Minn. Ctr. for Envtl. Advocacy v. Minn. Dep't of Nat. Res.

Minnesota Center for Environmental Advocacy, et al., Petitioners, v. Minnesota Department of Natural Resources, Respondent,Poly Met Mining, Inc., Respondent.

A18-1956

STATE OF MINNESOTA IN COURT OF APPEALS

August 5, 2019

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Rules declared valid; motion denied.

Kirk, Judge^*

Minnesota Department of Natural Resources

Ann E. Cohen, Evan Mulholland, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for petitioners Minnesota Center for Environmental Advocacy, et al.)

Evan A. Nelson, Margo S. Brownell, Maslon LLP, Minneapolis, Minnesota (for petitioner Friends of the Boundary Waters Wilderness)

Sherry A. Enzler, General Counsel for Minnesota Department of Natural Resources; and

Jon Katchen (pro hac vice), Sarah Koniewicz, Holland & Hart, LLP, Anchorage, Alaska (for respondent Minnesota Department of Natural Resources)

Monte A. Mills, Caitlinrose H. Fisher, Greene Espel PLLP, Minneapolis, Minnesota; and

Jay C. Johnson (pro hac vice), Venable LLP, Washington, District of Columbia (for respondent Poly Met Mining, Inc.)

Byron E. Starns, Stinson Leonard Street LLP, Minneapolis, Minnesota (for amicus curiae Mining Minnesota)

Considered and decided by Schellhas, Presiding Judge; Smith, Tracy M., Judge; and Kirk, Judge.

UNPUBLISHED OPINION

KIRK, Judge

In this declaratory-judgment action under Minn. Stat. § 14.44 (2018), petitioners challenge the rules governing nonferrous metallic mineral mining in Minnesota. Respondents move to dismiss the action, arguing that petitioners lack standing to challenge the rules and that the action is untimely. We deny the motion to dismiss and declare the rules valid.

FACTS

On November 1, 2018, respondent Minnesota Department of Natural Resources (DNR) issued the first permit in the state's history for a copper-nickel-platinum group elements mine. The permitee, respondent Poly Met Mining, Inc. (PolyMet), proposes to build the mine, called the NorthMet project, in northeastern Minnesota. The project has garnered opposition that has resulted in numerous appeals to this court.¹ In this relateddeclaratory-judgment action, petitioners Minnesota Center for Environmental Advocacy, et al. (MCEA)² and Friends of the Boundary Waters Wilderness (Friends) (together, petitioners) seek to invalidate Minn. R. 6132.0100-.5300 (2017) (chapter 6132), the administrative rules pursuant to which the NorthMet project permit to mine was issued.

Chapter 6132 was promulgated pursuant to the legislature's direction in the mine land reclamation act, Minn. Stat. §§ 93.44-.51 (2018) (the act). The first version of the act was adopted in 1969. See 1969 Minn. Laws ch. 774, §§ 1-8, at 1438-43 (the 1969 law). The 1969 law declared a policy, which remains part of the act today:

In recognition of the effects of mining upon the environment, it is hereby declared to be the policy of this state to provide for the reclamation of certain lands hereafter subjected to the mining of metallic minerals or peat where such reclamation is necessary, both in the interest of the general welfare and as an exercise of the police power of the state, to control possible adverse environmental effects of mining, to preserve the natural resources, and to encourage the planning of future land utilization, while at the same time promoting the orderly development of mining, the encouragement of good mining practices, and the recognition and identification of the beneficial aspects of mining.

Minn. Stat. § 93.44; see 1969 Minn. Laws ch. 774, § 1, at 1439.³ The 1969 law directed the commissioner of natural resources⁴ to "conduct a comprehensive study and survey in order to determine, consistent with the declared policy of this act, the extent to which regulation of mining areas is necessary in the interest of the general welfare." 1969 Minn. Laws ch. 774, § 4, at 1440. The 1969 law also authorized, but did not require, the commissioner to adopt rules governing mining. Id. at 1441.

In 1973, the legislature adopted Minn. Stat. § 93.481, which prohibits mining of metallic minerals without a permit. See 1973 Minn. Laws. ch. 526, § 5, at 1191 (the 1973 law). Under the 1973 law, the commissioner retained the discretion to adopt rules, but still was not required to do so. Id., § 3, at 1190. In 1980, the commissioner promulgated rules for mining of ferrous minerals. See Minn. Reg. 231-239 (Aug. 18, 1980) (adopting rules now codified at Minn. R. 6130.0100-.6300 (2017)).⁵ In 1983, the legislature adopted a provision precluding the DNR from issuing permits to mine nonferrous metallic minerals⁶until it adopted rules related to reclamation for such mines. See 1983 Minn. Laws ch. 270, § 5, at 1163 (codified at Minn. Stat. § 93.481, subd. 6).

Over the next decade, the DNR engaged in study and rulemaking proceedings, and in March 1993, the DNR noticed adoption of final rules governing nonferrous metallic mineral mining. See 17 Minn. Reg. 2207-09 (March 15, 1993); Minn. R. 6132.0100-.5300. Before noticing the final rules, the DNR conducted formal rule proceedings. That process included preparing a statement of need and reasonableness (SONAR); publishing notice of intent to adopt rules; accepting public comments; holding a hearing before an administrative-law judge (ALJ), who issued a report recommending adoption of the rules; and publishing notice of the final rules in the Minnesota State Register. See Minn. Stat. §§ 14.131-.18 (1992) (setting forth rulemaking requirements for rules adopted with a hearing).

Although chapter 6132 was promulgated more than 25 years ago, no permit to mine was issued under it until November 1, 2018, when the DNR issued the permit for the NorthMet project. Petitioners initiated this action about a month later.

DECISION

I.

The DNR and PolyMet (together, respondents) argue for dismissal of this action based on their assertion that petitioners lack standing. Under Minn. Stat. § 14.44 (2018):

The validity of any rule may be determined upon the petition for a declaratory judgment thereon, addressed to the court of appeals, when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair the legal rights or privileges of the petitioner.

This court has treated this language in section 14.44 as a conferment of statutory standing and has applied general principles governing declaratory-judgment standing to determine the existence of standing in a rules action. See Rocco Altobelli, Inc. v. State, Dep't of Commerce, 524 N.W.2d 30, 34 (Minn. App. 1994) (citing State ex rel. Smith v. Haveland, 25 N.W.2d 474 (Minn. 1946) and Arens v. Village of Rogers, 61 N.W.2d 508 (Minn. 1953)). Under those principles, the mere possibility of injury or a mere interest in a problem is not sufficient to confer standing. Id. Instead, petitioners must demonstrate that a rule is, or is about to be, applied to their disadvantage. Id.

Petitioners are environmental organizations representing individuals who own property and enjoy natural resources on property near potential nonferrous mining sites, including the NorthMet project site. The DNR asserts that any harm to petitioners' interests is speculative and that petitioners' desire to protect the environment is not sufficient to confer standing. PolyMet goes one step further, arguing that the only parties that will have standing to challenge chapter 6132 are entities (like itself) that seek permits to conduct nonferrous mineral mining.

This court has recognized "the broad statutory language establishing a right to challenge regulations before enforcement." Save Mille Lacs Sportsfishing, Inc. v. Minn. Dep't of Nat. Res., 859 N.W.2d 845, 849 (Minn. App. 2015). And in actions asserted by regulated parties, this court has usually concluded that standing exists. See Minn. Envtl. Sci. & Econ. Review Bd. v. Minn. Pollution Control Agency, 870 N.W.2d 97, 101 (Minn. App. 2015) (MESERB) (holding that municipalities, wastewater-treatment facilities, sanitary-sewer districts, and farming operations would have been affected by and hadsufficient particularized interest in water-quality standards to have standing in rules action); Coal. of Greater Minn. Cities v. Minn. Pollution Control Agency, 765 N.W.2d 159, 164 (Minn. App. 2009) (Coal. of Cities) (holding that coalition of municipalities that would be required to comply with challenged regulations had standing), review denied (Minn. Aug. 11, 2009); cf. Save Mille Lacs Sportsfishing, 859 N.W.2d at 848-49 (declining to dismiss action for lack of standing when parties had not raised issue and petitioners—organizations representing residents fishing the lake and resort owners—would be impacted by rules limiting fishing).

In one published decision, we addressed the standing, to pursue a rules challenge, of persons seeking more stringent regulations of others. See Rocco Altobelli, 524 N.W.2d at 34-35. In that case, we held that the petitioners did not have standing because their theory of injury was not borne out by the facts. Id. at 34-36 (explaining that injury claimed by petitioners was illusory; that even if there was an injury, it was not caused by the challenged rule; and that their arguments regarding public-safety interests were "demonstrably incorrect"). The holding in Rocco Altobelli is fact-specific and not helpful to our analysis here.

Our supreme court has not directly addressed standing under Minn. Stat. § 14.44. But it has addressed, in a slightly different context, the participation rights of parties whom regulations are intended to protect. See Snyder's Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 221 N.W.2d 162 (Minn. 1974). In Snyder's Drug, the court held that the districtcourt⁷ abused its discretion in not allowing nonprofit consumer groups to intervene as plaintiffs in a rules challenge asserted by a drug-store chain to challenge a regulation prohibiting the advertisement of retail drug...