Duluth Preservation Alliance, Appellant,

This opinion is nonprecedential except as provided by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
A23-0702

Duluth Preservation Alliance,
Appellant,

vs.

North Creek Investors II, LLC, et al.,
Respondents,
City of Duluth,
Respondent.

Filed December 4, 2023
Appeal dismissed
Reyes, Judge

St. Louis County District Court
File No. 69DU-CV-22-2279

Miles John Ringsred, MJR Law Office, Duluth, Minnesota (for appellant)

R. Thomas Torgerson, Jesse W. Smith, Hanft Fride, Duluth, Minnesota (for respondent
North Creek Investors II, et al.)

Rebecca St. George, City Attorney, Paige V. Orcutt, Assistant City Attorney, Duluth,
Minnesota (for respondent City of Duluth)

Considered and decided by Bratvold, Presiding Judge; Reyes, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
Appellant challenges a judgment dismissing claims stemming from the destruction
of a historic building, arguing that the district court erred by determining that it lacked
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subject-matter jurisdiction over appellant’s claims under the Minnesota Environmental
Policy Act (MEPA), Minn. Stat. §§ 116D.01-.11 (2022) . Because we conclude that an
award of effective relief is no longer possible and that neither exception to the mootness
doctrine applies in this case, we dismiss this appeal as moot.
FACTS
This appeal concerns a historic building that formerly stood in Duluth, Minnesota.
The National Register of Historic Places listed the building as a contributing structure to
the Duluth Commercial Historic District. Respondents North Creek Investors II, LLC, and
Zac NC Asset Investors, LLC, (owners) own the property on which the building stood.
In May 2022, o wners applied to respondent City of Duluth for a certificate of
appropriateness for demolition of the building. The city referred the application to the
Duluth Heritage Preservation Commission for review. The commission denied owners’
application in July. A few days later, owners appealed the decision to the Duluth City
Council, which reversed the commission’s decision and granted owners’ application for a
certificate of appropriateness for demolition.
In October, appellant Duluth Preservation Alliance (DPA) filed a complaint and writ
of mandamus against owners and the city in district court alleging violations of MEPA and
the Minnesota Environmental Rights Act (MERA), Minn. Stat. §§ 116B.01-.13 (2022).
DPA also moved for a temporary restraining order (TRO) to preserve the building during
the lawsuit, which the district court granted. The district court conditioned the TRO on
DPA obtaining a security bond within one week of the TRO being granted. DPA failed to
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file the required bond by the deadline, which dissolved the TRO. Owners proceeded with
the demolition of the building.
Following the demolition, DPA amended its complaint, seeking declaratory relief
against the city and o wners under MEPA and MERA. The city moved to dismiss the
complaint for lack of jurisdiction and for failure to state a claim upon which relief could
be granted, and owners moved for summary judgment. The district court dismissed DPA’s
MEPA claims against both owners and the city. On the MERA claims, the district court
dismissed the claim against the city and granted summary judgment to owners. This appeal
follows.
DECISION
As a threshold matter, DPA argues that its MEPA claims against the city and owners
are justiciable and not moot because effective relief is still possible, even though the
building was demolished. Alternatively, DPA argues that both exceptions to the mootness
doctrine apply. We are not persuaded.
Appellate courts dismiss an appeal 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). “A moot case is nonjusticiable.” Snell v. Walz,
985 N.W.2d 277, 283 (Minn. 2023). Justiciability is a legal issue that appellate courts
review de novo. Id.
To demonstrate that effective relief is still possible, DPA c ites the definition of
“mitigation” in the Environmental Quality Board (EQB) rules at Minn. R. 4410.0200, subp.
51 (2021). It contends that the broad definition of “mitigation” allows the district court to
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order improvements to other sites within the Duluth Commercial Historic District to
mitigate owners’ demolition of the building. DPA also cites the requirement to consider
“cumulative impacts” in the decision on whether to prepare an environmental impact
statement (EIS) as a form of effective relief under Minn. R. 4410.1700, subp. 7(B) (2021).
DPA suggests that the EQB rules permit the district court to order an evaluation of the
cumulative impacts of the demolition of the building. We do not agree with any of DPA’s
contentions.
MEPA contains two primary types of environmental review: an environmental
assessment worksheet (EAW) and an EIS. An 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) (2022). An EIS is a detailed, analytical
document that describes the proposed project, analyzes the potential environmental
impacts of the project, and explores alternative options. Id. at subd. 2a (a).
EQB rules mandate preparation of EAWs and EISs for different types of projects.
Minn. R. 4410.4300-4400 (2021). Unless a project is exempt from review, an EIS must be
prepared if there is “potential for significant environmental effects resulting from any
major governmental action.” Minn. Stat. § 116D.04, subd. 2a (a) (2022). The decision on
whether an EIS is required, and thus whether a project has the “potential for significant
environmental effects” must be based on “the information gathered during the EAW
process and the comments received on the EAW.” Minn. R. 4410.1700, subp. 3.
The EQB rules also specify the factors that must be considered to determine if a
project has “the potential for significant environmental effects,” including “whether the
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cumulative potential effect is significant” and “the degree to which the project complies
with approved mitigation measure s specifically designed to address the cumulative
potential effect.” Id. at subp. 7 (B). In short, consideration of cumulative effects and
possible mitigation measures are prospective and are weighed to decide whether an EIS
must be prepared before a project begins.
The project in this case has already been completed; the building wa s demolished.
Furthermore, no EAW was prepared for this project. 1 As a result, there was no occasion
for the city to consider mitigation or cumulative effects in determining whether to require
an EIS. And DPA provides no authority to applying those concepts to fashion relief outside
of the environmental-review context . Because an effective award of relief is no longer
possible, we conclude that this case is moot.
DPA argues that, even if we conclude that this case is moot, both exceptions to the
mootness doctrine apply in this case. We disagree.
Mootness is a “flexible discretionary doctrine,” and Minnesota courts recognize two
exceptions to the doctrine. Snell, 985 N.W.2d at 284 (quoting Dean , 868 N.W.2d at 4).
The first mootness exception applies when a case is “‘functionally justiciable’ and an
important matter of ‘statewide significance’ that requires immediate decision.” Id.
(quoting State v. Rud, 359 N.W.2d 573, 576 (Minn. 1984)). To determine whether a case

1 The city contends that Minn. R. 4410.4300, subp. 31 (2021), which mandates review by
an EAW for the destruction of historic places, contains an exemption from review by an
EAW for projects that are reviewed by a local heritage preservation organization. Because
we conclude that this case is moot, we do not decide whether Minn. R. 4410.4300, subp.
31, contains such an exemption.
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has statewide significance, courts “have relie d on the broad impact of leaving the legal
question unresolved.” Id. at 285.
DPA argues that the city’s process for reviewing the demolition of historic buildings
does not comply with MEPA requirements. DPA does not assert that other Minnesota
cities use an identical review process when considering projects that require demolishing
historic buildings. DPA also does not assert that the city imminently plans to re use its
demolition review process, necessitating an immediate decision. This case only presents
an issue of local significance that does not necessitate an immediate decision. We therefore
conclude that the first exception to the mootness doctrine does not apply.
The second exception to the mootness doctrine applies when “the harm to the
plaintiff is ‘capable of repetition yet evading review.’” Snell, 985 N.W.2d at 284 (quoting
Kahn v. Griffin, 701 N.W.2d 815, 821 (Minn. 2005)). This exception has two elements: “a
reasonable expectation that a complaining party would be subjected to the same action
again and the duration of the challenged action is too short to be fully litigated.” Id. at 287
(quoting Dean, 868 N.W.2d at 5) (emphasis in original).
The duration of this case was not too short to be fully litigated. DPA petitioned for
and received a TRO that would have prevented demolition while the case was pending.
DPA did not comply with the TRO conditions, which caused the order to expire and
allowed owners to demolish the building. This case had the potential to be fully litigated
before the building’s demolition, and DPA’s failure to comply with the TRO conditions
was the sole cause of the building’s demolition before adjudication on the merits. We
conclude that the second exception to the mootness doctrine does not apply.
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Because we conclude that this case is moot, we do not reach the merits of DPA’s
arguments.
Appeal dismissed.