On August 29, 2014, Minnesota’s Ramsey County District Court ruled on summary judgment motions in a suit against the Minnesota Department of Natural Resources (DNR) regarding record low water levels in the Twin Cities’ White Bear Lake and the Prairie du Chien-Jordan Aquifer. White Bear Lake Restoration Ass. v. Minn. Dept. of Nat. Res., Slip Copy (No. 62-CV-13-241.4) (Ramsey Cty Dist. Ct., Aug. 29, 2014).

The Minnesota DNR reported that White Bear Lake reached its lowest level ever in January 2013. (Source: http://www.mprnews.org/story/2013/07/01/white-bear-lake-levels, Photo by Jeffrey Thompson)

The Minnesota DNR reported that White Bear Lake reached its lowest level ever in January 2013. (Source: http://www.mprnews.org/story/2013/07/01/white-bear-lake-levels, Photo by Jeffrey Thompson)

Plaintiff White Bear Lake Restoration Association claimed that DNR’s water appropriation permitting decisions caused the low surface and groundwater levels in violation of the Minnesota Environmental Rights Act (MERA, Minn. Ch. 116B). Intervenor White Bear Lake Homeowners’ Association additionally claimed that DNR’s actions violated the public trust doctrine. The DNR moved for summary judgment on all plaintiffs’ claims.

The crux of the plaintiffs’ MERA claim—which was brought under Minn. Stat. 116B.03 (general civil actions), rather than section 116B.10 (review of state action)–is that the DNR’s issuance of, and subsequent failure to modify or terminate, permits authorizing increased groundwater appropriations within the area of hydrologic influence of White Bear Lake resulted in the “pollution, impairment, or destruction” of natural resources under MERA (see the definition in subdivision 5 of Minn. Stat. 116B.02). Although it noted plaintiffs had made a “strong” case, the court determined summary judgment for either party was not appropriate; significant fact issues remained, such as whether DNR’s actions caused the environmental damage and whether DNR had been diligent in protecting the natural resources at stake.

The court similarly denied in part in the Homeowners’ Association’s summary judgment motion on its public trust claim because a fact issue remained as to whether DNR had violated its fiduciary duties. However, the court did grant the Association’s summary judgment motion on the question of whether the public trust doctrine affords a common law cause of action to protect the public’s use rights to the water and lakebed of White Bear Lake. The DNR argued that the doctrine—which holds that title to beds of historically navigable lakes is held by the state in its sovereign capacity in trust for the people to fish, hunt, swim, navigate, or otherwise enjoy the waters—applies only to the lake beds, not to the appropriation of the ground or surface water itself. The court disagreed, citing prior case law and statutory provisions in support of its conclusion that both a lake bed as well as its surface water are public trust assets.

For more information regarding the public trust doctrine and its recent resurgence among climate-change plaintiffs, please see my earlier post regarding the Pennsylvania Supreme Court’s decision invoking the public trust doctrine to strike down a state fracking law.

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