Glen Brazier, individually and as owner of Wagon Wheel Ridge, Inc., a Minnesota Corporation, et al., Appellants,

This opinion is nonprecedential except as provided by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
A22-1648

Glen Brazier, individually and as owner of Wagon Wheel Ridge, Inc.,
a Minnesota Corporation, et al.,
Appellants,

vs.

Minnesota Department of Natural Resources,
Respondent,

Kittson Soil and Water Conservation District,
Respondent.

Filed June 26, 2023
Affirmed
Frisch, Judge

Kittson County District Court
File No. 35-CV-22-35

Steven Anderson, Anderson Law Group PLLC, St. Paul, Minnesota (for appellants)

Keith Ellison, Attorney General, Oliver J. Larson, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Department of Natural Resources)

Amy E. Mace, Marcus B. Jardine, Rupp, Anderson, Squires, Waldspurger & Mace PA,
Minneapolis, Minnesota (for respondent Kittson Soil and Water Conservation District)

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Considered and decided by Cochran, Presiding Judge; Frisch, Judge; and Smith,
John, Judge.∗
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellants challenge the dismissal of their civil complaint seeking, pursuant to
Minn. Stat. § 62 6.21 (2022), the return of evidence obtained during an allegedly illegal
search by respondent Minnesota Department of Natural Resources (DNR) and the
suppression of such evidence in actions brought by the DNR and respondent Kittson Soil
and Water Conservation District (the district) or other future proceedings. Because the
claims set forth in the complaint are moot and not ripe, we affirm.
FACTS
The underlying civil action followed determinations by the DNR and the district
that construction occurring on property owned by appellant Wagon Wheel Ridge, Inc.
impacted wetlands in violation of state law and rules. The complaint and the attachments
to the complaint set forth the following facts.
The property at issue is in Deerwood Township in Kittson County (the property).
Appellant Glen Brazier is the owner of Wagon Wheel Ridge.1 The district and DNR have
jurisdiction over wetlands on the property.

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

1 Brazier is an appellant in his individual capacity and as the owner of appellant Wagon
Wheel Ridge, Inc. We refer to appellants collectively as “Brazier.”
3
In or around early 2019, Brazier constructed a ditch approximately 1,650 feet in
length on portions of the property that qualify as Type 2 or Type 3 wetlands and public-
water wetland s. Brazier also constructed a road approximately 1,900 feet in lengt h on
portions of the property containing Type 2 and Type 3 wetlands.
Site Visit and Restoration Orders
In summer 2019, an anonymous complainant informed the DNR and the district that
the newly constructed ditch and road impacted wetlands. In response to the anonymous
complaint, on July 15, 2019, representatives from the DNR, the district, and the Minnesota
Board of Water and Soil Resources (BWSR) met with Brazier at the property to determine
whether the construction of the ditch impacted a wetland.
The representatives asked Brazier for permission to view the property , and Brazier
consented.2 A representative asked to dig a hole to look at the soil. Brazier responded,
“You can’t dig a hole up there unless you call 911 or up out you can’t [sic]. There is so
much infrastructure under there. I can’t tell you where it all is.” The representatives
thereafter inspected the property and dug five holes to make observations about the soil.
In August 2019, the district issued a restoration order regarding the constructed road
and ditch. The order directed Brazier to remedy wetland violations under the Minnesota
Wetland Conservation Act (WCA) by restoring the property or submitting a replacement
plan, exemption, or a no-loss application.

2 Brazier recorded the meeting with the representatives and attached a transcript of that
recording to the compl aint. The transcript of the recording indicates that Brazier stated,
“Well, it isn’t going to do any good for us not to let you on there. I guess just, uh, just be
extremely careful. I would suggest, uh, you gotta walk.”
4
In October 2019, the DNR issued a restoration order to Brazier. The order directed
Brazier to remedy violations of state rules regulating public waters. The DNR restoration
order did not direct Brazier to undertake a remedy with respect to the constructed road.
BWSR Appeal
In May 2021, Brazier submitted a no-loss application seeking a determination from
the district that the newly constructed ditch had or would have no impact on the
surrounding wetlands regulated under the WCA. In the application, Brazier also proposed
to extend the ditch. The district denied the application, finding that the completed and
proposed actions impacted the Type 2 and Type 3 wetlands.
Brazier timely appealed the district’s determination to the BWSR. In September
2022, the BWSR affirmed the district’s denial of Brazier’s no-loss application. The BWSR
found that, in his application, Brazier did not contest that the existing ditch had been
constructed through Type 2 and Type 3 wetlands, or that the proposed expansion would
also be constructed through such wetlands. The BWSR also found that the record “fully
supports the Kittson district’s determination that these elements of the P roject were
constructed or proposed to be constructed in a wetland covered by the WCA and subject to
the Kittson District’s jurisdiction.” The BWSR concluded that exhibits related to the
collection of soil samples during the July 15, 2019 site visit were not relevant to the appeal
because Brazier conceded that the soil sampl ing was “conducted in connection with the
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road,” not the ditch or proposed expansions at issue on appeal of Brazier’s no-loss
application.3
Section 626.21 Claim
During the pendency of the appeal to the BWSR, in April 2022, Brazier filed a civil
complaint in district court pursuant to Minnesota Statutes section 626.21, seeking an order
that the DNR and BWSR return soil samples collected from the property and that the
samples be “suppressed by the Court and made unavailable for use by the [DNR, BWSR,
and the district] in the pending BWSR regulatory appeal, and any future regulatory actions
and any court actions.”
The DNR and district moved to dismiss the complaint, arguing that the district court
lacked subject-matter jurisdiction and that Brazier failed to state a claim upon which relief
may be granted. The district court granted the motion, concluding that it lacked subject-
matter jurisdiction because section 626.21 “is limited to criminal matters,” and therefore,
“this Court has no jurisdiction to pre-decide the legality of the soil sampling which
occurred or the admissibility of the resulting evidence in a civil action which is not pending
before it.”
Brazier appeals.
DECISION
On appeal to this court, Brazier argues that the district court erred in dismissing his
complaint, which sought an order from the district court pursuant to section 626.21

3 The DNR and the district requested that we take judicial notice of the BWSR decision
and administrative record, and we granted this request.
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(1) compelling the return of soil samples from the DNR, (2) suppressing evidence derived
from the soil samples in the BWSR appeal, and (3) suppressing evidence derived from the
soil samples in any future regulatory actions and any court actions. 4 Brazier argues that
the district court erred by determining that section 626.21 does not provide a remedy in a
civil action. We need not decide this issue because, even assuming the statute affords
Brazier with a civil cause of action to obtain such relief, the claims set forth in the complaint
are moot and not ripe. See Goeb v. Tharaldson, 615 N.W.2d 800, 815 n.9 (Minn. 2000)
(“Because the other issues raised are dispositive of this matter, we do not address this
argument.”).
“We review de novo whether a complaint sets forth a legally sufficient claim for
relief.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 606 (Minn. 2014). We accept factual
allegations set forth in a complaint as true and construe all reasonable inferences from the

4 In relevant part, Minn. Stat. § 626.21 provides:
A person aggrieved by an unlawful search and seizure
may move the district court for the district in which the
property was seized or the district court having jurisdiction of
the substantive offense for the return of the property and to
suppress the use, as evidence, of anything so obtained on the
ground that (1) the property was illegally seized, or (2) the
property was illegally seized without warrant . . . . If the
motion is granted the property shall be restored unless
otherwise subject to lawful detention, and it shall not be
admissible in evidence at any hearing or trial. The motion to
suppress evidence may also be made in the district where the
trial is to be had. The motion shall be made before trial or
hearing unless opportunity therefor did not exist or the
defendant was not aware of the grounds for the motion . . . .
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allegations in favor of the nonmoving party. Id . “Justiciability is an issue of law that we
review de novo.” McCaughtry v. City of Red Wing, 808 N.W.2d 331, 337 (Minn. 2011).
Return of the Soil Samples
Brazier seems to argue that his underlying complaint properly sought an order from
the district court for the return of soil illegally seized from his property. But neither the
complaint nor the attachments to the complaint contain allegations or a factual basis that
any respondent removed and retained soil or any tangible thing from Brazier’s property.
And at oral argument before this court, counsel for Brazier conceded that he did not have
a good-faith basis to maintain that any soil or other tangible thing had been removed from
the property and retained by any respondent. We note that both respondents affirmatively
stated that they did not remove and retain any soil or tangible thing from Brazier’s property.
In any event, the parties now agree that there is no property in the possession of the
respondents subject to return pursuant to section 626.21.
For that reason, Brazier’s claim under section 626.21 seeking the return of property
is moot. “Well established in this state’s jurisprudence is the precept that the court will
decide only actual controversies.” O’Brien & Wolf, LLP v. S. Cent. Minn. Elec. Workers’
Fam. Health Plan, 923 N.W.2d 310, 316 (Minn. App. 2018) (quotation omitted), rev.
denied (Minn. Mar. 27, 2019). “If we cannot grant relief on an issue purportedly raised on
appeal, the issue is moot . . . .” Id. (citing In re Schmidt, 443 N.W.2d 824, 826 (Minn.
1989)).
5

5 We remind litigants that “[b]y presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading . . . or other document” an attorney is
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Suppression of Evidence in the BWSR Appeal
We conclude that because a final order has been issued in the BWSR appeal
resulting in the conclusion of that action, Brazier’s attempt to suppress evidence for use in
the BWSR appeal is also moot. “An appeal should be dismissed as moot when a decision
on the merits is no longer necessary or an award of effective relief is no longer possible.”
Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015) . Because the BWSR appeal has
concluded, the BWSR has issued a decision, and that decision is final because Brazier did
not timely appeal it, Brazier cannot obtain the relief requested in the complaint. See Minn.
Stat. § 14.63 (2022) (providing that an appeal from a contested case must be filed within
30 days of receiving the final decision); Minn. R. 8420.0905, subp. 5 (2021) (providing
that an appeal from a board decision is a contested case for purposes of judicial review);
cf. Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (recognizing that
“public policy favors the finality of judgments” and therefore “Minnesota law does not
permit the collateral attack on a judgment valid on its face”), rev. denied (Minn. Feb. 26,
1997).

“certifying that to the best of the person’s knowledge, information, and belief . . . the
allegations and other factual contentions have evidentiary support or, if specifically so
identified, are likely to have evidentiary support.” Minn. R. Civ. P. 11.02(c). We
emphasize that violation of this rule is sanctionable conduct. Minn. R. Civ. P. 11.03.
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Brazier seems to argue that his claim to suppress evidence in the BWSR appeal
under section 626.21 is not moot because it could not be raised to the BWSR. He also
seems to argue that the fact that the BWSR appeal has concluded does not render his section
626.21 claim moot because it is an incidental consequence of the time it takes to appeal the
district court’s dismissal of his claim rather than a justiciable defect.
These arguments reflect a misunderstanding of the mootness doctrine. Mootness
applies when “a decision on the merits is no longer necessary or an award of effective relief
is no longer possible.” Dean, 868 N.W.2d at 5 (emphasis added). Suppression of evidence
in the BWSR appeal is not “necessary” because that appeal has concluded with a final order
not subject to collateral attack. Similarly, suppression of evidence in the BWSR appeal is
“no longer possible” because that appeal has concluded with a final order.
Suppression of Evidence in Future Proceedings
Brazier argues that he is entitled to prospective suppression of evidence under
section 626.21 in any future regulatory actions and any court actions. Because such a claim
is not ripe, we disagree.
We consider the issue of ripeness even though the parties did not raise the issue on
appeal. “‘[T]he existence of a justiciable controversy is essential to this court’s exercise
of jurisdiction’; therefore, the court ‘ may always raise the issue on its own motion.’”
Harstad v. City of Woodbury, 902 N.W.2d 64, 70 (Minn. App. 2017) (quoting Izaak Walton
League of Am. Endowment, Inc. v. State, Dep’t of Nat. Res., 252 N.W.2d 852, 854 (Minn.
1977)), aff’d on other grounds, 916 N.W.2d 540 (Minn. 2018). “Ripeness is a justiciability
doctrine.” Leiendecker v. Asian Women Uni ted of Minn., 731 N.W.2d 836, 841 (Minn.
10
App. 2007) (quotation omitted), rev. denied (Minn. Aug. 7, 2007). “Ripeness determines
when a claim may be brought.” Werlich v. Schnell, 958 N.W.2d 354, 363 (Minn. 2021).
“To establish the existence of a justiciable controversy, the litigant must show a direct and
imminent injury.” Leiendecker, 731 N.W.2d at 841 (emphasis added) (quotation omitted).
“Issues that are purely hypothetical are not justiciable.” Werlich, 958 N.W.2d at 363
(quotation omitted); see also Lee v. Delmont, 36 N.W.2d 530, 537 (Minn. 1949) (stating
that hypothetical issues that “have no existence other than in the realm of future possibility”
are not justiciable). “[W]e review questions of justiciability, including ripeness, de novo.”
Werlich, 958 N.W.2d at 363.
Brazier’s claim that the soil-sample evidence should be suppressed under section
626.21 in “any future regulatory acti ons and any court actions” is not ripe because the
complaint does not contain allegations of any direct or imminent injury, and Brazier does
not otherwise point to the existence of any such injury. See Leiendecker , 731 N.W.2d at
841. Brazier emphasizes that the restoration orders included language providing that a
violation of the restoration orders is a misdemeanor. But the record does not show that
Brazier has violated the restoration orders, and the complaint contains no allegation that he
violated the restoration orders. Brazier does not allege that he is being investigated for a
criminal offense, that he has been charged with a crime, or that there is any basis to
conclude that he will face criminal consequences associated with a violation of the
restoration orders. Stated differently, Brazier’s claim is purely hypothetical, and therefore
is not ripe. See Werlich, 958 N.W.2d at 363. Further, we cannot render an opinion to
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address something that may transpire in the future because we “do not issue advisory
opinions.” 6 McCaughtry, 808 N.W.2d at 337.
Affirmed.

6 Brazier seems to argue that his claim under section 626.21 is justiciable even before he
is subject to an actual criminal prosecution because we have interpreted section 626.21 to
allow “a person aggrieved by a search the opportunity to raise an issue not necessarily
germane to any criminal prosecution, i.e., possession of property, before a criminal
complaint has been filed and in a court which may not have jurisdiction over the criminal
offense.” Bonynge v. City of Minneapolis, 430 N.W.2d 265, 266 (Minn. App. 1988).
We are not persuaded for two reasons. First, Bonynge is not instructive because its
comment on section 626.21 is limited to the issue of the return of property under section
626.21 before a criminal complaint is filed. Id. Second, even if Bonynge can be read as
interpreting the statute to allow such preventative claims, Braizer’s claim must still be ripe
and therefore justiciable. Cf. McCaughtry, 808 N.W.2d at 337, 339 (recognizing the
“preventative” purpose of declaratory judgment actions and stating that “[n]ontheless, like
every other action, a declaratory judgment action must present an actual, justiciable
controversy” (quotation omitted)).