PRESTON — Backers of a recreational trail already partially built between Preston and Forestville/Mystery Cave State Park might have to go back to the Legislature for formal approval of the trail if they want to complete it.
On July 8, a district court judge ruled the trail has never been authorized formally by the legislature, so the Ristau and Snyder families don't have to sell their land that is about a mile east of the park. Winona County District Court Judge Jeffrey D. Thompson, who handled the case in Fillmore County, dismissed a condemnation order brought by Preston to get those final two pieces of land.
While only 5.99 acres, they are vital because the Minnesota Department of Natural Resources says there's no other place to build the trail because of topography and rules about where trails can go.
The two families are "ecstatic, of course," by the ruling, said Larry Peterson, their attorney with Peterson, Logren & Kilbury, P.A. of St. Paul. But they are frustrated that they had to spend $100,000 to prove that the Legislature never approved it. "It's an illegal trail," he said.
Even if it was legal, they would fight it because it's such a bad place for a trail, Peterson said. The land is low and floods often; it also goes near a trout stream. "It's going to destroy the trout stream," he said. "It's a ridiculous place to put a bike trail."
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DNR'S views
DNR Area Trails and Waterways Supervisor Craig Blommer, however, said the DNR knows the Root does flood but it's very "flashy" and quickly drops. That's not a big problem, he said.
Because the DNR doesn't have the two parcels, it bought extra land at Carimona, which is just east of the Ristau/Snyder land, for a parking lot. As money becomes available, it will build the trail from Preston to Carimona and then wait to see what happens. The whole idea is to build all the way to Ostrander, which is about 10 miles west of the park, he said.
He believes the DNR does have the legislative authority to build the trail because, while the park has never been mentioned explicitly, it is implicit, he said. The Legislature said one of the purposes of such trails is to connect state parks, Blommer said. Several other parks have trails built to them, and those parks aren't mentioned explicitly, he said. Plus, Ostrander is mentioned, and to get there, you pretty much have to go through the park, he said.
Preston City Attorney Dwight Luhmann said today the city has to decide how to proceed if it wants the trail. "I think the case is back in the Legislature," he said.
The Legislature apparently believes the trail is authorized because it gave the DNR about $985,000 specifically for it, Luhmann said. Also, a DNR official said the department has spent about $1 million for two bridges in the small segment already built near Preston, according to the judge's ruling.
Even if the city doesn't act, he believes others will. "There will be efforts to get the statute amended," Luhmann said.
Decade ago
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The case began a decade ago when the Preston joined with other cities in a joint powers board to create the trail, which would be an extension of a trail coming into Preston from the north. From 1998 through 2003, Preston and the DNR began buying the 19 parcels it would need for the trail.
But the Ristaus and the Snyders wouldn't sell their 5.99 acres, so the city in 2009 passed a resolution authorizing eminent domain. The DNR said that because of the terrain, there was no alternative but to take their land.
When the land was condemned, the two families sued.
At first, they lost in county court level but in February, the Minnesota Court of Appeals sent back to the Fillmore County District Court the question of whether a joint powers board could condemn land for a recreation trail from Preston to Forestville State Park.
Because the county court did not spell out its reasoning, the appeals court rejected a decision that a trail was authorized.
In his ruling this month, Thompson said the Minnesota statute that authorized trails didn't include the South Branch Root River. "The proposed Preston to Forestville State Trail is not authorized by this clause," he wrote.
