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DNR defends plans for Forestville Trail


Fri, Aug 6th, 2010
Posted in Court

A hearing in Winona on August 4 marked another leg in the lawsuit brought by the John Snyder and Vernon Ristau families against the State of Minnesota Department of Natural Resources (DNR) and the city of Preston. Attorney Jill Schlick Nguyen of the Minnesota Attorney General's Office (MN DNR) argued "clearly an Environmental Assessment Worksheet (EAW) is not mandatory here."

Attorney Brent Kleffman, Peterson, Logren and Kilbury, P.A., representing the Snyder and Ristau families, insisted an EAW must be done.

District Court Judge Jeffrey D. Thompson admitted he does not have a background in the environmental issues in question, but assured the parties involved that he would study the reports and documents carefully and issue a ruling as soon as he could.

History

When the Preston City Council adopted a resolution to acquire the remaining needed properties on March 2, 2009, by exercising their power of eminent domain, the first leg of the relay was triggered. The revised resolution passed that day noted the efforts over the past decade of the Joint Powers Board and "particularly the city of Preston" to acquire the property for the construction of the Preston-Forestville Recreational Trail system. The resolution stated 17 needed properties had been acquired but three parcels, totaling less than six acres, owned by Snyder and Ristau family members, still needed to be acquired for the project.

The legal process, executed by attorney David Joerg representing the city, was set into motion in April 2009. Joerg had agreed to be special counsel for the city of Preston regarding the eminent domain proceedings without cost. Abundant requests for depositions and discovery have been ongoing and commenced almost immediately.

The landowners petitioned for an Environmental Review in August 2009. The citizen petition with 25 citizen signatures was directed to the Minnesota Environmental Quality Board requesting an EAW or more detailed Environmental Impact Statement (EIS).

On September 28, 2009, a stay was issued by Judge Thompson until the Minnesota Supreme Court could decide the city of Granite Falls vs. the Soo Line Railroad. The stay was lifted by agreement in early 2010 after the city of Preston filed a motion to have the stay lifted on the grounds the issues involved were unrelated federal issues.

A formal complaint was filed October 14, 2009, by the Snyder and Ristau families against the Minnesota DNR and the city of Preston.

The most recent court preceding on August 4, 2010, was to get the judge's decision on whether or not the DNR needs to do an EAW before constructing the bike trail. This is a parallel case to the eminent domain case. They are separate, but related cases.

DNR Master Plan Review Draft for the Preston to Forestville State Trail, 2003

This plan can be found on the Internet. The plan states the trail will be designed, constructed and maintained "in a way that protects and enhances the natural environment and minimizes the trail users' impact." It recommends minimizing "trail development and maintenance impacts to water resources through the use of mulching, geo-textiles, silt screens, and seeding to establish vegetation. Appropriate erosion control measures should be taken to minimize the potential impacts on adjacent water." It says "efforts will be made to avoid impacting wetlands. . .a wetland mitigation plan will be prepared to address any identified impacted wetlands." The proposed trail will run for 9.2 miles through a variety of landscapes including forest, agricultural land, and about 1.6 miles which are located in the flood plain.

DNR Argument

Attorney Nguyen, representing the DNR, made a motion for summary judgment to have the judge decide whether an EAW is required. She noted one bridge has already been built in the city of Preston for the trail and a second bridge is being worked on at this time for the Preston-Forestville proposed state trail.

Nguyen acknowledged the plaintiffs claim an EAW is needed. She cited two cases where it is required, when a project falls in a certain type of mandatory category or when a petition is filed where there is potential for environmental effects. Nguyen insisted the plaintiffs have the burden to submit material evidence which has to be admissible, relevant, and consequential. She claimed their expert report (created by Robert Wahlstrom, Senior Environmenta/Geotechnical Engineer, American Engineering Testing, Inc.) was not consequential, it provided only general information and no evidence which ties to this project. She added an EAW is not required on every project even near a trout stream. She suggested the plaintiff expert witness report be disregarded.

Nguyen said the DNR Master Plan (2003) for the trail concluded there would be minimal impact on wetlands and they were mostly type 1 wetlands. She criticized the plaintiff report for not even designating which type of wetland it was referring to. She said the plaintiffs say the DNR acted in bad faith citing a newspaper article as evidence. Nguyen said a highway bridge and a bike trail bridge are not the same. It is not evidence of bad faith.

Nguyen suggested the court should only consider extra record, referring to the plaintiff report, evidence under certain circumstances. Nguyen remarked, "The court should not use this report to second guess the DNR's decision." In conclusion, she said the court should oppose the extra record.

Plaintiff Expert Report

Wahlstrom, American Engineering Testing, Inc, concluded that the operation and construction of the proposed Preston to Forestville State Trail will have a material adverse impact on the water quality of the South Branch of the Root River, which is a designated trout stream." It is suggested that construction of the trail will add to the turbidity of an already impaired water. They suggest there could be irreversible damage to the fish population and habitat.

Plaintiff Argument

Attorney Brent Kleffman, arguing for the Snyder and Ristau families, explained their position is simple, saying the "DNR is putting the cart before the horse." He said they mapped out the trail, but have produced no final construction plans, which doesn't allow for measuring any significant environmental impact.

Kleffman suggested there is a "double standard when the DNR regulates itself and when it regulates others."

Kleffman said the best management practices are only guidelines and not a substitute for site specific evaluation of a project. He noted the guidelines say further evaluation needs to be done. He stated there are endangered species in there. The DNR Master Plan lists two threatened species in Minnesota, including Short's Aster and Nodding Wild Onion.

Kleffman said 4.5 miles of the proposed trail route are within the shoreland zone of the river or within 300 feet. He said five ravines will need to be crossed.

Kleffman claimed the DNR has not obtained the necessary permits and they don't know if they can meet the criteria for future permits. He insisted the Minnesota Rules are clear saying when there is one acre or more of wetland involved, and EAW needs to be completed.

Kleffman said at a minimum an EAW needs to be done, and suggested to the judge that he could order an Environmental Impact Statement (EIS) as well because this project could do significant environmental harm. To this suggestion, Judge Thompson responded, "Isn't that what an EAW is for, to see if an EIS is necessary?" Kleffman said the EAW is the process designed to determine if there is a potential for harm. Kleffman added that they filed on August 5, 2009, a petition for an EAW. He suggested the intervening time was necessary for discovery to get information from the DNR so their expert could make an opinion.

Counter Argument by DNR

Nguyen said only 1.6 acres are in the flood plain of the river. She said the trail will largely be going through fields or pastures. She explained construction plans are not included, even in an EIS, if it were at that point, and construction plans are definitely not called for at this time. Nguyen said of course the project is not permitted yet saying they don't yet know what the conditions would be. She assured them the DNR will have to jump through those hoops to be permitted.

Nguyen said the DNR has concluded there would not be significant environmental effects. She said there is no basis for a trial.

Counter Argument

by Plaintiff

Kleffman insisted an EAW must be done due to the steep bluffs, ravines around the river and the potential for excavation causing more turbidity in the river.

Parallel Cases

It is the hope of the plaintiffs that if the court would rule against the DNR in the environmental case, that it could in time put an end to the eminent domain condemnation proceedings.

If the motion for summary judgment is granted, the environmental case will most likely be dismissed, which presumably would step up the hearing of the eminent domain case.

Currently, the Environmental trial is scheduled for January 24, 2011. If the DNR prevails, the eminent domain case will follow soon after.

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