Citizen groups lose fight with DNR over pumping groundwater around White Bear Lake

Two citizen groups have lost the latest round in a legal fight to protect White Bear Lake from what they call excessive groundwater pumping, but say they will appeal to the Minnesota Supreme Court.

In a ruling released Monday, the Minnesota Court of Appeals sided with the Minnesota Department of Natural Resources (DNR), saying it has complied with state law in regulating water use in the area.

The case was brought by the White Bear Lake Restoration Association, a 1,000-member group of businesses and residents around the region, along with the White Bear Lake Homeowners' Association, who argued that the DNR was failing in its responsibility to protect groundwater around the popular lake.

Last year, Ramsey County District Judge Margaret Marrinan ruled for the lake advocates, blasting the DNR for what she called a "stunning" record of violating state environmental laws in the way it issues groundwater-pumping permits.

Marrinan ordered the DNR to stop issuing the permits until it had studied the full effect of groundwater pumping, and to restrict pumping within a 5-mile radius of the lake when its water levels fall below a certain point. The restrictions would affect nearly a dozen municipalities who pull from the groundwater for drinking water and other needs, and prompted the state Legislature to stay the restrictions until the Minnesota Court of Appeals ruled.

Writing for the court, Judge John Rodenberg reversed Marrinan's decision and sent the case back for further administrative proceedings. The DNR did not violate state law or a legal standard known as the "public trust" doctrine, Rodenberg concluded.

Rodenberg's opinion involves a technical interpretation of the Minnesota Environmental Rights Act, a 1971 law that allows citizens to bring a legal action against anyone for damaging the environment. But when the problem conduct involves state-issued permits, Rodenberg said, the appropriate remedy is limited to having the court send it to the appropriate state agency for administrative proceedings.

Rodenberg also ruled that the DNR did not violate the public trust doctrine, arguing that the common-law principle applies to the state's obligation to protect navigable waters, and not groundwater.

In a vigorous and detailed dissent, Judge Diane Bratvold argued that the district court did not err. Navigable waters include lakebeds, which are connected to groundwater, she wrote. She also argued that the citizens can take legal action against the DNR under the state's environmental rights act because the conduct in question is not about the permitted activity but about the DNR's overall permitting scheme and its cumulative, adverse affects on the lake.

In a statement issued Monday, DNR Deputy Commissioner Barb Naramore said that last October the agency published "an extensive sustainability analysis using a new, state-of-the-art groundwater model."

The study concluded that current groundwater use in the White Bear Lake area "meets state sustainability standards." The DNR will use the analysis in reviewing the matter, she said.

White Bear Lake is currently at 924.94 feet, Naramore said, which is "approximately 6 inches above the level at which water flows out from the lake."

The Town of White Bear and the City of White Bear Lake supported the DNR's appeal, though the city has also adopted water conservation measures.

Ellen Hiniker, city manager of the City of White Bear Lake, said important issues were at stake, and she was pleased with the decision. "It's been a long haul," Hiniker said.

She said the city will continue to promote water conservation, such as banning lawn watering from 10 a.m. to 6 p.m. "despite the fact that the lake is really healthy right now."

The lake advocates were disappointed by the ruling, said their attorney, Katie Crosby Lehmann of the Cerisi Conlin law firm. She noted the irony of the timing.

"On Earth Day, the Court of Appeals decided that the DNR, a government agency, is actually immune from following the law," she said.

Greg McNeely, chairman of the White Bear Lake Restoration Association, said his group will appeal. "We continue to believe the DNR should follow the law and act to protect water for our future generations. We're hopeful that the Minnesota Supreme Court will get involved and review the decision."

McNeely's group first sued the DNR in 2013, a year when the lake was at a low point and the water line receded more than 100 feet from the shore in spots.

The citizen groups have 30 days to petition the Supreme Court to review the case.

Kevin Reuther, chief legal officer of the Minnesota Center for Environmental Advocacy, said it's important for the state's highest court to review the case because the Court of Appeals' opinion is "chipping away" at the right of citizens to protect the environment.

"We rely on the state government to manage these resources for the benefit of everybody," he said. "When they don't do that … that conduct should be actionable."

Jennifer Bjorhus • 612-673-4683