News Watch: February 16

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February 16, 2017

Today’s Topics: Agriculture & Food, Climate Change, Conservation, Energy, Mining, Oil & Pipelines, Pollinators, Pollution, Transportation, Waste & Recycling, Water, Wildlife & Fish, Loon Commons

Agriculture & Food
The Kenyon Leader: Controversy surrounding factory hog farm permit, public meeting in Red Wing Monday evening featuring MEP member group Land Stewardship Project
Public News Service: Letter Sent to Sessions about Ag Mega-Mergers
Steele County Times: Area Feedlots At Center Of State Appeals Court Decision featuring MEP member group Minnesota Center for Environmental Advocacy

Climate Change 
Brainerd Dispatch: Speaker to address climate change featuring MEP member group The Nature Conservancy
Patch: Making Home Heating, Cooling Climate-Friendly: New Study featuring MEP member group Institute for Energy and Environmental Research

Conservation
Northland Press: Protecting Lake Roosevelt Through a New Aquatic Management Area featuring MEP member group Leech Lake Area Watershed Foundation

Energy
Midwest Energy News: Changes to Minnesota power plant bill ease some opponents’ concerns
MPR: Minnesota Senate says yes to Becker power plant
MinnPost: American households’ energy costs fall to a new low: just 4 cents of each dollar

Mining
Duluth News Tribune: Mesabi Metallics CEO asks to meet with Dayton on leases

Oil & Pipelines
Duluth News Tribune: Enbridge closes on Dakota Access stake
Duluth News Tribune: TransCanada files Keystone XL route application in Nebraska
MPR: Pope Francis: Native people have rights over their lands
MPR: Trump signs bill undoing oil, gas reporting rule

Pollinators
MPR: Crop-protecting fungicides may be hurting the honey bees
MPR: Group sues Trump administration for delaying bumblebee’s endangered listing

Pollution
Mother Jones: Toxic Liquid Nuclear Waste Headed for US Roadways

Transportation
MinnPost: Plan to kill regional transit board moves closer to reality
Star Tribune: Gold Line busway gets millions toward a 2024 opening
Star Tribune: Metro Mobility reports 6 percent ridership gain for 2016
Star Tribune: Metro Transit sent reps to Houston for Bowl intelligence

Waste & Recycling
MPR: Recycling woes linger for some St. Paul residents
Star Tribune: St. Paul continues to negotiate organized trash collection with haulers

Water
MPR: Construction work to begin on Red River diversion project
MPR: Pollution has worked its way down to the world’s deepest waters
Star Tribune: Blaine schools are closed Monday after water pressure problems return

Wildlife & Fish
Brainerd Dispatch: Years of animal facility inspection reports scrubbed from USDA website

News Watch: February 13

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Agriculture & Food
Brainerd Dispatch: Years of animal facility inspection reports scrubbed from USDA website
La Crosse Tribune: Land Stewardship Project to host soil workshop with Rodale chief scientistfeaturing MEP member group Land Stewardship Project
MPR: To save the planet, give cows better pasture
Star Tribune: Appeals Court to decide Dodge County hog farm lawsuit pitting pollution vs. water featuring MEP member group Minnesota Center for Environmental Advocacy
WNAX: Land Stewardship Project Leaders Lobby the Hill on Farm Bill featuring MEP member group Land Stewardship Project

Climate Change 
MPR: Open water: Madeline Island watches, worries as winter climate shifts

Energy
Brainerd Dispatch: Blown away: Wind energy sector turns into largest renewable resource in U.S., sees massive expansion in North Dakota
Midwest Energy NewsMinnesota report suggests efficiency push could generate 15,000 jobs
MPR: Climate Cast: Wind turbines create economic and environmental opportunities

Oil & Pipelines
Brainerd Dispatch: Tribal summit in Duluth will target pipelines
Duluth News Tribune: Tribal representatives strategize in Duluth
Fox 9: DAPL protesters rally outside home of U.S. Bank CEO
WDIO: Tribal Members Convene in Duluth over Enbridge Energy Pipelines

Parks & Trails
Brainerd Dispatch: Minnesota’s first bison buggy planned at Blue Mounds State Park
Grand Forks Herald: Partnership brings cross-country skiing to 3 state parks in northwestern Minnesota featuring MEP member group Parks & Trails Council of Minnesota

Pollinators
Brainerd Dispatch: The plight of the bumble bee

Pollution
Duluth News Tribune: Minnesota Slip contaminants will be capped, not removed
Mother Jones: Here’s What’s at Stake If Congress Kills the Methane Rules

Transportation
Duluth Budgeteer NewsFriday is Winter Bike to Work Day featuring MEP member groupBicycle Alliance of Minnesota

Waste & Recycling
MPR: Plastics tech makes composting easier. But will businesses get on board?
MPR: Recycling pickup missed in St. Paul? Contractor says they’re working on it featuring MEP member group Eureka Recycling

Water
Brainerd Dispatch: Minnesota Legislature: Water quality efforts require collaboration
Star Tribune: Blaine schools are closed Monday after water pressure problems return
Star Tribune: Massive water project in SW Minnesota wants Trump to open the money tap

Wildlife & Fish
Brainerd Dispatch: Canada reintroduces bison to Banff National Park
Country Messenger: The surprising lives of native mussels featuring MEP member group St. Croix River Association
NPR: As 200 more whales are stranded in New Zealand, heroics turn to heartbreak

News Watch: February 9

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Agriculture & Food
Public News Service: More Voices Sought in Farm, Immigration Debate

Climate Change 
MPR: GOP-backed measures seek to rein in science used at EPA

Conservation
MinnPost: Newly launched campaign aims to raise funds for MinnPost’s environmental coverage

Energy
The Lake Country Echo: Back to Basics: Speaker to tackle ‘renewable energy revolution’featuring MEP member group Fresh Energy
Midwest Energy NewsCommentary: Removing co-op oversight jeopardizes rural solar
Midwest Energy NewsNew Xcel program sells renewable energy directly to businesses and homeowners

Mining
MinnPost: Lawsuit against PolyMet land exchange raises potent issue of taxpayers’ rightsfeaturing MEP member group WaterLegacy
Timberjay: Nolan faces pushback over request to Trump featuring MEP member groupNortheastern Minnesotans for Wilderness

Opinion, Duluth News Tribune: Local view: Duluth Chamber can remember its own words, live up to them by Tonia Kittelson of MEP member group Friends of the Boundary Waters Wilderness

Oil & Pipelines
Democracy Now!: A Violation of Tribal & Human Rights: Standing Rock Chair Slams Approval of Dakota Access Pipeline
MPR: Dakota Access pipeline construction to restart ‘immediately’
MPR: Tribe files legal challenge to stall Dakota Access pipeline
MPR: Two cities vote to pull more than $3 billion from Wells Fargo over Dakota pipeline

Parks & Trails
Star Tribune: Bridge project begins, Godfrey Parkway near Minnehaha Park closes

Pollinators
Duluth News Tribune: Trump blocks endangered status for dwindling bumble bee
MinnPost: How the bees you know are killing the bees you don’t

Pollution
MinnPost: Trump’s no friend of the environment, but Congress is doing the real damage

Transportation
MPR: Rochester eyes ‘game changer’ transit plan. Will public get on board? featuring MEP member group Transit for Livable Communities

Waste & Recycling
KSTP: Eureka Recycling Promises to Fix Problems Soon in St. Paul featuring MEP member group Eureka Recycling
Monitor St. Paul: Monitor In A Minute featuring MEP member group Eureka Recycling
MPR: Recycling pickup missed in St. Paul? Contractor says they’re working on it
Star Tribune: Frustrations persist with new St. Paul recycling program featuring MEP member group Eureka Recycling

Water
Brainerd Dispatch: Future of water quality to be discussed

Wildlife & Fish
MPR: After more than a century, bison return to Canada’s oldest national park
St. Croix 360: St. Croix River’s marvelous mussels are focus of Feb. 18 presentation featuring MEP member group St. Croix River Association

News Watch: February 6

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Agriculture & Food
Albert Lea Tribune: Farm loans available for small-scale farmers featuring MEP member groupRenewing the Countryside
La Crosse Tribune: Soil health expert will be featured at cover crops workshop featuring MEP member group Land Stewardship Project

Climate Change 
MPR: Food for thought: St. Louis Park woman uses parties to teach on diet, climate change
MPR: Trump administration lifts its hold on EPA contracts
USA Today: Congress passes first rollback of Obama environmental rule

Energy
CBS: Senate Committee Gives Go-Ahead For Gas Power Plant In Becker featuring MEP member group Minnesota Center for Environmental Advocacy
Midwest Energy NewsReport cites clean energy growth as Minnesota legislators push to eliminate solar program

Mining
City Pages: Lawsuit: Feds sold Superior National Forest land to mining company for way too cheap featuring MEP member group Water Legacy
MinnPost: With Boundary Waters mining in the news, here’s a brief history of the BWCAW
MPR: Dayton speaks out against potential mining near Boundary Waters
MPR: Debate over copper mining near Boundary Waters heats up again featuring MEP member group Northeastern Minnesotans for Wilderness
Timberjay: Nolan asks Trump to halt mineral lease freeze featuring MEP member groupNortheastern Minnesotans for Wilderness
Timberjay: Nolan faces pushback on Twin Metals letter

Parks & Trails
International Falls Journal: VNP offers paddle carving featuring MEP member group Voyageurs National Park Association

Pollinators
MSU Reporter: Bee-friendly campus project aims to be friendly to bees featuring MEP member group Northeastern Minnesotans for Wilderness

Pollution
Mother Jones: Here’s What’s at Stake If Congress Kills the Methane Rules

Transportation
Capitol Report: Breaking the Ice: Advocate seeks transportation options statewide featuring MEP member group Transit for Livable Communities
Star Tribune: Anoka weighs MnDOT’s early bridge design to remedy dangerous rail crossing
Star Tribune: Minnesota bicyclists find a lot not to like in new bill on bike lanes featuring MEP member group Bicycle Alliance of Minnesota
Star Tribune: Regional transportation board taps 58 projects for federal funding

Water
Morris Sun Tribune: Farmers say others also have impact on water quality
MPR: Dayton proposes new water quality goal without regulations
Star NewsRiver gathering, brush haul planned featuring MEP member group Friends of the Mississippi River
Star Tribune: Dayton challenges state to cut water pollution by 25 percent by 2025
Star Tribune: Flood forecasters keeping watch over the Red River

News Watch: February 2

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Today’s Topics: Agriculture & Food, Climate Change, Energy, Invasive Species, Mining, Oil & Pipelines, Parks & Trails, Pollution, Transportation, Water, Wildlife & Fish, Loon Commons

Agriculture & Food
Brainerd Dispatch: MN farmers want state aid, more in policy than money
MinnPost: Fast-food wrappings are found to carry nonstick coatings linked to health risks
MPR: Hormel stops taking pigs from farm shown in undercover video
MPR: What we do and don’t know about food allergies

Climate Change 
Brainerd Dispatch: Senate delays vote on Trump EPA pick after Democrats boycott
Mother Jones: Environmentalists Are the “Greatest Threat to Freedom,” Says Trump Adviser
West Central Tribune: Senate panel approves Trump EPA chief pick over Democrats’ boycott

Energy
Duluth News Tribune: ‘Stove Swap’ program targets dirty wood stoves featuring MEP member group Fresh Energy
Midwest Energy NewsMinnesota legislation would end state oversight of small utilities’ fixed fees
Midwest Energy NewsReport cites clean energy growth as Minnesota legislators push to eliminate solar program
MinnPost: Gorsuch is a well-credentialed conservative — so what happens next?
MinnPost: Republican legislators take aim at Public Utilities Commission
MPR: Replace Sherco coal plant with natural gas? Xcel brings debate to the Capitol
Star Tribune: Legislature could intervene in dispute over solar fees featuring MEP member group Fresh Energy
WDIO: Project Stove Swap Launched to Help Environment, Economy, and Communitiesfeaturing MEP member group Environmental Initiative

Invasive Species
Star Tribune: Taking genetics to the lake: New study shows that fight against invasive plant is more complicated thanks to hybrids

Mining
Duluth News Tribune: Minnesota Democratic representatives square off over Boundary Waters
Duluth News Tribune: Minnesota DNR ready for another mining lease sale
MPR: Environmental groups launch second legal challenge over PolyMet land exchange
MPR: Nolan outreach to Trump administration on mining draws fire from McCollum
Star Tribune: Suit claims swap with PolyMet grossly undervalued public land

Oil & Pipelines 
Attn: Seattle Committee Responds to Standing Rock
Duluth News Tribune: Approval of Dakota Access easement ‘imminent’
MPR: Company: Size of Iowa diesel pipeline spill overestimated
MPR: Senator: Army Corps told to approve Dakota pipeline easement
MPR: Review of Dakota Access pipeline could be beginning of end for opponents
Telesur: Police Raid Standing Rock Last Child Camp, Arrest 76
Yes! Magazine: Tribes Find New Ways to Keep Pipelines—and Their Oil—Out of the Great Lakes

Parks & Trails
International Falls Journal: VNPA recognized featuring MEP member group Voyageurs National Park Association
Star Tribune: Great River Passage plan connects St. Paul with Mississippi River

Pollution
Mother Jones: Here’s What’s at Stake If Congress Kills the Methane Rules
Star Tribune: Megaproject in Arden Hills: Environmental model, or hazard?

Transportation
Star Tribune: Minneapolis moves forward with 29th Avenue closure near Midtown Greenway

Water
Brainerd Dispatch: State study highlights river health in central MN
Pioneer Press: Mississippi is near-pristine until it reaches metro area, pollution study finds
Willmar Radio: Dayton in Morris Friday for “Clean Water Summit”

Wildlife & Fish
Brainerd Dispatch: DNR deer management plan takes first steps

News Watch: January 30

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Today’s Topics: Agriculture & Food, Climate Change, Conservation, Energy, Mining, Oil & Pipelines, Parks & Trails, Pollution, Sustainable Development, Transportation, Waste & Recycling, Water, Wildlife & Fish, Loon Commons

Agriculture & Food
Mankato Free Press: Grow a Farmer loans help small farmers featuring MEP member groupRenewing the Countryside
West Central Tribune: Peterson adopts wait-and-see attitude on Trump’s ag policies

Climate Change 
Midwest Energy NewsWisconsin leads on climate research, even as agencies cut science from websites

Conservation
Austin Daily Herald: Mower SWCD sending buffer notification letters
Brainerd Dispatch: Conservation Corps offers 700 service opportunities
Fergus Falls Journal: What 2017 holds for Minnesota and its land featuring MEP member groupConservation Minnesota
West Central Tribune: Willmar business wins Pork Board’s environmental stewardship award

Energy
Independent: Ireland passes law to become world’s first country to fully divest from fossil fuels

Mining
Duluth News Tribune: Second lawsuit against PolyMet land exchange featuring MEP member group WaterLegacy

Oil & Pipelines 
Brainerd Dispatch: Pipeline protest closes Twin Cities bridge
Brainerd Dispatch: Trial set to open for activist charged in Wash. pipeline disruption
Democracy Now!: A Complete Disregard for Democracy: Greenpeace Condemns Trump’s Move on Pipelines & Silencing of EPA
Duluth News Tribune: Red tape chokes off oil drilling on North Dakota’s reservations
Grist: The Standing Rock Sioux will not back down
Grist: Zombie pipelines, EPA under attack, and that’s just Week One
Indian Country Media Network: Second Trump Transition Meeting Held with Native Americans
Indian Country Media Network: Standing Rock Chairman Archambault Sends Strong Letter to Trump
Indianz: Judge calls unexpected hearing after President Trump’s Dakota Access push
MPR: All-clear after pipeline protest shuts key Mpls.-St. Paul bridge
MPR: As Trump reboots pipeline expansion, unexpected delay emerges
MPR: ‘It’s a big one’: Iowa pipeline leaks nearly 140,000 gallons of diesel
Star Tribune: Lake Street-Marshall Avenue bridge reopens after protest, police say

Parks & Trails
MPR: It’s not just the Park Service: ‘Rogue’ federal Twitter accounts multiply
MPR: Report: Trump called park official to dispute crowd photos
West Central Tribune: Public input shapes goals for Kandiyohi County bike and pedestrian plan

Pollution
Duluth News Tribune: EPA gives all-clear to pollution grants for Minnesota
MPR: More soil contaminated with TCE found in east Minneapolis
MPR: Official: Trump wants to slash EPA workforce, budget
Star Tribune: EPA gives all-clear to pollution grants for Minnesota

Sustainable Development
Austin Daily Herald: Sparks, DFL propose $100M broadband investment

Transportation
Go MN: The bike lane permit bill is ‘a royally stupid idea,’ coalition says featuring MEP member group Bicycle Alliance of Minnesota
Star Tribune: MVTA becomes state’s second largest transit agency despite 2 percent drop in ridership

Waste & Recycling
Star Tribune: St. Paul’s new recycling system leaves some residents frustrated

Water
Aberdeen NewsLower stretch of Mississippi River calls for improvements featuring MEP member group The Nature Conservancy
Brainerd Dispatch: Mn DNR: Don’t release aquarium or water garden plants into the wild

Wildlife & Fish
MPR: Can new DNA science help keep our fish safe?
MPR: Endangered no more? Wolf again poised to go off federal protection
St. Cloud Times: Public meetings on Isle Royale wolves scheduled

News Watch: January 26

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Today’s Topics: Agriculture & Food, Climate Change, Conservation, Energy, Invasive Species, Mining, Oil & Pipelines, Pollution, Transportation, Waste & Recycling, Water, Wildlife & Fish, Loon Commons

Agriculture & Food
Mille Lacs Messenger: Sustainable Farming Association annual meeting featuring MEP member group Sustainable Farming Association

Climate Change 
Daily Kos: National Park Service goes rogue—tweets out climate change data and information
Mother Jones: The Trump Administration Really Doesn’t Want EPA Employees Talking to the Press
MPR: Climate-related tweets sent from national park account deleted after going viral
MPR: EPA scientists’ work may face ‘case by case’ review by Trump team, official says
MPR: EPA science under scrutiny by Trump political staff
MPR: ‘Resist’: Activists unfurl massive banner on crane behind White House
MPR: Rogue National Park accounts emerge on Twitter amid social media gag orders

Conservation
Star Tribune: Outdoorsy? Expect to pay more as fees are targeted for an increase

Energy
Midwest Energy NewsLessons from Germany’s aggressive path to integrate renewables on the grid
Midwest Energy NewsQ&A: Minnesota’s first state sustainability director talks solar, efficiency potential
MPR: Volkswagen settlement could boost electric, natural gas vehicles in Minnesota

Oil & Pipelines 
Democracy Now!: Boycott the Banks: Actor Shailene Woodley Calls for Action Against Funders of Dakota Access Pipeline
Democracy Now!: “I’m Afraid They Are Out to Kill”: Water Protectors Testify to Police Violence at Standing Rock
Democracy Now!: Thousands Take Part in Emergency Protests over Trump’s Move to Revive Pipeline Projects
Democracy Now!: “Water is Life, Water is Sacred”: Standing Rock’s Bobbi Jean Three Legs Speaks Out Against Trump 
Democracy Now!: Winona LaDuke: Trump’s Push to Build Dakota Access & Keystone XL Pipelines is a Declaration of War
MinnPost: Of oil pipelines, bacteria’s self-defenses, and a ‘tree that changed human history’
MPR: Last pipeline protesters weigh whether to fight or leave
MPR: Rebuking Obama, Trump boosts Keystone XL, Dakota pipelines
MPR: What’s next for the Dakota Access, Keystone XL pipelines?

Pollution
Duluth News Tribune: EPA freeze leaves Minnesota projects in limbo
Star Tribune: How the upper Mississippi goes from pristine to polluted

Transportation
Star Tribune: MnDOT’s message for commuters: Take care and stay away from snowplows
Star Tribune: Now you can see where MnDOT snowplows are and what the roads look like

Waste & Recycling
KSTP: St. Paul Recycling Issues Getting Resolved featuring MEP member group Eureka Recycling
Pioneer Press: Eureka Recycling asks for patience, clarifies rules of St. Paul alley collectionfeaturing MEP member group Eureka Recycling

Water
MPR: New river rules protects Mississippi River corridor
MPR: Study: The Mississippi is pretty healthy, until it gets south of St. Cloud featuring MEP member group The Nature Conservancy

Wildlife & Fish
MinnPost: Thanks to one primate species, most others in the world are facing oblivion
MPR: A simple way to make broadcast towers more bird-friendly: Flashing lights

Four Weeks In: A New Direction for Minnesota’s Energy Policy?

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Minnesota State Capitol

As we approach the end of the first month of the 2017 session of the Minnesota Legislature, a number of bills are moving quickly. While high-profile issues such as health care dominate the headlines, no issue area has seen more activity so far than energy; three major bills are already awaiting action on the House floor, which could happen as early as this week. Senate companions for all of these bills are also scheduled for committee hearings this week.

Two pending bills are directly aimed at eliminating or circumventing the authority of the Minnesota Public Utilities Commission (PUC). While not a well-known decision-making body, the Commission plays a critical role in protecting ratepayers and other stakeholders as utilities make decisions about current and future energy generation. 

The Legislature is likely to consider a number of measures this session intended to restrict the ability of the PUC to do its job on behalf of Minnesotans. These first two measures are almost certainly just the tip of the iceberg:

Bypassing the Public Utilities Commission for New Power Plant (House File 113/Senate File 85)

This past October, the Minnesota Public Utilities Commission (PUC) approved Xcel Energy’s Integrated Resource Plan. Significantly, this approval locked in retirement dates for two large coal boilers (“Sherco 1 and 2”) located in Becker, MN. As part of their Resource Plan, Xcel had proposed a new natural gas-fired power plant be built on site in Becker. Following standard practice, the Commission invited Xcel to apply for a Certificate of Need for new generation. The Commission chose not to determine the type of generation prior to the Certificate of Need process. Again, nothing out of the ordinary. 

Legislation introduced by Rep. Jim Newberger and Sen. Andrew Mathews would bypass the Commission completely, ending the current process and granting Xcel the ability to build its plant as proposed, with no check on the appropriateness of the size or type of generation being used. 

This legislation sets a dangerous precedent, removing the one protection that exists to prevent monopoly utilities from over-building at the expense of their ratepayers. The Sierra Club, which was a formal intervenor during the resource planning process at the PUC, supports allowing the Public Utilities Commission to continue doing its job to protect ratepayers and consumers, and opposes this bill.

Removing Rural Electric Cooperatives from Dispute Resolution at the PUC (House File 234/Senate File 141) 

In 2015, the Legislature passed a bill allowing rural electric co-ops to apply fixed charges to their customers who install small-scale solar or wind projects and use net metering. Net metering allows solar and wind customers – such as home-owners, famers and small businesses – to sell their excess electricity back to their utility

Since this law took effect, twenty local coop boards have moved forward with applying these new fixed charges on their solar customers. The result is an overall cost increase sufficient to, in many cases, deprive renewable customers of any economic benefit from their investment. Some of these customers have opened a new docket at the PUC seeking help in resolving their disputes with local co-op boards. This is a protective measure that these customers are entitled to under current law.

In response, new bills introduced by Rep. Dave Baker and Sen. Bill Weber would remove the PUC from having any role in mediating disputes such as these. This would eliminate the only protection in state law for solar customers living in electric co-op service territory (between 20 and 25 percent of total ratepayers in Minnesota are served by co-ops). The Sierra Club opposes removing this protection.

Justin Fay is Senior Chapter Representative for the North Star Chapter and represents the Chapter at the Minnesota Legislature.

Opponents of Minnesota’s buffer law claim it’s an unconstitutional taking. It’s not.

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Yesterday’s joint House Environment and Natural Resources and Agriculture committee hearing on implementation of Minnesota’s buffer program included quite a number of statements from legislators and testifiers claiming that the law constitutes a taking of private land by the government without just compensation in violation of the Fifth Amendment of the U.S. Constitution and Article I, Section 13 of the Minnesota State Constitution. The hearing followed the introduction of House File 167 which seeks to entirely repeal the buffer law. Members of the GOP majority party have been vocal in expressing their intentions to, if not repeal, significantly weaken the existing buffer law. We’ll post more on the substantive merits of the buffer law in the coming weeks, but want to give immediate attention to this issues of the law’s constitutionality given what appears to be an attempt to mislead legislators, county and watershed officials, and the public alike.

A government taking of private land can be either physical, as when the government physically invades or takes possession of private land, or regulatory, as when a government regulation limits the permissible uses of private land to the extent that it effectively deprives the owner of its use or value. Since the buffer law doesn’t involve a physical occupation or seizure of private land by the government but, rather, a limitation on the permissible use of a portion of the land, the relevant legal issue is whether the buffer law constitutes a regulatory taking.[1]  It does not. The short answer is that, to win a takings challenge in court, a property owner would have to demonstrate that the buffer law deprives them of every and all reasonable uses of their property.

The U.S. Supreme Court held in the seminal case Lucas v. South Carolina Coastal Council that a government regulation constitutes a “total” or categorical taking of private property only when two conditions are met: (1) the property owner is denied all economically beneficial use of their property and (2) the regulation is inconsistent with the principles underpinning other property and nuisance laws to which the property and property owner are already subject.[2] If this criteria is not met, a regulation could still be a per se taking based on the court weighing the particular facts[3] of the case according to a complex set of factors established by the Supreme Court in Penn Central Transportation v. New York City. Those factors include: (a) the total economic impact of the regulation on the property owner, (b) the extent of the regulations interference with the property owner’s reasonable investment-backed expectations, (c) whether the regulation’s benefits are broadly shared and its costs shared by a few, and (d) whether the burdened property owner shares in the public benefits created by the regulation.[4]

It’s important to note that the buffer law opponents who claim it’s a government taking have exclusively made their arguments citing the Fifth and Fourteenth Amendments of the U.S. Constitution to the exclusion of Minnesota state law. This ignores the very significant fact that the U.S. Supreme Court has held that (a) a petitioner can’t bring a Fifth Amendment takings case in federal court until they’ve exhausted the proceedings that are available to them at the state-level and (b) that they also can’t bring the federal claim once it’s been decided by a state court.[5] Furthermore, takings challenges arising under the Minnesota State Constitution are subject to a notably different set of legal requirements and standards. The approach of Minnesota courts to takings claims in engaging in inquiry that is ““highly fact-specific, depending on the circumstances underlying each case”[6] and to apply analysis that “relies heavily on reasoning by analogy to previous takings cases.”[7] What this means is that a takings challenges to the buffer law, whether arising under the U.S. or Minnesota constitutions or both, would be decided primarily on the basis of Minnesota case law.

Under Minnesota case law, a regulation that reduces the value of private property is determined to be a taking under the “enterprise-arbitration test.”[8] A regulation that serves benefits the government financially from use of private land and results in substantial loss of value for the property owner may be a compensable taking, except when the regulation helps to arbitrate competing land use interests and is based on valid government powers to protect the public health, engage in planning, etc. When such arbitration exists, the court will only find a taking if the regulation deprives the property owner of all reasonable uses of the property.[9] Also important to note: the property owner bears the entire burden of proving that the regulation prevents all reasonable uses of the property. If any secondary uses for the property exist, the claim fails.[10]

We’re certain these takings arguments will appear again and again, but they are not a legitimate reason to weaken or repeal the buffer law.

For updates, see FMR’s main legislative page.
To receive related email action alerts, become a River Protector!

 

[1] Id. at 330.; Lucas v. South Carolina Coastal Council, supra note 134 at 1017.

 [2] Lucas v. South Carolina Coastal Council, 505 US 1003 (1992).

[3] Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 US 302, 321 (2002); Penn Central Transp. Co. v. New York City, 438 US 104, 124 (1978); Palazzolo v. Rhode Island, 533 US 606, 636 (2001).

[4] Penn Central Transp. Co. v. New York City, supra note 135.

[5] Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 US 172 (84-4); San Remo Hotel, LP v. City and County of San Francisco, 545 US 323 (2005).

[6] Decook v. Rochester Intern. Airport, 796 NW 2d 299, 305 (2011); Westling v. County of Mille Lacs, 581 NW 2d 815, 823 (1998).

[7] Decook v. Rochester Intern. Airport, supra note 142 at 305; Zeman v. City of Minneapolis, 552 NW 2d 548, 552 n. 3 (1996).

[8] McShane v. City of Faribault, 292 NW 2d 253 (49531); Concept Prop. v. City of Minnetrista, 694 NW 2d 804, 822 (2005).

[9] McShane v. City of Faribault, supra note 145 at 257; Concept Prop. v. City of Minnetrista, supra note 145 at 283.

[10] Czech v. City of Blaine, 253 NW 2d 272, 274 (46481).

News Watch: January 23

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Today’s Topics: Agriculture & Food, Climate Change, Conservation, Energy, Oil & Pipelines, Parks & Trails, Pollution, Transportation, Waste & Recycling, Water, Wildlife & Fish, Loon Commons

Agriculture & Food
Austin Daily Herald: Alternate to the buffer law; Mower farm is one of first ‘alternative practices’ approved for buffer law
Austin Daily Herald: State farmers plan to curb runoff is laced with problems
Brainerd Dispatch: In MN, farmers urge ag property tax credit and fix to school funding

Climate Change 
Democracy Now!: Climate Denier Scott Pruitt Faces Protests at Senate Hearing as 2016 Is Declared Hottest Year Ever
Duluth News Tribune: Northland may gain ‘mild’ days in spring, fall
Grist: In the Trump era, all climate progress will be local
MinnPost: The world sets a record for temperature in 2016 — for the third year running
Mother Jones: Donald Trump Just Replaced the White House Climate Website With…This
MPR: Climate Cast: Getting to know Scott Pruitt, Trump’s pick to lead the EPA
MPR: In break with Trump, EPA pick says climate change isn’t hoax

Conservation
Brainerd Dispatch: Preservation dream fulfilled on Little Whitefish Lake featuring MEP member groups Minnesota Land Trust and Leech Lake Area Watershed Foundation

Energy
Duluth News Tribune: Easy web program shines light on Duluth’s solar potential
Midwest Energy NewsMidwest wind farms follow in the wake of new transmission lines
Star Tribune: Xcel’s pitch for new Becker power plants gets OK from House committeefeaturing MEP member group Fresh Energy

Oil & Pipelines 
Indian Country Media Network: Standing Rock Tribal Council Approves Evacuation Order for All Camps
The Indigenous Peoples: As Everyone Watches the Inauguration, Violence Returns to Standing Rock
MPR: Standing Rock tribe asks protesters to leave
NBC: Pipeline Protesters Decry North Dakota Bills That ‘Criminalize’ Protests

Parks & Trails
International Falls Journal: VNPA recipient of Champion award featuring MEP member groupVoyageurs National Park Association
Red Wing Republican Eagle: Riverfront Trail will be closed 3-4 weeks
Star Tribune: Park Board seeks public input on north Minneapolis park plans

Pollution
MPR: Minn. still behind on greenhouse gas reduction targets
Star Tribune: MPCA and Northern Metal could reach settlement by the end of January

Transportation
MinnPost: Next big transit question for St. Paul: What’s the best way to get to the airport?
Star Tribune: Bottineau Blue Line LRT gains key federal approval
Star Tribune: How should the improved High Bridge in St. Paul look? MnDOT is asking for opinions
Star Tribune: Snelling busway gets strong start; don’t count on extension soon
Star Tribune: Transit board takes initial steps to dissolve

Waste & Recycling
Pioneer Press: St. Paul’s alleyway recycling debuts with glare ice and lots of yellow tags featuring MEP member group Eureka Recycling
Star Tribune: Court again rules against citizen efforts to block organized trash hauling in Bloomington
Star Tribune: MPCA pushes to keep Twin Cities trash burning at capacity

Water
Austin Daily Herald: Mower SWCD finishes first project in major study; More to come as part of Root River Field to Stream Partnership
Brainerd Dispatch: Cass County Board: Public comment sought on water management plan
Duluth News Tribune: Great Lakes need more work, IJC report says
MPR: Report shows environmental progress on Great Lakes, but more work needed

Wildlife & Fish
MPR: New chronic wasting disease case found in central Minnesota
MPR: Organic chickens get more room to roam
Star Tribune: Minnesota’s Game and Fish Fund faces looming budget deficit featuring MEP member group Minnesota Trout Unlimited
Stowe Today: New conservation project permanently protects fish habitat on Whitefish Lakefeaturing MEP member group Leech Lake Area Watershed Foundation
Walker Pilot Independent: New conservation project permanently protects fish habitat on Whitefish Lake featuring MEP member group Minnesota Land Trust