Opinion
A20-1417 A20-1418
01-25-2021
In the MATTER OF the DECISION ON the NEED FOR AN ENVIRONMENTAL IMPACT STATEMENT FOR the PROPOSED BARRICK FAMILY FARMS, LLP - LOCKHART 25 PROJECT LOCKHART TOWNSHIP NORMAN COUNTY, Minnesota (A20-1417), and In re Minnesota Pollution Control Agency's Issuance of a General Animal Feedlot National Pollutant Discharge Elimination System Permit to Barrick Family Farms, LLP - Lockhart 25 Project (A20-1418).
Joy R. Anderson, Jay Eidsness, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for relator Minnesota Center for Environmental Advocacy) Jack Y. Perry, Andrew S. Dosdall, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota (for respondent/intervenor Barrick Family Farms, LLP) Keith Ellison, Attorney General, Colin P. O'Donovan, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Joy R. Anderson, Jay Eidsness, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for relator Minnesota Center for Environmental Advocacy)
Jack Y. Perry, Andrew S. Dosdall, Taft Stettinius & Hollister LLP, Minneapolis, Minnesota (for respondent/intervenor Barrick Family Farms, LLP)
Keith Ellison, Attorney General, Colin P. O'Donovan, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Considered and decided by Segal, Chief Judge; Jesson, Judge; and Cochran, Judge.
SPECIAL TERM OPINION
SEGAL, Chief Judge These consolidated appeals are taken from two related decisions by respondent Minnesota Pollution Control Agency (MPCA). In the first appeal (No. A20-1417 or EIS appeal), relator Minnesota Center for Environmental Advocacy (MCEA) challenges the MPCA's negative declaration on the need for an EIS in connection with the application submitted by Barrick Family Farms, LLP (Barrick) for a State of Minnesota General Animal Feedlot National Pollution Discharge Elimination System Permit (the feedlot permit). In the second appeal (No. A20-1418 or permit appeal), MCEA challenges the MPCA's issuance of the feedlot permit. Barrick, the project proposer and permit holder, filed a motion to intervene in the EIS appeal. Because Barrick is an adverse party under Minn. R. Civ. App. P. 143.01, Barrick qualifies as a respondent and we deny the motion to intervene as unnecessary.
DECISION
In connection with its plan to build an animal feedlot in Norman County (the project), Barrick sought a feedlot permit from the MPCA. Under Minn. R. 4410.4300, subp. 29(A) (2019), the MPCA was required to complete an environmental-assessment worksheet (EAW) for the project because it is a feedlot that will contain more than 1,000 animal units. The MPCA completed the EAW, published notice of its completion and commenced a public-comment period. Following the close of the public-comment period, the MPCA issued the negative declaration on the need for an EIS and subsequently issued the feedlot permit to Barrick.
The MCEA filed separate certiorari appeals, which we later consolidated, from the negative declaration and the feedlot permit. See Minn. Stat. §§ 115.05, subd. 11(1) (authorizing appeal from decision to grant permit); 116D.04, subd. 10 (authorizing appeal from negative declaration on need for EIS) (2018).
Barrick filed several documents in the appeals, including a motion to intervene in the EIS appeal. We issued an order denying the motion to intervene as unnecessary. We determined in that order that publication of a special term opinion on the intervention issue would be beneficial to the bench and bar.
"The party appealing shall be known as the appellant, relator or petitioner and the adverse party as the respondent." Minn. R. Civ. App. P. 143.01. An "adverse party" is "[a]ny party who would be prejudiced by a reversal or modification of an order, award, or judgment[.]" Larson v. Le Mere , 220 Minn. 25, 18 N.W.2d 696, 698 (1945). Accordingly, this court has held that a permit holder is an adverse party in a certiorari appeal challenging the permit. City of Victoria v. County of Carver , 567 N.W.2d 772, 774 (Minn. App. 1997), review denied (Minn. Sept. 18, 1997). In the City of Victoria case, the court explained that the permit holder would be prejudiced by a decision reversing a conditional-use permit for a communications tower because it would not be able to build the tower within the permit. Id. For similar reasons, Barrick, as a project proposer, is a respondent to the appeal from a negative declaration on the need for an EIS for that project. If this court reverses the negative declaration, the MPCA will be required to prepare an EIS, at significant expense to Barrick, and Barrick will not be able to proceed on the project unless and until the MPCA reissues the permit after determining the EIS adequate. See Minn. Stat. § 116D.04, subd. 2b (providing that final decision on permit may not be made and project may not be started until, as relevant here, negative declaration issued or EIS determined adequate). Because Barrick is already a respondent to the EIS appeal, we deny as unnecessary Barrick's motion to intervene as a respondent.