In re City of Cohasset’s Decision on the Need for an Environmental Impact Statement for the Proposed Frontier Project.

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0550

In re City of Cohasset’s Decision on the Need for an
Environmental Impact Statement for the Proposed Frontier Project.

Filed February 6, 2023
Reversed and remanded
Jesson, Judge
Concurring in part, dissenting in part, Johnson, Judge

City of Cohasset

Christopher Murray, Leech Lake Band of Ojibwe, Cass Lake, Minnesota; and

Joy R. Anderson, Melissa Lorentz, Minnesota Center for Environmental Advocacy, St.
Paul, Minnesota (for relator Leech Lake Band of Ojibwe)

John M. Baker, Katherine M. Swenson, Greene Espel, P.L.L.P., Minneapolis, Minnesota
(for respondent City of Cohasset)

Michael R. Drysdale, Dorsey & Whitney, L.L.P., Minneapolis, Minnesota (for respondent
Huber Engineered Woods)

Jamie Konopacky (pro hac vice), Honor the Earth, Callaway, Minnesota; and

Joseph Plumer, Red Lake Legal Department, Red Lake, Minnesota; and

Frank Bibeau, 1855 Treaty Authority, Deer River, Minnesota; and

Antonio Solórzano (pro hac vice), White Earth Legal Department, White Earth, Minnesota
(for amici curiae White Earth Nation, Red Lake Band of Chippewa Indians, 1855 Treaty
Authority, and Honor the Earth)

Considered and decided by Johnson, Presiding Judge; Segal, Chief Judge; and
Jesson, Judge.
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SYLLABUS
Preparation of an environmental-impact statement is mandatory under Minnesota
Rule 4410.4400, subpart 20 (2021), when a proposed project will eliminate a public waters
wetland. Under Minnesota Statutes section 103G.005, subd. 15a (2022), public waters
wetlands have two qualifying characteristics —wetland type and minimum acreage. A
proposed project will eliminate a public waters wetland if it will deprive the public waters
wetland of either of its two qualifying characteristics.
OPINION
JESSON, Judge
Respondent Huber Engineered Woods LLC hopes to build an oriented-strand-board
manufacturing facility for which it will require permits from governmental
entities including respondent City of Cohasset. After preparing a required
environmental-assessment worksheet (EAW) in relation to the planned facility, the city
decided that it was not necessary to prepare a more detailed environmental-impact
statement (EIS). Relator Leech Lake Band of Ojibwe filed this certiorari appeal to
challenge the city’s decision not to prepare an EIS. The Band argues that the facility falls
into categories for which an EIS is mandatory under governing administrative rules.
Alternatively, the Band challenges the city’s determination that the facility does not trigger
the requirement that an EIS be prepared for a proposed project that has the potential for
significant environmental effects.
As to the Band’s first argument, we conclude that an EIS is required under
Minnesota Rule 4410.4400, subpart 20, based on the elimination of a public waters
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wetland, when a proposed project will deprive a public waters wetlands of either of its two
qualifying characteristics—wetland type or minimum acreage —under Minnesota Statutes
section 103G.005, subdivision 15a. And we conclude that the record lacks substantial
evidence to support the city’s determination that no public waters wetlands will be
eliminated. As to the Band’s alternative argument, we conclude that the record lacks
substantial evidence to support the city’s determination that the project does not have the
potential for significant environmental effects through wetlands filling. We therefore
reverse the city’s decision, and we remand for the city to reconsider and issue a revised
decision on whether an EIS is mandatory under Minnesota Rule 4410.4400, subpart 20, or
required because of the potential for significant environmental impacts through wetlands
filling.
FACTS
Huber’s Proposed Oriented-Strand-Board Facility
Huber hopes to build an oriented-strand-board manufacturing facility west of the
city.1 The facility will occupy approximately 159 acres of agricultural and undeveloped
lands adjacent to Minnesota Power’s Boswell Energy Center and one mile east of the Leech
Lake Indian Reservation. It will consist of an approximately 750,000-square-foot
manufacturing plant; driveways, roads, and parking/loading/unloading areas; six thawing
conveyers that will move logs from outside to inside for processing; two stormwater ponds;

1 Oriented strand board is described in the record as “an engineered wood panel product
comprised primarily of wood strands, wax, and resin and is typically used as a construction
material for commercial and residential structures.”
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underground utility connections; and a rail spur to connect the project to an existing rail
line along U.S. Highway 2.
The proposed facility met with a mixed reception. The governor and the legislature
have supported the project. The legislature adopted, and the governor signed, legislation
providing that a project like Huber’s would not require an EIS solely based on the size of
facility if the project received offers of financial incentives from the Minnesota
Departments of Employment and Economic Development and Iron Range Resources and
Rehabilitation during 2021. 2021 Minn. Laws 1st Spec. Sess. ch. 6, art. 2, § 129, at 1354.
The record also reflects local support for the project, including from the mayor of Cohasset,
who expressed enthusiasm for the jobs that would be provided by the project. But others,
including individuals, organizations, and sovereign tribal nations, have expressed concerns
about the potential environmental effects of the project. The Leech Lake Band, in
particular, registered its objection to the project based on its proximity to reservation lands
and its expected impacts on tribal resources in the area.
The record reflects that Huber’s facility will have environmental impacts.
Construction of the facility will involve permanently filling or excavating 26 of 31
wetlands that have been delineated at the project site. Most of the wetland impact will be
attributable to filling for the rail spur, which will cross two large wetland complexes to the
north of the facilit y. Among the wetlands that will be impacted by filling are two public
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waters wetlands, which are accorded greater protection under state law. 2 Construction of
the facility will increase the impervious surface area at the site from 1.6 to 54.1 acres.
When operational, the facility will have the capacity to manufacture 725,000,000
square feet of oriented -strand board annually. The facility will use primarily regionally
harvested timber as feedstock for its product, although Huber may also obtain feedstock
from the federal market, further reaches of Minnesota, Wisconsin, or other locations. At
full capacity, the facility would consume approximately 400,000 cords of wood annually.
The facility’s production process will emit air pollutants, including nitrogen oxides and
sulfur dioxide.
The City’s Environmental-Review Process
In Minnesota, when a project will require governmental approvals, a responsible
governmental unit must determine what level of environmental review is required under
state statutes and administrative rules. Huber’s facility will require multiple state permits
and approvals, including National Pollutant Discharge Elimination System (NPDES) and
air-emissions permits from the Minnesota Pollution Control Agency; approval of a
wetlands replacement plan by Itasca County ; and conditional-use and land-use permits

2 Public waters wetlands are defined by Minnesota’s Water Law as “ all types 3, 4, and 5
wetlands, as defined in United States Fish and Wildlife Service Circular No. 39
(1971 edition), not included within the definition of public waters, that are ten or more
acres in size in unincorporated areas or 2-1/2 or more acres in incorporated areas.” Minn.
Stat. § 103G.005, subd. 15a. “Public waters wetlands may not be drained, and a permit
authorizing drainage of public waters wetlands may not be issued, unless the public waters
wetlands to be drained are replaced by wetlands that will have equal or greater public
value.” Minn. Stat. § 103G.221, subd. 1 (2022).
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from the city. 3 Therefore, it became necessary to determine what level of environmental
review was required.
It is not disputed that Huber’s facility, based on its size and other characteristics,
required preparation of an EAW. See Minn. R. 4410.4300 (2021). At issue was whether
it also required an EIS, either because it falls into a category for which preparation of an
EIS is “mandatory,” or because it has the potential to cause significant environmental
effects. See Minn. Stat. § 116D.04, subd. 2a (2022); Minn. R. 44 10.1700, subp. 1, .4400
(2021). That determination was to be made based on the information collected in preparing
the EAW and the public comments on the EAW. See Minn. R. 4410.1700, subp. 3 (2021).
In September 2021, the city, acting as the responsible governmental unit,
4 provided
public notice of an EAW for Huber’s facility. After reviewing information and public
comments received on the initial EAW, the city decided that additional information was

3 The project will also require a federal Section 404 permit for dredging and filling in
wetlands. 33 U.S.C. § 1344 (2019). The federal permitting process requires separate
federal environmental review as well as a Section 401 water-quality certification from the
Minnesota Pollution Control Agency. 33 U.S.C. § 1341(a) (2019).
4 The city is the designated responsible governmental unit for preparation of an EAW
triggered by facility size. See Minn. R. 4410.4300, subp. 14. Huber’s project also triggers
other categories for which an EAW is mandatory, and for which other responsible
governmental units are designated. See id. , subps. 15, 27. When a project exceeds
thresholds in two or more categories for which different responsible governmental units
are designated, the responsible governmental unit is “the governmental unit with the
greatest responsibility for supervising or approving the project as a whole.” Minn. R.
4410.0500, subp. 5(B) (2021). When “it is not clear which governmental unit has the
greatest responsibility for supervising or approving the project, the governmental units
shall either: (1) by agreement, designate which unit is the [responsible governmental
unit] . . . or (2) submit the question to the [Environmental Quality Board]
chairperson . . . .” Minn. R. 4410.0500, subp. 5(B)(2). Although the record does not
disclose the process through which the city was designated as the responsible governmental
unit, it appears there was agreement to not submit the question to the chairperson.
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necessary to determine whether an EIS was required. With the agreement of Huber, the
city postponed the decision on the need for an EIS until March 8, 2022.
In January 2022, the city provided notice of a revised EAW and opened a second
public-comment period. The revised EAW, which we refer to in this opinion as “the
EAW,” discusses various types of potential environmental effects of Huber’s facility,
including potential impacts from wetlands filling, air emissions, and timber harvesting.
The EAW concludes, however, that the project does not have the potential for significant
environmental effects . That conclusion is based in significant part on the mitigation
expected to result from wetlands credits that Huber will be required to purchase through
the state’s wetlands banking program and from the anticipated conditions of permits that
Huber will be required to obtain. During the public-comment period, the city received “45
distinct comments,”
5 including comments from the Minnesota Department of Natural
Resources, the Minnesota Pollution Control Agency, and the Leech Lake Band.
On March 8, 2022, the city adopted responses to comments, together with findings
of fact and a record of decision, determining that an EIS is not required for Huber’s facility.
The city concluded that Huber’s facility did not exceed any of the mandatory EIS
thresholds and did not have the potential for significant environmental effects that would
trigger the need for an EIS.
The Leech Lake Band appeals.

5 The comments included several thousand form emails received from individuals
requesting that an EIS be prepared for the project. The city grouped these emails as one
comment.
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ISSUES
I. Is the city’s determination that an EIS is not mandatory under governing
administrative rules based on legal error and unsupported by substantial evidence?

II. Is the city’s determination that Huber’s facility does not have the potential for
significant environmental effects supported by substantial evidence?

ANALYSIS
We begin by observing the nature and scope of our review in this certiorari appeal.
The city’s decision not to require an EIS is subject to our review under the appeal
provisions of the Minnesota Administrative Procedure Act —Minnesota Statutes
sections 14.63-.69 (2022). Minn. Stat. § 116D.04, subd. 10 (2022). We may reverse or
modify the city’s decision if it is, among other things, unsupported by substantial evidence.
Minn. Stat. § 14.6 9. We “accord substantial deference” to the city’s decision. Citizens
Advocating Responsible Dev. v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d 817, 832
(Minn. 2006) (CARD). Our deference does not extend, however, to the city’s interpretation
of governing statutes and rules, which we review de novo. In re Reissuance of NPDES/SDS
Permit to U.S. Steel Corp., 954 N.W.2d 572, 576 (Minn. 2021) (U.S. Steel). As the relator,
the Leech Lake Band has the burden to demonstrate a basis for reversal. City of Moorhead
v. Minn. Pub. Utils. Comm’n, 343 N.W.2d 843, 849 (Minn. 1984); Hazelton v. Comm’r of
Dep’t of Hum. Servs., 612 N.W.2d 468, 471 (Minn. App. 2000).
Before turning to the Leech Lake Band’s arguments on appeal, we provide an
overview of the statutory provisions governing environmental review under the Minnesota
Environmental Policy Act—Minnesota Statutes sections 116D.01-.11 ( 2022). That act
requires g overnmental entities to consider environmental consequences of proposed
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projects before issuing permits or other authorizations. CARD, 713 N.W.2d at 823. Under
the act and administrative rules adopted by the Minnesota Environmental Quality Board, a
proposed project may require an EAW, an EIS, or both. See Minn. Stat. § 116D.04,
subd. 2a(a) (requiring EIS for projects with potential for significant environmental effects);
Minn. R. 4410.4300 (mandatory EAW categories); .4400 (mandatory EIS categories); see
also Minn. Stat. § 116D.04, subd. 2a(b) (directing Environmental Quality Board to adopt
rules identifying such categories). For each mandatory EIS and EAW category, the rules
designate a responsible governmental unit that is charged with completing the required
review. Minn. R. 4410.4300, .4400.
An EIS may be required under the Minnesota Environmental Policy Act for one of
two reasons. First, an EIS is required if the characteristics of a proposed project exceed
one or more of the mandatory EIS thresholds in Minnesota Rule 4410.4400. Minn.
Stat. § 116D.04, subd. 2a(b). For example, an EIS is mandatory for the construction of any
new petroleum refinery facility; hazardous waste facilities with certain characteristics; and
residential developments of certain sizes. See Minn. R. 4410.4400, subps. 4, 12, 14.
Second, an EIS is required—even if the proposed project does not exceed any mandatory
EIS threshold —if the proposed project has the potential for significant environmental
effects. Minn. Stat. § 116D.04, subd. 2a(a).
6

6 The governing administrative rules refer to an EIS required under this standard as a
“discretionary EIS.” Minn. R. 4410.2000, subp. 3 (2021). But a responsible governmental
unit has no discretion to avoid preparation of an EIS when the standard is met.
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An EIS “describes the proposed action in detail, analyzes its significant
environmental impacts, discusses appropriate alternatives to the proposed action and their
impacts, and explores methods by which adverse environmental impacts of an action could
be mitigated.” Minn. Stat. § 116D.04, subd. 2a(a). An EAW— which precedes a potential
EIS—serves one of two purposes. When a proposed project exceeds a mandatory EIS
threshold, an EAW is prepared as a scoping document “to facilitate the delineation of issues
and analyses to be contained in the EIS.” Minn. R. 4410.2100, subp. 2 (2021). But when
a proposed project does not exceed any mandatory EIS threshold, the EAW is “a brief
document which is designed to set out the basic facts necessary to determine whether an
[EIS] is required for a proposed action.” Minn. Stat. § 116D.04, subd. 1a(c); see also Minn.
R. 4410.1000, subp. 1 (2021).
In these circumstances, an EAW must identify “potential environmental impacts”
including “cumulative potential effects.” Minn. R. 4410.1200(E) (2021). An EAW should
also discuss “known governmental approvals, reviews, or financing required, applied for,
or anticipated and the status of any applications made, including permit conditions that
may have been ordered or are being considered.” Id. (F) (2021). But an EAW need not
include all information that may later be required to obtain permits for the project . See
Minn. Stat. § 116D.04, subd. 15.
After an EAW is prepared, the responsible governmental unit must distribute it and
open a 30-day public-comment period. Minn. R. 4410.1500-.1600 (2021). Then, if an EIS
is not mandatory under the rules, the responsible governmental unit must issue a decision
on the need for an EIS based on the information gathered during the EAW process and the
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comments received on the EAW. Minn. R. 4410.1700, subp. 3. In determining whether a
proposed project requires an EIS because it has the potential for significant environmental
effects, a responsible governmental unit must consider:
• the “type, extent, and reversibility of environmental
effects”;
• “cumulative potential effects”;
• “the extent to which the environmental effects are subject
to mitigation by ongoing public regulatory authority”; and
• “the extent to which environmental effects can be
anticipated and controlled as a result of other available
environmental studies undertaken by public agencies or the
project proposer, including other EISs.”

Minn. R. 4410.1700, subp. 7 (2021).
With this understanding of the governing statutes and administrative rules in mind,
we turn to the arguments advanced by the Leech Lake Band. We first consider challenges
to the city’s determination that an EIS is not mandatory under Minnesota Rule 4410.4400.
We then address challenges to the city’s determination that Huber’s facility does not have
the potential for significant environmental effects.
I. The city’s determination that an EIS was not mandatory under governing
administrative rules is based on legal error and un supported by substantial
evidence.

The Leech Lake Band challenges the city’s determination that an EIS is not required
for the project under Minnesota Rule 4410.4400, subpart 20.
7 Under that rule, an EIS is

7 The Leech Lake Band also asserts that the record lacks substantial evidence to support
the city’s determination that an EIS was not required under Minnesota Rule 4410.4400,
subpart 11 (requiring preparation of EIS for industrial facilities that exceed certain size

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mandatory when a project “will eliminate a public water or public waters wetland.” Id.
“Public waters wetlands” are defined by statute as “all types 3, 4, and 5 wetlands . . . not
included within the definition of public waters, that are ten or more acre s in size in
unincorporated areas or 2-1/2 or more acres in incorporated areas.” Minn.
Stat. § 103G.005, subd. 15a; see also Minn. R. 4410.0200, subp. 70 (2021).
The EAW explains that construction of the facility will involve filling portions of
two public waters wetlands: 8.73 of 14.27 acres of Wetland No. 26 and 1.65 of 5.67 acres
of Wetland No. 27. The EAW nevertheless concludes that “[t]he proposed permanent
wetland impacts will result in a reduction in size but not the elimination of a public waters
wetland, and therefore do not trigger a mandatory EIS.” And in responding to comments
on the EAW, the city stated that the public waters wetlands would not be eliminated
because their wetland type would not change, and they would remain above the required
acreage to be considered public waters wetlands.
The Leech Lake Band argues that construction of the facility could eliminate public
waters wetlands if the partial filling causes them to become different types of wetlands that

thresholds). We disagree. The legislature adopted an exemption to that rule in a 2021
session law that applies to a business entity that proposes “to build an engineered wood
product manufacturing facility in Itasca County” and “receives a written offer of financial
incentives from both the Department of Employment and Economic Development and the
Department of Iron Range Resources and Rehabilitation anytime during 2021.” 2021
Minn. Laws 1st Spec. Sess. ch. 6, art. 2, § 129, at 1354 . The record contains
financial-incentive terms sheets proposed by both departments that provide substantial
evidence to support application of the exemption. And we are not persuaded by the Leech
Lake Band’s argument that the session law required a more final offer before the exemption
could apply. See, e.g., The American Heritage Dictionary of the English Language 1222-
23 (5th ed. 2011) (defining the noun “offer” as “[s]omething, such as a suggestion,
proposal, bid, or recommendation, that is offered”).
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do not meet the definition of public waters wetlands. And the Band further asserts that the
city’s determination that the wetlands will not change types is unsupported by substantial
evidence.
To resolve the parties’ arguments on this issue, we first determine what it means to
“eliminate” a public waters wetland under Minnesota Rule 4410.4400, subpart 20. And
we then evaluate whether there is substantial evidence in the record to support the ci ty’s
determination that an EIS is not required under the rule based upon that interpretation.
A. An EIS is required under Minnesota Rule 4410.4400, subp art 20, when
a project will deprive a public waters wetland of either of its two
qualifying characteristics.

When interpreting administrative rules, we apply the same standards that govern the
interpretation of statutes. See U.S. Steel, 954 N.W.2d at 576; Minn. Stat. § 645.001 (2022).
We refer to the common meaning of words and evaluate them in the context that they are
used. Broadway Child Care Ctr., Inc. v. Minn. Dep’t of Hum. Servs., 955 N.W.2d 626,
631 (Minn. App. 2021). When the meaning of a rule is clear, we apply that plain meaning.
U.S. Steel, 954 N.W.2d at 576; Minn. Stat. § 645.16 (2022). When terms are not defined
by a rule, we may consult dictionary definitions, but dictionary definitions are not binding
if context suggests a different meaning. State v. Gibson, 945 N.W.2d 855, 858 (Minn.
2020). Only when a rule is ambiguous —meaning that there is more than one reasonable
interpretation—may we “resort to the canons of statutory construction to determine its
meaning.” U.S. Steel, 954 N.W.2d at 576 (quotation omitted); see also Minn.
Stat. § 645.16. And consideration of rulemaking history is “not appropriate
when . . . language is unambiguous.” Juntunen v. Carlton County, 982 N.W.2d 729, 745
14
n.6 (Minn. 2022); see also Minn. Stat. § 645.16(2) (listing “the circumstances under which
[a law] was enacted” as among factors that may be considered when “the words of a law
are not explicit”).8
Neither Minnesota Rule 4410.4400, subpart 20, nor the governing definitions rule,
Minnesota Rule 4410.0200 (2021), explains what it means for a project to “eliminate” a
public waters wetland. The rule could be interpreted as applying only when a project will
completely fill public waters wetlands. 9 But when we consider the context in which the
term is used, we conclude that its meaning is plain. “Eliminate” modifies “public waters
wetland,” and a “public waters wetland” has two characteristics. First, it must be a
particular wetland type—type 3, 4, or 5—as determined by the nature of its waters and
vegetation. Minn. Stat. § 103G.005, subds. 15a, 17b (2022). Second, it must occupy a
certain acreage—ten or more acres in an unincorporated area or 2-1/2 or more acres in an
incorporated area. Id., subd. 15a. Given this context, it stands to reason that a proposed

8 When an agency interprets its own rule, we will defer to its reasonable interpretation of
an ambiguous rule. St. Otto’s Home v. Minn. Dep’t of Hum. Servs., 437 N.W.2d 35, 40
(Minn. 1989). Because the rule at issue was adopted by the Environmental Quality Board,
and not the city, this rule of deference does not apply here.
9 The city in parts of its brief seems to advocate for such an interpretation, relying on
dictionary definitions to suggest that only complete filling of a public waters wetland can
eliminate it. See, e.g., The American Heritage Dictionary of the English Language 579
(5th ed. 2011) (defining “eliminate” to mean “[t]o get rid of; remove”). But we consider
our interpretation to be consistent with the dictionary definition. If, before a project, there
is a public waters wetland, and after a project there will no longer be a public waters
wetland, then the project has gotten rid of it or removed it. This is true whether the
elimination results from complete filling or actions that cause the wetland to become a
different type that does qualify as a public waters wetland. Moreover, even if it were
inconsistent with dictionary definitions, our contextual interpretation would govern. See
Gibson, 945 N.W.2d at 858.

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project that will deprive a public waters wetland of either of its qualifying characteristics
will eliminate that public waters wetland within the meaning of Minnesota Rule 4410.4400,
subpart 20. Put another way, a public waters wetland is not “eliminated”—requiring an
EIS—only when a project causes a wetland to entirely disappear. Rather, if the wetland
remaining after a project will no longer qualify as a type 3, 4, or 5 wetland or will
encompass less than 2-1/2 acres in an incorporated area, the project will eliminate a public
waters wetland.10
Based on our interpretation, we hold that an EIS is mandatory under Minnesota Rule
4410.4400, subpart 20, when a project will deprive a public waters wetland of either of its
two qualifying characteristics under Minnesota Statutes section 103G.005, subd. 15a. Still,
the city asserts that, even under this interpretation, an EIS is not required for Huber’s
facility. The Leech Lake Band argues that this assertion is not supported by substantial
evidence. We thus turn our attention to a substantial-evidence analysis.

10 This reasoning is consistent with that of the district court in Minn. Ctr. for Env’t
Advoc. v. Big Stone Cnty. Bd. of Comm’rs (Big Stone), 638 N.W.2d 198, 204 (Minn. App.
2002), rev. denied (Mar. 27, 2002). In that case, we concluded that the district court erred
in applying an exempt ion under Minnesota Rule 4410.4600, subpart 1 (1999). Id. We
explained that the district court had determined that a wetland would be “eliminated as a
Type-5 wetland and will become an unprotected Type-2 wetland and recognized that an
EIS is mandatory for ‘projects that will eliminate a protected water.’” Id. at 203-04
(quoting Minn. R. 4410.4400, subp. 20 (1999)). But we did not address whether that was
an accurate interpretation of the term “eliminate” in Minnesota Rule 4410.4400,
subpart 20. Rather, we reasoned that the district court, having determined an EIS was
mandatory under the rules, erred by determining that the exemption rule controlled. Id. at
204. We now reach the issue that only the district court addressed in Big Stone.
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B. The record lacks substantial evidence to support the city’s
determination that no public waters wetlands will be eliminated.

When we review an administrative decision for the support of substantial evidence,
we engage in a two-part inquiry, asking (1) “whether the agency has adequately explained
how it derived its conclusion,” and (2) whether that conclusion is “reasonable on the basis
of the record.” In re NorthMet Project Permit to Mine Application, 959 N.W.2d 731, 749
(Minn. 2021) (NorthMet) (quotations omitted), reh’g denied (Minn. June 15, 2021). A
decision is supported by substantial e vidence when there is “relevant evidence that a
reasonable mind might accept as adequate to support a conclusion, and more than a
scintilla, some, or any evidence.” Id. (quotations omitted). But when an agency makes
“conclusory statements,” with “no analysis of [their] scientific basis,” substantial evidence
is lacking. Id. at 753.
Here, the city explains that an EIS was not mandatory under Minnesota Rule
4410.4400, subpart 20, because the partially filled public waters wetlands would not
change type and would remain above the minimum acreage to be considered the public
waters wetlands. In support of this conclusion, the city relies on the following statements
in its responses to comments:
The type and function of the remaining acreage of the Public
Waters wetlands will not change, because excess stormwater
will be appropriately managed under the facility’s NPDES
permit. In addition, both of the Public Waters wetlands on the
site lie within incorporated areas of the City of Cohasset, and
will not fall below the 2.5 acre threshold after the partial filling
associated with the Proposed Project.

17
The Leech Lake Band argues that t he city’s statements are conclusory and do not
satisfy the substantial- evidence standard. We agree. The city flatly proclaims that
construction of the facility will not change the condition of the wetlands, but it points to no
scientific analysis supporting this proclamation. And, although the city relies on conditions
expected to be included in a NPDES permit to be issued by the Minnesota Pollution Control
Agency, it does not explain how those permits will prevent the public waters wetlands from
changing type. 11 In contrast, the Leech Lake Band points to analyses by the Minnesota
Pollution Control Agency and the federal Environmental Protection Agency indicating that
stressors, including industrial development and elimination of surrounding wetlands, can
adversely affect the condition of remaining wetlands.
12 Particularly in light of this
countervailing evidence, the city’s statements are the type of “conclusory statements” that

11 An NPDES permit is required to discharge pollutants into navigable waters. See
33 U.S.C. §§ 1311, 1342(a) (2019). And it must include conditions necessary for navigable
waters to meet the state’s water-quality standards. See 40 C.F.R. § 122.44(d)(1); Minn. R.
7001.0140 (2021). Although water quality certainly bears some relationship to wetland
condition, the city does not explain how permit conditions targeted to water quality will
ensure that filling and other activities will not result in changes to wetlands type. In
contrast, the city’s analysis of the required air-emissions permit explains the direct control
that the permit will have over the facility’s air emissions.
12 The city points out that the EPA analysis, posted to its website, is outside of the
administrative record. We conclude that the EPA’s analysis is a matter of public record
that we may rely on to inform our review. See In re Est. of Turner, 391 N.W.2d 767, 771
(Minn. 1986) (denying motion to strike extra- record public report; explaining “we see no
reason why a party may not submit such a report to us as part of its brief when we could
refer to such a report in the course of our own research, if we were so inclined”); see also
White v. Minn. Dep’t. of Nat. Res., 567 N.W.2d 724, 735 (Minn. App. 1997) (explaining
that evidence outside the administrative record may be considered when “additional
evidence is necessary to explain technical terms or complex subject matter involved in the
agency action” or “the agency failed to consider information relevant to making its
decision”), rev. denied (Minn. Oct. 31, 1997).
18
do not constitute substantial evidence. NorthMet, 959 N.W.2d at 749, 753-54 (holding that
substantial-evidence test was not met when record was “devoid of any evidence” to support
scientific conclusion and contested-case petitions contained “bevy of evidence” supporting
contrary conclusion); see also CARD, 713 N.W.2d at 837 (explaining that “bare assertions”
could not provide substantial evidence to support determination that project would have no
cumulative potential effects); In re Appeal of Selection Process for Position of Electrician,
674 N.W.2d 242, 250 (Minn. App. 2004) (holding that “entirely conclusory” staff reports
were insufficient to support commission’s decision).
In sum, we hold that an EIS is required under Minnesota Rule 4410.4400,
subpart 20, based on the elimination of a public waters wetland, if a project will deprive a
public waters wetland of either of its qualifyi ng characteristics under Minnesota Statutes
section 103G.005, subdivision 15a. And we conclude that the city’s conclusory
determination that Huber’s facility will not change the character of impacted public waters
wetlands is unsupported by substantial evidence. We therefore reverse the city’s decision
not to require an EIS, and we remand for the city to issue a new EIS decision, applying the
correct legal standard on a properly developed record, to determine whether an EIS is
mandatory under Minnesota Rule 4410.4400, subpart 20.
II. The city’s decision that an EIS was not required based on the potential for
significant environmental effects is, in part, unsupported by substantial
evidence.

In the alternative, the Leech Lake Band challenges the city’s determination that
construction and operation of Huber’s facility does not have the potential for significant
19
environmental effects that would require an EIS.13 The Band argues that even if an EIS is
not mandatory it is nevertheless required because the city failed to consider the potential
environmental impacts of the facility on tribal resources. And it identifies three categories
of potential environmental impacts— wetlands, air emissions, and timber harvesting—for
which it asserts the record falls short of supporting the city’s determination of no significant
environmental effects. We address those categories in turn, inquiring into whether the city
has explained the bases for its conclusions and whether those conclusions are reasonable
based on the record. See NorthMet, 959 N.W.2d at 749.
But before turning to that substantive analysis, we address an argument raised by
the Leech Lake Band regarding its role in these proceedings. The Band asserts that, as a

13 The Leech Lake Band also asserts that the city’s decision on this issue is arbitrary and
capricious, and that the city failed to take a “hard look” at the issues that is required by the
caselaw. See, e.g., Cable Commc’ns Bd. v. Nor-West Cable Commc’ns P’ship,
356 N.W.2d 658, 669 (Minn. 1984). The arbitrary-and-capricious arguments largely track
the substantial-evidence arguments, except that the Leech Lake Band argues that, by failing
to specifically address in the EAW the Band’s treaty resources, the city “entirely failed to
consider an important aspect of the problem.” Amici curiae White Earth Nation, Red Lake
Band of Chippewa Indians, 1855 Treaty Authority, and Honor the Earth similarly assert
that the city “utterly failed to assess potentially significant impacts to treaty rights and tribal
people.” Although a section specifically related to treaty resources in the EAW might be
preferable, we note that the form worksheet provided by the Environmental Quality Board
does not include such a section. More fundamentally, however, the record reflects that the
city did address the concerns about treaty resources in the responses to comments on the
EAW. Thus, we reject the argument that the city entirely failed to consider an important
aspect of the project.

The Leech Lake Band’s “hard look” argument is based on statements made by the city’ s
mayor regarding the expected economic benefits of Huber’s facility. But the mayor also
committed to doing the due diligence required before approving the facility. Understood
in this context, the mayor’s comments do not demonstrate that the city failed to take a “hard
look” at the potential environmental impacts of the facility.
20
sovereign nation with environmental expertise, it should be “given deference” and its
comments “should be given weight similar to other governmental agencies.” The city
disputes that “deference” is owed but acknowledges that federal caselaw has called for
treating tribal comments in this context with “appropriate solicitude.” Standing Rock Sioux
Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1044 (D.C. Cir. 2021). And counsel
for Huber at oral argument stated that Huber did not have a concern with giving tribal
comments consideration equal to other governmental entities, to the extent that there is
demonstrated expertise.
Minnesota is home to 11 federally recognized Indian Tribes, and the state
“acknowledges and supports the unique status of the Minnesota Tribes and their absolute
right to existence, self-governance, and self-determination.” Minn. Stat. § 10.65, subd. 1
(2022). Based on the Leech Lake Band’s sovereign status and environmental expertise,
we accord significant weight to its comments on the EAW and arguments in this appeal. 14
A. The record lacks substantial evidence to support the city’s
determination that the facility does not have the potential to cause
significant environmental effects through wetlands removal.

The Leech Lake Band first asserts that substantial evidence does not support the
city’s determination that wetlands removal during construction of the facility will not have

14 The record reflects that the Leech Lake Band actively manages reservation lands and
waters to protect its members’ health. And the Band’s detailed comments in this matter
were prepared by the Band’s Director of Resource Management, an executive-branch
official of the Leech Lake Band. Neither respondent here disputes the Leech Lake Band’s
expertise in the environmental issues relevant to this appeal.
21
the potential for significant environmental effects. The record contains the following
information regarding the potential environmental impacts of wetlands removal.
The EAW describes the planned wetlands filling and compensatory mitigation
measures (through wetlands credits). The EAW does not expressly conclude that the
proposed wetlands filling will not have the potential for significant environmental impacts,
although it does conclude that “impacts to wetlands at the project site are not expected to
interact meaningfully with wetland impacts elsewhere in the watershed to create a
cumulatively significant impact.”
In its comment on the EAW, the Leech Lake Band explained that the wetlands
Huber plans to fill are a filter for water quality, which nearby wild-rice beds depend upon.
The Band’s specific concerns about this impact on downstream resources, including a
wild-rice bed, are as follows:
The Army Corps wetlands delineation indicates that the
wetlands that are proposed to be filled have a direct
hydrological connection to the large “Blackwater” wild rice
bed along the Mississippi River adjacent to and immediately
downstream of the proposed Huber site. It is a popular location
for Tribal and non-Tribal ricers every year. . . . The wetlands
that Huber proposes to fill are currently a filter for water
quality. Removing the wetland filters and replacing them with
industrial development will be harmful to the water quality that
the rice depends upon to flourish.

The Leech Lake Band also asserted that Huber’s planned mitigation efforts would be
inadequate to protect the Blackwater wild-rice bed:
Huber is proposing wetlands banking to mitigate the loss of
wetlands, but wetlands that are many miles away will not
prevent harm to wild rice at this location on Blackwater Creek.
Instead, the loss of wetlands will result [in] a direct loss of
22
wetland filtering and substantially more industrial stormwater
runoff into an important wild rice gathering area. Wild rice
requires high transparency waters in order to thrive.

The Minnesota Pollution Control Agency and the Minnesota Department of Natural
Resources also commented on wetlands removal. The Minnesota Pollution Control
Agency commented:
The EAW should have described the sequencing steps used to
avoid and minimize wetland impacts when choosing this
wetland dominated property for the Project. For instance,
could the rail spur [have] avoided or minimized impacts to the
wetlands by accessing the proposed facility on the southeast
side of the wetlands or aligning the rail spur closer to Highway
6. Wetlands play an important role in watershed health and
purchasing credits (even in the same service area) will not
provide the same local water quality and wildlife benefits as
creating wetlands on site.

And the Minnesota Department of Natural Resources noted: “Significant wetland filling
and crossing is outlined in the EAW, though the site is directly adjacent to other
roads. . . . Feasibility of an alternative (e.g., routing the rail spur along highway 6) should
be discussed . . . .”
In its responses to Leech Lake Band’s comments on the EAW, the city pointed to
future permit controls and wetland credits as mitigation, stating as follows:
Stormwater controls will be implemented under the facility’s
NPDES permit to prevent damaging runoff to adjace nt
wetlands and wild rice resources. Regarding wetland function,
[the Leech Lake Band] is correct that some wetlands on site
would be filled, but by state statute these would be mitigated
at 1.5 times the otherwise applicable regulatory rate, more than
offsetting the degree of filling. [The Leech Lake Band] claims
that mitigation occurring miles away will not be beneficial to
[the Leech Lake Band’s] concerns, but the mitigation credits to
23
be exercised will be in the same immediate watershed, and
indeed on [the Leech Lake Band’s] reservation land.

In response to the Minnesota Pollution Control Agency comment, the city stated: “Wetland
avoidance and minimization of impacts is discussed in detail in the wetland replacement
plan application, which has been separately subject to public and agency review and
comment. This document had not been finalized before the EAW comment period.” And
in response to the Minnesota Department of Natural Resources comment, the city
stated: “Alternatives and mitigation are addressed in the wetlands replacement plan
application.”
Having carefully reviewed the record on this issue, we conclude that the city’s
determination—that there is no potential for significant environmental effects from
wetlands removal—is unsupported by substantial evidence. The Leech Lake Band raised
specific concerns about the potential environmental impact of the particular wetlands
removal that will be caused by the project—including a perceived threat to the viability of
the Blackwater wild- rice bed . These concerns were echoed by both the Minnesota
Pollution Control Agency and the Minnesota Department o f Natural Resources. As we
explain above, we accord significant weight to the Leech Lake Band’s concerns. We are
also mindful that w ild rice, in addition to being Minnesota’s official state grain, holds
substantial cultural importance to Minnesota’s tribes. Minn. Stat. § 1.148 (2022).
In response to the Leech Lake Band’s concerns about the Blackwater wild-rice bed
and other local resources, the city reiterated that wetlands removed during construction of
Huber’s facility will be replaced by other wetlands and asserted that stormwater controls
24
under the facility’s NPDES permit will prevent damaging run-off to remaining wetlands.
But the record reflects no scientific analysis of this issue. This lack of record evidence
stands in stark contrast to the record developed regarding timber harvesting, which we
discuss below.
The city apparently did not investigate— and certainly does not explain—how
wetlands replacement and permit controls will protect the Blackwater wild-rice bed and
other resources downstream from potential impacts caused by wetlands removal during
construction of the facility. And the Minnesota Pollution Control Agency’s comment
unequivocally states that “purchasing credits (even in the same service area) will not
provide the same local water quality and wildlife benefits as creating wetlands on site.”
The city’s determination that there is no potential for significant environmental effects
through wetlands removal is not reasonable based on this record. NorthMet, 959 N.W.2d
at 749.
Our conclusion that the city’s determination regarding wetlands removal is
unsupported by substantial evidence provides an additional basis on which we reverse the
city’s decision not to require an EIS and remand for a new EIS decision. On remand, the
city shall reconsider and issue a revised decision on the need for an EIS based on the
potential environmental impacts of wetlands removal. If the city determines that it lacks
information necessary to make a reasoned decision on this issue, it will have the option to
either order the preparation of an EIS or postpone the decision on the need for an EIS, with
Huber’s agreement, until the information can be obtained. See Minn. R. 4410.1700,
subp. 2a (2021).
25
B. Substantial evidence supports the city’s determination that the project
does not have the potential to cause significant environmental effects
through air emissions.

The Leech Lake Band next asserts that substantial evidence does not support the
city’s determination that air emissions from the facility will not have the potential for
significant environmental effects. On this issue, the record reflects the following.
The EAW addresses expected air emissions from the project, notes that Huber will
require an air-emissions permit under the federal Clean Air Act from the Minnesota
Pollution Control Agency, details the testing that will be required during the permitting
process, and concludes: “These analyses will demonstrate that the proposed facility will
not have an adverse impact on ambient air quality. The [air-emissions] permit cannot be
issued without such a determination.” The Minnesota Pollution Control Agency, which is
charged with regulating air emissions, did not comment on this section of the EAW.
In its comment on the EAW, the Leech Lake Band asserted that the sheer volume
of emissions required an EIS and that the project will emit two pollutants—nitrous oxides
and sulfur dioxide —that can combine to create acid rain. The Band expressed concerns
about the impact of deposits of sulfides on rice-growing waters, noting that “[s]treams and
wetlands that have high concentrations of dissolved sulfide in the sediment have a low
probability of hosting wild rice.” In contrast to its analysis of wetlands removal, however,
the Leech Lake Band does not explain how the mitigation identified by the city will be
insufficient.
In responses to comments on the EAW, the city reiterated that the Minnesota
Pollution Control Agency’s permitting process will ensure that the project complies with
26
the National Ambient Air Quality Standards (NAAQS), which are designed to “protect
public health, with an adequate margin for safety” and “provide public welfare protection,
including protection against decreased visibility and damage to animals, crops, vegetation,
and buildings.” The city emphasized that the proposed project “is required to go through
rigorous review before an air emissions permit to construct and operate may be issued.” In
response to the Leech Lake Band’s concerns about acid rain impacting wild rice, the city
noted that, because of air dispersion, “it is very unlikely that any very limited contribution
to acid deposition that may arise from [Huber’s] facility will occur on those resources in
close proximity to the facility.”
Based on our careful review of the record on this issue, we conclude that the city’s
determination—that there is no potential for significant environmental effects from air
emissions—is supported by substantial evidence. The city explained the reasons for its
conclusion and that explanation is “reasonable on the basis for the record.” NorthMet,
959 N.W.2d at 749. Specifically, the city reasonably relied on the anticipated ongoing
regulatory authority of the Minnesota Pollution Control Agency over air emissions from
Huber’s project. See Minn. R. 4410.1700, subp. 7(C).
To persuade us otherwise, the Leech Lake Band relies on the supreme court’s
decision in CARD to assert that the city improperly relied on “the potential for ongoing
regulatory authority to address the air-emissions impacts without considering what those
impacts would be, let alone whether regulatory authority would implement mitigation
measures that are ‘specific, targeted, and are certain’ to mitigate those effects.” We
disagree.
27
In CARD, the supreme court endorsed this court’s approach that “a [responsible
governmental unit] may not rest its EIS determination on ‘mitigation’ that amounts to only
‘vague statements of good intentions.’” 713 N.W.2d at 834. The supreme court further
stated: “it is not sufficient for a [responsible governmental unit] to release an EIS
determination stating that it did not bother to investigate environmental effects because it
was confident it could later pass regulations if any environmental harm occurred.” Id. at
834-35. And the court concluded:
When a [responsible governmental unit] considers mitigation
measures as offsetting the potential for significant
environmental effects under Minn. R. 4410.1700, it may
reasonably do so only if those measures are specific, targeted,
and are certain to be able to mitigate the environmental effects.
The [responsible governmental unit] must have some concrete
idea of what problems may arise and how they may specifically
be addressed by ongoing regulatory authority. There is a
definite difference between a [responsible governmental unit]
review that approves a project with vague promises of future
mitigation and a [responsible governmental unit] review that
has properly examined a project and determined that specific
measures can be reasonably expected to deal with the
identifiable problems the project may cause.

Id. at 835.
Here, the city did not rely on vague notions of ongoing regulatory authority, as is
prohibited by CARD, but rather on the robust air-emissions permitting scheme under the
Clean Air Act. See, e.g., Sierra Club v. Otter Tail Power Co., 615 F.3d 1008, 1011 (8th
Cir. 2010) (describing Clean Air Act permitting process); In re Issuance of Air Emissions
Permit No. 13700345-101 for PolyMet Mining, Inc., 955 N.W.2d 258, 261 (Minn. 2021)
(referencing “exacting review process” under Clean Air Act). The city identified the
28
potential environmental impacts by specifying anticipated rates of pollutant emissions, and
then properly relied on the specific measures required for issuance of an air -emissions
permit. This analysis stands in contrast to the city’s analysis of the wetlands-removal issue,
where the city failed to explain how the anticipated NPDES permit would preserve public
waters wetlands and downstream resources. And the analysis was consistent with
Minnesota Statutes section 116D.04, subdivision 15, which seeks to avoid duplication in
the EAW and permitting processes.
Still, the Leech Lake Band argues, the air-emissions permitting process does not
apply to sulfur-dioxide emissions and the city was “required to consider the sensitivity of
wild rice to sulfur dioxide and the cumulative potential effects of the proposed project
combined with the Boswell facility.” But the Band agrees that sulfur-dioxide emissions
will be “relatively low” and does not respond to the city’s statement that the project is
unlikely to result in sulfur deposition on nearby resources. Moreover, nitrous-oxides
emissions, the second part of the chemical reaction to form acid rain, will be regulated
under the air-emissions permit.
On this record, we conclude that the Leech Lake Band has not met its burden to
demonstrate that the city’s determination—of no potential for significant environmental
effects from air emissions—is unsupported by substantial evidence.
C. Substantial evidence in the record supports the city’s determination that
the project does not have the potential to cause significant
environmental effects through timber harvesting.

Finally, the Leech Lake Band asserts that substantial evidence does not support the
city’s determination that timber harvesting to provide feedstock for the facility will not
29
have the potential for significant environmental effects. This is the most developed issue
in the record, which reflects the following.
The EAW analyzed the impact of the project’s requirement for feedstock on timber
harvesting and forest sustainability in Minnesota. The EAW relies on a number of reports
related to the sustainability of Minnesota’s forests, including a Fiber Resources Evaluation,
prepared by a consultant to assist Huber in selecting a location for its facility, and a
letter-evaluation from Dr. Michael Kilgore, professor and head of the Department of Forest
Resources at the College of Food Agricultural and Natural Resources Sciences at the
University of Minnesota. The EAW concludes, based on the Fiber Resource Evaluation
and Dr. Kilgore’s letter, that “construction and operation of the proposed project is not
anticipated to hav e the potential for significant environmental impacts on Minnesota
forests.” The EAW also addresses potential effects on tribal usufructuary rights,
15
reasoning that there were “several reasons to believe that the exercise of treaty rights is
unlikely to be adversely effected.” Among those reasons are state and federal regulations
and practices regarding timber harvesting, which are protective of treaty rights. And the
EAW references a number of initiatives identified by Dr. Kilgore as promoting sustainable
forests in Minnesota.

15 Usufructuary rights relate to the rights for others to use and enjoy, for a certain period,
the fruits of another’s property without damaging or diminishing it but allowing for any
natural deterioration in the property over time. Black’s Law Dictionary 1857 (11th ed.
2019) (defining usufruct). The treaty rights of tribes to hunt, fish, and gather on ceded
lands are usufructuary rights. See, e.g., In re Enbridge Energy, Ltd. P’ship,
964 N.W.2d 173, 206 n. 47 (Minn. App. 2021), rev. denied (Minn. Aug. 24, 2021).
30
The Minnesota Department of Natural Resources, which is charged with protecting
natural resources including forests, offered technical corrections to the EAW’s descriptions
of certain department policies, but did not dispute the conclusions in the EAW or assert
that an EIS was necessary on this issue. In a clarifying letter, the Department of Natural
Resources explained that it “continue[s] to manage actively for a diverse mix of age classes,
including older forests, using the approach identified in our Sustainable Timber Harvest
Analysis.”
In its comment on the EAW, the Leech Lake Band asserted that the project “would
consume far more timber than our region can sustain, with significant negative effects on
wildlife and treaty fisheries.” It also asserted that the “project would result in the
perpetuation and increase in the amount of young almost exclusively aspen forests,” which
would be detrimental to forest wildlife and vegetation.
In its responses to comments, the city disagreed with the Leech Lake Band’s
assertion that the project is not sustainable, explaining:
It has been true for over a decade that timber harvest has been
substantially less than new growth. [The Leech Lake Band]
does not provide any contrary data. If the [Huber] project is
constructed, and even if overall harvest increases on a 1 for 1
basis (meaning total harvest increases by 400,000 cords/year
to match the facility ’s capacity), Minnesota’s forests will still
experience net growth of hundreds of thousands cords/year.

The city also reiterated that land managers making decisions about particular timber
harvesting would be required to consider tribal interests. And it stated that “forests in
Minnesota are expanding and aging and will continue to do so if the proposed project is
approved.”
31
Based on our review of the record on this issue, we conclude that there is substantial
evidence in the record to support the city’s determination that timber harvesting caused by
the project does not have the potential for significant environmental effects.16 In particular,
Dr. Kilgore’s letter describes policies and practices that are in place to ensure the health of
Minnesota’s forests. Dr. Kilgore explains that these practices “address the potential effects
timber harvesting could have on important non-timber resources such as wildlife habitat,
water quality, aesthetics, soil erosion, historic/cultural resources, rare, and endangered, or
threatened species.” And Dr. Kilgore states that Minnesota’s sustainable harvest levels
were “determined to be the highest annual harvest level that can be sustained not only from
the standpoint of timber production but also a level that will sustain and perpetuate
important non-timber values such as wildlife habitat, water quality, and soil productivity.”
Dr. Kilgore concludes by opining that “timber resources will be made available to [Huber]

16 Both the city and Huber argue on appeal that the city was not required to consider the
environmental impacts of third-party harvesting of timber that would be used for feedstock
for the facility. In support of this argument, they rely on the supreme court’s decision in
In re Minn. Power’s Petition for Approval of EnergyForward Res. Package, 958 N.W.2d
339, 348-49 (Minn. 2021) (EnergyForward). In EnergyForward, the supreme court
addressed the standard for determining whether a particular governmental decision was a
“project” that could trigger environmental review under Minnesota Environmental
Protection Agency. Id. at 346-47. The supreme court adopted a “reasonably close causal
relationship” test for determining whether environmental effects would be caused by a
governmental decision such that environmental review could be triggered. Id. at 349. In
this case, there is no dispute that there is a project requiring some level of environmental
review. At issue in this case is the standard in Minn esota Statutes section 116D.04,
subdivision 2a(a), which requires preparation of an EIS “[w]here there is potential for
significant environmental effects resulting from [the project].” Thus, EnergyForward is
inapposite, and we reject the argument that the city was not required to consider the
environmental impacts of timber harvesting caused by the project in determining whether
an EIS would be required.
32
(and other users) in a sustainable, environmentally protective manner, and that the
incremental consumption of fiber precipitated by the [Huber] project will not have the
potential for significant environmental effects on Minnesota’s forest resources.”
On this record, we conclude that the Leech Lake Band has not met its burden to
demonstrate that the city’s determinati on—of no potential for significant environmental
effects from timber harvesting—is unsupported by substantial evidence.
DECISION
In this appeal from the city’s decision not to require an EIS, substantial evidence in
the record supports the city’s determinations that the project does not have the potential for
significant environmental effects based on air emissions and timber harvesting. But the
record lacks substantial evidence to support the city’s determinations that an EIS is not
mandatory under Minnesota Rule 4410.4400, subpart 20, based on elimination of public
waters wetlands. The record also lacks substantial evidence to support the city’s
determination that planned wetlands filling does not have the potential for significant
environmental effects. We therefore reverse the city’s decision and remand for the city to
issue a new decision on the need for an EIS.
Reversed and remanded.

C/D-1

JOHNSON, Judge (concurring in part, dissenting in part)
I concur in part II of the opinion of the court, but I respectfully dissent from part I.
The issue in part I is whether an environmental impact statement (EIS) is mandatory based
solely on the type of project that Huber intends to build. For two reasons, I respectfully
disagree with the majority’s interpretation of Minnesota Rule 4410.4400, subpart 20. I
would conclude that the rule does not make an EIS mandatory in this case.
A.
The statute governing environmental review provides, as a general matter, that an
EIS is required in a particular situation if “there is potential for significant environmental
effects resulting from any major governmental action.” Minn. Stat. § 116D.04, subd. 2a(a)
(2022). The statute further provides that the Environmental Quality Board (EQB) “shall
by rule establish categories of actions for which environmental impact statements . . . must
be prepared.” Id., subd. 2a(b) (emphasis added). In essence, the statute authorizes the
EQB to identify certain categories of actions or projects that, because of their nature and
their general probability of causing a significant environmental impact, make an EIS
mandatory, regardless of whether there actually is a “potential for significant
environmental effects resulting from” the action or project. See id., subd. 2a(a)-(b).
Pursuant to section 116D.04, subdivision 2a(b), the EQB has promulgated an
administrative rule that identifies 28 categories of actions or projects for which an EIS is
mandatory, regardless of whether there is a potential for significant environmental effects.
See Minn. R. 4410.4400, subps. 2-28 (2021). When promulgating the mandatory-EIS rule,
the EQB explained that the rule would “automatically require the preparation of an EIS,”

C/D-2

in contrast to the prior set of rules, under which “a project specific determination was
required.” Minn. Environmental Quality Bd., Statement of Need and Reasonableness for
Proposed Environmental Review Program Rules 66 (1982) (1982 EQB SONAR). The
EQB explained further that the mandatory-EIS rule was intended “to make the
environmental review process more predictable and to expedite environmental review by
moving directly into the EIS preparation stages and by avoiding lengthy challenges to the
need for an EIS.” Id.
As one might expect, the categories of actions or projects for which an EIS is
mandatory are relatively substantial and consequential. The first three categories of actions
or projects include “the construction or expansion of a nuclear fuel or nuclear waste
processing facility,” the “construction of a large electric power generating plant,” and the
“construction of a new petroleum refinery facility.” Minn. R. 4410.4400, subps. 2A, 3, 4.
The significance of these categories of projects corresponds to the reality that the
“preparation and distribution of an EIS is neither swift nor inexpensive.” Citizens
Advocating Responsible Development v. Kandiyohi Cnty. Bd. of Comm’rs, 713 N.W.2d
817, 839 (Minn. 2006) (CARD) (G.B. Anderson, J., concurring).
Included in the list of 28 categories of actions or projects is the category at issue in
this appeal: “projects that will eliminate a . . . public waters wetland.” Minn. R. 4410.4400,
subp. 20. For purposes of this appeal, the key word is “eliminate.” The administrative
rules do not define the word. See Minn. R. 4410.0200 (2021). Accordingly, it is necessary
to interpret the rule, and we do so according to the same principles by which we interpret
statutes. See J.D. Donovan v. Minnesota Dep’t of Transp., 8 78 N.W.2d 1, 5-6 (Minn.

C/D-3

2016); CARD, 713 N.W.2d at 825 n.9. In doing so, we refer to the common and ordinary
meaning of words. See T.G.G. v. H.E.S., 946 N.W.2d 309, 315 (Minn. 2020); State v.
Thonesavanh, 904 N.W.2d 432, 436 (Minn. 2017).
Several well- respected dictionaries agree that the primary definition of the word
“eliminate” is to “get rid of” or to “remove.” American Heritage Dictionary 579 (5th ed.
2011); Random House Dictionary of the English Language 632 (2d ed. 1987); Oxford
Universal Dictionary 594 (3d ed. 1964); Webster’s New Int’l Dictionary 832 (2d ed. 1934).
Similarly, another dictionary defines the word to mean “to cause the disappearance of.”
Webster’s Third New Int’l Dictionary 736 (1961). None of these dictionaries includes a
definition that suggests that “eliminate” means to change a thing—without getting rid of it
or removing it or causing it to disappear—so that the thing has different characteristics or
a different legal status.
If the EQB had intended to make an EIS mandatory based solely on a wetland’s
reduction in size or change in type, the EQB somehow would have described those
concepts. For example, the EQB could have promulgated a mandatory-EIS rule that
applies to “projects that might cause a public waters wetland to no longer satisfy the size
requirement or the type requirement of a public waters wetland.” But the EQB did not
promulgate such a rule. Instead, the EQB chose to use a simple, ordinary, well-understood
word—“eliminate” —to determine whether an EIS is mandatory with respect to a public
waters wetland.
It is significant that the EQB has promulgated a rule that describes the concepts of
a wetland’s reduction in size or change in type, and that rule merely makes an EAW (not

C/D-4

an EIS) mandatory. The rule applies to “projects that will change or diminish the course,
current, or cross-section of one acre or more of any public water or public waters wetland.”
Minn. R. 4410.4300, subp. 27(A) (2021). 1 For any such project, an EAW is mandatory.
Minn. R. 4410.4300, subp. 1. The distinction between the language used in the mandatory-
EIS rule and the language used in the mandatory-EAW rule further indicates that, in
context, the word “eliminate” in the mandatory-EIS rule does not mean reducing the size
or changing the type of a public waters wetland.
This understanding of the two rules is confirmed by the history of their
promulgation. Before 1982, an EAW (but not an EIS) was mandatory for any “action that
will eliminate or significantly alter a wetland of Type 3, 4, or 5 . . . of five or more acres
in the seven-county metropolitan area, or of 50 or more acres outside the seven-county
metropolitan area, either singly or in a complex of two or more wetlands.” 6 Minn. Code
Agency R. § 3.024B(1)(r) (1977) (emphasis added). In 1982, the EQB essentially replaced
former rule 3.024B(1)(r) with two new rules—one mandating an EAW and one mandating
an EIS. See 6 Minn. Code Agency R. §§ 3.038Z, 3.039S (1982). The rule mandating an
EAW based on a change to a wetland used th e “change or diminish the . . . cross-section”
language that now appears in Minn. R. 4410.4300, subp. 27(A) (2021). See 6 Minn. Code
Agency R. § 3.038Z (1982). The rule mandating an EIS with respect to a wetland used the

1A reduction in the surface area of a public waters wetland inevitably would change
the wetland’s cross-section. See State v. Kuluvar, 123 N.W.2d 699, 705 (Minn. 1963)
(interpreting and applying similar language in Minn. Stat. § 105.42). Similarly, an increase
or decrease in the water depth of a public waters wetland, which might result in a change
in type, would change the cross -section of the wetland. See Minn. Stat. § 103G.005,
subd. 17b(1)-(8) (2022).

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word “eliminate,” which has been retained in Minn. R. 4410.4400, subp. 20 (2021). See 6
Minn. Code Agency R. § 3.039S (1982). At the time of promulgation, the EQB explained
that the one-acre threshold in the mandatory-EAW rule (which has been retained in Minn.
R. 4410.4300, subp. 27(A)) was reasonable “because an alteration of one acre is likely to
affect the total aquatic ecosystem.” 1982 EQB SONAR, supra, at 154. The EQB also
explained that the then-new mandatory-EIS rule was reasonable because the “elimination”
of a protected wetland “would have significant local and regional impacts.” Id. The EQB’s
simultaneous promulgation of the two rules and its accompanying comments indicate that
the board intended to prescribe different consequences for the elimination of a wetland and
for the alteration of a wetland that does not result in its elimination.
Thus, I would interpret rule 4410.4400, subpart 20, according to the common and
ordinary meaning of the word “eliminate” such that an action or project eliminates a public
waters wetland only if the action or project gets rid of or removes it or causes it to
disappear. See American Heritage Dictionary, supra, at 579; Random House Dictionary
of the English Language, supra, at 632; Oxford Universal Dictionary, supra, at 594;
Webster’s Third New Int’l Dictionary, supra, at 736; Webster’s New Int’l Dictionary,
supra, at 832. If I were to assume that the rule is ambiguous, I would resolve the ambiguity
by referring to the rulemaking history, which reveals that an alteration to a wetland that
continues to exist makes an EAW, but not an EIS, mandatory.

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B.
Even if the word “eliminate,” as used in rule 4410.4400, subpart 20, is interpreted
to mean that a wetland is deprived of either of the two qualifying characteristics of a public
waters wetland (acreage and type), an EIS is not mandatory in this case.
The Leech Lake Band of Ojibwe concedes that the two wetlands at issue will not be
reduced in surface area to less than two and one-half acres. The Band contends only that
the construction of Huber’s facility might change the type or types of the two wetlands
such that either wetland might no longer be a “public waters wetland.” The Band asserts
that the wetlands “could change to different types if the changes caused by the proposed
project cause changes to their hydrology or vegetation.” (Emphasis added.) The Band
elaborates by stating that “wetlands can be changed by many stressors, including human
modifications to hydrology such as pipes or channels, changes to the ground or surface
waters that feed into the wetland, loss of nearby wetlands, and changing vegetation.”
(Emphasis added.)
The Band’s contention fails as a matter of law because rule 4410.4400, subpart 20—
unlike section 116D.04, subdivision 2a(a)—does not depend on an analysis of the potential
consequences of a proposed action or project. Rule 4410.4400, subpart 20, applies only to
“projects that will eliminate a public water or public waters wetland,” Minn. R. 4410.4400,
subp. 20 (emphasis added), but not to projects that might cause a change if certain future
events occur. As stated above, the mandatory-EIS rule was intended to “automatically
require the preparation of an EIS” based on the nature of an action or project rather than to
require “a project specific determination.” 1982 EQB SONAR, supra, at 66. In essence,

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rule 4410.4400, subpart 20, makes an EIS mandatory only if the prerequisites of the rule
are triggered by an action or project as designed.
The record in this case contains substantial evidence that Huber’s project will not
change the type of either wetland at issue. In response to the Band’s comments, the city’s
environmental consultant stated, “The type and function of the remaining acreage of the
public waters wetlands will not change, because excess stormwater will be appropriately
managed under the facility’s NPDES permit.” (Emphasis added.) The consultant further
stated, “Wetland No. 26 and 27 areas not permanently impacted by the project will retain
their pre-construction delineated wetland type.” (Emphasis added.) The consultant’s
statements concerning the two wetlands constitutes substantial evidence because, among
other reasons, a reasonable person would accept the statements as adequate to support a
conclusion. See Minnesota Ctr. for Environmental Advocacy v. Minnesota Pollution
Control Agency, 644 N.W.2d 457, 464 (Minn. 2002).
Thus, even under the majority’s interpretation of the word “eliminate,” an EIS is not
mandatory under rule 4410.4400, subpart 20.
C.
Before concluding, I wish to comment on the court’s resolution of the Band’s two
other arguments for reversal.
First, I join in part II of the opinion of the court while recognizing that the issue in
subpart II.A. presents a close call. The applicable caselaw is quite deferential to a
responsible governmental unit’s determination that substantial evidence supports a
negative declaration of the need for an EIS, and this deference extends to the information

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on which a decision is based. In CARD, for example, the supreme court concluded that
substantial evidence supported a county’s decision based on apparently simple statements
of the county’s director of environmental services and an employee of the state department
of health. 713 N.W.2d at 833. In this case, the record includes not only the EAW but also
the city’s detailed, 71-page document responding to public comments, which was prepared
by the city’s environmental consultant. If this court were to conclusively determine that
an EIS is required, I might disagree with that determination. But I join in the court’s
decision to remand the matter discussed in subpart II.A. to the city with instructions to
further consider the potential for significant environmental effects resulting from the
project’s wetlands-removal plan, gather additional information if necessary, and make
another decision on the need for an EIS.
Second, I join in footnote 7, which is in part I of the opinion of the court. In that
footnote, the court rejects the Band’s first argument, that an EIS is mandatory under rule
4410.4400, subpart 11. I agree that the Band’s argument fails because the record contains
abundant evidence of “written offer[s] of financial incentives.” See 2021 Minn. Laws 1st
Spec. Sess. ch. 6, art. 2, § 129.
In sum, I concur in part II of the opinion of the court, but I respectfully dissent from
part I because I would affirm the city’s decision in all other respects.