Zutz Farms, 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This opinion is nonprecedential except as provided by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
A24-0352

Zutz Farms, et al.,
Appellants,

vs.

Middle Snake Tamarac Rivers Watershed District,
Respondent,

Christian Erickson,
Respondent.

Filed January 13, 2025
Affirmed
Connolly, Judge

Marshall County District Court
File No. 45-CV-22-58

Andrew J. Pieper, Brea Khwaja, Stoel Rives LLP, Minneapolis, Minnesota (for appellants)

Kaitlyn N. Bjornson, Brink Lawyers, P.A., Hallock, Minnesota (for respondent Middle
Snake Tamarac Rivers Watershed District)

Delray Sparby, Ihle Sparby & Haase PA, Thief River Falls, Minnesota (for respondent
Erickson)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Ede,
Judge.

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NONPRECEDENTIAL OPINION
CONNOLLY, Judge
On appeal from the district court’s order affirming respondent -watershed district’s
approval of a permit to install drain tile on respondent -applicant’s farmland, appellant -
landowners argue that the decision to grant the permit was unreasonable because the
decision was premised upon unlawful irregularities in the permit process, unsupported by
record evidence, and arbitrary and capricious. We affirm.
FACTS
The facts of this case are largely undisputed. Respondent Christian Erickson rents,
from his father, 140 acres of farmland (the “farmland”) that is located in the southeast
quarter of section 36, Comstock Township, Marshall County. The farmland is in th e
Middle Snake Tamarac Rivers watershed. Respondent Middle Snake Tamarac Rivers
Watershed District (MSTRWD) is the regional governmental unit responsible for
managing and protecting the water resources of this watershed.
On April 23, 2021, Erickson filed an application with the MSTRWD board of
managers, seeking permit #21-051 (the permit), which would allow him to install drain tile
in the farmland. The drain tile would drain water from the farmland by gravity flow into a
county ditch in the southwest corner of the farmland . The drain tile was alleged to be
necessary to increase agricultural production.
Pursuant to the permit, the southwest corner of the farmland would drain along the
following route: First, the water from the drain tile would flow into a public county
highway ditch in the southwest corner of the quarter section. Second, the water would flow
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through a state highway ditch, which runs along the south half of the southwest quarter of
section 36, and the southeast quarter of section 35 ; the southeast quarter of section 35 is
owned by appellant Douglas Safar. Third, the water would flow into a public offtake ditch
that runs through lots 1 and 2, the south half of the northeast quarter, and the northwest
quarter of section 2. Fourth, the water would flow into a private dit ch system in the
southwest quarter of section 2, which is owned by appellants Dustin and Shelly Kalt. Fifth,
the water would flow into the north inlet ditch of the Agassiz Valley Water Resource
Management Project (AVWRM project), which is a watershed impoundment designed to
receive flood water. The north inlet ditch runs through a portion of the north half of section
10, which is owned by MSTRWD; appellant Zutz Farms owns property adjacent to the
north inlet ditch. Sixth, and finally, the water would flow into Judicial Ditch #25-1.
Under the proposed drainage route, water is metered by at least three different
culverts before it reaches the public offtake ditch and private ditch system. But at the time
Erickson applied for the permit, approximately 48 acres of the farmland sought to be drain
tiled were located outside the benefited area of Judicial Ditch #25-1. As a result, Erickson’s
permit application was tabled on May 3, 2021, due to his need to petition the 48 acres into
the benefited area of Judicial Ditch #25 -1, as well as his need to gather downstream -
landowner signatures on his application.
On July 6, 2021, Erickson requested to withdraw his permit application until he
petitioned the 48 acres of the farmland into the benefited area of Judicial Ditch #25 -1,
which he did, on his father’s behalf, at the July 6 meeting. MSTRWD then gave Erickson’s
petition to Tony Nordby of Houston Engineering, Inc., for review. In his opinion letter
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dated August 18, 2021, Nordby supported granting Erickson’s application for permit #21-
0251 with the 48 acres added to the benefited area. Erickson’s petition to add 48 acres of
the farmland into the benefited area of Judicial Ditch #25 -1 was then approved on
September 7, 2021. That decision was not appealed.
After the approval of the addition of the 48 acres, Erickson’s application for the
permit was again considered by MSTRWD on September 20, 2021. And Erickson’s permit
application was again tabled “until downstream landowners sign[ed] off on the permit or
. . . Erickson [found] another way to drain the water.” Several of the downstream
landowners signed Erickson’s permit application, but Safar and the Kalts declined.
MSTRWD sent letters to appellants informing them that it received Erickson’s
permit application, and that they would be given the opportunity to provide comment at
the next meeting. Appellants subsequently provided written objections to the permit.
Based on this opposition, MSTRWD voted to deny Erickson’s permit application on
October 4, 2021, pending an adequate outlet.
Erickson moved for reconsideration at the next meeting on October 18, 2021. In
support of his request, Erickson claimed that “[e]xcess water that the ditch of . . . Safar and
. . . Kalt is receiving . . . can be attributed to Zutz Farms having diked an offtake ditch.”
Erickson also requested that MSTRWD delay his reconsideration request for 30 -45 days
so that he could hire an engineering firm to provide “a prof essional opinion as to the
adequacy of the offtake ditch.” MSTRWD addressed Erickson’s request for
reconsideration at its meeting on November 1, 2021, and decided to schedule a meeting on
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Erickson’s request for December 6, 2021, to accommodate Erickson’s efforts to hire an
engineering firm and to provide notice to interested parties.
Erickson hired Nate Dalager of HDR Engineering to prepare an opinion as to the
adequacy of the outlets proposed in the permit application. Dalager determined “the
offtake and private drainage system to be an adequate outlet for the proposed tile system
outlet.” He also recommended that MSTRWD “require that the tile system be operable
(gated), in order to disable the discharge as an additi onal safeguard.” And Dalager
suggested that “the tile system should not be operated if the downstream private drainage
system between the outlet and [the AVWRM project] North Inlet Ditch, is backing up into
adjacent fields.”
Counsel for appellants wrote to MSTRWD on December 5, 2021, opposing the
permit due to “flooding and crop loss as a result of the inefficiency of [Judicial Ditch #]25-
1.” Although MSTRWD considered this correspondence to be untimely , copies of the
letter were distributed to each board member at the December 6, 2021 meeting. MSTRWD
then upheld the denial of the permit and tabled the request for reconsideration so that it
could review appellants’ attorney’s correspondence.
On December 17, 2021, counsel for appellants requested “an additional 30-45 days
to allow for adequate time [to] review and respond to the materials” recently received
related to the permit application. Three days later, a t the next meeting , MSTRWD again
tabled reconsideration of the permit until the next board meeting scheduled for February 7,
2022. MSTRWD also sent counsel for appellants a letter stating that it “agreed to table
and recess reconsideration” of the permit until February 7, 2022, in light of the request for
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an additional 30-45 days to review information. And the letter stated that MSTRWD “is
willing to accept any new information until the end of the workday on Friday, January 28,
2022,” but that it “will not consider any new submittals received after this date and time.”
On December 20, 2021, and January 14, 2022, counsel for appellants sent data
requests to MSTRWD, to which MSTRWD responded. On January 28, 2022, at a bout
6:30 p.m., counsel for appellants submitted a memo to MSTRWD from Emmons & Olivier
Resources, Inc. (EOR) regarding “Preliminary Assessment of Data Adequacy.” In a letter
accompanying the memo, counsel for appellant stated that the memo was “NOT EOR’s
formal response assessment regarding” the permit, and that it was not a formal engineering
opinion regarding the adequacy of the proposed outlet for the disputed permit. Counsel for
appellants also requested that MSTRWD table reconsideration of the permit application
until February 22, 2022, to allow E OR more time to review data provided by MSTRWD
on January 24, 2022.
Despite the untimeliness of appellants’ counsel’s January 28, 2022, correspondence,
EOR’s memo was provided to MSTRWD for review prior to the scheduled meeting on
February 7, 2022. And prior to this meeting, MSTRWD’s staff made written findings and
recommendations related to Erickson’s permit application. In these findings, MSTRWD’s
staff addressed the dike on the property owned by Zutz Farms and stated that the dike
“appears to be a bigger issue” because it has “exacerbated the flow and alleged flooding
onto the properties.” The findings also stated that Zutz Farms constructed the dike without
the proper permit. Based on these findings, and the information provided before the
February 7, 2022 meeting, MSTRWD’s staff recommended that the permit be approved
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“with the condition that a shutoff gate be installed so that the system is operable, and that
no tile discharge is allowed during flooding or freezing conditions.”
MSTRWD approved Erickson’s permit application at the February 7, 2022 meeting,
and made nine findings supporting its decision. The permit was approved on the condition
that an operable gate be included as part of the tiling discharge outlet.
In March 2022, a ppellants filed a petition for declaratory relief in district court .
Following a bench trial on a stipulated record, the district court determined that there was
a question of material fact regarding whether Erickson’s permit constituted “reasonable
use.” The district court , therefore, remanded the matter to MSTRWD “for specific
findings” on whether granting the permit application constitutes a reasonable use.
On remand , appellants’ counsel requested that MSTRWD consider numerous
factors, including appellants’ trial memorandum, when making its findings on reasonable
use. MSTRWD then considered the reasonable -use issue without taking additional
submissions. And a fter analyzing the factors outlined in the court’s order, MSTRWD
determined that (1) there is a reasonable necessity for the proposed drainage; (2) reasonable
care was taken to avoid injury; (3) the permitted drain tile will provide a benefit to the
drained lands with negligible change or harm to the receiving properties downstream; and
(4) the permitted tile system is reasonable and aids the natural system to its reasonable
carrying capacity. MSTRWD also adopted its original findings and order when the permit
was initially granted. These findings noted the unpermitted levee on Zutz Farm’s property
that appear ed to contribute to any flooding on appellants’ land. Finally, MSTRWD
considered that appellants failed to provide evidence of their claims in a t imely manner.
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MSTRWD, therefore, issued the permit. The district court subsequently affirmed the
decision to grant the permit because it was supported by record evidence and was not
arbitrary and capricious. This appeal follows.
DECISION
We note, at the outset, that it is appropriate to clarify the proper standard of review
to be applied in this case. The parties assert that we are to review MSTRWD’s decision
pursuant to the Minnesota Administrative Procedure Act (MAPA). See Minn. Stat.
§§ 14.001-.69 (2022). MAPA permits judicial review of an agency’s final decision in a
“‘contested case.’” Eneh v. Minn. Dep’t of Health , 906 N.W.2d 611, 613 (Minn. App.
2019). But MSTRWD’s permit decision was not a decision in a contested case. A
contested case under MAPA is a proceeding initiated by “[a]n agency . . . when one is
required by law.” Minn. Stat. § 14.57. The term “agency” does not include a watershed
district; it is limited to governmental entities with statewide jurisdiction. Compare Minn.
Stat. § 14.02, subd. 2 (defining “agency” as “any state officer, board, commission, bureau,
division, department, or tribunal . . ., having a statewide jurisdiction and authorized . . . to
adjudicate contested cases” (emphasis added)), with Minn. Stat. § 103D.225, subds. 2, 6
(2022) (providing for the establishment of watershed districts, and stating that a watershed
district is “a political subdivision of the state”).
There are mechanisms in chapter 103D for appealing certain actions to “the board.”
See, e.g., Minn. Stat. § 103D.537(a)-(b) (2022). And “[a] decision of the board on appeal
is subject to judicial review under sections 14.63 to 14.69.” Minn. Stat. § 103D.537(c)
(2022); see also In re Midway Pro Bowl Relocation Benefits Claim , 930 N.W.2d 7, 10-11
9
(Minn. App. 2019) (applying MAPA to a city even though a city is not a statewide agency
because the claim was based on a statute that expressly incorporated MAPA), aff’d, 937
N.W.2d 423 (Minn. 2020). But chapter 103D defines “Board” as “the Board of Water and
Soil Resources.” Minn. Stat. § 103D.011, subd. 5 (2022). Conversely, chapter 103D
defines “Managers” as “the board of managers of a watershed district.” Id., subd. 15
(2022). And under the statute, “an interested party may appeal a permit decision or order
made by the managers by a declaratory judgment action brought under chapter 555.” Id.
§ 103D.537(a) (emphasis added).
Here, consistent with section 103D.537(a), this appeal involves a challenge to a
permit decision made by MSTRWD’s board of managers and was brought under chapter
555. As such, MAPA is not applicable to this case.
Having concluded that MAPA is not applicable here, we now address the proper
scope and standard of review. We review decisions of a watershed district’s board of
managers independent of the findings and conclusions of the district court. Goerke Fam.
P’ship v. Lac qui Parle -Yellow Bank Watershed Dist. , 857 N.W.2d 50, 55 (Minn. App.
2014). In reviewing such a decision, the applicable standard of review is whether the
decision was reasonable. Id. “This standard has been expressed in various ways: Is ther e
a reasonable basis for the decision? Or is the decision unreasonable, arbitrary or
capricious? Or is the decision reasonably debatable? The nature of the matter under review
has a bearing on what is reasonable.” Id. (citation and quotations omitted). When a permit
is granted, “the inquiry is more judicial because the decision involves ‘applying specific
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standards to a particular individual use.”’ Id. (quoting Honn v. City of Coon Rapids , 313
N.W.2d 409, 417 (Minn. 1981)).
I.
In light of the appropriate standard of review, we construe appellants’ argument to
be an argument that we should reverse MSTRWD’s decision because it was unreasonable
due to seven alleged unlawful or irregular procedures in MSTRWD’s process . See In re
Stadsvold, 754 N.W.2d 323, 332 (Minn. 2008) (“Whether a local zoning body’s decision
is reasonable is measured against the standards set forth in the applicable ordinance.”);
Alexandria Lake Coal ., Inc. v. Douglas C nty., 348 N.W.2d 369, 371 (Minn. App. 1984)
(considering challenge based on procedural irregularities). Although respondents disagree,
MSTRWD argues first that appellants’ unlawful-procedure argument is not properly before
us because it was raised “for the first time in their post -trial brief and the district court did
not consider it.” Assuming, without deciding, that appellants’ argument is properly before
us, we conclude, for the reasons set forth below, that appellants’ argument fails on the
merits.
1. Withdrawal and resubmission of Erickson’s permit application

Appellants argue that the MSTRWD’s decision is based upon unlawful procedure
because the MSTRWD considered Erickson’s permit application even though he withdrew
the application in July 2021, and never resubmitted it. We disagree. The minutes of the
July 6, 2021, meeting state that “Erickson requested to withdraw [his permit application]
until he has Petitioned the benefited area of JD #25 -1.” (Emphasis added.) The word
“until” indicates that MSTRWD anticipated that it would consider Erickson’s permit
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application after his other petition was granted. In addition, appellants fail to cite any cases
with circumstances similar to those presented here in which a party was required to refile
a permit application after unilaterally withdrawing it. As such, it was within MSTRWD’s
discretion to consider the permit application without another formal filing.
Moreover, appellants are entitled to relief only if they can demonstrate that they
were prejudiced by the alleged error. Palladium Holdings, LLC v. Zuni Mortg. Loan Tr.
2006-OA1, 775 N.W.2d 167, 178 (Minn. App. 2009), rev. denied (Minn. Jan. 27, 2010)
(“An appealing party bears the burden of demonstrating both error and prejudice.”).
Appellants cannot satisfy this burden. Appellants make no argument in their main brief
demonstrating that they were prejudiced by MSTRWD’s consideration of Erickson’s
permit application after he withdr ew the application and then did not refile it. And the
record reflects that appellants had notice throughout the proceedings of Erickson’s permit
application. Furthermore, the permit application was repeatedly tabled over the course of
several months, which provided appellants with ample t ime to respond to it. Thus,
appellants are not entitled to relief on this issue.
2. MSTRWD’s January 28, 2022, deadline to submit materials
Appellants argue that they are entitled to relief because MSTRWD set an “arbitrary”
deadline of January 28, 2022, with no “specific time” of day, after which no new
information related to Erickson’s permit application could be submitted. But MSTRWD’s
amended rules provide that MSTRWD “shall decide the Permit issue on reconsideration
within one-hundred twenty (120) days of the request for reconsideration.” The record
reflects that Erickson moved for reconsideration of his permit request at the October 18,
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2021 hearing. Because the February 7, 2022 meeting was the last meeting before the 120-
day time-period expired, a January 28, 2022 deadline on which to submit materials for
consideration was reasonable to allow MSTRWD time to review the submitted materials.
Moreover, the parties were informed by letter on December 21, 2021, that MSTRWD “is
willing to accept any new information until the end of the workday on Friday, January 28,
2022,” but that it “will not consider any new submittals received after this d ate and time.”
Although the letter did not state an exact time, the language “end of the workday”
commonly means 4:30 or 5:00 p.m. And, despite their untimeliness, MSTRWD considered
appellants’ submissions from EOR. Accordingly, appellants are unable to demonstrate that
they are entitled to relief based on the deadline set by MSTRWD to submit materials.
3. MSTRWD’s alleged untimely response to appellants’ information requests
Appellants argue that they are entitled to relief because MSTRWD failed “to timely
provide necessary information to [a]ppellants,” which “prejudiced [a]ppellants’ ability to
oppose the Permit Application.” But as addressed above, MSTRWD was required to
consider Erickson’s reconsideration request in early February. Moreover, despite being
apprised of Erickson’s reconsideration request at the time it was made, appellants failed to
request information until December 2021, and January 2022. And appellants fa il to cite
any rule or authority requiring MSTRWD to respond to requests for information within a
certain time period before a scheduled meeting. Thus, appellants are unable to show that
MSTRWD’s response to appellants’ request for information was unreasonable.

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4. MSTRWD’s alleged failure to consider the EOR report
Appellants argue that they are entitled to relief because MSTRWD’s failure to
consider the EOR report was unreasonable. We disagree. The record reflects that counsel
for appellants was untimely in submitting the EOR report. And the record reflects that
MSTRWD considered this report despite its untimely submission. Therefore, appellants’
claim that MSTRWD failed to consider the report lacks merit.
5. MSTRWD’s focus on the alleged dike instead of the EOR memo
Appellants claim that irregularities in the proceedings were further demonstrated by
MSTRWD’s focus on the alleged dike on the property owned by Zutz Farms rather than
focusing on the more substantive concerns raised in the EOR memo. But appellants’
counsel acknowledged in a letter to MSTRWD that EOR’s memo was “NOT EOR’s formal
response assessment regarding [the p]ermit,” and that it was not a formal engineering
opinion regarding the adequacy of the proposed outlet for the disputed permit. As such, it
was reasonable for MSTRWD to decline to give more weight to EOR’s memo. Moreover,
it was well within MSTRWD’s discretion to consider the alleged dike in making its
decision, particularly in light of evidence in the record indicating that the dike adversely
affected water drainage. Appellants cannot show that either MSTRWD’s consideration of
the alleged dike, or the weight given EOR’s memo, was unreasonable.
6. MSTRWD’s refusal to accept any arguments or evidence on remand

Appellants contend that MSTRWD’s refusal to accept or consider any additional
arguments or evidence from appellants on the reasonable -use doctrine on remand
constitutes an unreasonable irregularity in the procedure of this case. But in remanding the
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case to MSTRWD to consider reasonable use, the district court never instructed MSTRWD
to consider additional arguments or evidence, or otherwise reopen the record. Moreover,
appellants point to no rule or law requiring MSTRWD to consider additional arguments or
evidence on remand when considering reasonable use. Nor have appellants demonstrated
that MSTRWD has regularly considered additional arguments or evidence when a matter
is remanded to consider only reasonable use. Thus, a ppellants have not shown t hat they
are entitled to relief on this issue.
7. Written consent of the downstream landowners
Finally, appellants contend that MSTRWD’s decision was unreasonable and
unlawful because it granted the permit application after ignoring its own rule requiring
written consent of the downstream landowners. To support their position, appellants cite
MSTRWD’s amended rules, which state that “[a]n application for a subsurface tile
drainage or lift station Permit must meet the following requirements: A. Written consent
of owners affected by the proposed work must be obtained and be indicated in the
application.”
MSTRWD contends that the “landowner signature requirement is one of notice, not
one of substance.” This argument is persuasive. As MSTRWD points out, if “MSTRWD
required all downstream landowners (even remote ones) to sign off on a permit application,
it would allow any single downstream landowner to veto a project for any arbitrary reason.”
Moreover, th e record here reflects that Erickson obtained written consent of the
downstream landowners who were willing to consent to his permit application, and the
nonconsenting landowners clearly had notice of the permit application. Under these
15
circumstances, appellants cannot show that Erickson’s failure to obtain their signatures
consenting to his permit application rendered the procedure irregular or unlawful.
Therefore, we conclude that appellants have not shown that MSTRWD’s decision was
unreasonable based upon unlawful or irregular procedures.
II.
Appellants argue that MSTRWD’s decision is unreasonable because there is a lack
of evidence supporting MSTRWD’s (1) initial findings , and (2) “supplemental findings
that Erickson’s drainage of water qualified as reasonable use.” See Stadsvold, 754 N.W.2d
at 332 (noting review based on “whether the evidence could reasonably support or justify
the determination”). These arguments are addressed in turn.
1. MSTRWD’s initial findings
In granting the permit, MSTRWD made nine findings , and later considered and
referenced these findings when making its findings on reasonable use. Appellants
challenge several of these findings, claiming that defects in the findings demonstrate that
MSTRWD’s decision is unreasonable. We disagree.
MSTRWD’s first finding states:
Nordby, PE and . . . Dalager, PE have both provided their
respective professional opinions that the public offtake and
private ditch system in Section 2 Comstock Strip has sufficient
hydraulic capacity for the proposed drain tile, and that the
proposed drain tile will not unreasonably harm or burden the
downstream properties in question.

Appellants argue tha t this finding is unsupported by record evidence because
“neither Nordby, Dalager, nor [MSTRWD] considered the criticisms and deficiencies
16
raised by the EOR” memo. But a lack of agreement with the E OR memo does not mean
that it was not considered. And the EOR memo was not a formal engineering opinion
regarding the adequacy of the proposed outlet for the disputed permit. As such,
MSTRWD’s decision not to credit the memo was reasonable. Moreover, both Nordby and
Dalager provided opinions that the approval of the permit would not unreasonably harm or
burden appellants’ properties. MSTRWD’s first finding is supported by the record.
Next, appellants challenge MSTRWD’s third finding, which states: “Water
discharged from the proposed tile outlet must overflow approximately [one] channel mile
downstream and through at least [three] different culverts that will ultimately meter flows
prior to entering the public offtake and private ditch system.” Appellants argue that
MSTRWD “cited no record evidence about the effects of ‘metering’ the flow of water from
the Project.” But this argument fails to show that the finding is not supported by the record
because the finding does not address the effects of “metering” the flow of water; it simply
states that the three different culverts meter water flowage before entering the public
offtake and private ditch system. Only if this specific finding addressed the “effects” of
metering the water flow from the project would there need to be record evidence on this
point supporting the finding.
Moreover, there is evidence in the record to support the finding. The directional
flow of water discharge from Erickson’s property is in the record, and Erickson’s request
for reconsideration notes that “[t]he water from Sec. 36 is metered through [three] culverts
before it reaches the offtake ditch on [Highway 1], from there it goes through a very well
maintained private ditch.” MSTRWD staff recommendations also state that water
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discharged from Erickson’s property flows through three culverts that metered water flows.
And there is ample evidence in the record addressing the need to meter water flowing from
Erickson’s property to address potential flooding issues. Indeed, MSTRWD specifically
conditioned the permit grant on Erickson’s installation of “a shutoff gate” to be “operated
during flooding conditions.” Therefore, appellants are unable to show that MSTRWD’s
third finding is unsupported by the record.
Appellants further claim that there is no record evidence to support MSTRWD’s
sixth finding, which states: “The privately owned ditch portion of the public offtake and
private ditch system in Section 2 Comstock Strip is an improved natural waterway that is
not farmed through and has been improved since the construction of the AVWRM Project.”
We disagree. Erickson’s permit reconsideration form states that “[f]rom the proposed
outlet, tiled water will flow West in the north CSAH #2 ditch, then continue Wes t in the
Hwy #1 ditch to a 4’ x 8’ Box, then south under Hwy #1 into an improved waterway that
is not farmed.” This form also states that “[d]rainage f or the landowners in Section 2 has
been . . . improved since the construction of the AVRWM [project] impoundment and inlet
ditch.” Moreover, Dalager’s recommendation states that Erickson’s permit application
“requests a permit to discharge tile outlet flows further downstream through a privately
held drainage system that has been improved.” And staff recom mendations provided to
the MSTRWD are consistent with MSTRWD’s finding. As such, there is evidence in the
record to support MSTRWD’s sixth finding.
Finally, appellants contend that MSTRWD’s eighth finding is unsupported by
record evidence. This finding states: “The Minnesota Department of Transportation
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[(MNDOT)] has indicated in writing that [the illegal dike on Zutz Farm’s property] needs
to be removed. Once removed, [appellants’] complaints that the subject private ditch is an
inadequate outlet should be moot.”
A review of the record indicates that MSTRWD’s eighth finding is supported by the
record. In a letter dated February 3, 2022, MNDOT informed MSTRWD’s engineering
technician that it was “made aware” of a levee constructed on Zutz Farms’ property, that
the “levee was not authorized or permitted,” making it “illegal,” and that the levee “must
be removed.” Moreover, in his written request for reconsideration , Erickson stated that
“[e]xcess water that the ditch of . . . Safar and . . . Kalt is receiving . . . can be attributed to
Zutz Farms having diked an offtake ditch.” Additionally, MSTRWD’s written staff
findings address the illegal ditch at length, noting that “the Zutzs constructed the dike
across the opening of a MNDOT offtake ditch located on the west side of Hwy #1,” and
that no “permit was applied for, or granted, for the dike to be built.” The written findings
further state that “Zutz Farms has exacerbated . . . flow and alleged flooding . . . by the
construction of a dike on their property.” And the written findings indicate that, based on
Dalager’s report, the removal of the dike would alleviate flooding concerns related to
Erickson’s permit application. Accordingly, appellants have not shown that MSTRWD’s
eighth finding, or any other of its nine initial findings, are unsupported by record evidence.
2. MSTRWD’s findings on reasonable use
Appellants argue that MSTRWD’s findings on reasonable use are unsupported by
the record. This doctrine provides that a landowner may divert surface water to another’s
land, even if some of the water would not have naturally gone to the other’s land, if:
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(a) there is a reasonable necessity for such drainage;
(b) reasonable care be taken to avoid unnecessary injury to the
land receiving the burden;
(c) the utility or benefit accruing to the land drained reasonably
outweighs the gravity of the harm resulting to the land
receiving the burden;
(d) where practicable, it is accomplished by reasonably
improving and aiding the normal and natural system of
drainage according to its reasonable carrying capacity, or if, in
the absence of a practicable drain, a reasonable and feasible
artificial drainage system is adopted.

Kral v. Boesch , 557 N.W.2d 597, 599 (Minn. App. 1996) (quotation omitted). “No one
factor or circumstance is controlling and what is reasonable use is a fact question to be
resolved depending on the facts of each case.” Id.
Here, in addressing the first reasonable -use criteri on, reasonable necessity,
MSTRWD found that there is “a lack of adequate drainage” on Erickson’s property, and
that the permit was sought to “increase agricultural crop production” in light of the
inadequate drainage. Appellants argue that this finding lacks record support because
“Erickson offered no evidence that the drainage proposed in the Permit Application would
actually increase his agricultural crop production, and, if so, by how much,” and that
“Erickson likewise failed to provide any evidence for why drainage was ‘reasonably
necessary’ to increase his agricultural production over other possible alternatives.”
We are not persuaded. In Goerke, this court noted that, with respect to the permit
application, the watershed board found that “[t]here is a reasonable necessity for such
drainage” because “[e]vidence was presented which shows the land to be tiled is in need
of additional drainage to im prove its crop output.” 857 N.W.2d at 56. This court also
noted that the watershed board found that “[n]o evidence was presented which disputed the
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need for additional drainage.” Id. Consequently, this court determined that there “was a
reasonable basis for the [watershed] board’s decision to grant [the] permit for [the]
proposed drainage system.” Id.
Here, Erickson’s permit application states that the permit was necessary to increase
agricultural production. Similar to Goerke, Erickson’s permit application is evidence that
drain tile is necessary for adequate drainage to improve crop production. See id. Moreover,
MSTRWD found that it “has generally accepted the need for increased crop production as
an acceptable reason for granting a drainage permit, provided there is an adequate outlet
for the proposed drainage project,” and this finding is supporte d by its mission statement.
Furthermore, as in Goerke, appellants presented no evidence disputing Erickson’s need for
the additional drainage. See id. Although Erickson does not state how the drain tile would
increase crop production, this court in Goerke determined, in circumstances similar to those
presented here, that there was a reasonable basis for the watershed district to grant the
applicant’s permit for the proposed drainage system based on the need to “improve crop
output.”1 Id. As such, there is a reasonable basis for MSTRWD’s decision that there was
a reasonable necessity for the proposed drain tile.
With respect to the second criteri on, MSTRWD found that reasonable care was
taken to avoid injury because “[t]he conditions of [the] permit . . . state, ‘CONDITIONS:
A shut off gate must be installed to prevent flows during flooding or freezing conditions.

1 We note that, even if reasonable necessity is not established by simply asserting that the
permit is necessary to “Increase Ag. Production,” reasonable necessity is just one factor to
be considered in the reasonable-use analysis. See Kral, 557 N.W.2d at 599.
21
No discharging of water during flooding or freezing conditions.’” Appellants challenge
this finding, arguing that , “[d]espite [a]ppellants’ pointing to countervailing evidence,
[MSTRWD] failed to acknowledge it.” But appellants’ challenge amounts to an argument
that the record supports an alternative finding, which is not a sufficient basis to disturb
MSTRWD’s finding if it is otherwise supported by record evidence. See In re Civ.
Commitment of Kenney, 963 N.W.2d 214, 223 (Minn. 2021) (stating that a reviewing court
will not disturb a district court’s finding simply because the record might also support
alternative findings).
Moreover, in Nordby’s report, he concluded that Erickson’s permit application
will be governed by the tailwater elevation on the gravity tile
outlet, limiting the ability to drain during flood ing conditions.
During non-flooding conditions the north inlet channel of [the
AVWRM project] and [Judicial Ditch #] 25 -1 will have
capacity to convey this subsurface water with negligible
change in drainage abilities to the exi sting benefited
landowners.

Based in part on Nordby’s report, MSTRWD determined that, but for flooding
conditions, drainage from Erickson’s land would be adequate if the permit were approved.
MSTRWD then conditioned the permit on the installation of a shut -off gate that would
prevent drainage during flooding or freezing conditions to alleviate potential drainage
problems during flooding conditions. Although the EOR memo may have raised doubts
concerning Nordby’s report, EOR’s memo was “NOT EOR’s formal response assessment
regarding [the p]ermit,” and it was not a formal engineering opinion regarding the
adequacy of the proposed outlet for the disputed permit. And MSTRWD was free to reject
evidence that otherwise conflicted with evidence supporting the grant of the permit.
22
Therefore, record evidence supports MSTR WD’s finding that reasonable care was taken
to avoid unnecessary injury to appellants’ land.
Appellants further argue that MSTRWD failed to identify “evidence that the benefit
reasonably outweighed the gravity of harm.” In addressing this reasonable -use factor,
MSTRWD found that two engineers determined that the proposed drain tile would have a
negligible burden on appellants’ land and that any burden on appellants’ land would be
mitigated by the instillation of an operable gate to limit and prevent the discharge of water
during flooding conditions. MSTWRD also found that “despite the opportunity that was
provided, [appellants] did not issue any evidence of harm to their land prior to MSTRWD
granting th[e] permit.” And in discussing reasonable necessity, MSTRWD found that the
permit was necessary to increase agricultural production on Erickson’s land. MSTRWD,
therefore, determined that “[t]here is evidence in the record to suggest that the permitted
tile will provide a drainage benefit to the drained lands with a negligible change to the
drainage abilities of the properties downstream.”
Appellants contend that MSTRWD’s findings are unsupported by the record
because (1) Erickson offered no evidence that the permitted tile would increase crop
production; (2) the EOR memo raised concerns related to the engineers’ reports supporting
the grant of the permit; (3) appellants “offered several statements” supporting their position
that the permitted tile would harm their land; and (4) appellants were refused the
opportunity to present evidence supporting thei r claim that the permitted tile would ha rm
their land. But as we addressed above, the arguments made by appellants do not provide a
basis to reverse. And the record reflects that, other than their bald assertions , appellants
23
provided no evidentiary support for their claim that the permitted drain tile would harm
their land. Thus, appellants have failed to meet their burden of showing that MSTRWD’s
findings with respect to this reasonable-use factor are unsupported by record evidence.
In sum, MSTRWD’s findings related to reasonable necessity, reasonable care to
avoid injury, and whether the benefit of granting the permit is outweighed by any harm to
appellants, are supported by the record. MSTRWD also found that “[t]here is evidence in
the record that indicates that the permitted tile system is reasonable and aids the natural
system to its reasonable carrying capacity.” And MSTRWD made findings related to other
factors that it deemed relevant, including its original findings addressing the illegal levee
on Zutz Farms’ land, and appellants’ failure to provide evidence of their claims in a timely
manner. These factors are supported by the record and are not challenged on appeal. 2
Accordingly, appellants have not shown that MSTRWD’s decision was unreasonable
because it lacked record support.
III.
Appellants’ final contention is that MSTRWD’s decision was arbitrary and
capricious. A decision is arbitrary and capricious if it is an exercise of will, rather than
judgment. CUP Foods, Inc. v. City of Minneapolis , 633 N. W.2d 557, 565 (Minn. App.
2001), rev. denied (Minn. Nov. 13, 2001). “Even if the [local authority’s] decision is

2 In their reply brief, appellants contend that MSTRWD’s “reliance on other factors have
no bearing on whether its findings lacked substantial evidence.” But appellants’ challenge
to these factors is made for the first time in their reply brief and, we therefore decline to
consider it. See Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010)
(recognizing that raising issues for the first time in a reply brief is “not proper practice and
is not to be permitted”).
24
debatable, so long as there is a rational basis for what it does, the courts do not interfere.”
Mendota Golf, LLP v. City of Mendota Heights , 708 N.W.2d 162, 180 (Minn. 2006)
(quotation omitted). The party challenging the decision bears the burden of proving it was
legally insufficient or factually unsupported. Sagstetter v. City of St. Paul , 529 N.W.2d
488, 491 (Minn. App. 1995).
Appellants argue that the following irregularities in MSTRWD’s procedure
“strongly suggest that [MSTRWD] acted arbitrarily and capriciously”: (1) “arbitrarily”
setting the January 28, 2022, deadline to submit new information; (2) “unilaterally”
applying the “specific cut-off time by which [new] submissions were to be received”; (3)
“slow-walk[ing] its responses to [a]ppellants’ information requests”; and (4) “invent[ing]
rules and policies to selectively apply on-the-fly to [a]ppellants, while selectively choosing
to ignore [MSTRWD’s] actual rules that, if applied, would have resulted in denial of the
Permit Application.” We disagree.
As explained above, the January 28, 2022, deadline was based on MSTRWD’s own
rule that requests for reconsideration be heard within 120 days of the request. Moreover,
the deadline to submit new materials was established to allow MSTRWD time to review
the materials. Furthermore, appellants fail to point to any evidence that MSTRWD’s
response time to appellants’ January 14, 2022 , requests for information was abnormal or
in violation of a procedural rule or norm. And appellants point to no other alleged
procedural irregularity that departed from MSTRWD’s procedural norms. Consequently,
appellants are unable to substantiate any of the alleged irregularities that would suggest
that MSTRWD acted arbitrarily or capriciously.
25
Appellants also contend that MSTRWD “acted arbitrarily and capriciously in that it
failed to consider important aspects of the Permit Application, focusing instead on matters
that had nothing to do with the Permit Application itself.” To support their po sition,
appellants refer to some “internal notes” provided by a MSTRWD engineering technician
alleging that Erickson’s costs of legal representation and construction were increased by
appellants’ requests for a two -week extension to provide EOR’s formal an alysis. And
appellants claim that the engineering technician “ignored any substantive analysis of the
actual drainage proposed by the Permit Application itself, instead choosing to focus on the
alleged ‘dike.’” Appellants argue that “[t]hese consideratio ns were entirely unrelated to
[MSTRWD’s] decisions on the Permit Application,” and that MSTRWD’s reliance on
these considerations rendered the permit decision arbitrary and capricious.
We disagree. There is nothing in MSTRWD’s findings indicat ing that MSTRWD
considered Erickson’s costs of legal representation or construction in granting the permit.
Instead, the findings indicate that MSTRWD focused on the relevant issue before it —
whether it was necessary for Erickson to install drain tile to improve crop production, and
whether the drain-tile installation would adversely affect the downstream landowners. And
despite appellants’ argument to the contrary, MSTRWD’s consideration of the illegal dike
on Zutz Farms’ property was a relevant consideration because, as MSTRWD found, the
dike “appears to contribute to any flooding of the [a]ppellants’ land.” The record reflects
that MSTRWD considered all the evidence presented, and there is a rational connection
between the facts found by MSTRWD and its decision to grant the permit. See Mendota
26
Golf, 708 N.W.2d at 180 . Accordingly, appellants have not show n that MSTRWD’s
decision is arbitrary or capricious.
Affirmed.