§ 103F.305

In Re Hubbard · 2010 1 citation

2. The fact that the DNR does not have express statutory authority to certify the City's decision does not end our analysis. The Commissioner also argues that the authority to approve the City's variance decision can be implied from the authority the legislature gave to the DNR. We are "reluctant to find implied statutory authority." In re N. States Power Co., 414 N.W.2d 383, 387 (Minn.1987). And, while we need not give an agency's express statutory authority "a cramped reading," any enlargement of powers by implication must be "fairly drawn and fairly evident from the agency's objectives and powers expressly given by the legislature." Peoples Natural Gas, 369 N.W.2d at 534. In order to determine whether an administrative agency has implied powers, we look to the "necessity and logic of the situation." Id. The question of implied authority therefore requires that we "look closely at the statutory scheme created by the legislature." Qwest, 702 N.W.2d at 261.[6] The Commissioner argues that we may imply authority to certify the City's variance decision from both the MRA and the MLSCA. The stated purpose of the MRA is to "preserve and protect" certain designated Minnesota rivers, and their adjacent lands that possess "outstanding scenic, recreational, natural, historical, scientific and similar values." Minn. Stat. § 103F.305. To effectuate that purpose the legislature conferred powers on the DNR. As noted above, those express powers include the power to classify and designate rivers for protection, Minn. Stat. § 103F.325; the power to set minimum guidelines and standards for local zoning ordinances, by which *322 counties and municipalities that abut designated rivers must abide, Minn. Stat. § 103F.321; the power to impose ordinances on counties and municipalities if they fail to adopt their own ordinances in compliance with the DNR minimum guidelines and standards, Minn. Stat. § 103F.335; the power to "adopt rules to manage and administer" the state wild and scenic rivers system, Minn. Stat. § 103F.321; and the power to aid counties and municipalities with passing and enforcing ordinances that comply with the DNR minimum guidelines and standards, Minn. Stat. § 103F.335. Like the MRA, the MLSCA authorizes the DNR to set minimum guidelines and standards for local zoning ordinances, by which local government units abutting the lower St. Croix River must abide. See Minn. Stat. § 103F.351, subd. 4. The MLSCA also grants the DNR authority to "administer" the lower St. Croix River in conjunction with Wisconsin and federal officials. See Minn. Stat. § 103F.351, subd. 5. The Commissioner argues that an implied power to certify the City's variance decision is fairly drawn and fairly evident from the purposes of the MRA and the MLSCA, and the DNR's express powers in these statutes, looking to the logic and necessity of the situation. Specifically, the Commissioner argues that the authority to certify is fairly implied from the DNR's broad rulemaking authority in both statutes. The Commissioner relies on Welsand v. Railroad and Warehouse Commission of Minnesota, 251 Minn. 504, 88 N.W.2d 834 (1958), to support this rulemaking argument. In Welsand, the agency had adopted a rule that required applicants for contract carrier permits to identify their customers, and if the agency found that there were more than 10 customers, the agency required an applicant to show that it was not a common carrier. Id. at 506-07, 88 N.W.2d at 836-37. When the agency found that the appellant was in violation of this rule, the agency cancelled the appellant's permit. Id. at 506, 88 N.W.2d at 836. On appeal, the appellant argued that the agency had no authority to promulgate the rule. Id. at 508-09, 88 N.W.2d at 837-38. The agency had "the power to adopt rules necessary for the regulation of contract carriers," but the legislature did not specifically define "contract carriers" other than to provide generally that a "contract carrier" is "`any person engaged in the business of transporting property for hire over the public highways of this state, other than as a common carrier.'" Id. at 509, 88 N.W.2d at 838 (quoting Minn. Stat. § 221.02, subd. 14 (1949)). The agency also had the "power . . . to make such rules and regulations . . . as may be necessary to the enforcement" of the relevant statutes. Id. at 508, 88 N.W.2d at 838 (citation omitted). Within the agency's broad grant of rulemaking and enforcement authority, we implied the authority for the agency to "adopt whatever definitions were reasonably necessary within the area of authorized regulation." Id. at 509, 88 N.W.2d at 838. Welsand does not support the implication of authority in this case. First, unlike the agency in Welsand, the DNR does not have broad express authority to enforce the relevant statutes. Rather, the legislature has given the DNR the express authority to "assist local governments in the. . . enforcement" of ordinances. Minn. Stat. § 103F.335, subd. 1(c). The DNR argues that authority to certify is implicit in this provision. But "assist" means to "give help or support to, especially as a subordinate or supplement." The American Heritage Dictionary of the English Language 112 (3d ed.1996). The imposition of a certification rule that operates to overturn local-government variance decisions *323 is at odds with the term "assist" in the statute, especially given that word's connotations of supplementation and subordination. The power to certify therefore is not fairly drawn from the power to assist. Second, unlike the agency in Welsand, the DNR here does not seek to define terms within the area of its designated responsibility. Rather, the DNR seeks to ratify a decision the legislature has delegated to another unit of government. The legislature has given to municipalities, subject to guidelines and restrictions, authority for zoning that encompasses the granting of variances. See Minn. Stat. § 462.351 and .357 (2008). In the MRA itself, the legislature specifically vested individual implementation and enforcement of the DNR standards in local governments. See Minn. Stat. § 103F.335, subd. 1(c) (noting that DNR is to "assist local governments in the . . . enforcement of [their] ordinances"). Construing the DNR's power to promulgate "rules to manage and administer the system" broadly enough to include the authority to certify actions taken by local governments does not give proper deference to the legislature's decision to give local governments the responsibility to enforce standards. Cf. Hirsch, 537 N.W.2d at 486-87 (concluding that an agency's promulgation of an exclusive list of reasons for departing from the rules was outside the agency's authority because the legislature placed responsibility for determining "necessity of treatment" not with the agency, but with workers compensation judges); Guerrero v. Wagner, 310 Minn. 351, 357, 246 N.W.2d 838, 841 (1976) ("The Commissioner cannot lawfully, by means of an internal departmental rule, circumvent the statute's grant of authority to the compensation judge"). And implying such review authority in the DNR "would introduce a new factor of considerable consequence into the regulatory equation." Peoples Natural Gas, 369 N.W.2d at 535. This type of variation should not come from this court, but from the legislature. After all, the legislature has given the express authority at issue here—the authority to certify local government variance decisions—to other statutory entities in other contexts. See Minn. Stat. § 103F.373 (2008) (expressly providing authority for the Mississippi Headwaters Board to certify variances granted by counties regulated under the Mississippi headwaters land use plan); Minn. Stat. § 103F.389 (2004) (repealed in part and amended 2005) (expressly providing authority for the Project Riverbend Board to certify variances granted by counties regulated under the Project Riverbend comprehensive plan).[7] The legislature declined to give such express authority to the DNR in any of the statutory sections at issue here even though the legislature knows how to grant such authority if it desires. The inclusion of express authority for certification in these other statutes, combined with the fact that the legislature has never amended the statutory provisions relating *324 to the DNR to expressly include authorization for a certification rule, provides important evidence that the legislature did not intend that the DNR have certification authority. Peoples Natural Gas, 369 N.W.2d at 534 (noting that implied authority inquiry "is whether the legislature intended, without saying so, to confer [the] power on the [agency]"). But the Commissioner argues the MLSCA and the MRA must include an implied power for the DNR to approve local government variance decisions. Without such power, the Commissioner asserts that local governments granting unjustified variances with no oversight could in essence undo the guidelines and standards that the DNR sets for river protection, which are supposed to apply uniformly and on a statewide basis. Accordingly, the Commissioner essentially argues that "the necessity and logic of the situation" require that we find implied power for the DNR to certify the City's variance decision. Peoples Natural Gas, 369 N.W.2d at 534.[8] We addressed a similar situation in Qwest, and faced with a broader express grant of authority than here, concluded that an agency's express authority to promulgate rules and standards did not necessarily grant it implied authority to enforce those standards as it wanted. 702 N.W.2d at 261. The agency in that case had the express authority to set standards for the quality of wholesale services, and it argued that the remedy at issue was "necessary to enforce the standards." Id. at 257. We disagreed, and said that "if nothing more than a broad grant of authority were needed to show that implied authority could be fairly drawn from the statutory scheme, the implied authority would be present in all cases in which the agency had a broad grant of authority." Id. at 261. We had rejected such a sweeping rule before and we did so again in Qwest. Id.; see also Peoples Natural Gas, 369 N.W.2d at 535 (noting that implied authority does not exist merely because "the power to order refunds would be useful to the Commission as an enforcement measure"). Finally, our decision in In re Minnegasco, 565 N.W.2d 706 (Minn.1997), does not support the Commissioner's argument that we should imply authority for the DNR to certify local government variance decisions. In Minnegasco, we held that the Public Utilities Commission (PUC) had implied authority to order recoupment to *325 remedy what we had concluded in an earlier case was the PUC's "exceeding its statutory authority in setting natural gas rates." Id. at 708 (citing Minnegasco v. Minn. Pub. Utils. Comm'n, 549 N.W.2d 904, 909-10 (Minn.1996)). We reached this result because we found that the PUC's statutory authority was ambiguous on the question of recoupment, and it would be inequitable to deny a remedy to Minnegasco after it successfully challenged the agency's ratemaking. Id. at 712-13. Unlike in Minnegasco, we are not presented in this case with a situation where an agency's decision has injured a party and that party would be left without a remedy in the absence of implied agency authority to provide a remedy. We also do not have an ambiguous statutory grant of authority that requires our interpretation. See Qwest, 702 N.W.2d at 261-62 (distinguishing Minnegasco). In sum, we conclude that the authority to certify the City's variance decision is not "fairly drawn and fairly evident" from the authority the legislature expressly gave to the DNR in either the MRA or the MLSCA. See Peoples Natural Gas, 369 N.W.2d at 534. We therefore hold that the DNR does not have implied authority to certify the City's decision.[9] Because the MRA and the MLSCA do not expressly or impliedly authorize the DNR's certification of the City's decision, the DNR did not have the authority to refuse to approve the variance the City granted to Hubbard, and its nonapproval is void. Our resolution of the authority issue makes it unnecessary for us to reach the other issues the parties raise. Affirmed. MAGNUSON, C.J., and PAGE, J., took no part in the consideration or decision of this case. NOTES [1] We use the term "certify" in this opinion to refer to the DNR's claimed power—described in Minn. R. 6105.0540 (2009)—to certify, or refuse to certify, certain local-government land-use decisions. [2] The other two requests related to the setback for the sideyard and height restrictions in the City's ordinances. The City granted these two requests and the DNR has not challenged these decisions. We therefore discuss only the bluffline-setback variance in this opinion. [3] Under this statute, the "[f]ailure of an agency to deny a request within 60 days is approval of the request." Minn. Stat. § 15.99, subd. 2(a) (2008). [4] The Commissioner seemingly contends that because the DNR has construed its statutory authority to include certification, we must defer to the agency's determination of authority. In support of this suggestion of deference, the Commissioner cites Geo. A. Hormel & Co. v. Asper, 428 N.W.2d 47, 50 (Minn. 1988), but in that case, we did not have to address the question of whether the legislature had given the agency the authority to take the action (decision on a claim for unemployment compensation benefits) at issue in the case. We have also stated that "[w]hen the agency's construction of its own regulation is at issue . . . considerable deference is given to the agency interpretation, especially when the relevant language is unclear or susceptible to different interpretations." St. Otto's Home v. Minn. Dep't of Human Servs., 437 N.W.2d 35, 40 (Minn. 1989) (citing Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Resident v. Noot, 305 N.W.2d 311, 312 (Minn. 1981)). But in these cases, as in Geo. A. Hormel, the agency's underlying statutory authority to act was not at issue. In this case, by contrast, we are confronted with the threshold question of whether the legislature has granted an agency the authority to take the action at issue. The DNR's suggestion of deference is therefore misplaced. [5] The MLSCA, by its terms, applies to the lower St. Croix River and Hubbard's property, and therefore is relevant to the authority question presented here. Hubbard suggested in his brief that the MRA might not apply to the lower St. Croix, but at oral argument Hubbard confirmed that we did not need to reach this issue. We therefore assess the question of the DNR's authority using both the MLSCA and the MRA. [6] The Commissioner argues that Peoples Natural Gas and its progeny, including Qwest, do not apply to cases involving agency rule promulgation. But in Hirsch v. Bartley-Lindsay Co., we applied the Peoples Natural Gas test to determine an administrative agency's authority to promulgate a rule and held that the agency did not have either express or implied authority to promulgate the rule at issue. 537 N.W.2d at 485-87. [7] The Commissioner contends that the legislature's decision to grant certification authority to these boards should not inform us here because unlike these boards, the legislature has given the DNR rulemaking authority. The Commissioner also argues that because Minn. Stat. §§ 103F.373 and .389 granted authority to boards rather than administrative agencies, these statutes are inapposite. These distinctions are not material to the question of the agency's authority. Just like administrative agencies, the boards established in sections 103F.373 and .389 are "creature[s] of statute" having only those powers granted to them by the legislature. See Great N. Ry. Co. v. Pub. Serv. Comm'n, 284 Minn. 217, 220, 169 N.W.2d 732, 735 (1969). Powers granted by the legislature, whether to an agency or a board, are limited by the language of the enabling statutes. [8] In addition, the Commissioner argues that two cases, in particular, support his position: County of Pine v. State Dep't of Natural Res., 280 N.W.2d 625 (Minn. 1979), and Drum v. Minn. Bd. of Water & Soil Res., 574 N.W.2d 71 (Minn.App.1998). Neither case, however, supports the Commissioner's arguments.

In re the Denial of Certification of the Variance Granted to Hubbard · 2010 1 citation

+ 1 more citation in this opinion.