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Archived ENRE Case Law

2011-12

In Minnesota Court of Appeals
A10-1596
A10-2135
Oluf Johnson, et al., Appellants, vs. Paynesville Farmers Union Cooperative Oil Company, Respondent.
Stearns County District Court, Hon. Kris Davick-Halfen.
Court's syllabus:
Chemical pesticide drifting from one farm to another because of errant overspray may constitute trespass.
Reversed and remanded.  Judge Kevin G. Ross.

Sierra Club v. Southwestern Electric Power Co
U.S. Court of Appeals Case No:  10-3452 and No:  10-3456
U.S. District Court for the Western District of Arkansas - Texarkana
[PUBLISHED] [Murphy, Author, with Wollman and Shepherd, Circuit Judges]
Court's unofficial summary:
"Civil case - Environmental Law. District court did not err in finding plaintiffs had standing to bring this action seeking to set aside a Clean  Water Act permit; nor did the court err granting a preliminary injunction."

Harvey Edwards  v.  City of Jonesboro
U.S. Court of Appeals Case No:  10-2405
U.S. District Court for the Eastern District of Arkansas - Jonesboro  
[PUBLISHED] [Colloton, Author, with Gruender and Shepherd, Circuit Judges]

Court's unofficial summary:
"Civil case - Section 1983. Rooker-Feldman doctrine did not apply to the claims related to injuries causes by invasion of plaintiff's land by methane gas emanating from defendant's land fill or to his just compensation claim under the Fifth Amendment; however, the claims were precluded by an earlier state court judgment and plaintiff could not avoid claim preclusion by including language in the state court complaint purporting to reserve his federal rights."

In Minnesota Court of Appeals
A10-1025
State of Minnesota ex rel. Swan Lake Area Wildlife Association, relator, Appellant, vs. Nicollet County Board of County Commissioners, Respondent, vs. Marlin Fitzner, et al., intervenors, Respondents, vs. Minnesota Department of Natural Resources, third party defendant, Respondent.
Nicollet County District Court, Hon. John R. Rodenberg

Court's syllabus:
The district court did not abuse its discretion by ordering Nicollet County to establish a crest elevation of 973 feet above sea level for Little Lake and Mud Lake as an equitable remedy for the county's violation of the Minnesota Environmental Rights Act.  The district court reasonably concluded that a crest elevation of 973 feet is in harmony with the concurrent authority of the county and the Department of Natural Resources to manage water levels pursuant to other statutory schemes.  The district court reasonably concluded that the remedy sought by appellant, a crest elevation of 976 feet above sea level, would constitute an improper retroactive application of the Minnesota Environmental Rights Act.   And the district court reasonably concluded that appellant's sought-after remedy would impose unnecessary hardships on the county as well as the owners of properties near the lakes.
Affirmed.  Chief Judge Matthew E. Johnson

In Minnesota Supreme Court
A07-1975
A07-2070
Greg Siewert, et al., Respondents, vs. Northern States Power Company, d/b/a Xcel Energy, Appellant.
Court of Appeals
Court's syllabus: (1) The filed rate doctrine does not preclude consideration of plaintiffs’ claims for injunctive relief or monetary damages.  (2)   The primary jurisdiction doctrine does not bar plaintiffs’ claims for injunctive relief to abate the nuisance resulting from stray voltage, or plaintiffs’ claims for damages.  (3)   The statute of repose does not preclude consideration of plaintiffs’ claims for monetary damages or for injunctive relief related to the maintenance, operation, or inspection of the electrical distribution system.
Affirmed.  Justice Alan C. Page.
Concurring in part, dissenting in part, Chief Justice Lorie S. Gildea and Justice Christopher J. Dietzen.
Concurring, Justices G. Barry Anderson and Helen M. Meyer.
Took no part, Justice David R. Stras.

A10-876
In the Matter of the Administrative Penalty Order (APO) Issued to Larry Cozzi
ROSS, Judge
This appeal arises from a dispute between a developer and the Minnesota Pollution Control Agency (MPCA) after the developer allegedly placed fill material on wetlands.  The MPCA issued an administrative penalty order (APO) to Larry Cozzi for failing to apply for a stormwater permit, failing to comply with construction activity requirements, and improperly discharging waste.  An Administrative Law Judge (ALJ) agreed with the MPCA and its commissioner affirmed the penalty.  Cozzi appeals by certiorari, contending that the penalty is factually, procedurally and constitutionally infirm.  We affirm

 

Frac Sand Mining in Minnesota
By Chuck Salter

Frac sand is valuable and Minnesota has lots of it.  The sand is used for frac mining which has transformed and increased oil and gas production in the U.S. in recent years.  The procedure blasts sand, water and chemicals into underground rocks to enlarge natural fissures in rocks and to release otherwise unreachable deposits of oil and natural gas.   Frac sand is currently in short supply and typically sells for about $50 per ton although it fluctuates with the price of oil and gas and has sold for as much as $100 per ton.  Frac sand found near the surface throughout southeastern Minnesota and western Wisconsin is known as “Northern White” and can sell for much more than other sands used for frac mining.  The perfectly round, inert, pure quartz silica sand grains from Minnesota and Wisconsin can withstand the intense pressure needed to break apart rock and are therefore ideal for creating and preserving the fissures and maximizing the oil and gas flow. Click here to read more.

Summary of Siewert v. Northern States Power Company
By Esther Goldschlager

Dairy farmers, Greg and Harlan Siewert (d/b/a Siewert Holsteins) brought suit against a company authorized to sell energy services in Minnesota named Northern States Power Company (NSP) for damages and injunctive relief based upon a variety of claims: negligence, strict liability, trespass, and nuisance due to stray voltage.  The Siewerts alleged that their herd of dairy cows experienced health problems and unusually high mortality rates due stray voltage. Stray voltage is a phenomenon in which electrical voltage that returns to the ground after powering an appliance passes through an object not intended as a conductor (allegedly the Siewert’s dairy cows).  Click here to read more.


Border Battle Moves to Federal Court: North Dakota Sues Minnesota Over Next Generation Energy Act
By Joseph Maternowski

North Dakota and several coal producers have filed suit against Minnesota naming Minnesota’s Attorney General Lori Swanson and the members of the Minnesota Public Utilities Commission (PUC) in its complaint, filed on November 2, 2011 in federal district court.  Requesting injunctive and declaratory relief, North Dakota alleges that portions of Minnesota’s Next Generation Energy Act (NGEA) are unconstitutional.  Click here to read more. 

The Public Utility Commission rules on high voltage transmission lines on the Midtown Greenway
By Chuck Salter

On January 12, 2012 the Minnesota Public Utilities Commission (PUC) ruled that a 115 kilovolt transmission line proposed for southeastern Minneapolis must run underground on 28th Street (between Hiawatha Avenue and Oakland Avenue South) and not overhead on any of the alternative routes or along the Midtown Greenway, the initial preferred site of Xcel Energy (Xcel).  Click here to read more.

Chemical Pesticide Drift May Constitute Trespass Under Minnesota Law
By Esther Golschlager

On July 25, 2011, the Minnesota Court of Appeals ruled that pesticide drifting from one farm to another because of errant overspray may, in certain circumstances, constitute a tort claim of trespass.  In Johnson v. Paynesville Farmers Union Co-op., 802 N.W.2d 383 (2011), the Court of Appeals reversed a district court decision that dismissed the farmer’s claims of trespass, nuisance, and negligence per se claims against a farm cooperative. Click here to read more.

Keystone XL
By Adam Apter

TransCanada, a Canadian company, is seeking to build and expand an oil pipeline called Keystone XL from the Athabasca Tar Sands oil producing region to refineries and distribution centers on the Texas coast. The pipeline will also have branches bringing Bakken region oil from North Dakota and Montana to market. This project is an expansion of the already existing Keystone pipeline and will bring the capacity of the total system to 1.3 million barrels of oil per day. It will cost approximately 7 billion dollars to build and could employ thousands of workers. The projected and alternative paths do not enter Minnesota at any point along the route. Click here to read more.

National Security and Federal Lands Protection Act
By Adam Apter

The National Security and Federal Lands Protection Act, H.R. 1505, is proposed legislation that could have potentially significant effects on environmental protection and border enforcement in the United States. The act would exempt the Department of Homeland Security from having to conform their border control activities with over 30 pieces of environmental legislation. This bill is especially controversial with regards to sensitive parts of the border between the United States and Canada, such as the Boundary Waters Canoe Area Wilderness and Voyageurs National Park. Click here to read more.

Lutsen Mountain Allowed Continuing Water Withdrawal of Poplar River Until Fall 2016
By Nels Paulsen

On November 10, 2011, the Minnesota Department of Natural Resources (DNR) announced that Lutsen Mountain Corporation (LMC) would be allowed to continue drawing water from the Poplar River for snowmaking at the ski hill under the permit issued by the DNR.  DNR Commissioner Tim Landwehr emphasized that the permit is a temporary fix to prevent serious negative economic impact if snowmaking was not allowed with water pumped from the Poplar River.  According to the DNR news release, LMC should commit to cease all pumping from the Poplar River by the fall of 2016. Click here to read more. 

The Struggle Over Wind Development in Goodhue County Opens a New Chapter
By Tom Burman

On December 15, 2011 Belle Creek Township was served a summons and complaint by AWA Goodhue, LLC, which seeks to develop a 78 Megawatt large wind energy conversion system project (LWECS) under Minn. Stat. § 216F.01 in Goodhue County. This lawsuit marks the most recent event in an unusually long permitting battle over the wind project. The complaint seeks declaratory and injunctive relief against a Moratorium Ordinance adopted by the Township on June 14, 2010 that bans the development, siting, or construction of any Wind Energy Conversion Systems within the Township without review by the Town Board. The complaint argues that, pursuant to Minn. Stat. §216F.07, the site permit issued by the Minnesota Public Utilities Commission (PUC) for the project “supersedes and preempts” the local moratorium.
Click here to read more.

Brookings County-Hampton 345kV Project
By Adam Apter

The Brookings Line, which is a 345kV transmission line, was approved by the Midwest Independent Transmission System Operator (MISO) on December 8, 2011. The line will run from Brookings County, SD to Hampton, MN. The line will be constructed both to increase the efficiency and long term capabilities of the Midwest’s power grid, as well as to improve the ability of the grid to transmit electricity generated in recent and planned wind energy projects. Many Midwestern states, including Minnesota, have substantially increased state wind and renewable energy requirements for utilities. This has caused the construction of numerous wind projects throughout the upper midwest and Canada served by MISO. Because the particular siting needs of wind projects—they need to be constructed where adequate wind resources are located—the power grid that was designed for primarily large fossil fuel and nuclear plant based electricity sources needs to be modified and upgraded through projects like the Brookings Line. Click here to read more.

Mesothelioma Death Toll Rising from Minnesota’s Mining Area
By Esther Goldschlager

The Taconite Workers Health Study, conducted by University of Minnesota scientists reveals an increased incidence mesothelioma and a rising in the Northeast region of Minnesota. The study, which began in 2008, examines the taconite mining in Minnesota’s Iron Range region. Taconite is a low-grade iron ore that is prevalent in the region.
Click here to read more.

2010-11

  • Land o'Lakes, Inc. v. Employers Mut'l Liab. Ins. Co.
    Case No. 09-CV-0693 (PJS/JSM) (D. Minn. 11/24/2010)
    Patrick J. Schiltz, United States District Judge
    Court's introduction:
    "Plaintiff Land O’ Lakes has sued two of its insurers -- defendants Employers Insurance Company of Wausau ('Wausau') and The Travelers Indemnity Company ('Travelers') -- seeking indemnity and payment of defense costs in connection with an environmental-cleanup action brought against Land O’ Lakes by the Environmental Protection Agency ('EPA'). Wausau and Travelers have brought third-party claims against White Mountain Reinsurance Company ('White Mountain'), which provided insurance coverage that might apply to the EPA action against Land O’ Lakes. Travelers now moves for summary judgment, asking this Court to hold that Travelers has no duty to defend or indemnify Land O’ Lakes. For the reasons that follow, the Court grants in part and denies in part Travelers’ motion."
    Excerpts:
    "Land O’ Lakes seeks insurance coverage for the EPA’s claims from Wausau and Travelers -- and, as noted, Wausau and Travelers contend that White Mountain may be liable to Land O’ Lakes instead of or in addition to them. There is a significant difference between, on the one hand, the relevant policies written by Wausau and White Mountain, and, on the other hand, the relevant policies written by Travelers. Whereas Wausau and White Mountain insured Midland while Midland was operating the Cushing refinery, Travelers insured only Land O’ Lakes while Land O’ Lakes had nothing to do with the refinery. Specifically, Travelers provided coverage to Land O’ Lakes under various comprehensive general liability ('CGL') policies from 1964 through 1981 -- the years preceding Land O’ Lakes’ acquisition of Midland on January 1, 1982. The question now before the Court is whether these Travelers policies may afford coverage to Land O’ Lakes for the costs of cleaning up the site of the Cushing refinery."
    [T]he motion of defendant The Travelers Indemnity Company for summary judgment [Docket No. 57] is GRANTED IN PART and DENIED IN PART as follows:
         1. The Court DECLARES that Travelers is not obligated to defend or indemnify plaintiff Land O’ Lakes in connection with claims associated with the Cushing refinery site under the Travelers policy providing coverage for 1964, the Travelers policies providing coverage for 1971 through 1981, or the Travelers NSL policies providing additional coverage for 1974 through 1981.
         2. The Court DECLARES that Travelers may be obligated to defend and indemnify plaintiff Land O’ Lakes in connection with claims associated with the Cushing refinery site under the Travelers policies providing coverage for 1965 through 1970."

  • Sierra Club et al. v. Clinton et al.
    Civil No. 09-2622 (DWF/RLE) (D. Minn. 10/19/2010)
    DONOVAN W. FRANK, United States District Judge
    Court's introduction:
    "Plaintiffs Sierra Club, Minnesota Center for Environmental Advocacy ('MCEA'), Indigenous Environmental Network, and National Wildlife Federation (together, 'Plaintiffs') brought this action against the United States Department of State ('State Department'); Hillary Clinton, in her official capacity as Secretary of State; James Steinberg, in his official capacity as Deputy Secretary of State; the United States Army Corps of Engineers (the 'Corps'); Lieutenant General Robert L. Van Antwerp, in his official capacity as U.S. Army Chief of the Corps; Colonel Jon L. Christensen, in his official capacity as District Engineer and Commander of the U.S. Army Corps of Engineers; the United States Forest Service ('Forest Service'); Tom Tidwell, in his official capacity as Chief of the Forest Service; and Rob Harper, in his official capacity as Forest Supervisor for the Chippewa National Forest (collectively, 'Defendants'). Enbridge Energy ('Enbridge') intervened in the action. Plaintiffs claim that Defendants violated the National Environmental Policy Act ('NEPA'), 42 U.S.C. § 4321, et seq., and the Administrative Procedure Act ('APA'), 5 U.S.C. § 706, when they issued their final Environmental Impact Statement ('EIS') and permits for the Alberta Clipper Pipeline ('AC Pipeline') and Southern Lights Diluent Pipeline ('SLD Pipeline') projects. The parties have filed cross-motions for summary judgment on Plaintiffs’ NEPA claims. For the reasons set forth below, the Court denies Plaintiffs’ motion for summary judgment and grants Defendants’ and Enbridge’s motions for summary judgment."

  • Sierra Club v. Kimbell 
    U.S. Court of Appeals Case No: 09-1639
    U.S. District Court for the District of Minnesota - Minneapolis
    [PUBLISHED] [Colloton, Author, with Loken, Chief Judge, and Gruender, Circuit Judge]
    Court's unofficial summary:
    Civil case - Environmental law. In suit claiming the U.S. Forest Service had failed to consider the impact its Land and Resource Management Plan for the Superior National Forest would have the Boundary Waters Canoe Area Wilderness, the district court did not err in finding that the Service's assessment of the plan's environmental impacts did not violate the National Environmental Policy Act; Sierra Club had standing to challenge the plan as the Forest Service's selection of a particular plan had immediate, concrete consequences for the recreation interests of specific visitors to the Superior National Forest; considered together, the agency's clear intention to act with neutrality towards the Boundary Waters Canoe Area Wilderness, the evaluation of specific impacts to the area, including certain "edge effects," and the inclusion of the Boundary Waters area within broader environmental analyses show that the Forest Service took the "hard look" required by the National Environmental Policy Act.
  • David Stock Farm Svcs., Inc. v. Nat'l Resources Conservation Svc.
    Case No. 09-CV-0902 (PJS/LIB) (D. Minn. 9/27/2010)
    Patrick J. Schiltz, United States District Judge

  • In Minnesota Supreme Court
    A07-1918 A07-1930
    Moorhead Economic Development Authority, Respondent, vs. Roger W. Anda, et al., Appellants; Kjos Investments, Respondent Below.
    Court of Appeals.

  • Great Rivers Habitat Alliance v. FEMA
    U.S. Court of Appeals Case No: 09-3183
    U.S. District Court for the Eastern District of Missouri - St. Louis
    [Riley, Chief Judge, Author, with Colloton and Benton, Circuit Judges]

  • Sierra Club v. Otter Tail Power Company
    U.S. Court of Appeals Case No: 09-2862
    U.S. District Court for the District of South Dakota - Pierre
    [Murphy, Author with Chief Judge Riley and John R Gibson, Circuit Judges]

  • Kennedy Bldg. Assocs. v. CBS Corp.
    99-CV-1833 (JMR/FLN) (D. Minn. 8/2/2010)
    JAMES M. ROSENBAUM, United States District Judge

  • State of Minn. ex rel. Northern Pacific Ctr., Inc. v. BNSF Ry. Co.
    08-CV-6385 (JMR/RLE) (D. Minn. 7/14/2010)
    JAMES M. ROSENBAUM, United States District Judge

  • State of Minnesota in Supreme Court
    A08-1082
    The State of Oklahoma sued Cargill

 

 

 

 

 

 

 

 

 

 

- Last Updated08/03/2010 -

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