and firefighters
drove over the trails while fi ghting the fire. According to Maciej, the trails helped the
firefighters because the trails served as a firebreak that the firefighters used to help stop the
fire. And the trails prevented the fire from reaching Maciej’s house. The firetrucks’ use
of the trails caused the trails to deteriorate.
Maciej’s son testified that the water levels changed every year and that the trails
were more apparent in drier years, although they always remained in place. He said that
the river rock and plastic ne tting were added on Trail 1 to provide a solid base and to
prevent erosion. Maciej testif ied that he added the extra rock to Trail 1 so that the trail
would be easier to maintain and so that vehicl es would not get stuck on the trail. Maciej
said that he never knew that Trails 1 and 2 went through public water until the DNR began
its investigation.
Commissioner’s Final Order
After the hearing, the ALJ issued her fi ndings of fact, conclusions of law, and
recommendation. The commissioner of natural resources, through her designee, issued a
final order, which adopted all the ALJ’s findin gs of fact and conclusions of law. The
commissioner determined that Maciej violat ed Minn. R. 6115.0190 (2019) because he
placed fill in public waters “for the pur poses of constructing roads, facilitating land
transportation across the [b]asin, and achiev ing vegetation control.” In reaching this
conclusion, the commissioner reli ed on the testimony of the DNR workers that the trails
fell below the ordinary high-water level and we re therefore part of public waters. The
7
commissioner also determined that Maciej was not entitled to an after-the-fact permit.
Thus, the commissioner affirmed the restoration order.
Maciej appeals.
DECISION
Maciej challenges the commissioner’s final order affirming the restoration order.
We “attach a presumption of correctness” to the decision of an administrative agency and
“defer to an agency’s conclusions in the area of its expertise.” In re Reichmann Land &
Cattle, LLP, 867 N.W.2d 502, 512 (Minn. 2015) (quotations omitted). We will reverse or
modify an agency’s decision only if the decision was uncons titutional, in excess of the
agency’s statutory authority or jurisdiction, based on unlawful procedure, based on an error
of law, unsupported by substantial evidence, or arbitrary or capricious. Minn. Stat. § 14.69
(2020). The party challenging the agency’s decision bears the burde n of proving a basis
for reversal. Markwardt v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn. 1977).
The substantial-evidence standard is met wh en “there is relevant evidence that a
reasonable person would accept as adequate,” consider ing all the evidence. Webster v.
Hennepin County, 910 N.W.2d 420, 428 (Minn. 2018) (quotation omitted). Applying this
standard, we view the commissioner’s factual findings “in the light mo st favorable to the
decision” and “will not disturb those findings if there is evidence reasonably tending to
sustain them.” Lewison v. Hutchinson , 929 N.W.2d 444, 451 (M inn. App. 2019). We
review de novo whether the commissioner’s de termination is suppor ted by substantial
evidence. Webster, 910 N.W.2d at 428. The interpre tation of statutes and administrative
8
rules is also a question of law, which we review de novo. In re Reissuance of an
NPDES/SDS Permit to U.S. Steel Corp., 954 N.W.2d 572, 576 (Minn. 2021).
The DNR is tasked with investigating activ ities that may affect the waters of the
state and with enforcing the laws protec ting and preserving wa ters. Minn. Stat.
§§ 103G.2372, subd. 1(a), .251 (2020). If these laws are violated, the commissioner may,
among other things, order re storation of public waters . Minn. Stat. § 103G.2372,
subd. 1(b) (2020); Minn. R. 6115.0255, subp. 4 (2019). DNR rules prohibit the placement
of fill into public waters. Minn. R. 6115.0190.
Here, the commissioner determined that Maciej violated rule 6115.0190 by placing
fill on Trails 1 and 2.2 Maciej argues that the commissioner’s final order should be reversed
for four reasons: (1) the trails are not pu blic waters; (2) Maciej did not violate
rule 6115.0190 when he plac ed fill on the trails; (3) the DNR erred by denying him an
after-the-fact permit; and (4) the DNR’s methods for determining the boundaries of public
waters is unconstitutionally arbitrary and vague, and denied him due process. We examine
each argument in turn.

2 “Fill” is defined as “any material placed or intended to be placed on the bed or bank of
any public water.” Minn. R. 6115.0170, subp . 11 (2019). Similarly, “filling” means
“placement of unconfined or loosely confined materials in public waters.” Minn. R.
6115.0190, subp. 2. Maciej does not dispute that the plastic netting and river rock on
Trail 1, as well as the wood chips and limestone on Trail 2, meet th e definition of “fill”
under the rules.
9
I. Substantial evidence supports the commissioner’s determination that the trails
are public waters.
Maciej first argues that he did not violate rule 6115.0190 because the trails are not
public waters. The rule prohi bits the placement of fill “in public waters.” Minn. R.
6115.0190, subp. 2. Maciej argues that he did not place fill in public waters, but “merely
maintained two preexisting trails that lie outside of public waters as established in 1984.”
Minnesota law provides that the boundary of public wa ters is the ordinary high-
water level. Minn. Stat. § 103G.005, subd . 14 (2020); Minn. R. 6115.0170, subp. 25
(2019). Thus, an area lies within public wate rs if it falls below the ordinary high-water
level. The ordinary high-water level is de fined as “an elevation delineating the highest
water level that has been maintained for a sufficient period of time to leave evidence upon
the landscape, commonly the point where the natural vegetation changes from
predominantly aquatic to predominantly terrestrial.” Minn. Stat. § 103G.005, subd. 14(1).
The record supports the commissioner’s finding that the fill placed on the trails fell
below the ordinary high-water level. The DNR survey showed that the ordinary high-water
level was 902.9 feet above s ea level and that some fill was placed below that level.
Woodrich provided expert testimony about th e procedures the workers used to determine
the ordinary high-water level. He explai ned that the determination was based on tree
evidence, water-formed evidence, and vegetative eviden ce showing the line between
predominantly aquatic and pr edominantly terrestrial vege tation. Maciej offered no
evidence to refute the DNR’s expert testimony about the lo cation of the ordinary high-
water level or the determination that fill had been placed be low that level. The record
10
amply supports the commissioner’s findings that Maciej placed fill on the trails below the
ordinary high-water level, and that the trails therefore are part of public waters.
Maciej, though, argues that the DNR presented no evidence about whether the trails
were above the ordinary high-water level when the public-waters inventory was created in
1984. This argument misses th e mark. As Spiegel explaine d during his testimony, the
public-waters inventory is an approximation of the boundaries of public waters. The statute
and rule provide that the actual boundaries are determined based on the ordinary high-water
level, which naturally changes over time. Minn. Stat. § 103G.005, subd. 14; Minn.
R. 6115.0170, subp. 25. The DNR appropriately determined this level during the survey.
The location of the ordinary high-wa ter level in 1984 is irrelevant. 3 Based on the DNR
workers’ testimony about the present location of the ordinary high-water level, substantial
evidence in the record supports the commissioner’s determination that the trails are within
the boundary of public waters.4

3 We address Maciej’s related retroactivity argument below.
4 Maciej also raises a policy- based argument that the DNR’ s interpretation of the rules
“precludes landowners from preventing the encr oachment of their land” because of the
expansion of wetlands or public waters. We note that separa te rules specif ically allow
landowners to engage in filli ng activities for particular purp oses. For example, the DNR
may issue permits “for filling to recover shoreland lost by erosion or other natural forces,”
if certain conditions are met. Minn. R. 6115.0191, subp. 4 (2019). This rule might allow
landowners to engage in filling to counter the encroachment of public waters in some cases.
But the rule requires the DNR to issue a permit before a landowner may do so, see id., and
Maciej did not apply for a permit.
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II. The commissioner did not err by determin ing that Maciej’s placement of fill
violated rule 6115.0190.
Maciej argues that, even if the trails ar e public waters, his placement of fill on the
trails did not violate rule 6115.0190. The rule lists several situations in which the
placement of fill is prohibited, including:
A. to achieve vegetation control;

. . . .

F. to construct a roadway or pathway, or create or improve land
accesses from peripheral shorelands to islands, or to facilitate
land transportation across the waters . . . .

Minn. R. 6115.0190, subp. 3. Here, the commissioner determined that Maciej’s placement
of fill violated subparts 3(A) and 3(F) because he placed the fill to achieve vegetation
control, construct roads, and facilitate land transportation across the water basin.
Maciej argues that the commissioner’s re asoning was erroneous for two reasons:
(1) the commissioner misinterpreted the pl ain language of the rule, and (2) the
commissioner’s interpretation constitutes an ille gal retroactive appli cation of the law.
Neither argument is persuasive.
A. The commissioner correctly interpreted rule 6115.0190, subpart 3.
Maciej challenges the commission er’s interpretation of rule 6115.0190, subpart 3.
He argues that he merely main tained preexisting trails and th at the rule does not prohibit
“maintenance” of a roadway or pa thway. When the language of a rule is ambiguous, we
“will defer to the agency’s interpretation and will generally uphold that interpretation if it
is reasonable.” Reissuance of NPDES/SDS Permit, 954 N.W.2d at 576 (quotation omitted).
12
But when the language of a ru le is “clear and capable of un derstanding,” we do not defer
to the agency’s interpretation. Id. We conclude that the rule unambiguously prohibits the
placement of fill in this case.
We agree with the commissione r that the placement of f ill was for the purpose of
“facilitat[ing] land transportation across the wa ters,” in violation of subpart 3(F). One
definition of “facilitate” is “[t]o make easy or easier.” The American Heritage Dictionary
of the English Language 632 (5th ed. 2018). Applying this definition, we conclude that
subpart 3(F) prohibits the placem ent of fill to make it easier to cross over public waters.
The record supports that this was Maciej’s exact purpose in this case. Maciej testified that
he added rock to Trail 1 so that the trail would be easier to maintain and so that vehicles
would not get stuck on the tra il. And the parties stipulated that Maciej placed the wood
chips and limestone on both trails to allow for “their continued use for transport by motor
vehicle or foot.” Because the record supports that Maciej placed fill on the trails to make
it easier to travel along the trails, the commissioner did not err by determining that Maciej
violated rule 6115.0190, subpart 3(F).
We are not persuaded otherwise by Maciej ’s contention that the placement of fill
was “for the purpose of constr ucting or maintaining firebreak s,” which he asserts is not
prohibited under rule 6115.0190. We reje ct the argument for two reasons. First,
rule 6115.0190 contains no firebreak or emergency-access exception. Maciej’s
interpretation would require this court to add a new exception to the rule.5 And we cannot

5 Rule 6115.0191 (2019) lists other types of activities for which filling may be permittable
in some cases. First, a landowner must a pply for a permit from the DNR to place fill in
13
add words to an unambiguous statute or administrative rule. 328 Barry Ave., LLC v. Nolan
Props. Grp., LLC, 871 N.W.2d 745, 750 (Minn. 2015); Reissuance of NPDES/SDS Permit,
954 N.W.2d at 576 (providing that administ rative rules are governed by same rules of
construction as statutes).
Second, Maciej overstates the record support for the proposition that safety was the
“primary concern” in placing fill on the trails. Maciej and his son testified that firefighters
used the trails in 2009 while fighting a near by fire and that the trails functioned as a
firebreak. But Maciej did not add the river rock and plastic netting to Trail 1 until 2016,
seven years later. And the tes timony does not suggest that sa fety concerns were the only
or even predominant reason for maintaining the trails. When asked why they placed fill on
the trails, Maciej and his son sa id that the purpose of the fill was to make the trails easier
to walk over and to maintain, and they also alluded to the benefits that the trails provided
during the fire. At best, the record supports that maintaining a firebreak was one of several
reasons for placement of the fill. Because th e record supports that Maciej placed fill on
the trails for at least one impermissible re ason—facilitating land transportation across the

public waters. Minn. R. 6115.0190, subp. 5, .0240 (listing requirements for permit
application). Under rule 6115.0191, fillin g for purposes not specifically listed must
comply with rule 6115.0190, subparts 2-5, and proposals mu st come with information
showing that “the intended purpose of the f ill is reasonable with respect to all other
alternatives and there are no feasible and prac tical means to attain the intended purpose
without filling,” and that “the proposal will adequately protect public safety and promote
the public welfare.” Minn. R. 6115.0191, subp. 8. Building a firebreak could theoretically
be a permittable reason for placing fill if a landowner applied for a permit and met the
requirements of subpart 8.
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waters—the commissioner did not err by determining that his activities violated
rule 6115.0190, subpart 3.
B. The restoration order is not an illegal retroactive application of the law.
Maciej also argues that the restoration orde r is an “illegal retroactive application”
of the law. He maintains that Trails 1 a nd 2 were constructed in coordination with the
DNR before the public-waters inventory was created in 1984, and that the DNR cannot
now require him to reverse actions that it had approved before the statutes and rules were
enacted.
Maciej relies on this court’s decision in State ex rel. Swan Lake Area Wildlife Ass’n
v. Nicollet County Board of County Commissioners , in which this court held that the
Minnesota Environmental Rights Act (MERA) did not apply retroactively. 799 N.W.2d
619, 628-29 (Minn. App. 2011). As a result, this court determined that the district court’s
authority to grant equitable relief under ME RA was limited to the remedy necessary to
return two lakes to a condition that existed when MERA was enacted. Id. at 629. This
court reasoned that requiring the county to restore the lakes to a condition prior to MERA’s
enactment would have constitu ted “an improper retroactive application of MERA.” Id.
Maciej draws parallels between this case and Swan Lake, and he argues that, like MERA,
chapter 103G was not intended to apply retr oactively to require the restoration of
conditions that preexisted the statutes’ enactment.
We do not need to decide whether chapter 103G applies retroactively because we
conclude that Maciej has not met his burden to show that the restoration order constitutes
a retroactive application of the law. The commissioner’s findings referred specifically to
15
Maciej’s placement of fill on the trails sinc e he acquired the property in 2003. Although
Maciej testified that the previous owner placed wood chips and gravel mix on the trails, he
also said that he continued the practice regularly. And Maciej’s placement of fill went far
beyond that of the previous owner. He added plastic netting and river rock to Trail 1 in
2016. This was a significant change in the ch aracter of the trail, as shown by the aerial
photos of the property from April 2017, in whic h Trail 1 was visible, compared to photos
from 2008 and 2016, in which no trail was visible. This evid ence reveals that the trails
were substantially improved because of Maciej ’s placement of fill. Unlike the proposed
relief in Swan Lake, which sought to restore the water level to an elevation that existed at
a time before MERA’s enactment, the restorati on order here was directed at restoring the
public waters to their cond ition before Maciej placed f ill on the property, not a time
predating his ownership of the property or the enactment of chapter 103G.6
The party seeking to reverse an agency’s decision has the burden to show error.
Markwardt, 254 N.W.2d at 374. Given the evidence in the record, Maciej has not met his

6 We also note that the record does not support Maciej’s assertion that the trails were built
with the DNR’s assistance and authorization. In support of this position, Maciej points to
the testimony of his son that the previous owner “dug these ponds and whatnot with the
DNR for duck hunting.” This testimony vague ly suggests that the DNR was involved in
some activities on the property, but it does not specifically mention the trails. Maciej also
refers to a statement made by his attorney during opening arguments at the contested-case
hearing that the previous owner worked with the DNR to develop the trails during the late
1970s and early 1980s. But the attorney’s assertion duri ng opening arguments is not
evidence. While the r ecord supports that the trails we re built sometime in the 1970s or
1980s, the exact circumstances surrounding their constructi on and early maintenance are
unclear on this record.
16
burden to show that the restoration order is an impermissible retroactive application of the
law.
III. The DNR did not err by determining that Maciej was not entitled to an after-
the-fact permit.
Maciej further argues that, even if the trails are public waters for which a permit is
needed to place fill, the DNR should have granted him an after-the-fact permit. The party
seeking an after-the-fact permit has the burden to show that he is entitled to one. See In re
Excavation of Erickson Lake (Beltrami Cnty.) by Lahman , 392 N.W.2d 636, 639 (Minn.
App. 1986) (explaining that applicant for an after-the-fact permit has burden of proving
that proposed project will protect public safety and promote public welfare, as required by
statute). The commissioner determined that Maciej was not entitled to an after-the-fact
permit. We agree.7
We first note that Maciej never applie d for a permit from th e DNR. Landowners
must obtain a permit from the DNR to place fill in public waters. Minn. R. 6115.0190,
subp. 5. And landowners seeking a permit must complete an application and submit it to
the DNR. See Minn. R. 6115.0240 (laying out proc edures for applications pursuant to
Minn. R. 6115.0150 to 6115.0280); see also Minn. Stat. § 103G.301 (2020) (describing
general application requirements). While Maciej argued before the commissioner that he

7 Maciej frames the issue as whether the DNR “abused its discretion” by denying him an
after-the-fact permit. We do no t apply this standard of re view to agency decisions. See
Minn. Stat. § 14.69 (listing bases to reverse or modify an agency decision). Maciej appears
to argue primarily that the commissioner misa pplied the law when it determined that he
did not meet the requirements of rule 6115.0190. Based on Maciej’s framing of the issue,
we review whether the commissioner’s decision was affected by legal error, rather than
arbitrary or capricious.
17
should be granted an after-the-fact permit, he did not complete an application for a permit,
as required by statute and rule, nor did he present evidence at the contested-case hearing to
meet his burden to establish the requirements for obtaining a permit.
More importantly, the rules do not allow for the issuance of an after-the-fact permit
in this case. Rule 6115.0190, subpart 5 provides, “Permits are required for the placement
of fill in public waters, except as provided under subparts 3 and 4,” and a project must meet
several requirements. Under this provision, a person is not entitled to a permit if the
placement of fill is for one of the prohibited pu rposes listed under rule 6115.0190,
subpart 3. As explained above, Maciej’s pl acement of fill was for a prohibited purpose
under subpart 3(F)—to construct a roadway or pathway, or to facilitate land transportation
across the waters. Because Maciej’s placemen t of fill was prohibite d under the rules, it
would not have been proper for the commissioner to issue an after-the-fact permit.
IV. Maciej’s constitutional arguments lack merit.
Finally, Maciej raises several constitutional challenges to the restoration order. He
argues that the DNR’s reliance on the ArcGIS map, rather than the original public-waters
inventory from 1984, to determine the boundary of public waters fails to provide adequate
notice to landowners and therefore violates his due-process rights. Maciej also asserts that
the DNR’s methods of enforcement are arb itrary and should be considered void for
vagueness. He argues that the DNR’s maps and enforcement procedures, together with the
DNR rules and state statutes, are too complex for an ordinary person to understand. We
are not persuaded, for three reasons.
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First, Maciej does not cite a specific statut e or rule that he wishes this court to
declare unconstitutional. Instead, he appears to challenge the “original map and statutory
scheme,” as well as “the entire scheme” for issuing restoration orders. Minnesota water
law consists of many statutes and DNR rules, and Maciej’s constitutional challenge might
cover all or many of the provisions. We presume that statutes and rules are constitutional
and will declare a provision unconstitutional “with extreme cauti on and only when
absolutely necessary.” Irongate Enters., Inc. v. County of St. Louis, 736 N.W.2d 326, 332
(Minn. 2007) (quotation omitted ). The party challenging a provision has the burden of
establishing that it is unconstitutional. Id. Without any specific indication of which
statutes or rules Maciej is challenging, he has not met that burden here.
Second, Maciej’s focus on the ArcGIS maps and the public-waters inventory is
misplaced. The testimony of the DNR workers made clear that they did not rely on either
the ArcGIS maps or the pub lic-waters inventory when determining whether Maciej’s
placement of fill violated DNR rules. Spie gel explained that both maps are merely
approximations of the boundary of public waters. He testified that he reviewed the ArcGIS
maps as part of his preliminar y investigation and, upon seeing that the trails appeared to
fall within the boundary of public waters on the maps, he chose to investigate more. DNR
workers later conducted a survey to determine the ordinary high-water level, and they
relied on the survey when concluding that fill on the trails fell below the ordinary high-
water level, in violation of DNR rules. Maciej does not di spute that the ordinary high-
water level is the appropriate measure of th e boundary for public wa ters, as provided by
statute and rule. See Minn. Stat. § 103G.005, subd. 14; Minn. R. 6115.0170, subp. 25. The
19
1984 public-waters inventory also recognize d these procedures: th e legend on the 1984
map states that the boundaries of public waters shown are approximate and that the actual
boundary is based on the ordinary high-water level, as defined by statute, and determined
by a DNR survey. Because the DNR complied with the statutes and rules for determining
the boundary of public waters, the DNR did not violate Maciej’s due-process rights.
We likewise conclude that the DNR’s re liance on the ordinary high-water level
satisfies due-process requirements, and the stat utes and rules are not void for vagueness.
The purpose of the void-for-vague ness doctrine “is to assure that ordinary people are put
on notice of what conduct is prohibited and to discourage arbitrary and discriminatory law
enforcement.” BFI Waste Sys. of N. Am., LLC v. Bishop , 927 N.W.2d 314, 325 (Minn.
App. 2019) (quotation omitted), rev. denied (Minn. June 26, 2019). “More important than
actual notice is the doctrine’s requirement that the legislature establish minimal guidelines
or standards to govern enforcement.” Id. The statute defines the ordinary high-water level
as the elevation at which the highest water level has left evidence on the landscape, which
is often the point where the vegetation changes from predominantly aquatic to
predominantly terrestrial. Minn. Stat. § 103G. 005, subd. 14. This definition provides
sufficient guidelines for determining the ordi nary high-water level. Woodrich testified
about the different types of evidence that the workers looked for during the survey to make
that determination. The DNR’s methods of determining the ordinary high-water level
satisfy due process.
20
For these reasons, Maciej’s constitutional arguments are not a basis to reverse the
restoration order.
Affirmed.