OLIVIA, Minn. — Renville County is appealing the recent Limbo Creek decision to the state’s Supreme Court.
On a unanimous vote on Tuesday, Oct. 12, the County Board of Commissioners approved bringing a petition for review to the state’s high court. The decision came after the board met in a closed session with the county’s attorney for the litigation, Gerald Von Korff.
The Minnesota Court of Appeals ruled Oct. 4 that Limbo Creek is a public water and entitled to protections. It found that a proposed project to excavate a channel at the outlet of Renville County Ditch 77 into the creek has the potential for environmental harm and, as a result, the county must complete an environmental assessment worksheet before approving or rejecting the project.
The commissioners had approved the estimated $699,880 project in November 2020. The Minnesota Center for Environmental Advocacy challenged the county’s authority to award a project in what it contended was a public water.
Landowners who petitioned for the channel project are upset by the Court of Appeals decision.
“The petitioners believe this is truly unfair and I tend to agree with that,” said David Hamre, the Renville County Commissioner who offered the motion to proceed with an appeal.
“This is changing the rules after the ballgame started,” Hamre said. “The (Minnesota Department of Natural Resources) is saying this is a public waters when in fact it is not on the Public Water Inventory. That leaves the ballgame wide open for interpretation throughout the state of Minnesota.”
The downstream portion of Limbo Creek was considered a natural channel and included on the state’s Public Waters Inventory developed in the 1980s. The upstream portion was considered an artificial channel and therefore not listed as public water.
The Minnesota Department of Natural Resources removed the downstream portion from the Public Waters Inventory by a commissioner's order in 2017. Last year, the DNR announced it was undertaking a process to possibly return it to the Public Waters Inventory. The DNR is looking at possibly returning 640 miles of waterways across the state.
Landowners on County Ditch 77 petitioned in 2017 to excavate a 5,560-linear-foot channel. They are also considering whether to appeal the recent court decision.
The county must file its petition with the court by Nov. 3, according to Von Korff. The court will decide whether or not to consider the appeal after reviewing the petition and responses to it from the original litigants.
The attorney said the landowners petitioned for the channel project "to fix their broken system."
When the landowners filed for the project in 2017, they checked with the DNR and were told that Limbo Creek was not included as a public water and that no permit was required from the DNR. Having gone forward with the project, they have now invested large sums of money only to have it halted, he explained.
The current case has possible ramifications for waters all across the state, according to Von Korff. He said the recent Court of Appeals decision opens up the process of determining what is a public water to a case-by-case basis, rather than relying on the Public Waters Inventory.
Viewed in a long-term perspective, the attorney said a case-by-case approach could make it more difficult to protect the environment. There’s the possibility that in the future, a new governor could come in with a state of mind that there are too many public waters, and set in place a round of summary cases that could remove some from protection, he said.
At the commissioners' meeting Tuesday, Hamre expressed his concerns about how the Court of Appeals case could affect proposed ditch projects in waters across the state, as well as the potential for more litigation.
“I think that the money that has been spent would be truly wasted if we don’t progress forward now and try to get the relief that these petitioners and any of the other projects coming forward in the state and the issues that they have,” he said. “We’ll spend some money now, (but) it will be a minor amount compared to the litigation coming forward with all the other projects throughout the state. That’s why I made the motion.”