§ 103F.321

Siewert v. Northern States Power Co. · 2011 1 citation

+ 1 more citation in this opinion.

In Re Hubbard · 2010 6 citations

A. The Commissioner points to the Minnesota Lower St. Croix Wild and Scenic Rivers Act, Minn. Stat. § 103F.351 (2008), and to the Minnesota Wild and Scenic Rivers Act, Minn. Stat. §§ 103F.301-.345 (2008), as the source of the DNR's authority to certify the City's variance decision. Because the statutes and rule under which the DNR claimed authority to certify the City's variance to Hubbard arise out of the regulatory structure for the lower St. Croix River, we begin with a discussion of this structure, and the specific statutes the Commissioner cites. In 1968, Congress passed the National Wild and Scenic Rivers Act to protect eight rivers scattered throughout the United States. Wild and Scenic Rivers Act *319 (Federal Act), Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified as amended at 16 U.S.C. §§ 1271-87 (2006)). In 1972, Congress added the lower St. Croix River— the portion of the St. Croix River between the dam at Taylors Falls and its confluence with the Mississippi River—to the National Wild and Scenic Rivers system. Lower St. Croix River Act of 1972 (Federal Lower St. Croix Act), Pub.L. No. 92-560, § 2, 86 Stat. 1174 (codified at 16 U.S.C. § 1274(a)(9) (2006)). Congress conditioned the implementation of the Federal Lower St. Croix Act, including an appropriation of federal funds, on Minnesota and Wisconsin developing and executing a master plan for joint state administration of that Act. Id., §§ 3, 6(b), 86 Stat. 1174-75. In order to comply with the conditions of the Federal Lower St. Croix Act, the Minnesota Legislature enacted the Lower St. Croix Wild and Scenic River Act of 1972 (MLSCA). Act of May 12, 1973, ch. 246, 1973 Minn. Laws 480 (codified as amended at Minn. Stat. § 103F.351 (2008)). The MLSCA directed the Minnesota DNR to join its Wisconsin counterpart and the Secretary of the U.S. Department of the Interior to prepare a master plan for the lower St. Croix River as directed by the Federal Lower St. Croix Act. Minn. Stat. § 103F.351, subd. 2(a). The Commissioner of the DNR, his Wisconsin counterpart, and the federal Secretary of the Interior prepared the master plan as directed. The MLSCA authorizes the DNR to "adopt rules that establish guidelines and specify standards for local zoning ordinances" in the area covered by the master plan. Id., subd. 4(a). The standards "must include" the prohibition of new residential uses inconsistent with the federal and state river acts, and the protection of riverway lands through acreage, frontage, and setback requirements. Id., subd. 4(b)(2). The MLSCA adds that "[c]ities, counties, and towns lying within the areas affected by the guidelines shall adopt zoning ordinances complying with the guidelines and standards within the time schedule prescribed by the Commissioner." Id., subd. 4(c). During the same legislative session in which it enacted the MLSCA, the Minnesota Legislature also enacted a separate statute relating to wild and scenic rivers. Minnesota Wild and Scenic Rivers Act (MRA), Act of May 16, 1973, ch. 271, 1973 Minn. Laws 521 (codified as amended at Minn. Stat. § 103F.301-.345 (2008)). The MRA is a state analog to, and appears to be modeled on, the Federal Act. Both acts state a purpose of protecting wild and scenic rivers; both set forth criteria for rivers to be included in the respective wild and scenic rivers systems; and both generally identify what protections included rivers will receive. See 16 U.S.C. §§ 1271-87; Minn. Stat. §§ 103F.301-.345. Also in the MRA, the DNR is given rulemaking authority and authority to "adopt statewide minimum standards and criteria for the preservation and protection of shorelands within the boundaries of" designated rivers. Minn. Stat. § 103F.321, subd. 2. Finally, the MRA requires that local governments "adopt or amend [their] ordinances" to be in compliance with the DNR standards, and it provides that if the local governments do not do so in a timely manner, the DNR "shall" adopt such ordinances for them. Minn. Stat. § 103F.335, subd. 1(b). In addition to these statutes, this case also involves rules the DNR adopted for the lower St. Croix River. Minn. R. 6105.0351-.0550 (2009). These rules require local governments, including the City, to adopt ordinances in compliance with the state standards. Minn. R. 6105.0352, subp. 2. The rules also include a process by which local governments must apply to the DNR for certification of a *320 variance from a lower St. Croix River ordinance. Minn. R. 6105.0540. By refusing to certify a variance the DNR can, in effect, veto a variance related to a lower St. Croix River ordinance that a local government has granted. See id.

B. With this statutory framework in mind, we turn to the question of the DNR's authority. The Commissioner relies on the MLSCA, Minn. Stat. § 103F.351, and two provisions of the MRA, Minn. Stat. §§ 103F.321 and 103F.335, in arguing that the DNR has authority to certify the City's decision. The three sections provide, in relevant part, as follows. The [DNR] shall adopt rules that establish guidelines and specify standards for local zoning ordinances applicable to the area within the boundaries covered by the [lower St. Croix River] comprehensive master plan . . . [and] in cooperation with appropriate federal authorities and authorities of the state of Wisconsin shall administer state lands and waters in conformance with this section. . . . MLSCA, Minn. Stat. § 103F.351, subds. 4(a), 5. The [DNR] shall administer the [Minnesota] wild and scenic rivers system. . . and adopt rules to manage and administer the system. MRA, Minn. Stat. § 103F.321, subd. 1. [E]ach local government unit with jurisdiction over a portion of the system shall adopt or amend its ordinances . . . to the extent necessary to comply with the standards and criteria [described in the MRA]. . . . The [DNR] shall assist local governments in the preparation, implementation, and enforcement of the ordinances. MRA, Minn. Stat. § 103F.335, subd. 1(a), (c).[5] Based on these three provisions, the Commissioner argues that the DNR has both express and implied authority to certify the City's decision. See Peoples Natural Gas, 369 N.W.2d at 534 (noting that an agency's authority may be either express or implied).

A. The Commissioner points to the Minnesota Lower St. Croix Wild and Scenic Rivers Act, Minn. Stat. § 103F.351 (2008), and to the Minnesota Wild and Scenic Rivers Act, Minn. Stat. §§ 103F.301-.345 (2008), as the source of the DNR's authority to certify the City's variance decision. Because the statutes and rule under which the DNR claimed authority to certify the City's variance to Hubbard arise out of the regulatory structure for the lower St. Croix River, we begin with a discussion of this structure, and the specific statutes the Commissioner cites. In 1968, Congress passed the National Wild and Scenic Rivers Act to protect eight rivers scattered throughout the United States. Wild and Scenic Rivers Act *319 (Federal Act), Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified as amended at 16 U.S.C. §§ 1271-87 (2006)). In 1972, Congress added the lower St. Croix River— the portion of the St. Croix River between the dam at Taylors Falls and its confluence with the Mississippi River—to the National Wild and Scenic Rivers system. Lower St. Croix River Act of 1972 (Federal Lower St. Croix Act), Pub.L. No. 92-560, § 2, 86 Stat. 1174 (codified at 16 U.S.C. § 1274(a)(9) (2006)). Congress conditioned the implementation of the Federal Lower St. Croix Act, including an appropriation of federal funds, on Minnesota and Wisconsin developing and executing a master plan for joint state administration of that Act. Id., §§ 3, 6(b), 86 Stat. 1174-75. In order to comply with the conditions of the Federal Lower St. Croix Act, the Minnesota Legislature enacted the Lower St. Croix Wild and Scenic River Act of 1972 (MLSCA). Act of May 12, 1973, ch. 246, 1973 Minn. Laws 480 (codified as amended at Minn. Stat. § 103F.351 (2008)). The MLSCA directed the Minnesota DNR to join its Wisconsin counterpart and the Secretary of the U.S. Department of the Interior to prepare a master plan for the lower St. Croix River as directed by the Federal Lower St. Croix Act. Minn. Stat. § 103F.351, subd. 2(a). The Commissioner of the DNR, his Wisconsin counterpart, and the federal Secretary of the Interior prepared the master plan as directed. The MLSCA authorizes the DNR to "adopt rules that establish guidelines and specify standards for local zoning ordinances" in the area covered by the master plan. Id., subd. 4(a). The standards "must include" the prohibition of new residential uses inconsistent with the federal and state river acts, and the protection of riverway lands through acreage, frontage, and setback requirements. Id., subd. 4(b)(2). The MLSCA adds that "[c]ities, counties, and towns lying within the areas affected by the guidelines shall adopt zoning ordinances complying with the guidelines and standards within the time schedule prescribed by the Commissioner." Id., subd. 4(c). During the same legislative session in which it enacted the MLSCA, the Minnesota Legislature also enacted a separate statute relating to wild and scenic rivers. Minnesota Wild and Scenic Rivers Act (MRA), Act of May 16, 1973, ch. 271, 1973 Minn. Laws 521 (codified as amended at Minn. Stat. § 103F.301-.345 (2008)). The MRA is a state analog to, and appears to be modeled on, the Federal Act. Both acts state a purpose of protecting wild and scenic rivers; both set forth criteria for rivers to be included in the respective wild and scenic rivers systems; and both generally identify what protections included rivers will receive. See 16 U.S.C. §§ 1271-87; Minn. Stat. §§ 103F.301-.345. Also in the MRA, the DNR is given rulemaking authority and authority to "adopt statewide minimum standards and criteria for the preservation and protection of shorelands within the boundaries of" designated rivers. Minn. Stat. § 103F.321, subd. 2. Finally, the MRA requires that local governments "adopt or amend [their] ordinances" to be in compliance with the DNR standards, and it provides that if the local governments do not do so in a timely manner, the DNR "shall" adopt such ordinances for them. Minn. Stat. § 103F.335, subd. 1(b). In addition to these statutes, this case also involves rules the DNR adopted for the lower St. Croix River. Minn. R. 6105.0351-.0550 (2009). These rules require local governments, including the City, to adopt ordinances in compliance with the state standards. Minn. R. 6105.0352, subp. 2. The rules also include a process by which local governments must apply to the DNR for certification of a *320 variance from a lower St. Croix River ordinance. Minn. R. 6105.0540. By refusing to certify a variance the DNR can, in effect, veto a variance related to a lower St. Croix River ordinance that a local government has granted. See id.

+ 3 more citations in this opinion.

In re the Denial of Certification of the Variance Granted to Hubbard · 2010 6 citations

+ 6 more citations in this opinion.