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Supreme Court rules against Kandiyohi County in gravel case

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Willmar, 56201

Willmar Minnesota 2208 Trott Ave. SW / P.O. Box 839 56201

WILLMAR -- The Minnesota Supreme Court on Thursday rejected Kandiyohi County's environmental review process for two proposed gravel pits near Eagle Lake and Long Lake.

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The high court's ruling said Kandiyohi County's 2003 conclusion that the gravel pits would not have a cumulative impact on the environment was "arbitrary and capricious" and was based primarily on statements by the developer, Duininck Bros. Construction of Prinsburg, and not based on evidence. The court said there's no proof that the county took a "hard look" at studying the cumulative impact of other gravel pits in the area before deciding not to require Duininck Bros. to complete an environmental impact statement on the two proposed pits. The county determined in July of 2003 that the less stringent environmental assessment worksheet was adequate and more extensive environmental review wasn't necessary.

The citizens group that initiated the lawsuit argued that the county's action of approving numerous gravel pits and not requiring environmental impact statements because there was no environmental harm with an individual pit would be like the "death of a thousand cuts."

In the ruling, the Supreme Court justices said the county "made an error of law when it determined that 'to show a cumulative negative impact [on the environment], there must be reason to believe that each project in itself will at least have a significant negative impact to the environment.'"

Writing for the court, Justice Paul H. Anderson wrote that the county's interpretation of the rule -- not looking at other nearby gravel pits for an environmental review -- "could lead to absurd results."

The ruling said that the county's interpretation of potential environmental effects means that they could "simply ignore most other projects in the surrounding area of the proposed project, as if those other projects and their environmental consequences vanished from the map for environmental review purposes as soon as they were developed."

The court also said the county didn't use "any independent scientific data, agency opinions, or studies regarding cumulative potential effects, and there is no indication that the county ever sought any information on cumulative potential effects aside from Duininck's assurances that there would not be any."

The Supreme Court did not say that an environmental impact statement is necessary in this case. The ruling sends the matter back to Kandiyohi County for a new administrative determination.

That will likely mean that the County Board will again consider whether or not to require Duininck Bros. to complete an environmental impact statement on the two gravel pits. This time, the board will need to incorporate the direction of the Supreme Court on what that analysis should include.

Legal process

The Supreme Court decision comes after a lawsuit was initiated in January of 2004 by a group calling themselves Citizens Advocating Responsible Development. The case traveled from District Court to the Appeals Court and finally the Supreme Court. (See accompanying timeline.)

"It was a long haul," said Bob Foley, an original member of the citizens group.

He said they are "gratified to receive conclusive and unequivocal support for our position. And we look forward to a good-faith response by the county."

"It's a terrific day for the environment and a good day for democracy and an encouraging day for people who want to do something about government," said Alan Welle, another member of the citizens group.

Kandiyohi County Administrator Wayne Thompson said he expects the County Board will meet with its attorney, Jay Squires, to discuss the details of the ruling and what it could mean for board action on future applications for permits. Thompson said he was surprised with the outcome, in part because of the potential implications for environmental review of projects that could go "beyond gravel pits."

County Attorney Boyd Beccue said the county will need legal advice on "exactly how to implement the directive of the court." He said he wished the "road map" the Supreme Court provided had been a little clearer.

Beccue said the Legislature may have to address questions regarding cumulative impact to make it easier for local units of government to correctly follow the law.

Confusing language

The win wasn't totally satisfying for the citizens group.

John Mack, the attorney representing the group, said he was "gratified that we won" but said wording in the 34-page, "multifaceted" ruling could provide a "recipe for the next war."

The Court sided with the county on several areas and said questions raised by CARD on erosion, air pollution, mitigation and ground water regarding the proposed pits were not problems.

He said some details of the court's decision were complicated and could give "ammunition to both sides" for continued debate, which will continue when the county again takes up the issue of these two gravel pits. "The ball is now in the County Board's court," said Mack.

Citizens Advocating Responsible Development had argued that the terms "cumulative impact" and "cumulative potential effects" have the same meaning when it comes to applying state law.

The court didn't agree and said the terms have different meanings and different legal criteria.

Donald Walser, the attorney representing Duininck Bros., said he was "real pleased with what the Supreme Court did." He said the court sided with the county on many points and clarified the meaning of cumulative environmental impact. Walser said when the county takes up this case again, Duininck Bros. will submit the necessary additional evidence to show that another gravel pit will not have a cumulative impact on the environment.

Walser predicted that the County Board will once again come to the same conclusion -- that an environmental impact statement is not necessary.

Even Justice Barry Anderson, who submitted separate comment with the opinion, said it didn't appear an environmental impact statement was necessary in this case. Anderson also wrote that the exhaustive environmental reviews can be a big burden of time and money, costing about $100,000.

"The issue is not whether an environmental impact statement is necessary, it's whether the county followed the appropriate process in making its determination," said Marie Ostby, another member of Citizens Advocating Responsible Development. "The Supreme Court found the County Board process deficient."

The Minnesota Center for Environmental Advocacy and the National Wildlife Federation, which together filed a brief supporting the topic of analyzing cumulative environmental effects, said the court's decision tells local governments and developers that they must assess the potential for environmental impacts from similar operations before going ahead with individual plans.

"The Supreme Court's decision today ensures we won't look back and realize we've destroyed an important resource through small, incremental changes to the landscape," said Janette Brimmer, legal director at Minnesota Center for Environmental Advocacy.

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