Petition for Writ of Certiorari — Ringsred v. City of Duluth
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Supreme Court, U.S.
p FILED
|
( O02 609 sEP 25 2002
OPPIGE OF THE CLERK
Docket No.
SUPREME COURT OF UNITED STATES COURT
ERIC RINGSRED, an individual,
Petitioner,
PETITION FOR
vs. WRIT OF CERTIORI
(1) CITY OF DULUTH, a municipal corporation; and the
following City officials individually and in their official
capacities: (2) Gary L. Doty, Mayor; (3) Cynthia Albright,
Assistant City Attorney; (4) Brian Brown, City Attorney; (5)
Robert Asleson, Assistant City Attorry; (6) John
Schweiger, Special Projects Manager; (7) John Smedberg,
Assistant City Attomey (8) DULUTH ECONOMIC DEVEL-
OPMENT AUTHORITY, and its Director, Cynthia Albright,
individually and in her official capacity;
(9) TEAM DULUTH; (10) SOFT CENTER-DULUTH,
INC.; (11) Michael McNamara; (12) THE DULUTH AREA
CHAMBER OF COMMERCE, and (13) its CEO David
Ross,
Respondents.
On Petition for Writ of Certiori to the United States
Court of Appeals for the Eighth Circuit
Eric Ringsred (pro se)
701 West Arrowhead Road
Duluth, Minnesota 55811
218-724-4243
I, QUESTION FOR REVIEW
Was the federal court correct in holding that a so-called
"public interest litigant," such as a person suing on behalf of
the public under state environmental legislation, has no
Constitutional rights regarding due process, equal protection,
and fair access to the courts when it comes to such litigation?
TABLE OF CONTENTS
II ot: er ree er ye ore ear ae 6
Ill CORPORATE DISCLOSURE STATEMENT ... . 6
IV CITATION OF DISTRICT COURT DECISION,
APPELLATE TRCRM occ cc cece eevesenss 6
V BASIS Fut FREE chi eer eaeses 6
VI LAWS INVOLVED IN THE CASE............ 6
1. United States Constitution
y Minnesota Environmental Rights Act(MERA)
M.S. 116B.01 et seq; Minnesota Environmen-
tal Policy Act (MEPA) (M.S. 116D.01, et seq.)
SUMMARY OF ARGUMENT
Vig 4 4- RR: 566-494 a ees 9
Foy 2) Gr mere brat Mare heer rare
if Magistrate's Order Report and
Recommendation (10/22/02)
y 2 District Court Order Adopting Magistrates,
Report and Recommendation
3 Eighth Circuit Summary Affirmance (6/27/02)
4. Eighth Circuit Judgment (6/27/02)
5. MERA (M.S. 116B.01 et seq.)
6 MEPA (M.S. 116D.01 et seq.)
7 State Court Denial and Memorandum re: E.
Ringsred's Motion for Contempt Hearings
(12/27/99)
he amt
TABLE OF AUTHORITIES
Cases
Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.
ES SOS ie eo ae ee 14,15
wo pcb | Rn ee nr 8
Curtain v. FDIC, 856 F.2d 255 (8" Cir. ae 10
Greenwich Citizens Comm. vy. County of Warren,
o7 emia Ga, 1906) .........<. 2.00... 11
Lehmuller v. Incorporated Village of Sag Harbor,
944 F.Supp. 1087, 1095 (E.D.N.Y. | Sea 10
Lemmonds v. St. Louis County, 222 F.3d 488
a re 8
Logan v. Zimmerman Brush Co., 1455 US. 422, 102 S.Ct.
i cn ho a 13
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 103 S.Ct.
RENE eager 12
Rooker v. Fidelity Trust Co., 263, U.S. 413 {oo ae 12
Wayte v. United States, 407 U.S. 598, 105 S.Ct.
a 12
White v. Lee, 227 F.3d 1214 (9" Cir. RA eer 10
Miscellaneous
MIE. 6nd ge dba das Uh occ ie 6
coat hy. 5 RR penn An raise Gnd 7
Te EE aii vaca wider ecco) 7
Minnesota Environmental Rights Act (MERA)
Fee eee 7,17
Minnesota Environmental Policy Act (MEPA)
BES. LIGGD)OL Of dag. 2. oo eco ccs 7,17
Il. PARTIES
All named in caption.
Ill. CORPORATE DISCLOSURE STATEMENT
None.
IV. CITATION OF DISTRICT COURT DECISION,
APPELLATE DECISION
(1) United States District Court, District of
Minnesota (Civ No. 00-2241)
(2)United States Court of Appeals for the 8”
Circuit (Case #02-1242)
V. BASIS FOR JURISDICTION
Petitioner requests review of a final judgment of the
Eight Circuit Court of Appeals entered on June 27, 2002, as
provided by 28 USC 1254.
VI. LAWS INVOLVED IN THE CASE
1. i
AMENDMENT I: Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof: or abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble, or to
petition the Government for a redress of grievances,
AMENDMENT XIV - Section 1. All persons born or
naturalized in the United States, and Subject to the jurisdiction
thereof, are citizens of the United States and of the State
wherein they reside. No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of
6
the United States; nor shall any state deprive any person of life,
liberty, or property without due process of law, nor deny to any
person within its jurisdiction the equal protection of the laws.
Policy Act (MEPA) M.S. 116(D).01 et seg [See Apx. pp. 55-
79]
STATEMENT OF THE CASE
Eric and Deborah Ringsred on September 28, 2000,
brought suit in Federal Court, District of Minnesota under 42
USC 1983 and 28 USC 1343 alleging violation of Constitu-
tional Rights by the City of Duluth, et al.
Specifically the Complaint alleges that Respondents
intimidated, coerced, defamed, and pre-empted E. Ringsred
and his environmental litigation against them in 1998 by their
extraordinary actions. For example, E. Ringsred alleges that in
retaliation for his for environmental litigation, the City et al.
attacked and defamed him in the news media, intimidated
witnesses, and threatened him and his supporters such as
witness Sheldon Aubut, who stated in his affidavit (Dkt. No.
72):
"I took the threat seriously and under -
stood it to mean that if I helped Dr. Ringsred in his iitigation,
or was perceived as doing so, I would be at risk of being
Physically harmed. .
The Complaint was dismissed with prejudice by
Magistrate's Recommendation (Apx. pp. 1-48), which was
affirmed by the District and Appeals Courts, upon the follow-
ing grounds:
A that as a matter of first impression, public
interest litigation, such as E. Ringsred's under Minnesota
Environmental Law, is not protected by United States
Constitutional guarantees of due process, access to Court, etc.,
which normally protect "private" litigation.
2. that Ringsred's federal civil rights claims
amounted to ar impermissible appeal of a state court decision
(Apx. pp. 80-87) not to proceed with contempt hearings
against the City, such an appeal violating the "Rooker-
Feldman" doctrine and 28 USC 1257'.
(See District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416
(1923); Lemmonds v. St. Louis County, 222 F.3d 488, 492-93 (8* Cir.
2000)
SUMMARY OF ARGUMENT
Where a state statute creates the right of citizens to
bring suit to protect certain matters of public interest, a person
who brings such a suit must have essentially the same
Constitutional protections against governmental abuses as in
afiy other circumstance. Otherwise, the government can
subvert the right to the detriment of both the individual and the
public by denying due process, equal protection, and fair
access to the courts. That is exactly what the City of Duluth
and other Respondents have done here, where they viciously
attacked anyone who challenged them in court, with "old-
fashioned" threats, punishments, preemptive demolitions, and
blatant character assassination.
Even though it is an unpublished decision (despite
expressly noting that it addresses an issue of first impression)
the decision of the Minnesota District Court, and summary
affirmance by the Eighth Circuit, is legally wrong and, frankly,
knocks the legs out from under anyone who would ever want
to bring public interest litigation.
V. ARGUMENT
1. Eighth Circuit Has Wrongly Decided an Important
Federal Issue:-Does Public Interest Litigation Enjoy
the Same Constitutional Guarantees as Private
Litigation?
The Magistrate's opinion adopted by the Eighth Circuit
States, "as a matter of first impression," (see Apx. p. 16) that a
litigant such as Ringsred acting in the "public interest,” with
standing to do so under State environmental law, has no
constitutional rights to due process, "access to court," equal
protection, etc. Their opinion says (Apx. p. 23):
In effect, any property, or liberty interest held
by Ringsred, in prosecuting that case, was of a
type shared by every citizen in the State of
Minnesota, in whose stead he litigated the case.
As a consequence, if any property or liberty
interest was impaired, it was the interest of the
State of Minnesota, which does not here join in
the Plaintiffs’ Section 1983 claim."
The opinion goes on to state that Ringsred is merely
acting as an attorney for the State of Minnesota or the public
at large (Apx. p. 26-27):
If any property, or liberty interests were im-
paired by the Defendants’ conduct, of which
the Plaintiffs now complain, they were those of
the State of Minnesota, whose rights, and
interests, Ringsred voluntarily elected to
pursue on a representational basis. We can see
no meaningful distinction between Ringsred's
role in the State Court action, and the private
attorneys’ role in Curtain vs. FDIC, 856 F.2d
255 (8" Cir. 1989)
This Eighth Circuit decision conflicts with other courts
which have followed precepts of the Supreme Court, explicitly
giving the highest priority to the "right to petition” on matters
of public concern (see Lehmuller y. Incorporated Village of
Sag Harbor, 944 F.Supp. 1087, 1095 (E.D.N.Y. 1996).
Other courts have accorded this constitutional right to
"public interest" groups, without directly commenting on the
specific entitlement to the right. See White v. Lee, 227 F.3d
10
1214 (9" Cir. 2002) Greenwich Citizens Comm. v. County of
Warren, 77 F.3d 26 (2™ Cir. 1996).
The Eighth Circuit must conform to the traditional
constitutional interpretations of the Supreme Court and other
circuits.
These decisions in other circuits are well in keeping
with the Supreme Court's longstanding interpretation of First
Amendment rights:
The right to sue and defend in the Courts is the
alternative of force. In an organized society it
is the right conservative of all other rights, and
lies and the foundation of orderly government.
It is one of the highest and most essential
privileges of citizenship . . .
Chambers v. Baltimore and Ohio Railroad, 207, U.S. 142,
148, 28 S.Ct. 34, 35 (1907)
Certainly the right to petition extends to all
departments of Government. The right of
access to the courts is indeed but one aspect of
the right of petition.
California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508,510, 92 S.Ct. 609, 612 (1972).
The Supreme Court has described the right to
petition as "among the most precious of the
liberties safeguarded by the Bill of Rights" and
"intimately connected, both in origin and in
purpose, with the other first amendment rights
of free speech and free press." United Mine
11
Workers of America, Dist. 12 v. Illinois State
Bar Ass‘n., 389 U.S. 217, 222, 88 S.Ct. 353.19
L.Ed. 2d 426 (1967). It is "cut from the same
cloth as the other guarantees of [the First]
Amendment, and is an assurance of a particu-
lar freedom of expression." McDonald vy.
Smith, 472 U.S. at 482, 105 S.Ct. 2787.
White v. Lee, 227 F.3d 1214, 1231 (9% Cir. 2000).
Although the right to petition and the right to
free speech are separate guarantees, they are
related and generally subject to the same
constitutional analysis (citations omitted).
Wayte v. United States, 470 U.S. 598, 610, 105 S.Ct. 1524,
1532, note 11.
This Court has recognized that expression on
public issues "has always rested on the highest
rung of the hierarchy of First Amendment
values." Carey v. Brown, 447 U.S. 455, 467,
100 S.Ct. 2286, 2293, 65 L.Ed. 2d 263.
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 103
S.Ct. 3409, 3425 (1982). See also Connick v. Meyers, 461
U.S. 138, 144-147, 154, 103 S.Ct. 1684,1688-1684, 1689,
1693-94) (1983).
The very idea put forth by the Eighth Circuit "as a
matter of first impression," that citizen Ringsred has no
constitutional right to petition "in matters of public concern,”
12
or "in the public interest," but only regarding his private
interest seems dubious on its face.
Taken to its logical conclusions, the Eighth Circuit
decision means the City could harass a "public interest" litigant
or petitioner to no end, viciously retaliate against them, or
enact laws against them and their activities, without violating
any federally-protected rights.
2. The Eight Circuit Ignores Logan v. Zimmerman
Br 455 422, 102 148 (19
When the city preemptively destroyed historic build-
ings, on two separate occasions, just hours before court
hearings to decide upon their protection, not only in their haste
did they break Minnesota laws requiring demolition permits,
competitive bidding, and government approval of the expendi-
tures — they also effectively deprived Ringsred of his "day in
court." :
But the Eighth Circuit denies Ringsred any constitu-
tionally protected property interest in those hearings, or any
other aspect of his state court litigation.
This contradicts the specific pronouncement of the
Supreme Court in Logan, supra, and other cases cited therein,
that a cause of action is a species of property protected by the
Fourteenth Amendment and the First Amendment's Right of
Access: :
The first question, we believe, was affirma-
tively settled by the Mullane case itself, where
the Court held that a cause of action is a spe-
cies of property protected by the Fourteenth
Amendment's Due Process Clause.
13
455 U.S. at 428, 102 S.Ct. at 1154.
This conclusion is hardly a novel one. The
Court has traditionally hid that the Due Process
Clauses protect civil litigants who seek re-
course in the courts, either as defendants
hoping to protect their property or as plaintiffs
attempting to redress grievances.
** & 4 nay oe
Similarly, the Fourteenth Amendment's Due
Process Clause has been interpreted as
preventing the States from denying potential
litigants use of established adjudicatory proce-
dures. . .
* * *
Footnote 5: The Court's cases involving the
right of access to courts provide an analogous
method of analysis supporting our reasoning
here.
455 U.S. at 429, 102 S.Ct. 1154.
As our decisions have emphasizedtime and-
again, the Due Process Clause grants the
aggrieved party the opportunity to present his
case and have its merits fairly judged.
Id. at p. 433.
[This] requires "an opportunity . . ." granted at
a meaningful time and in a meaningful man-
ner"... "[For a] hearing appropriate to the
nature of the case." Boddie v. Connecticut, 401
14
USS. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed. 2d
113.
Id. at pp. 423 and 1151.
This right to a hearing on the matter was violated by
the City, not inadvertently nor by accident. The City's
preemptive destruction of historic properties was intentional,
arrogant, and totally out of line for governmental behavior
notwithstanding the United States Constitution. Boddie v.
Connecticut, supra, affirms at page 785:
Persons forced to settle their claims of right
and duty through the judicial process must be
given a meaningful opportunity to be heard.
Apparently, because Ringsred's State Court litigation
occurred under State Environment Law, with public interests
at stake, Ringsred's standing as a private property owner is
negated:
1. Ringsred owned property (Temple and Norshor
Theater buildings) actually within the "Duluth Commercial
Historic District" which he sought to protect in state litigation
(Dkt. No. 73).
2. Ringsred owned a leasehold in one of the
demolished historic buildings (Dkt. No. 73).
3. Ringsred personally paid his costs in the state
litigation and a Two Thousand Dollar ($2,000) penalty for
delay in joinder of one of the Defendants (Dkt. No. 51, Exh.
5). :
CONCLUSION
Eric J. Ringsred, a physician, past political office
holder, civic activist, major property owner/restorationist in
Duluth's historic and arts district, by pronouncement of the
Eighth Circuit, no longer has a constitutional right to petition
or litigate on matters of public concern. Nor does anyone
else in the Eighth Circuit as things now stand.
In the words of the Court itself (Apx. pp. 23, 24, 37):
[A]ny property, or liberty interest held by
Ringsred, in prosecuting that case, was of a
type shared by every citizen of the State of
- Minnesota, in whose stead he litigated the case.
** *
The Plaintiffs’ claimed denial of access to the
Courts can fair no better, as the interests that
Ringsred was pursuing in the State Courts
were representational interests, and not those
he had a right to litigate in his own stead.
xe e
In sum, on the Record presented, we find no
denial of due process, procedural or substan-
tive, nor any denial of access to the Courts, and
therefore, we recommend that the Plaintiffs’
cause of action be dismissed on jurisdictional
grounds as we are without the requisite subject
matter jurisdiction to entertain the Plaintiffs’
Section 1983 claims.
16
In the Eighth Circuit, private citizens no longer have
the right to petition, as afforded by state law under MEPA
(see MS 116D.04, subd. 2a, Apx. pp. 72-3), nor to litigate
under MEPA (MS 116D.04 subd. 10 Apx. pp. 77-8) nor
MERA (see MS 116B.03 and 10 (Apx. pp. 53 and 63). Nor to
challenge by petitioning or litigation, other public interest
issues: zoning decisions, legislative redistricting, taxation,
voting and election issues, administrative rule making,
initiative and referendum (by petition), etc.
A person may have sufficient passion to challenge city
government for violating environmental and _ historic
preservation laws. The State may pass statutes allowing
individuals to litigate on behalf of such public interests. But in
reality city government is extremely powerful against an
individual. If the district court and the Eighth Circuit were
correct in holding that public interest litigants have no
constitutional protections in petitioning or conducting such
litigation, then it's not just a major uphill battle, it's a foolhardy
personal risk. The city government and its cronies can and
will, as they have done here, trample individual rights with no
basis for federal review of their abuse of power.
Dated bylor C : we :
Eric Ringsred
701 West Arrowhead Road
Duluth, MN 55811
(218) 724-4243
APPENDIX
Page
REPORT OF MAGISTRATES REPORT APPEAL
FROM DISTRICT OF COURT FOR THE DISTRICT
See erererrerrae 1
EIGHTH CIRCUIT ORDER JUDGE RICHARD H.
RMBs ccicccccin ae ep rereree 48
EIGHTH CIRCUIT OPINION .......+.+00005 50
EIGHTH CIRCUIT JUDGMENT .........065 52
MINNESOTA STATUE 2001, MINNESOTA
STATUTE 2001, CH. 116B ......ceeeeeceeee 54
MINNESOTA STATUE 2001, MINNESOTA
STATUTE 2001, CH. 116D 2... ccccccccccee 67
MOTION FOR ORDER TO SHOW CAUSE AND
CONTEMPT, MEMORANDUM ATTACHED
SIGNED BY TERRY C. HALLENBECK, DISTRICT
COURT JUDGE ..ccccccccccccccccccvesces 80
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ote * ™* * * * *
Eric Ringsred, an individual
and a state, federal and local
taxpayer, State of Minnesota,
by Eric Ringsred, and Deborah
Ringsred,
Plaintiffs,
VS.
City of Duluth, a municipal
corporation, and the following
City Officials, individually
and in their official capacities,
Mayor Gary L. Doty; Cynthia
Albright, Assistant City
Attorney; Brian Brown, City
Attorney; Robert Asleson,
Assistant City Attorney; John
Schweiger, Special Projects
Manager; John Smedberg, Assistant
City Attorney; Duluth Economic
Development Authority, and its
Director, Cynthia Albright,
individually and in her official
capacity; Team Duluth; Soft
Center-Duluth, Inc.; Michael
McNamara; Duluth Area Chamber
of Commerce and David Ross, CEO,
Defendants Civ. No. 00-2241 (RHK/RLE)
At Duluth, in the District of Minnesota, this 22™ day of
October, 2001.
I. Introduction
This matter came before the undersigned United States
Magistrate Judge pursuant to a special assignment, made in
accordance with the provisions of Title 28 U.S.C.
§636(b)(1)(A) and (B), upon the numerous Motions of the
parties. As there are a number of different Defendants in the
case, for the sake of clarity, we first categorize the Defendants
into relevant groupings, and then proceed to delineate the
Motions of the parties.
The first cluster of Defendants may be denominated as
the "Government Defendants," which includes the City of
Duluth and its City officials, in both their individual, and
official capacities; namely, Gary Doty, Cynthia Albright, Bryan
Brown, Robert Asleson, John Schweiger, and John Smedberg,
together with the Duluth Economic Development Authority
("DEDA"). A second grouping may be designated as the "Soft
Center Defendants," to include the Soft Center-Duluth, Inc.,
and Michael McNamara, as an employee of Soft Center-
Duluth. The last category is comprised of the "Chamber
Defendants," which includes the Duluth Area Chamber of
Commerce, Team Duluth, David Ross and, in a separate
capacity, Michael McNamara. The Plaintiffs, and each
grouping of Defendants, have filed Motions which we list as
follows:
1. The Motion of the Government Defendants to
Dismiss or, in the alternative, for Summary Judgment.
2. The Motion of the Plaintiffs' to Compel the
Appearance of the Individual Government Defendants
at a Deposition, and the Obverse Motion of the
Individual Government Defendants for-a Protective
order.’
'City of Duluth, Gary Doty, Cynthia Albright, Bryan
Brown, Robert Asleson, John Schweiger, and Duluth Economihe
Plaintiff Eric Ringsred ("Ringsred"), brings this action on his own
~ behalf, both as an individual, and as a Federal, state, and local
taxpayers, as well as on behalf of the State of Minnesota. Deborah
Ringsred, who is the wife of Ringsred, has asserted a claim for the loss
of quantity and quality of time with her husband, as well as injuries
suffered as a result of damage to Ringsred's reputation. Deborah
Ringsred has not expressly joined in advancing the Motions filed by
Ringsred, as she has not signed any of the Motion papers, nor has she
argued any Motion in open Court. Accordingly, we will address the
Plaintiffs’ position jointly, except when we consider one of their claims
which affects either of them individually.
On April 3, 2001, the Plaintiffs served deposition notices
on the individual Government Defendants, which set the dates of their
depositions for April 23 through April 25, 2001. Thereafter, on or
about April 22, 2001, the Government Defendants served their Motion
to Dismiss or, in the alternative, for Summary Judgment, which was
based, in part, on a claim of qualified immunity. They consequently
advised the Plaintiffs that they would not appear for the noted
Instead of filing a timely responsive pleading to the Motion
to Dismiss, the Plaintiffs filed a Motion to Compel the Government
Defendants to appear for their depositions. In turn, the Government
Defendants filed a Motion for a Protective Order, which sought
dispositive Motion was predicated on a claim of qualified immunity,
they should be shielded from suit for their discretionary governmental
acts, unless their conduct should violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
See, Wilson v, Layne, 526 U.S. 603, 609 (1999), citing Harlow y
Fitzgerald, 457 U.S. 800, 818 (1982). The defense of qualified
immunity protects not only against liability, but also against litigation.
(continued...)
3. The Motion of Plaintiffs to File an Untimely
Memorandum in Opposition to the Governmental
Defendants’ Motion for Dismissal.*
2(...continued) 7
See, 502 U.S. 224, 227 (1991), citing Mitchell y.
Forsyth, 472 U.S. 511, 526 (1985); Engle v. Townsley, 49 F.3d 1321,
1323 (8 Cir. 1995); Moore y, Webster, 932 F.2d 1229, 1232 (8® Cir.
1991). Thus, Courts have tailored Protective Orders to prevent
unnecessary discovery into the merits of a plaintiff's claim, while still
allowing discovery regarding the qualified immunity defense. See,
Maxey v, Fulton, 890 F.2d 279, 282 (10® Cir. 1989); Felak y. United
States, 661 F.Supp. 51, 53-54 (D. Minn. 1987); c.f. Haenchen v,
Riley, 994 F.2d 842, 1993 WL 169051 at *1 (8* Cir. 1993)
(However, we note that discovery is appropriate where the ‘parties
disagree as to what actions the law enforcement officers took and if the
plaintiff can present some evidence to support [his] allegations."")
{unpublished decision]. Otherwise, such discovery on the merits of a
Fulton, supra at 281.
As the Governments’ Motion for a Protective Order was to
prevent discovery pending the Court's decision on the Motion to
Dismiss, it is now mooted by the Recommendation we make. Thus,
without prejudice to their renewal, if otherwise warranted, should our
Recommendation be rejected by the District Court.
>The Plaintiffs were obligated to serve and file their
responsive Memorandum to the dispositive Motion of the Government
Defendants on May 17, 2001. however, due to an apparent
misunderstanding on the Plaintiffs' part, they did not file their
Memorandum until May 22, 2001, and they requested leave to file
their untimely submission on that same day. In the interests of being
fully informed, we previously granted the Plaintiffs' Motion to File
their untimely Memorandum, and now formally record that ruling.
4. The Motion of the Government Defendants for
Leave to File an Untimely Reply Memorandum.‘
5. The Motion of Plaintiffs to Amend the
Scheduling Order of December 1, 2000, so as to Allow
an Amendment of the Complaint, and their Motion to
Amend Their Complaint.*
‘Owing to the Plaintiffs’ late filing of their Memorandum in
Opposition to the Government Defendants’ Motion to Dismiss, the
Government Defendants requested leave to file an untimely Reply
Memorandum and, since the Government Defendants' Reply is
untimely, through no fault of their own, we previously granted this
Motion, and now formally record that ruling.
*This is the Plaintiffs' second attempt to amend their
Complaint, and follows our earlier rejection of their first attempt as
being both untimely, and futile - - a decision which was adopted by the
District Court. As explained by the Plaintiffs, they believe that an
amendment of their Complaint would disarm much of the dispositive
Motion of the Government Defendants, which is premised, in part, on
the shortcomings of the Plaintiffs' Complaint. _
In our Scheduling Order of December 1, 2000, the deadline
for amending the pleadings was set for February 1, 2001. Where, as
here, the deadline for the amendment of pleadings has since expired,
the propriety of a Motion for leave to amend “is most
considered within the framework of Rule 16(b), Federal Rules of Civil
Procedure." Alholm v. American Steamship Co,, 167 F.R.D. 75, 77
(D. Minn. 1996). Thus, the Plaintiffs must show the "good cause,"
which is required by Rule 16(b), if they are to be allowed to amend
their Complaint on an untimely basis. Bule 16(b). Federal Rules of
Ciyil Procedure ("A schedule shall not be modified except upon
showing of good cause * * *."). Once again, the Plaintifis have failed
to demonstrate good cause for their belated Motion to Amend.
While the Plaintiffs contend that the Motion of the
Government Defendants to Dismiss was untimely, they are mistaken,
as the applicable dispositive Motion deadline was September 15,
2001, and the Motion was heard well in advance of that date.
Moreover, the bases for the Governmental Defendants’ Motion were
not waived, as the Plaintiffs argue, as those grounds for dismissal were
(continued...)
6. The:Motion of the Soft Center Defendants for
Summary Judgment.
7. The Motion of the Chamber Defendants for
Summary Judgment.
8. The Motion of the Government Defendants for
Rule 11 Sanctions.
9. The Informal Motion by the Defendants to
Strike.°
*(...continued)
asserted in their respective Answers to the Plaintiffs' Complaint. See,
Rule 12(b), Federal Rules of Civil Procedure ("No defense or objection
is waived by being joined with one or more other defenses or
objections in a responsive pleadings or motion."). More importantly,
the Plaintiffs had notice that the Government Defendants found their
Complaint substantially lacking, as the issue was addressed at the
Initial Pretrial Conference. The Plaintiffs' first attempt to amend their
Complaint, while late and largely futile, was an attempt to cure the
deficiencies which were then noted. Thus, if the Plaintiffs had asserted
such a Motion to Amend in a timely fashion, they would have been
afforded an opportunity to clarify their claims, and add others, so long
as those claims were not legally futile. Accordingly, finding no good
cause to allow the requested late amendment, we deny the Plaintiffs'
Motion to Amend the Scheduling Order and, resultantly, their second
Motion to Amend their Complaint.
°On July 19, 2001, this Court heard the Motion by the
Chamber Defendants for Summary Judgment, as well as the
Government Defendants' Motion for Rule 11 Sanctions. Thereafter,
on July 31, 2001, and again on August 13, 2001, the Plaintiffs
submitted additional materials for the Court's consideration. The
materials address many of the issues raised in the three Hearings
before this Court. As a consequence, the Defendants request that the
additional materials be stricken from the Record. While we did invite
the Plaintiffs to submit any additional authority, following the
Hearings of July 19, 2001, we granted such leave with respect to the
issues raised during that Hearing. Further, we did not invite the
submission of new evidence, but only such case authority as they felt
supported their arguments at the Hearing. Therefore, we have
considered the relevant case authorities presented in the Plaintiffs' of
(continued...)
Hearings on the Motions were conducted on May 31, 2001,
June 28, 2001, and July 19, 2001, at which the Plaintiffs
appeared pro se; the Government Defendants appeared by M.
Alison Lutterman, Assistant Duluth City Attorney; the Soft
Center Defendants appeared by Faye M. Witt and James A.
Wade, Esqs.; and the Chamber Defendants appeared by R.
Thomas Torgerson, Esq. |
As to the Motions which remain for disposition, we
recommend that the Motion of the Government Defendants to
Dismiss, for want of subject matter jurisdiction be granted;
that the Motions for Summary Judgment of the Soft Center
Defendants, and of the Chamber of Defendants, be granted;
and we deny the Motion of the Government Defendants for
Rule 11 Sanctions.
Il. Factual and Procedural History
The Plaintiffs bring this action under Title 42 U.S.C.
§1983, and allege that the Defendants have violated various
Federal, State and local laws, and have infringed upon their
Federal constitutional rights. The crux of their claims arise
from certain actions which, allegedly, were taken by the
Defendants during prior litigation involving both the Plaintiff
Eric Ringsred ("Ringsred"), and a number of the Defendants
here. Specifically, in May of 1998, Ringsred brought suit in
Minnesota District Court, on behalf of the State of Minnesota,
and against the City of Duluth, DEDA, Mayor Gary Doty, and
others, under the Minnesota Environmental Rights Act,
Minnesota Statutes Section 116B.01 et seq. ("MERA"),
According to Ringsred, the purpose of that earlier suit was to
protect buildings, which were located in the "Duluth
Commercial Historic District," from a demolition designed to
*(...continued)
the newly presented factual materials and, to that extent, we grant the
Defendants’ informal Motion to Strike
make space for the erection of the "Soft Center/Technology
Village" project.
Ringsred's suit, on behalf of the State, was premised
upon the following Minnesota statutory provisions:
Any person residing within the * * * may
maintain a civil action in the District court for
declaratory or equitable relief in the name of
the State of Minnesota against any person, for
the protection of the air, water, land or other
natural resources located within the state,
whether publicly or privately. from pollution,
impairment, or destruction; provided, however,
that no action shall be allowable hereunder for
acts taken by a person on land leased or owned
by said person pursuant to a permit or license
issued by the owner of the land to said person
which do not and can not reasonably by
expected to pollute, impair, or destroy any
other air, water, land, or other natural resource
located within the state.
Minnesota Statutes Section 116B.03, Subdivision 1’
"Ringsred's State Court action was also
predicated on the following statutory provisions:
Decisions on the need for an
environmental assessment worksheet, the
need for an environmental impact
statement and the adequacy of an
environmental impact statement may be
reviewed by a declaratory judgment
action in the district court of the county
wherein the proposed action, or any part
thereof, would be undertaken.
(continued...)
In particular, Ringsred sought, on behalf of the State of
Minnesota, to enjoin the "Soft CenterTechnology Village"
project, and to require the City to prepare an Environmental
Impact Statement ("EIS"). The Trial Court issued two
Temporary Restraining Orders, and then held a Trial on the
merits during September and October of 1998. On October :.
1998, the Trial Court issued an Order, which found that area
in dispute - - the 0 - 100 block of East Superior Street, which
was referred to as "Old Downtown" -- constituted a "natural
resource"® under MERA.?
Notwithstanding that ruling, however, the Trial Court
also determined, after conducting the equivalent of an
Environmental Assessment Worksheet ("EA W"), that the Soft
Center/Technology Village project should proceed. The Court
" reasoned that the project would not have a significant impact
on the denoted "natural resource" and, further, that any effect
would further diminish over time. The Court also found that
7(...continued)
Minnesota Statutes Section 116D.04, Subdivision 10.
SMERA defines "natural resource" as follows:
Natural resources shall include, but not be limited
to, all mineral, animal, botanical, air, water, land,
timber, soil, quietude, recreational and historical
resources.
Mi ion 116B.02, Subdivision 4.
"It appears that the actual portion of "Old Downtown,"
which the Trial Court deemed a "natural resource," is larger than the to
0 to 100 block of East Superior Street, although the exact dimensions
are not known to this Court. See, f Mi
State of Minnesota, by Ringsred v.
City of Duluth, C3-98-601 186, Findings of Fact, Conclusions of Law
and Order for Judgment, at 37 (Minn. Dist. Ct. October 5, 1998).
However, as pertinent to this case, we are concerned primarily with the
activities in the 0 to 100 block - - that is, the epicenter of the Soft
Center/Technology Village Project - - as those activities were the core
of Ringsred's State Court proceeding.
9
there was no feasible alternative site, in the City, for the
project, and that the project would yield substantial economic
and educational benefits to the City, and its citizens. Thus, the
Trial Court allowed the project to advance, thereby allowing
the demolition of five buildings, located on the future site of
the project, but imposing a mandatory injunction which
required the defendants, in that case, to confer the 0 to 100 of
East Superior Street with the environmental protections
befitting a "natural resource."'° Ringsred appealed the Trial
Court's Order to the Minnesota Court of Appeals, which
affirmed the Trial Court's decision in all respects. See State of
Minnesota, by Ringsred v. City of Duluth, 1999 WL 618613
(Minn. App. August 17, 1999) [publication page reference not
available]. No further appeal was taken.
in pertinent part, the Trial Court ordered:
That portion of Duluth detected upon the outlined
portion of Exhibit 23, attached hereto as
Attachment A, consisting of a historical resource
and therefore being a "natural resource,"
defendants and each of them, are ordered and
directed to accord such district so delineated and
any structures located therein constructed between
1880 and 1930 those protections accorded to
natural resources under Minnesota environmental
laws including, without limitation, chapters 116B
and 116D of the Minnesota statutes. Such
protection shall be accorded as any and all
activities are carried out by them or under their
direction or control with regard to or as a part of
the construction of the Soft Center project
including: the Soft Center building, the related
parking ramp, the related skywalk, utilities and
any and all other construction or demolition
activities related to the Soft Center project within
or affecting the delineated district set fourth on
attachment A hereto.
By way of additional background, in September and
October of 1998, prior to the Trial of the State Court action,
Ringsred sought a Temporary Restraining Order so as to
prevent the destruction of the Strand Theater, which was
located within the area that was ultimately determined, by the
Trial Court, to be a "natural resource," but it was not onc of the
five buildings which were scheduled for demolition at the site
of the planning Soft Center/Technology Village. See, Affidavit
of Robert Asleson, at 91. Nonetheless, Ringsred sought a
Temporary Restraining Order in order to protect the Strand
Theater from destruction. As alleged by Ringsred, when the
defendants in the State Court action learned about his Motion,
they preemptively destroyed portions of the Strand Theater.
Although the Temporary Restraining Order was later issued,
it was subsequently lifted because, as related by Ringsred, the
Court found that there had already been substantial damage to
the building, and there was, as alleged by Ringsred, perjured
testimony, from the City, that no buyers could be found for the
property. 4
Ringsred further contends that, during the Trial of the
State Court action, the defendants in that case conducted
meetings with individuals who were listed as witnesses for
Ringsred, and also conducted an advertising campaign to
promote the Soft Center/Technology Village. Ringsred asserts
that, in one instance, the State Court defendants attempted to
prevent one witness, Jill Fisher ("Fisher"), from testifying at
the Trial, and threatened another witness, Sheldon Aubut
("Aubut"), with physical injury and damage, because of his
testimony. There is no allegation, however, let alone a
showing, that either witness did not testify at the Trial, or that
either one of them gave false testimony as a result of the
purported threats.
In December of 1998, Ringsred returned to the State
Court, and sought a Temporary Restraining order to enforce,
1]
in effect, the mandatory injunction that the Trial Court had
issued as part of its Order of October 5, 1998. According to
Ringsred, the defendants were set to demolish three buildings,
which he believed fell within the confines of the mandatory
injunction, but which the defendants had failed to treat as a
"natural resource," as required by the State Court's mandatory
injunction. Ringsred maintains that the Hearing on that
Motion was to occur at 10:00 o'clock a.m., on December 28,
1998, but that the defendants preemptively demolished the
three buildings at 10:00 o'clock a.m., without a building
demolition permit, without soliciting competitive bids, and
without governmental approval of the expenditure.
Notwithstanding Ringsred's assertions, the State Court denied
the Temporary Restraining Order, as being without a sufficient
showing for the equitable relief that Ringsred was requesting.
See, State of Minnesota, by Ringsred v. City of Duluth, C3-98-
601186, Order, at 3 (Minn. Dist. Ct. December 28, 1998).!'
Indeed, in its decision of August of 1999, the Minnesota Court
of Appeals expressly observed that "the trial court ha[d] issued
a mandatory injunction as to the remainder of the [Soft Center]
project and Ringsred has made no showing that respondents
have violated the law or the trial court's mandate," and that
"Ringsred has shown no environmental violation as to the
work in process.” State of Minnesota, by Ringsred v. City of
Duluth, 1999 WL 618813 (Minn. App. August 17, 1999)
[publication page references not available].
In December of 1999, Ringsred filed, in State Court, a
Motion for an Order.to Show Cause, and an Application for
Sanctions, against the defendants, there, contending that they
'! The Orders of the State Courts which dealt with
Ringsred's earlier claims, and certain of the Motion papers, and papers
on Appeal, are attached to several Affidavits in this Record.
Accordingly, we reference the document we cite, but do not specify one
Affidavit, or another, as the repository of the document.
12
had violated various Minnesota Statutes, including the giving
of false testimony concerning Federal funding for the Soft
Center project, and regarding potential buyers and users for the
Strand Theater; the preemptive demolition of the Strand
Theater; the conduct of prejudicial pretrial meetings with
Ringsred's witnesses; the dissemination of prejudicial pretrial
publicity; the threatening of Ringsred's witnesses; the
interference with the service of a subpoena on one of
Ringsred's witnesses; the disobedience of the Court's
mandatory injunction; the misrepresentation of facts during the
Hearing on Ringsred's Motion for Temporary Restraining
order; the demolition of a building without a building permit;
the demolition of a building without authorization by the
DEDA; the demolition of a building without taking
competitive bids; and the attempt to "cover up" the failure to
take competitive bids. See, State of Minnesota, by Ringsred v.
ee gli day nc ry art
= State Trial Court pone) Ringsred' request : sanction the
defendants. or to have them show cause why they should not
be held in contempt of that Court, because most of his
allegations were based on hearsay, and because, in the court's
view, a Motion for an Order to Show Cause, and for Sanctions,
was an inappropriate means of raising such issues, as
discovery would need to proceed if the claims were
cognizable. The Court specifically noted that "[m]any of the
issues which plaintiff raises could well be the subject of
separate proceedings subject to the rights and responsibilities
of the parties under our Rules of Procedure including those
applicable to discovery." See, State of Minnesota, by Ringsred
v. City of Duluth, Civ. No. C3-98-601176, Order Regarding
Motion for Order to Show Cause and Contempt, at 7 (Minn.
Dist. Ct. January 10, 2000). No appeal from the State Court's
13
denial of Ringsred’s Motion for Sanctions, and for Contempt
of Court, was taken.
The Plaintiffs have also alleged that, in January of
2000, the Defendants publicly accused Ringsred of "frivolous
litigation." As phrased by the Plaintiffs, "[flirst the local news
media, then Ringsred himself, were notified of a threat by
Defendants against him for Court sanctions to limit his ability
to litigate issues of personal and public concern." Complaint,
at ¥]7.
Thereafter, on October 3, 2000, the Plaintiffs
commenced this action, against the Government Defendants,
the Soft Center Defendants, and the Chamber Defendants,
contending that they had violated Ringsred's right of access to
the Court, as guaranteed by the First Amendment, as well as
the Due Process, and Equal Protection Clauses, of the United
States Constitution. The Plaintiffs have further alleged,
without specificity, that the Defendants have violated various
Federal, State, and local laws, and have engaged in unlawful
recruitment of local businesses for the Soft Center facility. In
addition, the Plaintiffs assert that the Defendants actions have
damaged the reputation of Ringsred, by stating, to the public,
that Ringsred was conducting "frivolous litigation,” and by
threatening sanctions as a consequence of such frivolousness.
Lastly, the Plaintiffs maintain that the conduct of the
Defendants has caused injury to the family of Ringsred, such
as emotional distress, loss of time, money, and effort. As a
result, the Plaintiffs ask for the following damages:
l. Compensatory damages to Ringsred in excess
of $50,000;
2. Damages for lost time, lost enjoyment of life
and property, and emotional distress, both past and
future;
3. Exemplary damages upon the Plaintiffs’
Motion;
14
4. Damages to the people of the State of
Minnesota by Ringsred, to be held in trust for the
purpose of mitigation to the "Duluth Commercial
Historic District," in the amount of $10 million; and
5. Exemplary damages to the people of the State
of Minnesota by Ringsred, upon the Plaintiffs' Motion;
6. Damages to Deborah Ringsred for loss of
reputation, and of quality and quantity of time given to
her by Ringsred in the amount of $10,000;
7. A declaration that the Defendants’ are not in
compliance with the "Mandatory Injunction” issued by
the State Court on October 5, 1998, and commanding
future compliance;
8. An Order commanding detailed compliance
with the State Court Order mandating conformance
with MEPA and MERA in respect to proposed
skywalk construction within the Duluth Commercial
Historic District;
9. Exemplary damages to Federal, State, and local
taxpayers, upon the Plaintiffs’ Motion;
10. An award of costs, disbursements,
reasonable attorney's fee or their equivalent,
and such other relief as the Court deems just
and equitable.
Complaint, at 4735-40.
In response to the Plaintiffs’ Complaint, the Government
Defendants have moved to dismiss the Complaint, or for a
grant of Summary Judgment, on a number of different bases,
including a claimed lack of Subject matter jurisdiction, a
failure to state a claim upon which relief can be granted, and
on the basis of qualified and absolute immunity.
The Soft Center Defendants, and the Chamber
Defendants, seek Summary Judgment, as the Soft Center
15
Defendants contend that the Plaintiffs have not identified any
complaints that they have against them and, together with the
Chamber Defendants, contend that they were not acting "under
color of state law" and, therefore, cannot be held liable under
Section 1983. In addition, the Government Defendants seek
Rule 11 Sanctions against Ringsred, arising out of his attempt
to file of a second Motion to Amend the Complaint.
Notably, the Plaintiffs allege no occasion when they
were unable to present claims, or evidence in support of any
claim, to the State Court, or which they have declined to
advance a claim, make an argument, or otherwise petition a
Court for relief, on account of some fear of retaliation at the
hands of the Defendants. Rather, the Plaintiffs suggest, by
mere inference, that the result reached by the State Court
would have been different had the Defendants not engaged in
the acts of which they are accused. Insofar as we are aware,
and our research has been extensive, this is a case of first
impression.
Some learn from history, others are content to relive it.
In this instance, any regression, so as to relitigate the past, is
foreclosed by controlling Federal precedent. After a
painstaking review of the Record presented, we an applaud the
Plaintiffs for the novelty of their claims, but we conclude that
none of their causes of action can survive the Defendants’
dispositive Motions and, therefore, we recommend that those
Motions by granted. Further, we deny the Government
Defendants' Motion for Rule 11 Sanctions as being without
merit.
Ill. Discussion
A. The Government Defendants’ Motion __to
Dismi
The Plaintiffs' Complaint spans six pages, and contains
five recognizable causes of action. Nonetheless, within those
six pages, the Plaintiffs have seemingly included every
16
unfairness that they claim to have experienced, during the
course of the State litigation, because of the acts of generic
defendants, as well as numerous grievances that other,
nonparties, have purportedly endured. By and large, the
Complaint does not differentiate between the Defendants, or
specifically identify which of the Defendants purportedly
committed which misdeed.'? Moreover, many of their
allegations are so vague and Sweeping, that they afford the
Defendants with little notice, or forewarning, of the specific
misconduct of which they are accused. For example, in their
Second Cause of Action, the Plaintiffs state:
Defendants individually and in combined
agreement with each other by their actions
above-noted, have negligently and intentionally
violated civil and penal statutes including, but
not limited to, professional conduct of
attorneys, misconduct of public Officials,
coercion, witness tampering, competitive
bidding for public projects, obstruction of
justice, contempt of Court, abuse of legal
process, and deceit-collusion-misconduct by
attorneys, perjury, conspiracy to commit
crimes, and failure to report misuse of public
funds.
Complaint, at 713.
As the Plaintiffs have not cited any statutory, or other legal
bases for such a claim, it largely falls of its own weight.
“In fact, in only one instance do the Plaintiffs specifically
mention a Defendant by name; specifically, the allegation that "Mayor
Gary Doty has participated and encouraged violations of law and the
US. Constitution, and abdicated his responsibility over subordinates
to uphold the law and U.S. Constitution." Complaint, at $10.
17
Section 1983 disputes, which frequently are spawned
in rage or insult, lend themselves to such imprecision and
vagueness. As the Court observed, in Liggins v. Morris, 749
F. Supp. 967, 971 (D. Minn. 1990):
Constitutional claims brought under Title 42
U.S.C. §1983 are discrete claims and as such
should not be pled in this shotgun manner.
Almost invariably, complaints using this
format are met with motions to dismiss or
summary judgment under Federal Rules of
Civil Procedure 12(b)(6) and 56. It is then left
to the court to divine what discrete
constitutional violations are in fact legitimate
and proper as to each plaintiff and as against
each defendant. The court must and does
ferret out and dismiss those alleged
constitutional violations that patently cannot be
maintained. This process is time consuming,
fraught with frustrations for both the court and
counsel, and disrupts the orderly processing of
legitimate claims. Although Rule 8 provides
for notice pleading, it demands greater
specificity than that found in this complaint or
in others pled in the same manner.
Id.
The Court, in Liggins, went on to hold that "[t}]he time has
come for practitioners in this district to prepare complaints
alleging violations of 42 U.S.C. §1983 in a fashion that will
identify the specific claims of individual plaintiffs for specific
constitutional violations as against only culpable defendants,"
and that the failure to do so will result in dismissal "for failure
to comply with Rule 8 and Rule 11 of the Federal Rules of
Civil Procedure,” Id.
18
Plainly, the Plaintiffs’ Complaint contravenes the
holding in Liggins, but we decline to apply the proscriptions of
Liggins where, as here, the Plaintiffs are not represented by
legal counsel,'’ thereby obligating us to ferret out any
cognizable causes of action, and to address the merits of any
such claims. Accordingly, following a recitation of the
standard that governs our review, we turn to an analysis of the
claims that the Plaintiffs have raised.
a Standard of Review. The Government
Defendants advance their Motion to Dismiss, in part, on Rule
12(b)(1) and (b)6), Federal Rules of Civil Procedure. To
succeed in a Motion to Dismiss for want of subject matter
jurisdiction under Rule 12(b)(1), the challenging party must
successfully attack the Complaint, either on its face, or on the
factual truthfulness of its averments. See, Titus v. Sullivan, 4
We note, however, that, while not a licensed attorney,
Ringsred is an experienced pro se Plaintiff - - a circumstance that has
not cluded the State District Court which considered his previous
claims, nor our prior ruling on the Plaintiffs’ first Motion to Amend
their Complaint. See, e.g., i Vv
Duluth, Civ. No. C3-98-601186, Findings of Fact, Conclusions of
at 39 (Minn. Dist. Ct. October 5, 1998)
(“at the outset the Court wishes to commend counsel and plaintiff who
has proceeded herein pro se. Mr. Ringsred, although not an attorney
by training or profession, conducted himself in a manner and with a
degree of professionalism and candor that any attorney would do well
to emulate."); Order and Repo: ommendation of March 14
keen ability to research his claims, and to effectively argue their
substance.
19
F.3d 590, 593 (8 Cir. 1993). In a facial challenge to
jurisdiction, "we accept all of the factual allegations in the
Complaint as true and ask whether, under those circumstances,
[Federal subject matter jurisdiction exists]." Deuser v. Vecera,
139 F.3d 1190, 1191 (8" Cir. 1998), quoting Berkovitz v.
United States, 486 U.S. 531, 540 (1988). A District Court also
has the authority, in a Rule 12(b)(1) challenge to subject
matter jurisdiction, to consider matters outside of the
pleadings. Id. at 1191 n. 3, quoting Dreviow v. Lutheran
Church, Mo. Synod, 991 F.2d 468, 470 (8" Cir. 1993;
Maruska v. United States, 77 F. Supp. 2d 1305, 1037 n.2 (D.
Minn. 1999).
In considering a Motion to Dismiss under Rule
12(b)(6), Federal Rules of Civil Procedure, we accept as true,
in hypothetical sense, all of the factual allegations of the
Complaint, and we view those allegations in a light most
favorable to the nonmoving party - - here the Plaintiff. See,
Anderson v. Franklin County, Mo., 192 F.3d 1125, 1131 (8th
Cir. 1999); Riley v. St. Louis County of Missouri, 153 F.3d
627, 630 (8" Cir. 1998); Springdale Educ. Ass'n v. Springdale
School Dist., 133 F.3d 649, 651 (8" Cir. 1998). Where, as
here, the parties have presented the Court with matters outside
of the pleadings, which the Court has not excluded, the Motion
"shall be treated as one for summary judgment and disposed
of as provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent
to such a motion by Rule 56." Rule 12(b), Federal Rules of
Civil Procedure. Here, the distinction may well be without a
difference, for the "matters outside the pleading,” which we
have considered, are the materials generated in, by, or for, the
Minnesota Courts which previously ruled upon Ringsred
earlier State law claims and, therefore, as converted, the
20
Government Defendants' Motion, under Rule 12(b)6),
essentially replicates their Motion under Rule 12(b)(1)."4
2. Legal Analysis.
a. Plaintiffs' Firs of Action
In their First Cause of Action, which is only
being asserted as an action on behalf of Ringsred, the Plaintiffs
contend that the Defendants have denied Ringsred a fair Trial,
and access to the Courts, as well as his right to procedural due
process, because of the Defendants' conduct during the Soft
Center/Technology Village litigation.
As to the procedural due process claim, the Plaintiffs
contend that, through the preemptive demolition of the Strand
Theater, and of the three additional buildings in December of
1998, the Defendants deprived Ringsred of his property rights
“We note that the Plaintiffs interpreted the Government
Defendants’ Rule 12(b)(6) Motion as being one for Summary
an, so they can legitimately claim no surprise, see
Memx
Dismiss, at p. 2, sad the Ploiatills never noved he Conn ett
Rule 56(f), Federal Rules of Civil Procedure, for a deferral of any
tuling, nor did they offer any competent showing for such a deferral.
More importantly, the matters we have relied upon, namely the
pleadings before, and the rulings of, the Minnesota Courts which
resolved Ringsred's earlier State action, are materials of which the
Court could properly take judicial notice. See, Mir v. Little Co. of
Mary Hosp., 844 F.2d 626, 649) (9 Cir. 1998), quoting MGIC
Incdem. Corp. v. Weisman, 803 F.2d 500, 504, (9 Cir. 1986) ("In
addition to the complaint, it is proper for the district court to ‘take
judicial notice of matters of public record outside the pleadings’ and
consider them for purposes of the motion to dismiss."); see also,
Pigubert v. Sefrioui, 208 F.3d 221 n.7, 2000 WL 194149 at *2 (9%
Cir. 2000) [unpublished opinion]; City of Pittsburh v. West Penn
Power Co., 147 F.3d 256, 259 (3 Cir. 1998). In any event, the
recommendation we make is more properly expressed as a dismissal,
for want of subject matter jurisdiction under Rule 12(b)(1) and, as to
that issue, the Plaintiffs have had a full opportunity to argue to that
issue, the Plaintiffs have had a full opportunity to argue their position,
and to present such matters, outside the pleading, as they wanted the
Court to consider.
21
accorded by Minnesota Statutes Section 116B.01;"* his rights
afforded by the State Court's "mandatory injunction," which
was issued in October of 1998; his real estate interest in the
"natural resource," which was identified by the State Court'
and his "cause of action" conferred by Minnesota Statutes
Section 116B.03 - - or MERA.
In determining whether a plaintiffhas properly asserted
a Claimed violation of due process, the first inquiry is into
whether there exists a liberty or property interest which the
defendants have denied to that plaintiff. See, Kentucky Dept.
of Corrections v. Thompson, 490 U.S. 454, 460 (1989). Once
we determine that a liberty or property interest has been
implicated - - that is, one of constitutional dimension - - then
we must determine what process was due before the
Government could deprive the plaintiff of that interest. See
Cleveland Bd. of Edu. v. Loudermill, 470 U.S. 532, 541
(1985). In this case, Ringsred's claim does not survive the first
prong of the analysis, as we find no property, or liberty
interest, which, under the circumstances presented, was
personally held by Ringsred.
In supporting this aspect of their claim, the Plaintiffs
rely upon the rights that were afforded to Ringsred by MERA,
Minnesota Statutes Section 116B.01 provides, in pertinent
part, as follows:
The legislature finds and declares that each person
is entitled by right to the protection, preservation,
and enhancement of air, water, land, and other
natural resources located within the state and that
each person has the responsibility to contribute to
the protection, preservation, and enhancement
thereof. * * * Accordingly, it is in the public
interest to provide an adequate civil remedy to
protect air, water, land and other natural resources
located within the state from pollution,
impairment, or destruction
22
and the injunctions that were issued by the District Court,
which were predicated on the provisions of MERA. As the
caption of the State Court case accurately reflects, the claims
that Ringsred was there prosecuting were the claims of the
State of Minnesota. Ringsred made no showing of any
personal property interest that he was vindicating, nor does he
make such a showing here. All the relief ultimately granted,
or denied by the State Court, as to the substance of the claims
that Ringsred was there advancing, was for, or against, the
State of Minnesota. See Minnesota Statutes Section 116B.03.
Subdivision 1 ("Any person residing within the state * * * may
maintain a civil action for declaratory or equitable relief in
the name of the State of Minnesota * * *,"').
Although Ringsred claimed incidental costs, and
expenses, he made no claim for personal damages, as that form
of monetary relief was not available to him under the statutory
law of Minnesota upon which he relied, and his claim for
costs, and attorneys’ fees, was denied to him. Indeed, the Trial
Court ruled, and the ruling was affirmed on appeal, that
Ringsred's security deposit, arising from his success in
obtaining temporary injunctive relief, would not be repaid to
him in full, but would be disbursed, in part, to a developer of
the project so enjoined; a developer who is not here a party.
In effect, any property, or liberty interest held by Ringsred, in
prosecuting that case, was of a type shared by every citizen of
the State of Minnesota, in whose stead he litigated the case.
As a consequence, if any property or liberty interest was
impaired, it was the interest of the State of Minnesota which
does not here join in the Plaintiffs' Section 1983 claim.'®
+°We are mindful that Ringsred has captioned this
proceeding as one in which he purports to represent the State of
Minnesota. He does not identify the jurisdictional basis for him to do
(continued...)
23
The Plaintiffs' claimed denial of access to the Courts
can fare no better, as the interests that Ringsred was pursuing
in the State Courts were representational interests, and not
those he had a right to litigate in his own stead. In this respect,
we find our analysis closely guided, if not controlled, by the
Court's holding in Curtin v, Federal Deposit Insurance
Corporation ("FDIC"), 866 F.2d 255 (8 Cir. 1989). There, an
attorney in private practice, who regularly represented banks
in FDIC actions, challenged the enforceability of certain FDIC
practices, in a public debate with an FDIC representative, who
'*(...continued)
so, nor even the statutory basis for advancing those interests, and we
are aware of none. This is not a putative class action, nor has there
generals, see IVIL IC SOL | 8.3 WAU V iS L ES AG
at least insofar as their Section 1983 claim is concemed. Lastly, even
amendment, or Section 1983. See lvania v
Porter, 659 F.2d 306, 314 (3™ Cir. 1981) ("The Fourteenth
amendment is a limitation upon the states in the interests of
individuals, and section 1983 was enacted to facilitate vindication of
such individual interests" and, therefore, "[t]he question is not whether
_ either the fourteenth amendment or section 1983 protects the
commonwealth neither does * * *."), cert. denied, 458 U.S. 1121
(1982); Barbara S. v. Obradovich, 937 F.Supp. 710, 723 (N.D. Ill.
1996); 'Z' Buda v. Saxbevich, 406 F.Supp. 399, 402 (E.D. Tenn.
1975) ("The state is not a '* * * citizen of the United States or other
person within the jurisdiction thereof * * * within the contemplation of
42 U.S.C. $1983 * * *."); cf., Delta Special School Dist. v. State
Board of Education, 745 F.2d 532, 533 (8" Cir. 1984) ("A political
subdivision of the state cannot invoke the protection of the fourteenth
amendment against the state.")'; but cf., Santiago Collazo v. Frangui
Acosta, 721 F.Supp. 385, 392 (D. P.R. 1989). Accordingly, even if
authorized to do so, Ringsred would have no Section 1983 claim to
prosecute on behalf of the Minnesota.
24
defended those policies. Id. at 256. Thereafier, portions of the
speakers’ respective comments were reported in a local
newspaper. Id. The FDIC representative objected to the
accuracy of the newspaper article, and transmitted a letter to
the newspaper's editor, in which he referred to "distortions and
inaccuracies" in the article. Id. The FDIC representative then
contacted one of the attorney's clients, and- cancelled a
previously scheduled meeting concerning the policy at issue.
Id.
In speaking with the attorney's client, the FDIC
representative informed the client that he knew about the
attorney's views on the challenged policy, and then went on to
State:
This office feels that it would be nonproductive
to attempt to negotiate a stipulation and
consent to the issuance of the proposed Order
under these circumstances. Accordingly, we
are hereby cancelling the previously arranged
meeting and intend to go forth with the
preparation of a Notice of Charges and hearing
to put this necessary enforcement action in
place.
Id. at 256.
The same type of letter was sent to two additional clients of the
attorney. Id. In addition, another FDIC official refused the
attorney's request to reschedule another meeting involving a
different client. Id. at 257.
The attorney brought suit, contending that the FDIC's
actions were in retaliation for her exercise of her First
Amendment rights. Id. However, the FDIC moved to dismiss
the claim based on a lack of standing, and a failure to state a
25
claim upon which relief could be granted. The District Court
granted the Motion to Dismiss under Rule 12(b)(6), and the
Court of Appeals affirmed. Id. In pertinent part, the Court
Stated:
[The FDIC representative], like any official of
the FDIC, clearly had the right to express his
views about FDIC policy and about [the
attorney's] position at the Des Moines meeting
and in The Business Record. His exercise of
his first amendment rights cannot be
interpreted as retaliatory conduct.
Id. at 257.
More importantly, the Court went on to hold that the attorney
did not have a cause of action for violation of her own right of
access to the Court, as the actions were taken against her
clients. As the Court explained:
The cases cited by [the attorney] are
inapposite, because in each case the
government clearly acted to injure the plaintiff
after the plaintiff exercised a constitutional
right. * * * [The attorney's] clients, not [the
attorney] were affected by the FDIC's refusal to
negotiate at the prehearing meetings and by its
refusal to reschedule a meeting. * * * [The
attorney] has not even alleged that any of her
clients have dismissed her or that she has been
unable to acquire new clients.
Id. at 258.
The same is true here. If any property, or liberty interests were
impaired by the Defendants' conduct, of which the Plaintiffs
26
now complain, they were those of the State of Minnesota,
whose rights, and interests, Ringsred voluntarily elected to
pursue on a representational basis. We can see no meaningful
distinction between Ringsred's role in the State Court action,
and the private attorney's role in Curtin. Nevertheless, even if
we concluded that Ringsred's night of access to the Court were
individually held by him, and was not merely representational,
his Section 1983 claim, on that basis would fail, but on
different grounds.
Indisputably, there is a constitutional right of access to
the Courts. In this Circuit, that right of access is viewed as a
component of the First Amendment right to petition the
government for redress of grievances. See, Harrison v.
rin ater wer Commission, 780 F.2d 1422, 1426
(8" Cir. 1986); see also, V. -South ch. Dist.
Bd. of Edu., 107 F.3d 1220, 1226 (6" Cir. 1997) ("In our
judgment, Plaintiffs’ claim is best viewed as a Claim under the
Petition Clause, for that Provision expressly protects conduct
most like the conduct for which Plaintiffs seek protection from
retaliation."). As our Court of Appeals has explained:
An individual's constitutional right of access to
the courts "cannot be impaired, either directly
* * * or indirectly, by threatening or harassing
an [individual] in retaliation for filing lawsuits.
It is not necessary that the [individual]
succumb entirely or even partially to the threat
as long as the threa: or retaliatory act was
intended to limit the [individual's] right of
access." V. is 724
F.2d [665, 666 (8" Cir. 1983)]. The cases
from this Circuit, as well as from others, make
Clear that state officials may not take retaliatory
action against an individual designed either to
27
punish him for having exercised his
constitutional right to seek judicial relief or to
intimidate or chill his era of that right in
the future. See, e.g., id.; Garland [v. Polley],
594 F.2d [1220, 1223 (8" Cir. 1979)]}; Hall v.
Sutton, 755 F.2d 786, 787 (11™ Cir. 1985);
Matzker v. Herr, 748 F.2d 1142, 1150-51 (7"
Cir. 1984) ("An act taken in retaliation for the
exercise of a constitutionally protected right is
actionable under §1983 even if the act, when
taken for a different reason, would have been
proper.") Lamar v. Steel, 693 F.2d 559, 562
(5" Cir. 1982), cert. denied, 464, 464 U.S.
821, 104 S.Ct. 86, 78 L.Ed. 2d 95 (1983);
Milhouse v. Carlson, 652 F.2d 371, 374 (3d
Cir. 1981); Silver v. Cormier, 529 F.2d 161,
163 (10° Cir. 1976). An individual is entitled
to "free and unhampered access to the courts."
United States ex rel. Cleggett v. Pate, 229 F.
Supp. 818, 821-22 (N.D. Ill. 1964).
Harrison v. Spri WwW wer Commission, supra at
1427-28. By way of an example, in Harrison, the Court
determined that the plaintiffs' Complaint stated a cognizable
cause of action, based on a denial of access to the Courts,
where the Complaint alleged that, in a suit by the plaintiffs
against State actors, the State actors admitted to prosecuting a
factually unsupported counterclaim against the plaintiffs solely
as a tactical means to pressure them into settling their case. Id.
at 1428. Other cases have held that actions, such as deliberate
delay, constitute a deprivation of the right of access to the
Court. See, Whisman v. Rinehard, 119 F.3d 1303, 1311 (8"
Cir. 1997) Ryland v. Shapiro, 708 F.2d 967, 974 (5" Cir.
1983).
Here, Ringsred claims that his right of access to the
Court was impaired through the preemptive demolition of the
Strand Theater; the preemptive demolition of the three
buildings in December of 1998, which was asserted to be in
contravention of a mandatory injunction issued by the State
Court; the meetings with, and intimidation of, the witnesses
who were to appear, and did appear, on behalf of Ringsred at
the Trial; the "substantial advertising" to promote the "Soft
Center" project, and the allegation, in January of 2000, that
Ringsred was conducting "frivolous litigation," with attendant
threats of seeking sanctions therefore. These contentions are
readily distinguishable from those presented in Harrison, a
case on which the Plaintiffs heavily rely. Here, we are
presented with no admission, by any Defendant, that any act in
defending against the claims Ringsred was raising in State
Court was retaliatory, or was undertaken for any other
unlawful or dilatory purpose.
Instead of the soberingly culpable admission at play in
Harrison, here Ringsred raises a series of objections which,
with regularity, litter civil litigation. Founded on our judicial
system's reverence for advocacy, litigants routinely consider
the efforts of an opponent to serve improper, ulterior ends.
Efforts at discovery, at Motion practice, and in all other aspects
of the pretrial process, can be viewed, in the fiercely partisan
eyes of the advocate, as an attempt to discourage continued
litigation, or to force a settlement. In our experience, such
claims, without more, have never proceeded beyond the filing
of a Motion for Sanctions under Rule 11, or 37, Federal Rules
of Civil Procedure. If now, as urged by the Plaintiffs, such
complaints, without more, are viable grounds for successive
Section 1983 claims, the prospect that the Courts will do little
more than monitor sequential suits, between the same litigants,
is unnerving.
29
We do not distinguish Harrison solely on that ground,
however, for we recognize that the Ringsred raises more
substantive claims which accuse the Defendants of acts which
overshadow his objection to what he regards as the
Defendants' vexing State Trial conduct. In no small part, the
Plaintiffs predicate Ringsred's denial of access claim upon the
"preemptive" demolition of the Strand Theater and three other
buildings. The preemptive nature of the demolitions, the
Plaintiffs urge, denied them an effective legal forum in which
to preserve the status quo, for the acts of demolition were
already in progress.'’ Notably, however, the State District
Court heard these contentions, and was unmoved to order the
suitable relief that Ringsred then sought. We have no basis to
conclude, as the Plaintiffs imply, that the State Court was
powerless to act if, in fact, the Court determined that its
integrity was being impugned either by the partial razing of the
Strand Theater in August of 1998, or by the subsequent
destruction of three buildings in December of that same year.
The State Court had a full panoply of equitable means to
forestall, indefinitely, any further demolition, and to require a
faithful, though probably less than perfect restoration, if that
Court had been persuaded that such measures were warranted.
Unlike the circumstances in Harrison, and the other
decisions that have been drawn to our attention, here the
Plaintiffs do not simply wish to enforce the determinations of
We reiterate that, in his representative capacity, Ringsred's
claimed constitutional deprivations were the same as every other
citizen of the State of Minnesota. Having sued to enforce Minnesota's
interest, without reference to any individual interest in his own right,
and without any legal right, under the statutory law upon which he
relied, Ringsred's subsequent Section 1983 claim could be replicated
by every citizen of this State who should wish to vindicate the same
rights as Ringsred, thereby exposing, if the Plaintiffs are correct, the
City to a staggeringly monumental damages claim for acts which,
ultimately, were determined not to be unlawful.
30°
the underlying State Court Judgment; rather, they seek to
relitigate, in effect, the very State Court processes which,
ultimately, denied Ringsred the whole relief that he sought,
both at Trial, and on appeal. In Harrison, the offending
Counterclaim of the State actors was dismissed as without
merit in the underlying State Court action. Accordingly, in
allowing the plaintiffs, there, to proceed with a Section 1983
claim in Federal Court, predicated upon the State actors’
admission that the Counterclaim was a strategic ploy to
pressure a settlement, no collateral attack on the State Court
processes was presented to the Federal Courts. Here, however,
the Plaintiffs attack the State Court processes as having
produced the wrong result, or at least as having been
misdirected by the Defendants improper pre-Trial, Trial, and |
post-Trial conduct. As a consequence, the Court, in Harrison,
was not obligated to undertake the analysis to which we now
turn.
The Rooker-Feldman doctrine presents a subject matter
jurisdictional bar to general constitutional challenges brought
in Federal Court, when the constitutional Challenges are
essentially appeals from a State Court Judgment, or are
inextricably intertwined with claims prosecuted in State Court.
See, District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 476 (1983); Rooker v, Fidelity Trust Co., 263 U.S.
413, 416 (1923); Lemonds v. St. Louis County, 222 F.3d 488,
492-93 (8 Cir. 2000) ("The Rooker-Feldman doctrine
forecloses not only straightforward appeals but also more
indirect attempts by federal plaintiffs to undermine state court
decisions."), cert. denied sub nom., Halbman v. St. Louis
County, - - - U.S. -- -, 121 S.Ct. 1168 (2001); Charchenko v.
City of Stillwater, 47 F.3d 981, 983 (8" Cir. 1995). In other
words, when a case seeks a review of a State Court J udgment,
or is inextricably intertwined with the State Court Judgment,
the Federal Courts, with the exception of United States
31
Supreme Court, lack subject matter jurisdiction to decide the
matter. See , Supra.
As our Court of Appeals explained in Lemonds, "[a]
general federal claim is inextricably intertwined with a state
court judgment ‘if the federal claim succeeds only to the extent
that the state court wrongly decided the issue before it.” Id. at
493. "Where a litigant attempts to circumvent the requirement
of seeking direct review in the United States Supreme Court by
casting [his] lawsuit as a section 1983 action, Feldman's
jurisdictional bar applies." Keene Corp, v. Case, 908 F.2d
293, 297 (8" Cir. 1990), citing Worldwide Church of God v,
McNair, 805 F.2d 888, 893 n.4 (8" Cir. 1986), Curry v. Baker,
802 F.2d 888, 893 n.4 (9" Cir. 1986), and Hale v. Harney, 786
F.2d 688, 690-91 (5" Cir. 1986). The State and Federal claims
need not be identical, however, for the doctrine to apply. See,
Vv supra at 493, citing In re
Goetzman, 91 F.3d 1173, 1177 (8" Cir. 1996).
Here, in practical effect, Ringsred is requesting that we
overturn the State Court's decision which lifted the Temporary
Restraining Order that had been previously imposed with
respect to the Strand Theater, as well as the Court's finding that
the State Court defendants had not violated that Court's
mandatory injunction of October 5, 1998, in razing the three
buildings in the following December of that year. In
particular, the State Court determined, when Ringsred
attempted to secure a Temporary Restraining Order to prevent
the demolition of the three additional buildings, that he had not
presented any evidence that a Temporary Restraining Order
was necessary, as Ringsred had not shown that the destruction
of the buildings fell within the ambit of the Court's Order. See,
C3-98-
601186, Order, at 3 (Minn. Dist. Ct. De¢ember 28, 1998).
Accordingly, the State District Court denied Ringsred's request
for equitable relief, and the Minnesota Court of Appeals
32
specifically noted, in its related ruling, that "Ringsred has made
no showing that respondents have violated the law or the trial
court's mandate." l | v. Ci
Duluth, 1999 WL 618613 (Minn. App. August 17, 1999)
[publication page references not available].
In effect, in the State Court litigation, Ringsred won a
battle, but lost the war - - he secured the historical designation
he sought, but was unsuccessful in pressing his contention that
the Defendants, or at least certain of them, should not be
allowed to raze buildings within that designated area, without
the environmental preconditions he felt appropriate. The State
Court's Judgment, which rejected Ringsred claims, would be
a fragile resolution of the hotly disputed contentions there
raised if, notwithstanding its entry, as well as its affirmance on
appeal, its practical effect could be eviscerated by raising the
same claims, as were presented to the State Court - - or as they
could have been presented - - so as to be relitiaged, in its
repackaging, as a Section 1983 action. As the Court reiterated,
in Lemonds, "federal plaintiffs cannot by artful pleading obtain
a hearing of disguised state court appeals that would otherwise
County, supra at 494.
The intertwining of Ringsred's current claims, and
those he advanced in the State Court proceedings, cannot be
seriously contested. If, as Ringsred continues to allege, the
Defendants have violated the terms of a State Court Judgment,
we can see no reason to allow Ringsred to ignore that
Judgment, with impunity, and proceed with the same claims in
a Section 1983 vehicle in Federal Court, in order that he may
seek monetary damages, in substantial sums, which were
unavailable to Ringsred in the State Court, for conduct that the
State Courts found to be compliant with the State Court's
Injunction, and with the governing law. While Ringsred may
well be disappointed in the rulings of the Minnesota Courts,
33
we do not sit as a Court of Appeals on State Court matters.
Ringsred had full access to the State Court, and he exhausted
his avenues for relief, from the State Court's Judgment, to the
extent that he then felt was warranted. To allow litigants to
engage in a successive Section 1983 claim, based on no more
than their disagreement with an underlying State Court ruling,
‘would effectively disembowel the Rooker-Feldman doctrine.
As further proof of the inextricably entwining of the
Plaintiffs’ current Federal claims, with those resolved by the
State Court, we need only note that each of the protests as to
the Government Defendants' conduct with Fisher; with Aubut;
with the preemptive razing of the Strand Theater, and of other
buildings in December of 1998; with the dissemination of
prejudicial pretrial publicity; with misrepresentations of fact;
with violations of the Minnesota's bidding and contract laws;
and with unprofessional conduct by the City's attorneys, and
governmental agents; were expressly proffered to the State
District Court, in December of 1999, in conjunction with
Ringsred's request that the Court find the Government
Defendants in Contempt of Court so as to be appropriately
sanctioned. The State District Court rejected Ringsred's
contentions, and denied the Motion to Show Cause why the
Government Defendants should not be cited for contempt, or
otherwise sanctioned.
We understand Ringsred to characterize the State
Court's decision as, in effect, a deferral of any ruling. We
disagree. The State District Court did not strike the Motions,
or dismiss them as outside of the Court's subject-matter
jurisdiction. Rather, the Court denied the Motions, explaining
that many were ill-founded on incompetent or insufficient
evidence, or were better suited to a disposition in criminal, or
in professional disciplinary proceedings. Given the deference
we extend to the rulings of a State Court, on matters within
that Court's plenary jurisdiction, we express no view on the
34
propriety of the State Court's resolution of Ringsred's post-Trial
Motions, other than to note that, if Ringsred were disappointed
in those rulings, or otherwise found them to be in error, his
recourse was to ask the Court to reconsider, or to file an appeal
in the Minnesota Appellate Courts.'* Ringsred did neither.
"Although couched in the language of the federal statute,
[Ringsred's] claims are simply a redux of [his] state claims."
Alvarado v, City of Granite Falls, 2001 WL 397891 at *2 (D.
Minn., March 23, 2001). Lest there be other doubt about the
extent to which the Plaintiffs' Federal claims are inextricably
intertwined with Ringsred's State Court claims, we need only
note that, as part of their requested relief, the Plaintiffs ask this
Court to command future compliance with the Mandatory
Injunction issued by the State Court. To do so, of course,
necessarily entangles this Court in matters best left to the State
Court, but as to which the State Court denied Ringsred his
requested relief.
In our system of federalism, Rooker-Feldman serves a
fundamental constitutional purpose. If allowed to proceed as
a Section 1983 claim, the Plaintiffs' action would, ineluctably,
be self-propagating, and would foster further inter-Court
collateral attacks, as a prior cause of action is shrouded in
8We recognize that the State District Court expressly
stated, as part of its Order:
In reviewing plaintiff's allegations the Court does
not mean to suggest it has determined any of them
to be valid or invalid. The Court recognizes they
are claims being asserted by plaintiff and the
Court has been required to respond to them in
terms of assessing their current procedural posture
before the Court. That is all the court has done.
If Ringsred felt that the State District Court should have done more, or
otherwise abandoned its obligation to fairly resolve his claims, his
redress was in the State Courts, and not in this Court.
35
constitutional garb so as to seek relief in one Court that was
denied in another. We share no secrets in observing that the
relations between these litigants are strained, and acrimonious,
at their very best. If, as the Plaintiffs urge, a party's
deployment of a Rule 11 Sanction,'® or the mere threat of one,
were a Sufficient predicate a denial for access claim, then the
Government Defendant's filing of such a request, in this action,
under Section 1983, in some future State or Federal Court, if,
as here, that claim is denied. Indeed, the Plaintiffs urge that
Only one of the Plaintiffs' claims might be of a type to
escape the application of the Rooker-Feldman doctrine. We are unable
discern, based: on the Plaintiffs' Complaint, whether Ringsred's
assertion, that he was threatened with Rule 11 Sanctions, in January of
2000, related to his earlier State Court claim, or some other litigation,
that he later commenced, inclusive of this one We find, however, that
it makes no difference.
The Minnesota Legislature, as well as the Minnesota
Supreme Court, have viewed frivolous litigation with such alarm, as to
cause the enactment of a statute, and the promulgation of a Rule,
which commends a sober appraisal of the good faith pursuit of claim
and defenses in the Minnesota Courts. See, Minnesota Statutes
Section 549.211, and Rule 11, Minnesota Rules of Civil Procedure.
Were the mere invocation of those statutory, or regulatory measures,
sufficient to expose the party, who should provide the notice of
potential sanctions to a successive Section 1983 claim, then the
vexatiousness, which was sought to be minimized, if not eradicated, by
the palliative measures, would seen be its undoing. Commencing
litigation is a serious act, as is the mounting of a defense to litigation
commenced by another. Sanctions under Rule 11 are not self-
effectuating - - the Rule requires a period of notice and cure, before
sanctions may be imposed, and proven to be warranted. Such a
procedure can have no conceivable chilling effect, other than to remove
frivolous disputes from the Court's docket. Accordingly, we find, as a
matter of law, that the invocation of a threat of Rule 11 sanctions,
whether privately, or publicly, could deny Ringsred access to the
Court. Moreover, the ultimate sanction, arising from such a threat,
may well be to the party uttering the threat, it that party is not
successful, see 11(a)(1), Mi f Civi and
such matters are best left to the Court in which the action pends.
36
2
most any pretrial dispute can be reasserted, as a denial of
access claim, if the dispute can be construed as some form of
dissuasion in pursuing a law suit. The potentiality for an
unending continuum of litigation should be obvious, as one
successive Section 1983 claim begets another, and so on, and
SO On, and so on.
In sum, on the Record presented, we find no denial of
due process, procedural or substantive, nor any denial of
access to the Courts, and therefore, we recommend that the
Plaintiffs’ cause of action be dismissed, on jurisdictional
grounds, as we are without the requisite subject matter
jurisdiction to entertain the Plaintiffs' Section 1983 claims.”°
b. The __Plaintiffs'_ Second and Third
Causes of Action.
The Second and Third Causes of Action are
brought, by Ringsred, on behalf of the State of Minnesota
under the guise of rights afforded under MERA, or are brought
on behalf of Federal, State and local taxpayers. Ringsred
contends that the Defendants intentionally and negligently
violated various, unspecified laws and statutes, including
unprofessional conduct by attorneys, misconduct by public
Officials, coercion, witness tampering, abuse of competitive
bidding for public projects, obstruction of justice, contempt of
Court, abuse of legal process, and deceit-collusion-misconduct
by attorneys, perjury, conspiracy to commit crimes, as well as
a failure to report misuse of public funds. See, Complaint, at
13-15, 18=19. He also contends that the Defendants: have
unlawfully recruited local businesses for the Soft
20Given our recommendation, we need not, and do not,
address the Government Defendants’ Motion for Summary Judgment
on qualified immunity grounds.
37
Center/Technology project, thereby injuring Federal, State and
local taxpayers, including Duluth businesses. Notwithstanding
these bald allegations, Ringsred has failed to demonstrate that
he has personally suffered any particularized injury, and he
lacks the standing to assert these claims on behalf of the State
of Minnesota, or Federal, State and local taxpayers.
Article III of the United States Constitution restricts
Federal Courts to the adjudication of actual "cases" and
"controversies." The principle of "standing" is among several
doctrines - - such as mootness, ripeness, and the involvement
of a political question - - which have developed to inform and
define the "cause or controversy" requirement. See Allen v.
Wright, 468 U.S. 737, 750 (1984); Warth v. Seldin, 422 U.S.
490, 498 (1975):
Ben Oehricins and Sons and Daughter, Inc.
v, Hennepin County, 115 F.3d 1372, 1378 (8" Cir. 1998)
("Standing is the constitutional requirement, imposed by the
‘cases or controversies’ provision of Article III, that a plaintiff
must allege a judicially cognizable and redressable injury in
order to pursue a lawsuit."); Neighborhood Transp. Network,
Inc. v. Pena, 42 F.3d 1169, 1172 (8" Cir. 1994) ("Federal
courts are courts of limited jurisdiction and can only hear
actual 'cases or controversies’ as defined under Article III of the
Constitution."). "As an aspect of justiciability, the standing
question is whether the plaintiff has ‘alleged such a personal
stake in the outcome of the controversy’ as to warrant his
invocation of federal court jurisdiction and to justify exercise
of the court's remedial powers on his behalf." Warth v. Seldin,
supra at 498-99, quoting Baker v. Carr, 369 U.S. 186, 204
(1982).
It is a plaintiffs duty to show the "minimal
Conan ee cate Reneenary for maniting. Ben
supra at 1378. Those elements include:
38
|
[A]n "injury in fact" that is both (a) concrete
and particularized, and (b) actual or imminent,
rather than conjectural or hypothetical; (2) a -
casual connection between the alleged injury
and the defendant's conduct; that is, that the
injury is "fairly traceable" to the challenged
action; and (3) that it is likely that a favorable
decision will redress the injury.
Id. citing Lujan v. Defendants of Wildlife, 504 U.S. 555, 559-
60 (1992).
In sum, "[a] federal court's jurisdiction * * * can be
invoked only when the plaintiff himself has suffered 'some
threatened or actual injury resulting from putatively illegal
action * * *."" Warth v. Seldin, supra at 499, quoting Linda
RS. v, Richard D., 410 U.S. 614, 617 (1973).
Moreover, even if a plaintiff can satisfy these
requirements, the Courts have imposed further "prudential
limits" on the Court's exercise of jurisdiction. See, Ben
supra at 1378 ("these prudential limits are judicially imposed
and ‘are "founded in concern about the proper - - and properly
limited - - role of the courts in a democratic society.""), citing
Bennett v. Spear, 520 U.S. 154 (1997). There are three
particular "prudential limits" which, we conclude, apply to this
case. The first is that the Court should not exercise subject
matter jurisdiction "when the asserted harm is a ‘generalized
grievance’ shared in substantially equal measure by all or a
large class of citizens." Warth v. Seldin, supra at 499, and
cases cited therein. A second "prudential limit" dictates that
only in exceptional circumstances may a party assert the rights
of another. Id.; Ben Oehrleins and Sons and Daughter, Inc, v.
Hennepin County, supra at 1378. "This ‘third-party standing’
rule thus ‘normally bars litigants from asserting the rights or
39
ee ee |
legal interests of others in order to obtain relief from injury to
themselves." Id. at 1379. Finally, a third "prudential limit"
restricts jurisdiction to instances in which a plaintiff, who
alleges a constitutional or statutory violation, can show that he
is within the "zone of interests," of the particular protection he
attempts to assert. See, Bennett v. Spear, supra at 162. "To
satisfy this prudential requirement, a plaintiff must show that
‘the interest sought to be protected by the complainant is
arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in
question.” Ben Oehrlei Son D r, Inc. v
Hennepin County, supra at 1379, citing Association of Data
Processing Serv, Orgs. v. Camp, 397 U.S. 150, 153 (1970).
Given these principles, it is clear that Ringsred has no
standing to assert claims, based on violations of the
generalized laws that he broadly references, or of the restraint
of trade laws, assertedly on behalf of the State of Minnesota, or
Federal, State and local taxpayers. Moreover, he has failed to
allege any particularized injuries that he claims to have
personally suffered as a result of the alleged violations of these
laws.
First, as for the claims that he is asserting on behalf of
the State of Minnesota, Ringsred appears to rely upon MERA
as the vehicle for his cause of action. While, as Ringsred well
knows from his past State Court claims, MERA does allow an
individual to prosecute an action on behalf of the State of
Minnesota, that action can only br brought "for the protection
of the air, water, land, or other natural resources located within
the state," and only for declaratory or equitable relief. See,
Minnesota Statutes Section 116B.03. In contrast, Ringsred
seeks to use the statute to secure Federal Court jurisdiction for
claimed violated of other laws, and of other rights. Although
largely unspecified, those claimed violations do not further, in
any direct way, the "protection of the air, water, land, or other
40
natural resources," and therefore MERA clearly does not vest
Ringsred with a viable cause of action for any such violations.
Moreover, Ringsred has done no more than allege
“generalized grievances’ shared in substantially equal measure
by all or a large class of citizens." Warth v. Seldin, supra at
499, and cases cited therein. He has failed to identify any
instance in which, he, himself, has suffered a particularized
injury on account of the Defendants, given the fact that his
underlying State Court suit, during which most of his claims
arose, was brought not on his own behalf, but in a
representative capacity, on behalf of the State of Minnesota.
He neither alleges, nor proves, that he had any direct
ownership, or other property interest in any of the buildings
which were demolished, and he flatly admits that he has not
lost any business due to what he describes as the Defendants
"unlawful recruitment of local businesses." See, Deposition of
Eric Ringsred, at 77-79. Accordingly, we find that Ringsred
has no standing to assert claims on behalf of either of himself,
or the State of Minnesota, for his alleged violations of various
statutes, and for a claimed restraint of trade.”!
?lRingsred does allege that the Defendants’ unlawful
recruitment of business has injured his real estate rental business. See,
Complaint, at {20. In particular, he maintains that their acts violated
Title 15 U.S.C. §1 ("Every contract, combination in the form of trust
or otherwise, or conspiracy, in restraint of trade or commerce among
the several states * * *, or with foreign nations, is hereby declared to
be illegal"), as well as Minnesota Statutes Section 325D.01 ("A
contract, combination, or conspiracy between two or more persons in
unreasonable restraint of trade or commerce is unlawful"). As for the
claimed violation of Title 15 U.S.C. §1, the Plaintiffs have not even
asserted that the restraint of trade has affected interstate commerce,
but merely alleges that the Defendants unlawfully recruited “local
businesses." Complaint, at 21. Moreover, Ringsred has not
demonstrated that the assertedly unlawful restraint personally damaged
him in any fashion. Specifically, when asked during his deposition
(continued...)
41
Lastly, Ringsred attempts to assert claims as a Federal,
State and local taxpayer. However, the Supreme Court has
clearly determined that taxpayers do not have standing to sue
public officials, or to be awarded compensatory damages, for
governmental actions with which they disagree. As the Court
has explained, "the expenditure of public funds in an allegedly
unconstitutional manner is not an injury sufficient to confer
standing even though the plaintiff contributes to the public
offers as a taxpayer." Valley Forge Christian College v.
Americans United, 454 U.S. 464, 477 (1982). Further, the
Court, in Flast v. Cohen, 392 U.S. 83, 102 (1986), limited
constitutional challenges, which are based upon taxpayer
standing, to those claims that challenge a congressional
enactment which exceeds specific constitutional limitations
upon the exercise of the taxing and spending power - - plainly
not the case here. Therefore, the Plaintiffs have no standing to
bring their Second and Third causes of action, and they should
be dismissed for want of subject matter jurisdiction.
21(__ continued)
whether he has been damaged by the allegedly unlawful recruitment,
Ringsred responded that he had only been injured to the extent that one
of his tenants had lost a sublessee, which did not result in any loss of
rentals to him. See, Deposition of Eric Ringsred, at 77-79
Thus, notwithstanding his urging, that his own real estate
rental business has suffered from the alleged unlawful recruitment,
Ringsred has failed to show any particularized injury to his own
interests, but only to that of a sublessee. Lest there be doubt to the
contrary, the issue of standing is jurisdictional, as to which the court is
empowered, under Rule 12(b)(1), Federal Rules of Civil Procedure, to
consider matters outside of the pleadings. See, Deuser v. Vecera, 139
- F.3d 1190, 1191 n.3 (8* Cir. 1998), quoting Dreviow v. Lutheran
Church, Mo, Synod, 991 F.2d 468, 470 (8" Cir. 1993).
c. The Plaintiffs' Fourth Cause of Action.
In their Fourth Cause of Action, the Plaintiffs
contend that the Defendants have damaged Ringsred's
reputation, through assertedly false, public allegations of
"frivolous litigation," and with threats of sanctions for such
"frivolous" suits so as to deprive him of his right to procedural
due process under the Fourteenth Amendment. Ringsred may
also be claiming defamation under Minnesota law, although
that remains unclear.”
The United States Constitution does not protect against
mere defamation. An interest in reputation, alone, is not a
"liberty," or "property" interest that is protected by the
Fourteenth Amendment. See, Siegert v. Gilley, 500 U.S. 226,
233-34 (1991); Paul v. Davis, 424 U.S. 693, 712 (1976);
Rappa_v. Hollins, 991 F. Supp. 367, 372 (D. Del. 1997)
("[R]eputation is not a property interest protected by the Due
Process Clause"). Rather, to be actionable, the defamation or
injury to an interest in reputation must additionally cause the
loss of some other right. See, Paul v. Davis, supra at 711. As
we have already explained, however, Ringsred has not alleged
any viable cause of action for his claimed denial of access to
the Courts, or any other constitutional claim, and, therefore, his
claim for a loss of reputation, being unaccompanied by the loss
of some other right, should be dismissed.
72 Roth this claim, and the entirety of the Plaintiffs' Fifth
cause of action, to the extent that they rely on the laws of the State of
Minnesota - - and the Fifth cause of action has no other basis - -
should be dismissed without prejudice. Neither claim has been pled
with specificity, and we see no reason to exercise over Supplemental
Jurisdiction in order to address what are singularly actions under State
law. See, Title 28 U'S.C. §11367(a).
43
Judgment.
The Chamber Defendants, and the Soft Center
Defendants, have each moved for Summary Judgment and, as
best as we can discern, the only cogent cause of action pled
against them arises under Section 1983, and charges them with
complicity, with the Government Defendants, in denying
Ringsred access to the Court in the context of his previous
State Court litigation. Within this Circuit, the fact that the
Chamber, and Soft Center Defendants were not parties to the
State Court action does not impact upon the applicability of the
Rooker-Feldman doctrine. See, | ;
supra at 495; Leino v. Nelson, 2001 WL 1141817 at *2n.5 (D.
Minn., August 23, 2001). Accordingly, these Defendants
should also be dismissed for want of subject matter jurisdiction
over the claims the Plaintiffs have asserted against them, and
their Motions for Summary Judgment, to that effect, should be
granted.
The Government Defendants seek Rule 11 Sanctions
against the Plaintiffs, arguing that Ringsred's® second Motion
to Amend the Complaint was solely for purpose of delay and
harassment, especially in light of the Court's prior admonitions
following our denial of his first attempt to amend his
**Deborah Ringsred did not join in the last Motion to
Amend the Complaint.
Complaint.“ Moreover, the Government Defendants contend
that Ringsred knowingly asserted factual allegations which he
knew to be untrue, and they seek $500.00 for each of the
affected Defendants, and $1,000.00 in attorney's fees, as well
as an Order prohibiting Ringsred from asserting any further
Motions to Amend Complaint.
In relevant part, Rule 11 provides as follows:
(b) Representations to Court. By presenting to the
court (whether by signing, filing, submitting, or later
advocating) a pleading, written motion, or other paper
an attorney or unrepresented party is certifying that to
the best of the person's knowledge, information, and
belief, formed after an inquiry reasonable under the
circumstances - -
(1) it is not being presented for any
improper purpose, such as to harass or to cause
“The Government Defendants highlight the following
observation in our prior Order of March 14, 2001:
With no apparent exception, the factual
allegations, which they now propose to add to
their pleadings, were known to the Plaintiffs for
months, if not years, before this action was
commenced. In short, the Plaintiffs offer no newly
discovered facts as necessitating an Amended
Complaint; proverbially, they seek to "pour old
wine into a new bottle." Many of the newly
proposed factual assertions arose from State Court
proceedings, either completed or in progress,
which appear to have produced results which were
not fully to the Plaintiffs’ liking. We find no
purpose in allowing the amendment now belatedly
sought, other then to foster the Plaintiffs’ apparent
interest in protraction and delay.
See, Ringsred v, City of Duluth, Civ. No. 00-2241, Order (D. Minn.
March 14, 2001).
unnecessary delay or needless increase in the
cost of litigation;
(2) the claims, defenses, and other
legal contentions therein are warranted by
existing law or by a nonfrivolous argument for
the extension, modification, or reversal of
existing law or the establishment of new law *
**
Rule 11. Federal Rules of Civil P =
In addition, Rule 11 requires that every Motion, which is filed
in Federal Court, be signed by the party, or an attorney of
Record.
Id.
According to the Supreme Court, "the central purpose
of Rule 1 1 is to deter baseless filings in district court." Simitar
Entertainment, Inc. v. Silva Entertainment, Inc., 44 F. Supp.
2d 986, 991 (D. Minn. 1999), quoting Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 393 (1990). As such, under
Rule 11(c) "[iJf, after notice and a reasonable opportunity to
respond, the court may * * * impose an appropriate sanction
upon the attorney, law firms, or parties that have violated
ee (b) or are —— for the violation. Monson
2000 WL 119637 at *8 (D. Minn. 1999), In pre
whether sanctions are warranted, the Court must use an
objective standard of reasonableness, and must consider
factors such as the wrongdoer’s history, the severity of the
violation, and the degree to which malice or bad faith
contributed to the violation. See, Business Guides v.
498 U.S. 533
Chromatic Communications Enters., Inc.,
(1991); Pope v, Federal Express Corp. 49 F.3d 1327, 1328 (8"
Cir. 1995).
We recognize that Ringsred's second Motion to Amend
the Complaint, like his first, did not contain any newly
discovered allegations, but we are not persuaded that the
purpose of the Motion was to harass the Defendants, or to
delay these proceedings. We do not presume bad faith.
Rather, we are satisfied that, when Ringsred was caused to
respond to the Defendants’ dispositive Motions, he ran abruptly
into the wall of vagueness presented by the allegations of the
Plaintiffs’ original Complaint. Although the Plaintiffs’
proposed first Amended Complaint sought to instill some
clarity to the Plaintiffs claims, the Complaint also sought to
vastly expand the number of claims asserted, and many of the
claims were found, upon analysis, to be futile. The Plaintiffs’
second attempt at amendment, which was a response to the
Government Defendants’ Motion to Dismiss, that accused the
Plaintiffs of obscurity in the pleading of their claims, was
explained, by Ringsred, as a sincere effort to crystallize the
claims the Plaintiffs had earlier raised. We take Ringsred at
his word, although we view the claims in the second proposed
amendment to be more expansive than those originally alleged.
While misguided, and untimely, we do not regard the second
attempt at amending the Plaintiffs’ Complaint as worthy of
Rule 11 Sanctions.
Nor do we find any palpably false allegations in the
second proposed amendment. The Government Defendants
have identified six assertions in which, they believe, Ringsred
has been less than candid. See, Government Defendants’
Memorandum Supporting Motion for Rule 11 Sanction, at 8-
10. Without derogating the accuracy and sincerity which
should attach to the pleadings of claims, the instances of
inaccuracy, which are cited by the Government Defendants
bespeak of semantics, and not of untruths. Not surprisingly,
the Government Defendants are unpersuaded by the merits of
the Plaintiffs’ proposed claims and allegations and, it appears
47
to us, this adversarial perspective has colored their view of
Ringsred's motives. While Ringsred's allegations may not
prove to be accurate, were they to be submitted for
adjudication, they appear to accurately state his impression as
to past events, and circumstances. In short, we have reviewed
our fair share of meritorious Motions for Rule 11 Sanctions
and, thankfully for all concerned, this is not one of them.
Consequently, we deny all Government Defendants' Motion for
Rule 11 Sanctions.
48
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 02-1242
Eric Ringsred, an individual, and a state,
federal and local taxpayer; State of
Minnesota by Eric Ringsred; Deborah
Ringsred, an individual.
Appellants,
VS. ORDER
City of Duluth, et al.,
Defendants
Before the Court are Plaintiffs' Objections to the Order
October 22, 2001 Report and Recommendation (R&R) of Magistrate
Judge Raymond L. Erickson.
This Court has conducted the required de novo review of the
objected to portions of the R&R and is satisfied that Judge
Erickson's recommended disposition is fully supported by the record
before him and by controlling legal precedent. The R&R is thorough
and the legal analysis sound.
Upon all the files, records and proceedings herein, IT IS
ORDERED:
1. The Objections (Doc. No. 121) are OVERRULED;
2. The Report and Recommendation (Doc. No. 118) is
ADOPTED;
49
3 The Motion of the Government Defendants” to Dismiss the
Plaintiffs' Complaint for lack of subject matter jurisdiction (Doc. No.
48) is GRANTED;
4. The Motion of the Soft Center Defendants” for Summary
Judgment (Doc. No. 83) is GRANTED;
5. The Motion of the Chamber Defendants’ for Summary
Judgment (Doc. No. 94) is GRANTED;
6. The Complaint is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 26, 2001
/s/
RICHARD H. KYLE
United States District Judge
*5City of Duluth, Gary Doty, Cynthia Albright, Bryan
Brown, Robert Asleson, John Schweiger, John Smedberg, and Duluth
Economic Development Authority.
?©Center-Duluth, Inc. and Michael McNamara.
27Duluth Area Chamber of Commerce, Team Duluth, David
Ross and Michael McNamara.
50
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 02-1242
Eric Ringsred, an individual, and a state,
federal and local taxpayer; State of
Minnesota by Eric Ringsred; Deborah .
Ringsred, an individual. — +
Appellants,
V. Appeal from the United States
District Court for the
District of Minnesota.
City of Duluth, a municipal
corporation, and the following City
Officials individually and in their
official capacities; Gary L. Doty, [UNPUBLISHED]
Mayor; Cynthia Albright, Assistant
City Attorney; Brian Brown, City
Attorney; Robert Asleson, Assistant
City Attorney; John Schweiger, Special
Projects Manager; John Smedberg,
Assistant City Attorney; Duluth
Economic Development Authority;
Cynthia Albright, individually and in
her official capacity as Director of the
Duluth Economic Development
Authority; Team Duluth; Soft Center-
Duluth, Inc.; Michael McNamara;
Duluth Area Chamber of Commerce;
David Ross, CEO of the Duluth Area
Chamber of Commerce,
Appellees.
51
Submitted: June 24, 2002
Filed: June 27, 2002
Before LOKEN, BEAM, and RILEY, Circuit Judges.
PER CURIAM.
Eric and Deborah Ringsred appeal the district court's”
dismissal of their lawsuit- -purportedly brought on behalf of the
State of Minnesota as well as themselves- -against the City of
Duluth and its mayor, various City agencies and employees,
Soft Center-Duluth, Inc. and its director, and the Duluth Area
Chamber_of Commerce and related individuals and entities.
After carefully reviewing the record, we affirm the
dismissal of the federal claims with prejudice and the dismissal
of any state claims without prejudice. See 8" Cir. R.47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
*8The Honorable Richard H. Kyle, United States District
Judge for the District of Minnesota, adopting the report and
recommendations of the Honorable Raymond L. Erickson, United
States Magistrate Judge for the District of Minnesota.
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 02-1242
Civ. No. 00-2241 (RHK/RLE)
Eric Ringsred, an individual, and a state,
federal and local taxpayer; State of
Minnesota by Eric Ringsred; Deborah
Ringsred, an individual.
Appellants,
V. Appeal from the United States
District Court for the
District of Minnesota
City of Duluth, a municipal of Minnesota.
corporation, and the following City
Officials individually and in their
official capacities; Gary L. Doty,
Mayor; Cynthia Albright, Assistant
City Attorney; Brian Brown, City
Attorney; Robert Asleson, Assistant
City Attorney; John Schweiger, Special
Projects Manager; John Smedberg,
Assistant City Attorney; DuluthEconomic
Development Authority; Cynthia Albright,
individually and in her official capacity as Director
of the Duluth Economic Development Authority;
Team Duluth; Soft Center-Duluth, Inc.;
Michael McNamara; Duluth Area Chamber
of Commerce; David Ross, CEO of the Duluth Area
Chamber of Commerce,
Appellees.
53
JUDGMENT
This appeal from the United States District Court was
submitted on the record of the district court and briefs of the
parties.
After consideration, it is hereby ordered and adjudged
that the judgment of the district court in this Cause is affirmed
in accordance with the opinion of this Court.
(5172-010199)
June 27, 2002
A true copy.
ATTEST: /s/
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
54
[Document Taken Off Internet Minnesota Statutes 2001]
Minnesota Statutes 2001, Chapter 116B.
Copyright 2001 by the Office of Revisor of Statutes, State
of Minnesota.
116B.01 Purpose.
The legislature finds and declares that each person is
entitled by right to the protection, preservation, and
enhancement of air, water, land, and other natural resources
located within the state and that each person has the
responsibility to contribute to the protection, preservation, and
enhancement thereof. The legislature further declares its
policy to create and maintain within the state conditions under
which human beings and nature can exist in productive
harmony in order that present and future generations may
enjoy clean air and water, productive land, and other natural
resources with which this state has been endowed.
Accordingly, it is in the public interest to provide an adequate
civil remedy to protect air, water, land and other natural
resources located within the state from pollution, impairment,
or destruction.
HIST: 1971 ¢ 952 s 1; 1986 c 444
=116B.02
116B.02 Definitions.
Subd. 1. For purposes of sections 116B.01 to 116B.13,
the following terms have the meanings given them in this
section.
Subd. 2. "Person" means any natural person, any state,
municipality or other governmental or political subdivision or
other public agency or instrumentality, any public or private
corporation, any partnership, firm, association, or other
organization, any receiver, trustee, assignee, agent, or other
legal representative of any of the foregoing, and any other
55
entity, except a family farm, a family farm corporation or a
bona fide farmer corporation.
Subd. 3. "Nonresident individual" means any natural
- person, or the personal representative of the person, who is not
domiciled or residing in the state when suit is commenced.
Subd. 4. "Natural resources" shall include, but not be
limited to, all mineral, animal, botanical, air, water, land,
timber, soil, quietude, recreational and historical resources.
Scenic and esthetic resources shall also be considered natural
resources when owned by any governmental unit or agency.
Subd. 5. "Pollution, impairment or destruction" is any
conduct by any person which violates, or is likely to violate,
any environmental quality standard, limitation, rule, order,
license, stipulation agreement, or permit of the state or any
instrumentality, agency, or political subdivision thereof which
was issued prior to the date the alleged violation occurred or
is likely to occur or any conduct which materially adversely
affects or is likely to materially adversely affect the
environment; provided that "pollution, impairment or
destruction" shall not include conduct which violates, or is
likely to violate, any such standard, limitation, rules, order,
license, stipulation agreement or permit solely because of the
introduction of an odor into the air.
Subd. 6. "Family farm" shall mean any farm owned by
a natural person, or one or more natural persons all of whom
are related within the third degree of kindred according to the
civil law, at least one of whose owners resides on or actively
operates said farm.
Subd. 7. "Family farm corporation" means a
corporation founded for the purpose of farming and owning
agricultural land, in which the majority of the voting stock is
held by, and the majority of the stockholders are, members of
a family related to each other within the third degree of
kindred according to the rules of the civil law, and at least one
56
of whose stockholders is a person residing on or actively
operating the farm, and none of whose stockholders are
corporations.
Subd. 8. "Bona fide farmer corporation" means an
association of two or more natural persons, one of which, if
two persons are so associated, or the majority of which, if
more than two persons are so associated, reside on, or are
actively operating a farm.
HIST: 1971 c 952 s 2; 1985 c 248 s 70; 1986 c 444
=116B.03
116B.03 Civil actions.
Subd. 1. Any person residing within the state; the
attorney general; any political subdivision of the state; any
instrumentality or agency of the state or of a political
subdivision thereof; or any partnership, corporation,
association, organization, or other entity having shareholders,
members, partners or employees residing within the state may
maintain a civil action in the district court for declaratory or
equitable relief in the name of the state of Minnesota against
any person, for the protection of the air, water, land, or other
natural resources located within the state, whether publicly or
privately owned, from pollution, impairment, or destruction;
provided, however, that no action shall be allowable hereunder
for acts taken by a person on land leased or owned by said
person pursuant to a permit or license issued by the owner of
the land to said person which do not and can not reasonably be
expected to pollute, impair, or destroy any other air, water,
land, or other natural resources located within the state;
provided further that no action shall be allowable under this
section for conduct taken by a person pursuant to any
environmental quality standard, limitation, rule, order, license,
stipulation agreement or permit issued by the pollution control
57
agency, department of natural resources, department of health
or department of agriculture.
Subd. 2. Within seven days after commencing such
action, the plaintiff shall cause a copy of the summons and
complaint to be served upon the attorney general and the
pollution control agency. Within 21 days after commencing
such action, the plaintiff shall cause written notice thereof to
be published in a legal newspaper in the county in which suit
is commenced, specifying the names of the parties, the
designation of the court in which the suit was commenced, the
date of filing, the act or acts complained of, and the
declaratory or equitable relief requested. The court may order
such additional notice to interested persons as it may deem
just and equitable.
Subd. 3. In any action maintained under this section,
the attorney general may intervene as a matter of right and
may appoint outside counsel where as a result of such
intervention the attorney general may represent conflicting or
adverse interests. Other interested parties may be permitted to
intervene on such terms as the court may deem just and
equitable in order to effectuate the purposes and policies set
forth in section 116B.01.
Subd. 4. Except as provided in sections 14.44, 14.63
to 14.68, 115.05, 116.07 and 542.03, any action maintained
under this section may be brought in any county in which one
or more of the defendants reside when the action is begun, of
in which the cause of action or some part thereof arose, or in
which the conduct which has or is likely to cause such
pollution, impairment, or destruction occurred. If none of the
defendants shall reside or be found in the state, the action may
be begun and tried in any county which the plaintiff shall
designate. A corporation, other than railroad companies, street
railway companies, and street railroad companies whether the
motive power is steam, electricity, or other power used by
58
these corporations or companies, also telephone companies,
telegraph companies, and all other public service corporations,
shall be considered as residing in any county wherein it has an
office, resident agency, or business place. The above
enumerated public service corporations shall be considered as
residing in any county wherein the cause of action shall arise
or in which the conduct which has or is likely to cause
pollution, impairment or destruction occurred and wherein any
part of its lines of railway, railroad, street railway, street
railroad, without regard to the motive power of the railroad,
street railway, or street railroad, telegraph or telephone lines
or any other public service corporation shall extend, without
regard to whether the corporation or company has an office,
agent, or business place in the county or not.
Subd. 5. Where any action maintained under this
section results in a judgment that a defendant has not violated
an environmental quality standard, limitation, rule, order,
license, stipulation agreement, or permit promulgated or
issued by the pollution control agency, department of natural
resources, department of health, or department of agriculture,
the judgment shall not in any way estop the agency from
relitigating any or all of the same issues with the same or other
defendant unless in the prior action the agency was, either
initially or by intervention a party. Where the action results in
a judgment that the defendant has violated an environmental
quality standard, limitation, rule, order, license, stipulation
agreement, or permit promulgated or issued by the pollution
control agency, department of natural resources, department
of health or department of agriculture the judgment shall be
res judicata in favor of the agency in any action the agency
might bring against the same defendant.
HIST: 1971 ¢ 952 s 3; 1982 ¢ 424 s 130; 1985 c 248 s 70; 1986
c 444
59
==116B.04
116B.04 Burden of proof.
In any action maintained under section 1 16B.03, where
the subject of the action is conduct governed by any
environmental quality standard, limitation, rule, order, license,
stipulation agreement, or permit promulgated or issued by the
pollution control agency, department of natural resources,
department of health, or department of agriculture, whenever
the plaintiff shall have made a prima facie showing that the
conduct of the defendant violates or is likely to violate said
environmental quality standard, limitation, rule, order, license,
stipulation agreement, or permit, the defendant may rebut the
prima facie showing by the submission of evidence to the
contrary; provided, however, that where the environmental.
quality standards, limitations, rules, orders, licenses,
stipulation agreements, or permits of two or more of the
aforementioned agencies are inconsistent, the most stringent
shall control. In any other action maintained under section
116B.03, whenever the plaintiff shall have made a prima facie
showing that the conduct of the defendant has, or is likely to
cause the pollution, impairment, or destruction of the air,
water, land or other natural resources located within the state,
the defendant may rebut the prima facie showing by the
submission of evidence to the contrary.
The defendant may also show, by way of an affirmative
defense, that there is no feasible and prudent alternative and
the conduct at issue is consistent with and reasonably required
for promotion of the public health, safety, and welfare in light
of the state's paramount concern for the protection of its air,
water, land and other natural resources from pollution,
impairment, or destruction. Economic considerations alone
shall not constitute a defense hereunder.
HIST: 1971 ¢ 952 s 4; 1985 ¢ 248 s 70
=116B.05
116B.05 Appointment of referee.
The court may appoint a referee, who shall be a
disinterested person to take testimony and make a report to the
court in any such action.
HIST: 1971 ¢ 952s 5
=116B.06 nem
116B.06 Bond.
If the court has reasonable grounds to doubt the
plaintiffs ability to pay any judgment for costs and
disbursements which might be rendered against that plaintiff
pursuant to chapter 549, in an action brought under section
116B.03, the court may order the plaintiff to post a bond or
cash not to exceed $500 to serve as security for such
judgment.
HIST: 1971 c 952 s 6; 1986 c 444
==116B.07
116B.07 Relief.
The court may grant declaratory relief, temporary and
permanent equitable relief, or may impose such conditions
upon a party as are necessary or appropriate to protect the air,
water, land or other natural resources located within the state
from pollution, impairment, or destruction. When the court
grants temporary equitable relief, it may require the plaintiff
to post a bond sufficient to indemnify the defendant for
damages suffered because of the temporary relief, if
permanent relief is not granted.
HIST: 1971 ¢ 952 s7
61
=116B.08
116B.08 Remittitur.
Subd. 1. If administrative, licensing, or other similar
proceedings are required to determine the legality of the
defendants’ conduct, the court shall remit the parties to such
proceedings. If administrative, licensing, or other similar
proceedings are available to determine the legality of the
defendants’ conduct, the court may remit the parties to such
proceedings. In so remitting the parties the court may grant
temporary equitable relief where appropriate to prevent
irreparable injury to the air, water, land or other natural
resources located within the state. In so remitting the parties
the court shall retain jurisdiction of the cause pending
completion thereof.
Subd. 2. Upon completion of such proceedings, the
court shall adjudicate the impact of the defendants’ conduct,
program, or product on the air, water, land, or other natural
resources located within the state m accordance with the
preceding sections 116B.02 to 116B.07. In such adjudication,
the court may order that additional evidence be taken to the
extent necessary to protect the rights recognized in sections
116B.01 to 116B.13.
Subd. 3. Where, as to any such administrative,
licensing, or other similar proceedings referred to above,
judicial review thereof is available, notwithstanding any other
provisions of law to the contrary, the court originally taking
jurisdiction shall maintain jurisdiction for purposes of judicial
review.
Subd. 4. Nothing in this section shall be applicable to
any action maintained under section 116B.10 or to any
appropriate administrative proceeding required thereunder.
HIST: 1971 ¢ 952s 8
62
==116B.09
116B.09 Intervention; judicial review.
Subd. 1. Except as otherwise provided in section
116B.10, in any administrative, licensing, or other similar
proceeding, and in any action for judicial review thereof which
is made available by law, any natural person residing within
the state, the attorney general, any political subdivision of the
state, any instrumentality or agency of the state or of a
political subdivision thereof, or any partnership, corporation,
association, organization or other legal entity having
shareholders, members, partners, or employees residing within
the state shall be permitted to intervene as a party upon the
filing of a verified pleading asserting that the proceeding or
action for judicial review involves conduct that has caused or
is likely to cause pollution, impairment, or destruction of the
air, water, land or other natural resources located within the
State.
Subd. 2. In any such administrative, licensing, or other
similar proceedings, the agency shall consider the alleged
impairment, pollution, or destruction of the air, water, land, or
other natural resources located within the state and no conduct
shall be authorized or approved which does, or is likely to
have such effect so long as there is a feasible and prudent
alternative consistent with the reasonable requirements of the
public health, safety, and welfare and the state's paramount
concern for the protection of its air, water, land, and other
natural resources from pollution, impairment, or destruction.
Economic considerations alone shall not justify suck conduct.
Subd. 3. In any action for judicial review of any
administrative, licensing, or other similar proceeding as
described in subdivision 1, the court shall, in addition to any
other duties imposed upon it by law, grant review of claims
that the conduct caused, or is likely to cause pollution,
impairment, or destruction of the air, water, land, or other
63
natural resources located within the state, and in granting such
review it shall act in accordance with the provisions of
sections 116B.01 to 116B.13 and the Administrative
Procedure Act.
HIST: 1971 ¢952s9
=116B.10
116B.10 Reviewal of state actions.
Subd. 1. Civil actions. As hereinafter
provided in this section, any natural person residing within the
state; the attorney general; any political subdivision of the
state; any instrumentality or agency of the state or of a
political subdivision thereof; or any partnership, corporation,
association, organization, or other legal entity having
shareholders, members, partners or employees residing within
the state may maintain a civil action in the district court for
declaratory or equitable relief against the state or any agency
or instrumentality thereof where the nature of the action is a
challenge to an environmental quality standard, limitation,
rule, order, license, stipulation agreement, or permit
promulgated or issued by the state or any agency or
instrumentality thereof for which the applicable statutory
appeal period has elapsed.
Subd. 2. Burden of proof. In any action maintained
under this section the plaintiff shall have the burden of proving
that the environmental quality standard, limitation, rule, order,
license, stipulation agreement, or permit is inadequate to
protect the air, water, land, or other natural resources located
within the state from pollution, impairment, or destruction.
The plaintiff shall have the burden of proving the existence of
material evidence showing said inadequacy of said
environmental quality standard, limitation, rule, order, license, _
stipulation agreement, or permit.
Subd. 3. Remittitur; judicial review. In any action
maintained under this section the district court, upon a prima
facie showing by the plaintiff of those matters specified in
subdivision 2, shall remit the parties to the state agency or
instrumentality that promulgated the environmental quality
standard, limitation, rule, order, license, stipulation agreement,
or permit which is the subject of the action, requiring said
agency or instrumentality to institute the appropriate
administrative proceedings to consider and make indings and
an order on those matters specified in subdivision 2. In so
remitting the parties, the court may grant temporary equitable
relief where appropriate to prevent irreparable injury to the air,
water, land, or other natural resources located within the state.
In so remitting the parties, the court shall retain jurisdiction
for purposes of judicial review to determine whether the order
of the agency is supported by the preponderance of the
evidence. If plaintiff fails to establish said prima facie
showing, the court shall dismiss the action and award such
costs and disbursements as the court deems appropriate.
Subd. 4. Intervention. In any action maintained under
this section, any natural person residing within the state; the
attorney general; any political subdivision of the state; any
instrumentality or agency of the state or of a political
subdivision thereof; or any partnership, corporation,
association, organization or other legal entity having
shareholders, members, partners, or employees residing within
the state shall be permitted to intervene as a party, provided
that said person makes timely application to the district court
prior to the court's remittance of the action as specified in
subdivision 3.
Subd. 5. Venue. Any action maintained under this
section shall be brought in the county in which is located the
principal office of the state agency or instrumentality that
65
promulgated the rule, standard, order or permit which is the
subject of the action.
HIST: 1971 ¢ 952s 10; 1985 c 248 5 70
=116B.11
116B.11 Jurisdiction; serving process.
Subd. 1. As to any cause of action arising under
sections 116B.01 to 116B.13, the district court may exercise
personal jurisdiction over any foreign corporation or any
nonresident individual in the same manner as if it were a
domestic corporation or the individual were a resident of this
State.
This section applies if, in person or through an agent,
the foreign corporation or nonresident individual: (a) Commits
or threatens to commit any act in the state which would
impair, pollute or destroy the air, water, land, or other natural
resources located within the state, or (b) Commits or threatens
to commit any act outside the state which would impair,
pollute or destroy the air, water, land, or other natural
resources located within the stae, or (c) Engages in any other
of the activities specified in section 543.19.
Subd. 2. The service of process on any person who is
subject to the jurisdiction of the courts of this State, as
provided in this section, may be made by personally serving
the summons upon the defendant outside this state with the
same effect as though the summons had been personally
served within this state.
Subd. 3. Only causes of action arising from acts
enumerated or referenced in subdivision 1 may be asserted
against a defendant in an action in which jurisdiction over the
defendant is based upon this section.
Subd. 4. Nothing contained in this section shall limit
or affect the right to serve any process in any other manner
now or hereafter provided by law or the Minnesota rules of
civil procedure.
HIST: 1971 c 952 s 11; 1986 c 444
=116B.12
116B.12 Rights and remedies nonexclusive.
No existing civil or criminal remedy for any wrongful
action shall be excluded or impaired by sections 116B.01 to
116B.13. The rights and remedies provided herein shall be in
addition to any administrative, regulatory, statutory, or
common law rights and remedies now or hereafter available.
HIST: 1971 ¢ 952s 12
==116B.13
116B.13 Citation.
Sections 116B.01 to 116B.13 may be cited as the
"Minnesota Environmental Rights Act."
HIST: 1971 ¢ 952s 14
67
[Document Taken Off Internet Minnesota Statutes 2001]
Minnesota Statutes 2001, Chapter 116D.
Copyright 2001 by the Office of Revisor of Statutes, State
of Minnesota.
=116D.01
116D.01 Purpose.
The purposes of Laws 1973, chapter 412, are: (a) to
declare a state policy that will encourage productive and
enjoyable harmony between human beings and _ their
environment; (b) to promote efforts that will prevent or
eliminate damage to the environment and biosphere and
stimulate the health and welfare of human beings; and (c) to
enrich the understanding of the ecological systems and natural
resources important to the state and to the nation.
HIST: 1973 ¢ 412s 1; 1986 c 444
=116D.02 .
16D.02 Declaration of state environmental policy.
Subd. 1. The legislature, recognizing the profound
impact of human activity on the interrelations of all
components of the natural environment, particularly the
profound influences of population growth, high density
urbanization, industrial expansion, resources exploitation, and
new and expanding technological advances and recognizing
further the critical importance of restoring and maintaining
environmental quality to the overall welfare and development
of human beings, declares that it is the continuing policy of the
State government, in cooperation with federal and local
governments, and other concerned public and private
organizations, to use all practicable means and measures,
including financial and technical assistance, in a manner
calculated to foster and promote the general welfare, to create
and maintain conditions under which human beings and nature
68
can exist in productive harmony, and fulfill the social,
economic, and other requirements of present and future
generations of the state's people.
Subd. 2. In order to carry out the policy set forth in
Laws 1973, chapter 412, it is the continuing responsibility of
the state government to use all practicable means, consistent
with other essential considerations of state policy, to improve
and coordinate state plans, functions, programs and resources
to the end that the state may: (1) fulfill the responsibilities of
each generation as trustee of the environment for succeeding
generations; (2) assure for all people of the state safe,
healthful; productive, and aesthetically and culturally pleasing
surroundings, (3) discourage ecologically unsound aspects of
population, economic and technological growth, and develop
and implement a policy such that growth occurs only in an
environmentally acceptable manner; (4) preserve important
historic, cultural, and natural aspects of our national heritage,
and maintain, wherever practicable, an environment that
Supports diversity, and variety of individual choice; (5)
encourage, through education, a better understanding of
natural resources management principles that will develop
attitudes and styles of living that minimize environmental
degradation; (6) develop and implement land use and
environmental policies, plans, and standards for the state as a
whole and for major regions thereof through a coordinated
program of planning and land use control; (7) define,
designate, and protect environmentally sensitive areas; (8)
establish and maintain statewide environmental information
systems sufficient to gauge environmental conditions; (9)
practice thrift in the use of energy and maximize the use of
energy efficient systems for the utilization of energy, and
minimize the environmental impact from energy production
and use; (10) preserve important existing natural habitats of
rare and endangered species of plants, wildlife, and fish, and
69
provide for the wise use of our remaining areas of natural
habitation, including necessary protective measures where
appropriate; (11) reduce wasteful practices which generate
solid wastes; (12) minimize wasteful and unnecessary
depletion of nonrenewable resources; (13) conserve natural
resources and minimize environmental impact by encouraging
extension of product lifetime, by reducing the number of
unnecessary and wasteful materials practices, and by recycling
materials to conserve both materials and energy; (14) improve
management of renewable resources in a manner compatible
with environmental protection; (15) provide for reclamation
of mined lands and assure that any mining is accomplished in
a manner compatible with environmental protection; (16)
reduce the deleterious impact on air and water quality from all
sources, including the deleterious environmental impact due
to operation of vehicles with internal combustion engines in
urbanized areas; (17) minimize noise, particularly in urban
areas, (18) prohibit, where appropriate, flood plain
development in urban and rural areas: and (19) encourage
advanced waste treatment in abating water pollution.
HIST: 1973 c 412 s 2: 1986 ¢ 444
=116D.03
116D.03 Action by state agencies.
Subd. 1. The legislature authorizes and directs that,
to the fullest extent practicable the policies, rules and public
laws of the state shall be interpreted and administered in
accordance with the policies set forth in sections 116D.01 to
116D.06.
Subd. 2. All departments and agencies of the state
government shall: (1) on a continuous basis, seek to strengthen
relationships between state, regional, local and federal-state
environmental planning, development and management
programs; (2) utilize a systematic, interdisciplinary approach
70
that will insure the integrated use of the natural and social
sciences and the environmental arts in planning and in
decision making which may have an impact on the
environment; as an aid in accomplishing this purpose there
Shall be established advisory councils or other forums for
consultation with persons in appropriate fields of
specialization so as to ensure that the latest and most
authoritative findings will be considered in administrative and
regulatory decision making as quickly and as amply as
possible; (3) identify and develop methods and procedures that
will ensure that environmental amenities and values, whether
quantified or not, will be given at least equal consideration in
decision making along with economic and _ technical
considerations; (4) study, develop, and describe appropriate
alternatives to recommended courses of action in any proposal
which involves unresolved conflicts concerning alternative
uses of available resources; (5) recognize the worldwide and
long range character of environmental problems and, where
consistent with the policy of the state, lend appropriate support
to initiatives, resolutions, and programs designed to maximize
interstate, national and international cooperation in
anticipating and preventing a decline in the quality of the
world environment; (6) make available to the federal
government, counties, municipalities, institutions and
individuals, information useful in restoring, maintaining, and
enhancing the quality of the environment, and in meeting the
policies of the state as set forth in Laws 1973, chapter 412; (7)
initiate the gathering and utilization of ecological information
in the planning and development of resource oriented projects;
and (8) undertake, contract for or fund such research as is
needed in order to determine and clarify effects by known or
suspected pollutants which may be detrimental to human
health or to the environment, as well as to evaluate the
Ti
feasibility, safety and environmental effects of various
methods of dealing with pollutants.
HIST: 1973 c 412 s 3; 1985 c 248 s 70; 1986 c 444
==116D.04
16D.04 Environmental impact statements.
Subd. 1. Repealed, 1980 c 447s 10
Subd. la. For the purposes of this chapter, the
following terms have the meanings given to them in this
subdivision. (a) "Natural resources" has the meaning given it
in section 116B.02, subdivision 4. (b) "Pollution, impairment
or destruction" has the meaning given it in section 116B.02,
subdivision 5. (c) "Environmental assessment worksheet"
means a brief document which is designed to set out the basic
facts necessary to determine whether an environmental impact
statement is required for a proposed action. (d) "Governmental
action" means activities, including projects wholly or partially
conducted, permitted, assisted, financed, regulated, or
approved by units of government including the federal
government. (e) "Governmental unit" means any state agency
and any general or special purpose unit of government in the
state including, but not limited to, watershed districts
organized under chapter 103D, counties, towns, cities, port
authorities, housing authorities, and economic development
authorities established under sections 469.090 to 469.108, but
not including courts, school districts, and regional
development commissions other than the metropolitan
council.
Subd. 2. Repealed, 1980 c 447s 10
Subd. 2a. Where there is potential for significant
environmental effects resulting from any major governmental
action, the action shall be preceded by a detailed
environmental impact statement prepared by the responsible
governmental unit. The environmental impact statement shall
72
—
=e
>
be an analytical rather than an encyclopedic document which
describes the proposed action in detail, analyzes its significant
environmental impacts, discusses appropriate alternatives to
the proposed action and their impacts, and explores methods
by which adverse environmental impacts of an action could be
mitigated. The environmental impact statement shall also
analyze those economic, employment and sociological effects
that cannot be avoided should the action be implemented. To
ensure its use in the decision making process, the
environmental impact statement shall be prepared as early as
practical in the formulation of an action. (a) The board shall
by rule establish categories of actions for which environmental
impact statements and for which environmental assessment
worksheets shall be prepared as well as categories of actions
for which no environmental review is required under this
section. (b) The responsible governmental unit shall promptly
publish notice of the completion of an environmental
assessment worksheet in a manner to be determined by the
board and shall provide copies of the environmental
assessment worksheet to the board and its member agencies.
Comments on the need for an environmental impact statement
may be submitted to the responsible governmental unit during
a 30 day period following publication of the notice that an
environmental assessment worksheet has been completed.
The responsible governmental unit's decision on the need for
an environmental impact statement shall be based on the
environmental assessment worksheet and the comments
received during the comment period, and shall be made within
15 days after the close of the comment period. The board's
chair may extend the 15 day period by not more than 15
additional days upon the request of the responsible
governmental unit. (c) An environmental assessment
worksheet shall also be prepared for a proposed action
whenever material evidence accompanying a petition by not
73
less than 25 individuals, submitted before the proposed project
has received final approval by the appropriate governmental
units, demonstrates that, because of the nature or location of
a proposed action, there may be potential for significant
environmental effects. Petitions requesting the preparation of
an environmental assessment worksheet shall be submitted to
the board. The chair of the board shall determine the
appropriate responsible governmental unit and forward the
petition to it. A decision on the need for an environmental
assessment worksheet shall be made by the responsible
governmental unit within 15 days after the petition is received
by the responsible governmental unit. The board's chair may
extend the 15 day period by not more than 15 additional days
upon request of the responsible governmental unit. (d) The
board may, prior to final approval of a proposed project,
require preparation of an environmental assessment worksheet
by a responsible governmental unit selected by the board for
any action where environmental review under this section has
not been specifically provided for by rule or otherwise
initiated. (e) An early and open process shall be utilized to
limit the scope of the environmental impact statement to a
discussion of those impacts, which, because of the nature or
location of the project, have the potential for significant
environmental effects. The same process shall be utilized to
determine the form, content and level of detail of the
statement as well as the alternatives which are appropriate for
consideration in the statement. In addition, the permits which
will be required for the proposed action shall be identified
during the scoping process. Further, the process shall identify
those permits for which information will be developed
concurrently with the environmental impact statement. The
board shall provide in its rules for the expeditious completion
of the scoping process. The determinations reached in the
process shall be incorporated into the order requiring the
74
preparation of an environmental impact statement, (f)
Whenever practical, information needed by a governmental
unit for making final decisions on permits or other actions
required for a proposed project shall be developed in
conjunction with the preparation of an environmental impact
Statement. (g) An environmental impact statement shall be
prepared and its adequacy determined within 280 days after
notice of its preparation unless the time is extended by consent
of the parties or by the governor for good cause. The
responsible governmental unit shall determine the adequacy of
an environmental impact statement, unless within 60 days
after notice is published that an environmental impact
Statement will be prepared, the board chooses to determine
the adequacy of an environmental impact statement. If an
environmental impact statement is found to be inadequate, the
responsible governmental unit shall have 60 days to prepare
an adequate environmental impact statement.
Subd. 2b. Ifan environmental assessment worksheet
Or an environmental impact statement is required for a
governmental action under subdivision 2a, a project may not
be started and a final governmental decision may not be made
to grant a permit, approve a project, or begin a project, until:
(1) a petition for an environmental assessment worksheet is
dismissed; (2) a negative declaration has been issued on the
need for an environmental impact statement; (3) the
environmental impact statement has been determined
adequate; or (4) a variance has been granted from making an
environmental impact statement by the environmental quality
board.
Subd. 3. Repealed, 1980 c 447 s 10
Subd. 3a. Within 90 days after final approval of an
environmental impact statement, final decisions shall be made
by the appropriate governmental units on those permits which
were identified as required and for which information was
75
_ —— — —— EEE ee Oe ee SS aes eee ee ee ee
developed concurrently with the preparation of the
environmental impact statement. Provided, however, that the
90-day period may be extended where a longer period is
required by federal law or state statute or is consented to by
the permit applicant. The permit decision shall include the
reasons for the decision, including any conditions under which
the permit is issued, together with a final order granting or
denying the permit.
Subd. 4. Repealed, 1980 c 447s 10
Subd. 4a. The board shall by rule identify
alternative forms of environmental review which will address
the same issues and utilize similar procedures as an
environmental impact statement in a more timely or more
efficient manner to be utilized in lieu of an environmental
impact statement.
Subd. 5. Repealed, 1980 c 447s 10
Subd. 5a. The board shall, by January 1, 1981,
promulgate rules in conformity with this chapter and the
provisions of chapter 15, establishing: (1) the governmental
unit which shall be responsible for environmental review of a
proposed action; (2) the form and content of environmental
assessment worksheets; (3) a scoping process in conformance
with subdivision 2a, clause (e); (4) a procedure for identifying
during the scoping process the permits necessary for a
proposed action and a process for coordinating review of
appropriate permits with the preparation of the environmental
impact statement; (5) a standard format for environmental
impact statements; (6) standards for determining the
alternatives to be discussed in an environmental impact
statement; (7) alternative forms of environmental review
which are acceptable pursuant to subdivision 4a; (8) a model
ordinance which may be adopted and implemented by local
governmental units in lieu of the environmental impact
statement process required by this section, providing for and
76
DATE PS INTENSE ly SOND OER TO an
ec me mem Ce te maaan eee enn ae
alternative form of environmental review where an action does
not require a state agency permit and is consistent with an
applicable comprehensive plan. The model ordinance shall
provide for adequate consideration of appropriate alternatives,
and shall ensure that decisions are made in accordance with
the policies and purposes of Laws 1980, chapter 447; (9)
procedures to reduce paperwork and delay through
intergovernmental cooperation and the elimination of
unnecessary duplication of environmental reviews; (10)
procedures for expediting the selection of consultants by the
governmental unit responsible for the preparation of an
environmental impact statement; and (11) any additional rules
which are reasonably necessary to carry out the requirements
of this section.
Subd. 6. No state action significantly affecting the
quality of the environment shall be allowed, nor shall any
permit for natural resources management and development be
granted, where such action or permit has caused or is likely to
cause pollution, impairment, or destruction of the air, water,
land or other natural resources located within the state, so long
as there is a feasible and prudent alternative consistent with
the reasonable requirements of the public health, safety, and
welfare and the state's paramount concern for the protection of
its air, water, land and other natural resources from pollution,
impairment, or destruction. Economic considerations alone
shall not justify such conduct. Subd. 6a. Prior to the
preparation of a final environmental impact statement, the
“governmental unit responsible for the statement shall consult
with and request the comments of every governmental office
which has jurisdiction by law or special expertise with respect
to any environmental effect involved. Copies of the drafts of
such statements and the comments and views of the
appropriate offices shall be made available to the public. The
final detailed environmental impact statement and the
77
comments received thereon shall precede final decisions on
the proposed action and shall accompany the proposal through
an administrative review process.
Subd. 7. Regardless of whether a detailed written
environmental impact statement is required by the board to
accompany an application for a permit for natural resources
management and development, or a recommendation, project,
or program for action, officials responsible for issuance of
aforementioned permits or for other activities described herein
shall give due consideration to the provisions of Laws 1973,
chapter 412, as set forth in section 116D.03, in the execution
of their duties.
Subd. 8. In order to facilitate coordination of
environmental decision making and the timely review of
agency decisions, the board shall establish by rule a procedure
for early notice to the board and the public of natural resource
management and development permit applications and other
impending state actions having significant environmental
effects.
Subd. 9. Prior to the final decision upon any state
project or action significantly affecting the environment or for
which an environmental impact statement is required, or
within ten days thereafter, the board may delay
implementation of the action or project by notice to the agency
or department and to interested parties. Thereafter, within 45
days of such notice, the board may reverse or modify the
decisions or proposal where it finds, upon notice and hearing,
that the action or project is inconsistent with the policy and
standards of sections 116D.01 to 116D.06. Any aggrieved
party may seek judicial review pursuant to chapter 14.
Subd. 10. Decisions on the need for an
environmental assessment worksheet, the need for an
environmental impact statement and the adequacy of an
environmental impact statement may be reviewed by a
78
declaratory judgment action in the district court of the county
wherein the proposed action, or any part thereof, would be
undertaken. Judicial review under this section shall be
initiated within 30 days after the governmental unit makes the
decision, and a bond may be required under section 562.02
unless at the time of hearing on the application for the bond
the plaintiff has shown that the claim has sufficient possibility
| of success on the merits to sustain the burden required for the
E issuance of a temporary restraining order. Nothing in this
section shall be construed to alter the requirements for a
temporary restraining order or a preliminary injunction
pursuant to the Minnesota rules of civil procedure for district
courts. The board may initiate judicial review of decisions
referred to herein and may intervene as of right in any
proceeding brought under this subdivision.
Subd. 11. If the board or governmental unit which
is required to act within a time period specified in this section
fails to so act, any person may seek an order of the district
court requiring the board or governmental unit to immediately
; take the action mandated by subdivisions 2a and 3a.
: Subd. 12. No attempt need be made to tabulate,
; analyze or otherwise evaluate the potential impact of elections
made pursuant to section 116C.63, subdivision 4, in
TERR a AG EEA SAY LE WSN SE IIE EUR a
i environmental impact statements done for large electric power
H facilities. It is sufficient for purposes of this chapterthat such —
statements note the existence of section 116C.63, subdivision
H 4.
| Subd. 13. This section may be enforced by
injunction, action to compel performance, or other appropriate
action in the district court of the county where the violation
takes place. Upon the request of the board or the chair of the
board, the attorney general may bring an action under this
subdivision.
79
HIST: 1973 ¢ 412 s 4; 1975 c 204 s 74; 1975 ¢ 271 s 6; 1980
c 447s 1-8; 1980 c 614 s 88; 1982 c 424s 130; 1985 c 248 s
70; 1986 c 399 art 2 s 1; 1986 c 400s 1; 1986 c 444; 1Sp1986
c 3 art2 s 41; 1988 c 501 s 3,4; 1989 c 209 art2s 1; 1990 c
391 art 8s 27; 1992 c 464 art2s 1
80
ET ONE ENC RNC fo
STATE OF MINNESOTA IN DISTRICT COURT
COUNTY OF ST.LOUIS SIXTH JUDICIAL DISTRICT
FILE NO. C3-98-601186
ERIC RINGSRED
Plaintiff,
ORDER REGARDING
V. MOTION FOR ORDER TO
SHOW CAUSE AND
CITY OF DULUTH CONTEMPT
ECONOMIC DEVELOPMENT
AUTHORITY, ET AL.,
Defendant
This matter came before the Court at the courthouse
in Duluth on December 27, 1999, upon the motion of plaintiff
for an order to show cause and the application of sanctions by
reason of alleged acts of contempt of certain defendants
herein. Plaintiff appeared in person, pro se, A&L
Development, Inc. appeared by Joseph Mihalek, its attorney.
The City of Duluth and DEDA appeared by Alison Lutterman,
Assistant City Attorney for the City of Duluth. There was no
appearances by other named defendants. The Court having
had benefit of the comments of counsel, having reviewed its
files herein and the written submissions of plaintiff with
regard to the matters currently before the Court does not make
and enter the following:
ORDER
1. Plaintiffs motion for an order to show
cause is denied;
2. Plaintiffs motion for an award of
sanctions is denied;
81
3. The attached memorandum - shall
constitute a part of this order including such facts as may be
found therein.
Dated at Duluth, Minnesota, this 10" day of January, 2000.
BY THE COURT:
Terrry o .
Hallenbeck, District
Court Judge
MEMORANDUM
The Court will address the numbered segments of
plaintiff's affidavit in the order presented therein.
1. Any allegations against the assistant city
attorney mentioned in the portion of plaintiff's application are
more appropriate for review by the State Board of Professional
Responsibility which has the benefit of investigative resources
not at the disposal of the Court. It is the Court's
- understanding, based upon newspaper reports concerning
actions taken by a City Councilor, that a referral to that entity
was made by said councilor shortly after the occasion of the
attorney's testimony. The Court is confident that body is better
positioned to investigate and evaluate any alleged misconduct
which may have occurred.
2. The reported discussions by plaintiff with
others concerning the existence of an offer to purchase and
redevelop the Strand Theater are hearsay as presented in the
ee SORAP LD
PEER LYE IER RR AE PEIN OT
GE ig ABD SD EPS
EE CAAA RE LILO E LN GEOL ODE BBE HELIN 2 DIELS ORD
IE NG RD RA EIN ng PSK
per a
context of plaintiff's motion. As such it is not appropriate that
the Court consider them, no
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.