State of Minnesota by Peters Sunset Beach, Inc., 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This opinion is nonprecedential except as provided by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
A24-0804

State of Minnesota by Peters Sunset Beach, Inc., et al.,
Appellants,

vs.

Pope County,
Respondent.

Filed December 9, 2024
Affirmed; motion to supplement record denied and motion to strike granted
Bjorkman, Judge
Concurring specially, Larson, Judge

Pope County District Court
File No. 61-CV-22-310

James P. Peters, Law Offices of James P. Peters, PLLC, Glenwood, Minnesota (for
appellants)

Gerald W. Von Korff, Hannah J. Schacherl, Rinke Noonan, Ltd., St. Cloud, Minnesota (for
respondent)

Considered and decided by Larson, Presiding Judge; Worke, Judge; and Bjorkman,
Judge.
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
Appellants challenge the summary judgment dismissing their claims against
respondent-county under the Minnesota Environmental Rights Act (MERA), Minn. Stat.
§ 116B.01-.13 (2022), arguing that (1) the district court erred in concluding that Minn. Stat.
2
§ 116B.10 does not permit an action against respondent, and (2) genuine issues of material
fact preclude summary judgment as to their claim under Minn. Stat. § 116B.03. They also
challenge the district court’s denial of their motion to amend the complaint and move this
court to consider two documents not included in the district court record. Respondent
moves this court to strike references to one of the extra-record documents in appellants’
reply brief. We deny the motion to supplement the record and grant the motion to strike,
and we affirm.
FACTS
This appeal concerns a section of County State Aid Highway 17 that runs along the
shore of Lake Minnewaska and is known as South Lakeshore Drive (the highway). The
highway has two driving lanes and residential speed limits. It has no “clear zone” along
its edge, so many trees and other obstacles are located near the highway. Pedestrians cross
the highway to access the lake, particularly near the historic resort operated by appellant
Peters Sunset Beach Inc. (Peters), which sits across the highway from the lake.
Respondent Pope County (the county) proposes to reconstruct the highway. The
proposed reconstruction project (the project) involves replacing the highway with a newly
paved roadway that will be within the existing right-of- way; have two ten-foot driving
lanes and three- foot paved shoulders; and have the same speed limits. The project also
calls for a new five-foot clear zone, necessitating the removal of trees along the highway.
1

1 The Minnesota Department of Transportation (MnDOT) granted variances allowing the
driving lanes to be narrower than the standard 11 feet and the clear zone to be narrower
than the standard nine feet.
3
In September 2022, Peters and two other businesses along the highway that oppose
the project, appellants Sunset Beach Cottage Owners Association Inc. and Pezhekee Inc.
(collectively, the businesses), initiated this action against the county under two MERA
provisions, Minn. Stat. § 116B.03 (civil action against any actor) and Minn. Stat.
§ 116B.10 (civil action against the state or its instrumentalities). The complaint alleg es
that the project will increase the roadway’s impervious surface area by 30 to 40 percent
and thereby adversely affect water resources, public safety, historical and cultural
resources, quietude, human health, air quality, and scenic and aesthetic resources. And the
complaint seeks (1) a declaration that they have made a prima facie showing under MERA
that the project will cause pollution, impairment, or destruction of natural resources ; and
(2) a permanent injunction against the project.2
Meanwhile, the county continued preparations for the project. In April 2023, the
county determined that the project will comply with the shoreland-management ordinance
and, because of expected changes in the flood-hazard map, also comply with its floodplain-
management ordinance. The businesses did not appeal those determinations. And in mid-
June, the Minnesota State Historic Preservation Office preliminarily opined that the project
is unlikely to adversely affect “the integrity of [Peters’s historic resort]” but requested an
“opportunity to review the final design plans.”

2 The businesses also sought temporary relief to prevent the county from removing trees
near the highway, which the district court denied. The businesses did not appeal the denial
of injunctive relief.
4
At the end of July, the businesses moved to amend their complaint to add allegations
that the project violates the county’s shoreland-management and floodplain-management
ordinances and to assert those alleged violations as additional bases for their MERA claims
and as independent causes of action. Almost simultaneously with the businesses’ motion,
the county moved for summary judgment on the MERA claims. The county also opposed
the motion to amend the complaint, arguing that amendment would be futile. The district
court conducted a hearing on both motions in September.
Over the next several months, while the motions were pending, the county secured
various permits and approvals for the project. First, the Minnesota Pollution Control
Agency (MPCA) granted the county coverage for the project under a general permit to
discharge stormwater associated with construction activity; as part of the permit, the
MPCA required the county to develop a storm-water pollution-prevention plan. Thereafter,
MnDOT gave final approval for the project; the historic-preservation office gave its final
confirmation that the project is unlikely to adversely affect the historic resort; and the
county issued shoreland-alteration and floodplain-development permits for the project.
The businesses appealed the permitting decisions to the county board of adjustment, which
upheld the decisions. The businesses then appealed the board of adjustment’s decision to
the district court in a separate matter.
3

3 The district court affirmed the board of adjustment. Peters Sunset Beach, Inc. v. County
of Pope, No. 61-CV-24-151 (Minn. Dist. Ct. Oct. 31, 2024). The record before the district
court in this matter contains only evidence of the appeal to the board of adjustment, not the
subsequent district court appeal. But the parties address the district court appeal in their
briefing, and it is a matter of public record.
5
Shortly after the MPCA granted coverage under the general permit, the county
brought it to the district court’s attention, and the district court reopened the record to
receive evidence of the additional developments regarding the project, including the
businesses’ permitting appeal. The district court took the matter under advisement in early
January 2024 and thereafter issued a written decision addressing both of the pending
motions. It granted summary judgment, reasoning that (1) the businesses cannot pursue
relief against the county under Minn. Stat. § 116B.10 because that provision only permits
an action against the state or a state agency or instrumentality; (2) the language of Minn.
Stat. § 116B.03 prevents the businesses from pursuing relief against the county for any
action taken pursuant to the MPCA permit, which precludes claims pertaining to water
issues; and (3) the businesses’ other claims under Minn. Stat. § 116B.03 concern claims of
pollution, impairment, or destruction of resources outside the ambit of MERA or for which
there is no evidence. And the district court denied the motion to amend the complaint as
futile because (1) to the extent the proposed amendments bear on MERA claims, they fail
under the MERA summary-judgment analysis; and (2) to the extent they assert non-MERA
challenges to the county’s exercise of its zoning authority, they are outside the district
court’s subject-matter jurisdiction.
The businesses appeal.

6
DECISION
I. We deny the businesses’ motion to consider two extra-record documents and
grant the county’s motion to strike references to one of those documents.

The businesses move this court to consider two documents that were not presented
to the district court: (1) a September 2022 email between MPCA staff regarding a
conversation with the county engineer; and (2) a version of the county engineer’s May
2023 report for the project, as well as metadata from the pdf of the report. The county
opposes this motion to effectively supplement the record; it also notes that the businesses
referred to and included an image of the email in their reply brief and moves this court to
strike those portions of the reply brief.
The record on appeal consists of “[t]he documents filed in the [district] court, the
exhibits, and the transcript of the proceedings, if any.” Minn. R. Civ. App. P. 110.01. “An
appellate court may not base its decision on matters outside the record on appeal, and may
not consider matters not produced and received in evidence below.” Thiele v. Stich, 425
N.W.2d 580, 582-83 (Minn. 1988). We will strike documents in a party’s brief that are not
in the appellate record. Est. of King, 992 N.W.2d 410, 415 (Minn. App. 2023).
The businesses first argue that we should “correct[]” the record under Minn. R. Civ.
App. P. 110.05 by considering the documents they proffer. But the documents were not
erroneously omitted from the record; they were never presented to the district court. As
such, rule 110.05 does not apply. They next ask us to take judicial notice of the documents,
invoking the principle that an appellate court may take judicial notice of “public records”
and “look beyond the record where the orderly administration of justice commends it.”
7
Eagan Econ. Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523, 530 (Minn. 2010)
(quotation omitted) . The businesses contend the documents in question are properly
subject to judicial notice because they are “public documents created by government
entities.” But they cite no authority permitting an appellate court to take judicial notice of
documents simply because they were created by public employees. To the contrary, the
orderly administration of justice commends that we confine our review to the record
presented to the district court. We therefore deny the businesses’ motion to supplement
the record and grant the county’s motion to strike the portions of the businesses’ reply brief
that reference the extra-record MPCA email.
II. The county is entitled to summary judgment on the businesses’ MERA claims.
Summary judgment is appropriate if the record shows there is “no genuine issue as
to any material fact” and the moving party “is entitled to judgment as a matter of law.”
Minn. R. Civ. P. 56.01. We review a grant of summary judgment de novo to determine
whether genuine issues of material fact exist and whether the district court properly applied
the law. Friends to Restore St. Mary’s, LLC v. Church of St. Mary, 934 N.W.2d 130, 134
(Minn. App. 2019), rev. denied (Minn. Nov. 19, 2019). In doing so, we view the evidence
in the light most favorable to the party against whom summary judgment was
granted. SVAP III Riverdale Commons LLC v. Coon Rapids Gyms, LLC, 967 N.W.2d 81,
84 (Minn. App. 2021).
The businesses argue that summary judgment is unwarranted because (1) the district
court erred by concluding that Minn. Stat. § 116B.10 does not permit an action against the
8
county, and (2) there are genuine issues of material fact as to whether they are entitled to
relief under Minn. Stat. § 116B.03.
A. Under the facts of this case, the businesses cannot pursue an action
against the county under Minn. Stat. § 116B.10.

Interpretation of a statute is a question of law that we review de novo. State by
Smart Growth Minneapolis v. City of Minneapolis, 954 N.W.2d 584, 590 (Minn. 2021).
When interpreting a statute, we seek to “ascertain and effectuate the intention of the
legislature.” Minn. Stat. § 645.16 (2022). We read statutory language according to its
plain and ordinary meaning. Smart Growth, 954 N.W.2d at 590. We also consider the
statute as a whole and interpret each section in light of surrounding sections “to avoid
conflicting interpretations.” White Bear Lake Restoration Ass’n ex rel. State v. Minn. Dep’t
of Nat. Res., 946 N.W.2d 373, 383 (Minn. 2020). “If the legislative intent is clear, we
apply the statute’s plain meaning.” Id. at 379.
MERA announces “that each person is entitled by right to the protection,
preservation, and enhancement of air, water, land and other natural resources, ” and
provides for declaratory or equitable relief for those who seek to protect these resources
“from pollution, impairment, or destruction.” Minn. Stat. §§ 116B.01, .07. One means of
obtaining this relief is an action “against the state or any agency or instrumentality thereof”
under Minn. Stat. § 116B.10, subd. 1. The businesses argue that — as a matter of law—a
county is an “agency or instrumentality” of the state under this provision because counties
and other political subdivisions are creations of the state. We are not persuaded by this
categorical argument for two reasons.
9
First, while MERA does not define “agency or instrumentality” of the state, the
terms “agency” and “instrumentality” commonly indicate not merely a government
creation but an entity that is part of the government in question and authorized to act on its
behalf. See The American Heritage Dictionary of the English Language 32, 910 (5th ed.
2018) (defining “agency” as “[a]n administrative division of a government” and
“instrumentality” as a “subsidiary branch, as of a government, by means of which functions
or policies are carried out”); see also In re Restorff, 932 N.W.2d 12, 19 (Minn. 2019) (“In
the absence of statutory definitions, [courts] often look to dictionary definitions to
determine the plain meaning of a statute’ s terms.”). Indeed, MERA itself distinguishes
between a “political subdivision of the state” and an “instrumentality or agency of the state”
by listing them separately as potential defendants in an action under Minn. Stat. § 116B.03,
subd. 1. This plain language shows that the legislature did not intend for counties to be
always subject to suit under Minn. Stat. § 116B.10.
Second, t he businesses present us no reason to conclude that, despite this plain
language, the county is a proper defendant in this suit. They purport to identify numerous
cases allowing “MERA claims to proceed” against counties and cities; none of the cited
cases involves a claim under Minn. Stat. § 116B.10, let alone embraces the interpretation
of that statute that they urge. And the businesses do not assert, as a matter of fact, that even
if counties are not always agencies or instrumentalities of the state, the county is acting as
such for purposes of the project. Accordingly, we need not decide what facts would satisfy
such an assertion.
10
In sum, because Minn. Stat. § 116B.10 plainly permits an action only against the
state or an agency or instrumentality that is acting on behalf of the state, and the businesses
advance no claim that the county is such an actor, we conclude that the businesses cannot
pursue an action against the county under that provision.4
B. The businesses’ claims under Minn. Stat. § 116B.03 fail as a matter of
law.

MERA also provides that any person may bring an action “in the name of the state
of Minnesota against any person” to protect “natural resources” in the state from “pollution,
impairment, or destruction.” Minn. Stat. § 116B.03, subd. 1. In challenging summary
judgment on their claims under this provision, the businesses focus on their allegations that
the project will pollute, impair, or destroy (1) water resources, (2) public safety, and
(3) historical resources.5 None of the businesses’ arguments persuade us to reverse.

4 We also observe that the legislature not only identified the possible defendants in an
action under this provision of MERA but also specified the type of decision subject to
challenge—“ an environmental quality standard, limitation, rule, order, license, stipulation
agreement, or permit promulgated or issued by the state or any agency or instrumentality
thereof for which the applicable statutory appeal period has elapsed.” Minn. Stat.
§ 116B.10, subd. 1. The businesses do not address this equally important statutory
criterion.

5 The district court also rejected the businesses’ allegations that the project will pollute,
impair, or destroy cultural resources, human health, air quality, and scenic and aesthetic
resources. Because the businesses do not address the district court’s rejection of these
bases for their MERA claim in their appellate briefs, they have forfeited any argument on
those issues. Ward v. El Rancho Manana, Inc., 945 N.W.2d 439, 448 (Minn. App. 2020),
rev. denied (Minn. Sept. 29, 2020).
11
Water Resources
While Minn. Stat. § 116B.03 has a broad reach, White Bear Lake Restoration, 946
N.W.2d at 379-80, it also has an exception. “[N]o action shall be allowable [under Minn.
Stat. § 116B.03] for conduct taken by a person pursuant to any . . . permit issued by [the
MPCA].” Minn. Stat. § 116B.03, subd. 1. This no-action clause “bars” actions against
“permit holders operating in compliance with a permit.” White Bear Lake Restoration, 946
N.W.2d at 383-84.
The district court determined that the no-action clause bars the businesses from
bringing a MERA claim based on the project’s impact to water resources because any such
impact would result from conduct the county undertook pursuant to the MPCA permit. The
businesses criticize this determination but do not argue that the alleged impacts to water
resources would not be the result of stormwater runoff —the conduct governed by the
MPCA permit— or otherwise directly address whether the no-action clause applies.
Instead, they recount factual disputes regarding the project’s anticipated effect on
water resources (in particular, the increase in impervious surface area and resulting
stormwater runoff), which would be material only if the no-action clause did not apply.
And they cite inapposite caselaw and other MERA provisions that do not disturb
application of the no -action clause. The businesses’ reliance on White Bear Lake
Restoration is misplaced; that case holds only that the no-action clause does not insulate
the state agency that issues the permit, a situation that is not present in this case. 946
N.W.2d at 384- 85. Similarly, their invocation of the MERA provision stating that the
rights and remedies in MERA are “in addition to any administrative, regulatory, statutory,
12
or common law rights and remedies,” Minn. Stat. § 116B.12, has no bearing on whether
the no-action clause applies in this instance. They also argue that “even if some aspects of
the project have received permits, [they] are still entitled to pursue their broader MERA
claims” regarding the project, which is a proposition consistent with the determination that
the no-action clause bars only water- related claims. And their contention that the MPCA
permitting process was flawed because the county misrepresented the project to the MPCA
and they had “no meaningful chance” to participate in the MPCA permitting process,
challenges the MPCA’s decision to grant the permit, not the county’s actions in
undertaking the project pursuant to the permit.
In sum, because the businesses do not dispute that the county’s conduct affecting
water resources will be undertaken “pursuant to” the MPCA permit, the no-action clause
bars their claims related to the project’s effect on water resources.
Public Safety
If the no-action clause does not bar suit, a plaintiff may move forward with a MERA
claim under Minn. Stat. § 116B.03 only if they make a prima facie showing that the
defendant’s conduct “has, or is likely to cause the pollution, impairment, or destruction of
the air, water, land or other natural resources located within the state.” Minn. Stat.
§ 116B.04(b). To do so, they must show “(1) a protectable natural resource, and
(2) pollution, impairment or destruction of that resource.” Smart Growth, 954 N.W.2d at
594 (quotation omitted).
With respect to the first requirement, MERA defines “natural resources” as
including, but not limited to, “all mineral, animal, botanical, air, water, land, timber, soil,
13
quietude, recreational and historical resources.” Minn. Stat. § 116B.02, subd. 4. Looking
principally to this definition, the district court determined that public safety is not a “natural
resource” within the scope of MERA. To persuade us otherwise, the businesses advance
three arguments.
First, they argue that MERA expressly recognizes recreational resources as natural
resources and harm to public safety will harm recreational resources. But they did not
present this argument to the district court. We generally consider only those arguments
presented to and decided by the district court. Thiele, 425 N.W.2d at 582. Even if we
entertained the argument, it would fail. The possibility that public-safety issues may impair
the ability to recreate does not mean that public safety is, itself, a natural resource such that
impairment of public safety can independently support a MERA claim.
Second, the businesses assert that public safety is a natural resource because it is
part of the environmental review that the Federal Highway Administration (FHA) conducts
for road projects. This argument is unavailing. The businesses cite only a single page from
FHA’s website that broadly addresses safety, not safety as a natural resource or other
environmental consideration. And they identify no legal authority in support of importing
FHA standards into MERA’s definition of natural resources.
Finally, the businesses contend public safety should be considered a MERA natural
resource because MERA “must be broadly construed to effectuate its sweeping remedial
purposes.” But construing the MERA definition of “natural resources” broadly does not
mean that it has no limits; the resource in question must be part of the environmental milieu
that MERA seeks to protect. See Stansell v. City of Northfield, 618 N.W.2d 814, 820
14
(Minn. App. 2000) (stating that “economic and cultural factors” are “beyond MERA’s
intended scope”), rev. denied (Minn. Jan. 26, 2001); see also Minn. Stat. § 116B.01
(describing as part of MERA’s purpose “creat[ing] and maintain [ing] within the state
conditions under which human beings and nature can exist in productive harmony”).
In sum, because the businesses have not demonstrated that public safety is a “natural
resource” within the scope of MERA, their MERA claim premised on impairment of public
safety fails as a matter of law.
Historical Resources
MERA identifies “historical resources” as natural resources within its scope. Minn.
Stat. § 116B.02, subd. 4. Still, a plaintiff asserting a claim under Minn. Stat. § 116B.03
must be able to show that the defendant’s conduct has or is likely to pollute, impair, or
destroy a historical resource. Smart Growth, 954 N.W.2d at 594.
The district court determined that, while the resort whose property abuts the
highway is a historical resource, there are no genuine fact issues material to the question
of whether the project will pollute, impair, or destroy that historical resource because the
project will occur entirely within the highway’s existing right-of- way. The businesses
argue that several documents in the record show a fact issue.
They first point to historical documents (the most recent from 2010) that
demonstrate longstanding community support for the resort, nostalgia for the highway’s
origin as a cartway, and opposition to any changes to the highway. None presents a fact
issue as to the project’s effect on a historical resource. Because the documents are all more
than a decade old, none actually addresses the project itself. And more importantly, none
15
even suggests that the highway is itself a historical resource or that its reconstruction within
the existing right-of-way will adversely affect the historic resort.
The businesses also point to an expert report stating that the updated roadway will
“isolat[e]” the historic resort from the lake. But this is neither an impairment of the resort’s
historical features nor a result of the project, as the highway already sits between the resort
and the lake. Also, to the extent that the businesses argue that the project will impair the
desirability and, by extension, the financial prospects of the historic resort, that economic
consideration is outside the scope of MERA. See Stansell, 618 N.W.2d at 820 (stating that
“historical resources” excludes economic and cultural factors, which are “beyond MERA’s
intended scope”).
Finally, the businesses argue that the historical preservation office’s late-2023
opinion that the project will not adversely affect the historical features of the resort cannot
eliminate fact issues as to the project ’s effect on historical resources. They criticize that
opinion as inconsistent with the office’s “initial[]” statement that the project “does have
the potential to adversely affect” the resort. But that statement was rendered in November
2022 as an informal response to the businesses’ description of the project. That the office
later formed a different opinion, after formal review of the final project plan, does not
undermine that opinion or otherwise suggest a fact issue as to the effect of the project on
historical resources.
6

6 Within the businesses’ discussion of historical resources in their reply brief, they mention
“quietude,” which is a natural resource within the scope of MERA. Minn. Stat. § 116B.02,
subd. 4. But the businesses did not address quietude in their principal appellate brief, and
the discussion in their reply brief is not responsive to any argument from the county, which
16
In sum, the no-action clause bars a claim based on the project’s anticipated effects
on water resources because of the MPCA permit, and the businesses have not demonstrated
a genuine issue of material fact as to a prima facie case based on the project’s effect on
public safety or historical resources. Accordingly, the county is entitled to summary
judgment on the businesses’ claims under Minn. Stat. § 116B.03.
III. The district court did not commit reversible error by denying the businesses’
motion to amend the complaint.

As applicable here, the rules of civil procedure permit a party to amend a pleading
only with “leave of court” or the other party’s written consent. Minn. R. Civ. P. 15.01.
The court must “freely” give leave to amend “when justice so requires.” Id. But “[a]
plaintiff may not amend the complaint if the proposed amendment would be futile because
it would serve no useful purpose.” U.S. Bank Nat’l Ass’n v. RBP Realty, LLC, 888 N.W.2d
699, 705 (Minn. App. 2016), rev. denied (Minn. Apr. 18, 2017). This is the case if “the
additional claim could not survive summary judgment.” Bebo v. Delander, 632 N.W.2d
732, 740 (Minn. App. 2001), rev. denied (Minn. Oct. 16, 2001). On appeal, we review the
denial of a motion to amend a pleading for an abuse of discretion. U.S. Bank, 888 N.W.2d
at 705. We will not reverse absent an abuse of discretion that is “clear,” Bebo, 632 N.W.2d
at 740, and affects a party’s substantial rights, Minn. R. Civ. P. 61.
The businesses challenge the district court’s denial of their motion to amend the
complaint to add allegations that the county will, in completing the project, violate its

does not address the issue in its brief. Consequently, the businesses have forfeited any
argument regarding quietude. See Ward, 945 N.W.2d at 448.
17
ordinances governing shoreland and floodplain management. In denying the motion to
amend, the district court construed the amended complaint as bringing both MERA claims
and zoning challenges based on the county ordinances.7
In denying the motion to amend with respect to the MERA claims, the district court
concluded that amendment would be futile because the claims amount to additional
allegations of adverse impacts on water resources under Minn. Stat. § 116B.03 and
therefore are barred by the no-action clause because of the MPCA permit. The businesses
do not argue that the district court’s MERA analysis, including its application of the no-
action clause, was in error. Accordingly, they have forfeited any such argument. See Ward,
945 N.W.2d at 448.
In denying the motion to amend with respect to the zoning challenges, the district
court determined that it lacked subject-matter jurisdiction.
8 The businesses assert that this
constitutes an abuse of discretion because the district court has jurisdiction to hear MERA
and zoning claims “in tandem.” This argument does not persuade us to reverse because,
even if the district court abused its discretion by denying the motion to amend to include

7 In their memorandum in support of their motion to amend, the businesses asked the
district court to apply this construction.

8 We note that the district court applied its subject-matter jurisdiction analysis only to the
zoning challenges, not the MERA claims . Nor could it apply this analysis to the MERA
claims, as we have repeatedly concluded “that the availability of alternative administrative
processes” does not preclude a district court’s jurisdiction over a MERA claim. State
ex rel. Swan Lake Area Wildlife Ass’n v. Nicollet Cnty. Bd. of Cnty. Comm’rs, 711 N.W.2d
522, 525 (Minn. App. 2006), rev. denied (Minn. June 20, 2006); see also State ex rel. Fort
Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 177
(Minn. App. 2003), rev. denied (Minn. Mar. 16, 2004).
18
the zoning challenges, the businesses were not prejudiced as they were able to—and did—
pursue these claims in their district court permitting appeal. See Minn. R. Civ. P. 61.
Affirmed; motion to supplement record denied and motion to strike granted.

CS-1

LARSON, Judge (concurring specially)
I concur with the opinion of the court. With respect to the businesses’ motion to
amend the complaint, I agree the businesses failed to argue that the district court’s
application of the no-action cause was an error. I write separately to note my skepticism
that the no-action clause would preclude a claim regarding shoreland and floodplain
management when the permit the Minnesota Pollution Control Agency issued related
solely to stormwater. See Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 744 (8th
Cir. 2004) (“ Requiring a direct conflict with agency action to find preemption takes
cognizance of both the language in section 116B.03, subd. 1 . . . and the language of Minn.
Stat. § 116B. 12 . . . .”).