# Petition for Writ of Certiorari — Johnson v. City of Shorewood > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1638%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2004 - **Citation:** 543 U.S. 810 ## Text » Ceur NQ ad 51i2may ~ 4 2004 OFPAICE OF Tit OLERK In The Supreme Court of the Gnited States ¢ RONALD JOHNSON AND DEE JOHNSON, Petitioners, V. CITY OF SHOREWOOD, et al., Respondents. + On Petition For Writ Of Certiorari To The United States Court Of Appeals 2 For The Eighth Circuit ee PETITION FOR WRIT OF CERTIORARI ¢ ERICK G. KAARDAL* Eric L. LIPMAN MOHRMAN & KAARDAL, P.A. 33 South Sixth Street, Suite 4100 Minneapolis MN 55402 612-341-1074 Counsel for the Petitioners May 4, 2004 *Counsel of Record COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED 1. Does the Williamson jurisdictional requirement to exhaust state judicial remedies permit a federal court remedy when the state court final judgment awards nothing for a previously-adjudicated physical taking? 2. Whether 42 U.S.C. § 1983 jurisdiction exists for violation of Just Compensation Clause when a state court final judgment awards ZERO compensation for a previ- ously-adjudicated physical taking? 3. Whether Rooker-Feldman doctrine applies when landowners did not have a reasonable opportunity to litigate Corps’ and municipality's misrepresentations of pre-ownership Clean Water Act wetland in the state court condemnation proceeding? li PARTIES TO THE PROCEEDING The following individuals and entities are parties to the proceeding in the court below: | Ronald Richard Johnson and Dee Lundberg Johnson; Plaintiffs-Appellants. City of Shorewood, Minnesota and its Mayor in his official capacity; City of Minnetonka, Minnesota and iis Mayor in her official capacity; Riley-Purgatory-Bluff Creek Watershed District, and the Chair of its Board of Manag- ers in his official capacity; Trivesco, a partnership and its partners; Robert H. Mason, Inc., a corporation; Highland Properties, Inc., a corporation; Steiner & Koppelman, Inc., a corporation; Highland Villa Builders, Inc., a corporation; United States of America; Corps of Engineers, being sued as the Corps of Engineers of the United States; Louis Caldera, The Honorable Secretary of the United States Army or his successor in his/her official capacity; Joseph N. Ballard, Lt. General, the Commander-in-Chief of the Corps of Engineers of the United States or his successor in his/her official capacity; Defendants-Appellees. CORPORATE DISCLOSURE STATEMENT Plaintiffs as individuals state that Supreme Court Rule 29.6 does not apply because the plaintiffs are not corporations. - ' i No I ili TABLE OF CONTENTS Page Susstions Presented 0... eccesssescssssmseesc.. i Parties to the PTOCOOGING oon. ceosscscscssseessssocooseeeces..... li Corporate Disclosure Statement ow il TMNT e5e.sssssresssssnnsgovissseesccs,.. ili SE NTIIIOE s.s ss csesivseseinsotccooe,,.. iv Petition for Writ of TOON oes ssvsvssiirviversseerce...... 1 DI scr csenscissrsvessestsesunteseeccs,c.. 1 PM iss isnsasssiesedesttervesrsoseesossescc 3 Constitutional Provisions and Statutes Involved... 3 OBER. oo csccsceescvesecoescc 4 Reasons for Granting the a NO 19 RR seen ssenscnsciessssccrvesevenssssoniotcdciee =, 30 iv TABLE OF AUTHORITIES CASES Biddulph v. Mortham, 89 F.3d 1491 (11th Cir. 1996)....... 28 City of Monterey v. Del Monte Dunes at Monterey, Ee GB BT Cae ntsitcesissstnterrpinciniccsscicscrenviaven 8 Del Monte Dunes at Monterey, Ltd. v. City of Mon- terey, 920 F.2d 1496 (9th Cir. 1990)......... 8, 20, 24, 25, 26 District of Columbia Court of Appeals v. Feldman, SOO TD. Be Ce hittin passim Gisslen v. City of Crystal, 345 F.3d 624 (8th Cir. RIED sc. cc aslgcicacxdercancascemeesiabaecasusantn danusaeiuadumanenlieialauaal 29 Lemonds v. St. Louis County, 222 F.3d 488 (8th Cir. SINE ccsnssucuczanceaovesiacesduages sacpunsecsnincumabsndeaniiaakeiasaieuamaiaads 29 Long v. Shorebank Development Corp., 182 F.3d 548 Ce SE SII oO > That’s for the ditch maintenance. Q. You said he did? [59] A. Yes — and I still think he needed one. Q. So you think the Corps was wrong? A. Yeah, I do. I don’t think they visited the site. Q. Now, in your report do you have any drawings like this, ditch-profile drawings? A. No, sir, I don’t. Q. OK. Now, as I understand your testimony, you think that — you will agree that if the Johnson property was not — was not a wetland before the taking and is now a wetland, you would agree that the Johnsons have sus- tained damage, would you not? A. Yes. Q. OK. We'll write damage (indicating) pre-taking, wetland — Oh, no. Wetland and after wetland. Under those circumstances, you would agree that Mr. Johnson — that the Johnsons have sustained damage. Correct? A. Correct. MR. SHULMAN: [I'l move the easel. BY MR. SHULMAN: * * * App. 73 A. Yes, I do. Q. OK. Now, that means, does it not, that if an area was once a wetland and because, for example, of drainage is no longer a wetland, the Corps does not intend to assert jurisdiction over it? A. I don’t think that’s exactly what it says. What it says is that if it’s converted to dry land, that they would not exercise jurisdiction over it. Q. That means, does it not, that if the ditch on the Johnsons’ property had drained their property so that the property no longer possessed the features of a wetland, the Corps of Engineers would not assert — would not have asserted jurisdiction over it as a wetland, isn’t that true? A. Such that it would not have a predominance of hydrophytic vegetation, yes, that would be true. Q. You're aware that the Corps of Engineers has not asserted jurisdiction over this property, [66] are you not? A. They most certainly have. Q. Now, you — And this (indicating) is a regulation that you didn’t look at in your work. Right? _ A. I have not looked at this regulatory guidance letter, no. Q. You didn’t even know about it before today, did you? A. The Corps doesn’t keep it on their — on their list. It’s so oid and expired — expired the date of the taking. Q. You didn’t know about it before today. Right? App. 74 A. No. I’ve seen more recent versions of it. I didn’t know about this old one, though, but it doesn’t change my conclusion. Q. Now, you gave some testimony about what you think — how you think the City would apply its zoning — I’m sorry, its wetlands ordinance. Do you remember that testimony? A. No. I remember testifying as to what the plain language of the ordinance says. Q. Oh, you didn’t give any views about how the City would apply it? A. I don’t recall. i don’t think so. [67] Q. Now, you were here in court for part of the testimony of Mr. Nielsen. Correct? A. Yes. Q. OK. Do you remember Mr. Nielsen saying that if somebody as qualified, for example, as Mr. Frank had come in with a six — with a 6-lot proposal and had demon- strated that this — that the area involved was not wetland, then it’s possible that Mr. Nielsen would have approved it? Do you remember that testimony? A. Yes. Q. And were you also here when Mr. Nielsen testi- fied that the only reason any portion of the Johnsons’ property appears as a designated wetland is as a result of the City ordinance? A. Idon’t know that I recall that, no. App. 75 Q. Were you here when he testified that if someone were to dispute that the property was in fact a wetland, that he would look to the DNR and Corps of Engineers for a determination of whether it really was a wetland? A. I think I recall that testimony, yes. Q. And I think you said that if somebody’s property is designated as a wetland under the ordinance and the person wishes to build on the [68] property, one of the things that the person can do is to ask for a variance? A. That’s correct. @. And a variance is permission to do something that’s different from what’s in the ordinance but it’s granted under the ordinance. Right? A. Correct. MR. SHULMAN: I have no further questions. Thank you. THE COURT: Any redirect, Mr. Martin? MR. MARTIN: Yes, Your Honor. REDIRECT-EXAMINATION BY MR. MARTIN: Q. Mr. Peterson, when you were asked about this document — Let me first ask you. Let me first ask you. You were asked whether or not — Mr. Shulman said that the Corps has not exerted jurisdiction over this property. Has the Corps extended its jurisdiction over the lowland of Mr. Johnson’s property? A. Without question. App. 76 Q. How do you know that is true? A. Because if the Corps — if someone applies for a permit or asks for an exemption for an [69] activity in a wetland that — or an area that the Corps determines it doesn’t have jurisdiction over, it issues a no-jurisdiction letter, it does not issue an exemption or does not issue a permit. By virtue of the fact that they required a permit for some of the activities Mr. Johnson proposed and that they issued an exemption letter for the ditch maintenance, they are in doing so indicating without question that they exercise jurisdiction over the wetland and if he comes in to do other activities in that wetland, they will be requiring permits. Q. So without question that is a Corps of Engineers wetland? A. Without question. Q. And with respect to this language that Mr. Shul- man has referred te in this letter, what do we call this letter — a regulatory letter? A. Regulatory guidance letter. * * * Q. Those letters indicated that the property was a wetland? A. Yes, they do. MR. MARTIN: Ive got three letters I want collectively marked as one exhibit. (Exhibit 117 marked for identification.) App. 77 BY MR. MARTIN: Q. Mr. Peterson, I’m handing you what’s been marked as Exhibit 117. Are those the letters that you reviewed in your research from the Corps of Engineers? A. That is correct. Q. And what language in those letters specifically leads you to believe that the Corps believed the Johnsons’ property was a wetland? A. Well, there are three letters. One is February 7th, 1994, one is from March 2nd, 1993, one is from March 17th, 1993. So two in March of ’93 and one a year later. March 2nd, 1993 letter indicates — well, it indicates that we believe you may need an [78] individual permit of the army, Section 404 permit for the ditch cleanout work that he was proposing. It also references at some length the agricultural ditch-maintenance exemption and de- scribes what has to be shown to get it and also it spells out explicitly the recapture provision. I can read that if you like. Q. No. Why don’t you move on to the next letter. A. The March 17th, 1993 letter says: “As stated in our March 2nd, 1993 letter, we reviewed the information you provided about the ditch cleanout and requested re- moval about an existing culvert and control structure. With the information we have, we still believe you may need an individual department of the army Section 404 permit for cleanout. The proposed project appears to in- volve a discharge of excavated material and grading of existing spoil banks in wetland and it may affect a sub- stantial area of wetland.” App. 78 Then it goes on again to explain that some agricul- tural ditch maintenance work can qualify for an exemption for a permit though there are strict guidelines that apply, and it again indicates that the effected wetland must not be [79] converted to new uses. Q. Then the last letter? A. The February 7th, 1994 letter says that: “As stated in our March 2nd and March 17th, 1993 letters, we still believe that you need an individual department of the army Section 404 permit for cleanout of the ditch. The proposed project appears to involve an excavation in a ditch through a wetland and possibly grading of existing spoil banks in wetland and it may affect a substantial area of wetland. According to the National Wetland Inventory map and other sources, the effected area appears to have been a wetland before the dam and road construction” — Q. Could you read a little bit louder? A. Sure. “According to the National Wetland Inven- tory map and other sources, the effected area appears to have been a wetland before the dam and road construction in the mid 1980s and it appears to remain a wetland to- day. Q. That’s the Army Corps of Engineers writing? A. That is correct. MR. MARTIN: Your Honor, I'd offer Exhibit 397. [80] MR. SHULMAN: No objection, Your Honor. App. 79 THE COURT: It will be received. MR. MARTIN: That’s all I have, Your Honor. RECROSS-EXAMINATION BY MR. SHULMAN: Q. May it please the Court, those letters that you refer to, those are all after 1984, aren’t they? A. Yes, they are. Q. And they’re — At that time, they’re all at the time of when the pond-control structure had dammed the ditch. Right? A. The letters were drafted, yes, after that — after the pond was co*structed, yes. Q. Right. That pond — So at that time, that taking made that property a wetland, didn’t it? A. No. Q. You - After you got — you saw those letters, that’s when you filed your Affidavit with the Court. Right? A. Im sorry. Could you run that by me again? Q. You saw those letters and then - and you read them to say that Mr. Johnson would need a [81] permit, right, to clean out his ditch? A. I think that’s fair interpretation of the letters, yes. App. 80 Q. So what you did was you tattled on Mr. Johnson to the Court. Right? You submitted an Affidavit saying in your opinion based on the letters he’d need a permit? A. Iwould—- MR. MARTIN: Objection, Your Honor, rele- vance. THE COURT: Sustained. BY MR. SHULMAN: Q. Based on those letters, you told the Court, did you not, you said: “Based upon my experience with the regula- tions of the U.S. Army Corps of Engineers, the Wetland Conservation Act and the Riley/Purgatory/Bluff Creek Watershed District, permits would be required under each regulatory program for ditch maintenance and alteration activities to be carried out on the subject property.” That’s what you said. Right? A. That’s correct. Q. And you also told the Court that you believed that Mr. Johnson was doing work without permits? [82] A. I know him to be. Q. And you told that to the Court. Right? A. Yes. Q. OK. And your opinion that he needed a permit was wrong, wasn’t it? A. He needed an exemption. He needed some indica- tion that he didn’t need a permit. Ye Ee a App. &1 Q. Your statement to the Court that he needed a permit was wrong, isn’t that true? A. No, it wasn’t wrong. Q. He didn’t get a permit, did he? A. He got an exemption. Q. Right, he got an exemption. Now, you also said that in the area of the six lots there were no trees as shown on the map that was done in Mr. Bopray’s report. Do you remember that testimony? A. Yes, I do. Q. Just so we’re clear on where the six lots are, that’s this area (indicating). Right? A. That’s my understanding, yes. Q. There are trees here, aren’t they, shown on Mr. Bopray’s work? A. There were some shown along the ditch, yes. I’m sure there’s trees in other areas, too. [83] Q. Right. There is — For example, 211, we find that right here (indicating). Right? A. Yes. Q. And that’s a — that’s a sumac, an upland tree. A. Yes. Q. So that’s shown in the area of the six lots, isn’t it? A. Yes. App. 82 Q. You were wrong about that, weren’t you? A. All I said was there didn’t appear to be a lot of trees or any trees shown in the area of the six lots. Q. There are trees there, aren’t there? A. Oh yeah. I’m sure there are other trees all the way down there. Q. Now, it’s also, I think your testimony, that all of the area that’s shown here within wetland boundaries was, is, and always will be wetland? A. That’s not what I said. Q. Is it your testimony that all of this area was and is wetland? A. Yes. Q. Do you know there’s been development in here? [84] A. Yes. MR. SHULMAN: Nothing further. THE COURT: Mr. Martin, any other questions? MR. MARTIN: Yes, just one, Your Honor. REDIRECT-EXAMINATION BY MR. MARTIN: Q. There seems to be confusion on this permit, ex- emption business, Mr. Peterson. That exemption was for agricultural purposes. Correct? A. Correct. App. 83 Q. To develop on this property and to do any work on that wetland, you need a permit, isn’t that true? A. That is correct. That’s what the Corps stated specifically in their letters. MR. MARTIN: OK. Thank you, Mr. Peterson. That’s all I have. MR. SHULMAN: No, nothing further. THE COURT: Thank you, Mr. Peterson. THE WITNESS: Thank you. * * * EE er ee ————— App. 84 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT City of Shorewood, TRIAL TRANSCRIPT Petitioner VOLUME 10-17-96 V6. D.C. File CD-2344 Ronald Johnson and Dee Johnson, et al., Respondents. The above-entitled matter came duly on for hearing before the Honorable Allen Oleisky, Judge of the above- named Court, on the 17th day of October, 1996, at Court- room 1853, Hennepin County Government Center, Min- neapolis, Minnesota. * * * [2] Witness: Mark Steven Parranto * * Kk [64] usually. Q. Has the Minnesota Department of Natural Resources designated this property as wetland? A. Ican’t tell you. I don’t know. Q. You — Your conclusion about the value of the property that you did appraise assumes that prior to the taking in 1984 this property was wetland. Right? A. The data that I had indicated that it was. Q. Well, that’s - a wv —_—_- ee rr App. 85 A. That’s what I used. Q. OK. And if in fact this property were not wetland prior to the taking, that could affect your opinion, could it not? A. If the data that I had is wrong, then it would affect my opinion or could. Depends on where and how much and a variety of other things. Q. You were asked - Now, you said that you — in determining that this was wetland, you relied upon the survey — or the report that was done by Mr. Peterson? A. That was one piece of information that I had. Q. You were also asked — In fact, if this property were not wetland prior to the time of the taking in 1984, the highest and best use of * * * App. 86 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT City of Shorewood, Court File No. CD 2344 Petitioner, ORDER AND MEMORANDUM vs. Ronald Johnson and Dee Johnson, et al., | Respondents. The above-entitled matter came on for hearing before the undersigned, Judge of the above-named Court, on October 7, 1996 at the Hennepin County Government Center, City of Minneapolis, County of Hennepin, State of Minnesota. APPEARANCES WERE AS FOLLOWS: Larry D. Martin, Esq., appeared on behalf of Peti- tioner. Daniel R. Shulman, Esq., and David L. Shulman, Esq., appeared on behalf of Respondents. The Court having been fully advised in the premises, and based upon all the pleadings and files on record in this matter, IT IS HEREBY ORDERED: 1. That Petitioner’s Motion In Limine To Exclude Evidence is granted. 2. That Respondents’ Motion In Limine To Exclude Evidence is granted. 3. That the attached memorandum is incorporated herein. App. 87 BY THE COURT Dated: Oct. 10, 1996 /s/ Allen Oleisky Allen Oleisky Judge of District Court MEMORANDUM FACTS Respondents, Ronald Johnson and Dee Johnson (hereinafter the “Johnsons”), purchased the parcel of land in question (hereinafter the “Property”), located within the City of Shorewood (hereinafter the “City”), in 1981. Situ- ated within the Property is a drainage ditch that runs diagonally from the northeastern corner to the southwest- ern corner of the Property. In 1984, in conjunction with the construction of Waterford subdivision, located immediately to the south of the Property, the City constructed a storm sewer collection pond on City property abutting the south boundary of the Property. Despite the City’s implementation of a pond control structure, designed to maintain a normal water level in the pond at 910 feet, the elevation of the water in the pond frequently rises to a level where water overflows the pond and backs up onto the Property. As a result of the frequent flooding of the Property, the Johnsons brought suit against the City seeking a writ of mandamus compelling the City to commence eminent domain proceedings. The Johnsons alleged that actions taken by the City relating to the Johnson’s application for plat approval, and relating to the development of property App. 88 bordering the Property, amounted to a taking of the Property without just compensation. In connection with this action, both parties moved the court seeking summary judgment. On May 27, 1998, Honorable Ann Montgomery, Judge of Hennepin County District Court, issued a decision as to the parties’ motions for summary judgment. Judge Montgomery granted the City’s motion for summary judgment with respect to the Johnson’s claim that the City’s failure to provide street access to the northwest quadrant of the property via the Waterford development left this portion of the Property, in effect, landlocked. However, due to the court’s finding that a genuine fact existed as to whether the flooding on the Property was cf such frequency to constitute a taking, the court denied t’se Johnson’s motion for summary judgment. Upon trial of this case in August 1993, Judge Mont- gomery found a “physical taking of the Johnson’s Property up to an elevation of 914 feet since December 31, 1984. The Johnson’s property is expected to flood to this level with sufficient frequency to constitute a permanent physical invasion.” Judge Montgomery’s Order of August 17, 1993, at p. 5. Judge Montgomery issued a writ of mandamus ordering the City to commence condemnation proceedings. The court also awarded the Johasons attor- neys fees and costs in the matter. The City appealed the trial court’s decision. The Court of Appeals upheld Judge Montgomery’s determina- tions on May 17, 1994. See, Johnson v. City of Shorewood, CD 93-2452 (Minn. App. 1994). In July 1994, the Minne- sota Supreme Court denied the City’s petition for review. On September 20, 1994, in conjunction with condem- nation proceedings, this Court determined that the City App. 89 must acquire an easement on the Property for drainage purposes. In addition, the Court ordered that Condemna- tion Commissioners be appointed to determine the John- son’s damages due to the easement. On December 18, 1995, the Condemnation Commis- sioners issued their decision, concluding that the value of the property taken by the City was $5,000.00. The John- sons have appealed the Commissioner’s award and a jury trial date is set for October 14, 1996. Presently, the parties have filed cross motions in limine to exclude evidence in the upcoming trial. The City’s motion seeks to preclude the Johnsons from present- ing evidence or argument suggesting that, because the northwest quadrant of the Property is landlocked and inaccessible due to the easement, the Property has dimin- ished in vaiue. In support of their motion, the Johnsons argue that the City must be precluded from presenting evidence or argument suggesting ihat the City’s taking of the Property up to an elevation of 914 feet s'‘nce December 31, 1984 is not irreversible, or does not constitute a per- manent physical invasion. ANALYSIS With respect to the City’s taking of the drainage easement, the Minnesota Court of Appeals clearly and unambiguously affirmed the trial court’s determination that the taking was an irreversible and permanent physical invasion. See, Johnson v. City of Shorewood, CD 93-2452, (Minn. App. 1994). Therefore, because this issue has already been properly adjudicated and confirmed by the Court of Appeals, it is the Court’s determination that App. 90 the City must be estopped from presenting evidence or arguing otherwise. * * + Finally, because the issue concerning the _ pre- ownership wetland designation relating to the Property, and the issue concerning the City’s conditions for plat approval, were already adjudicated by Judge Montgomery upon motion for summary judgment, the doctrine of collateral estoppel clearly precludes the introduction of evidence or argument contrary to Judge Montgomery’s Order. See, Order & Memorandum of May 27, 1993. CONCLUSION Based upon the forgoing, the Court hereby grants Petitioner’s Motion in Limine to Exclude Evidence and also grants Respondents’ Motion in Limine to Exclude Evidence. App. 91 y STATE OF MINNESOTA IN SUPREME COURT CX-93-2452 Ronald R. and Dee L. Johnson, kespondents, Vs. City of Shorewood, et al., Appellants. ORDER (Filed Jul. 15, 1994) Based upon all the files, records and proceedings herein, - IT IS HEREBY ORDERED that the petition of the City of Shorewood, et al. for further review be, and the same is, denied. IT IS FURTHER ORDERED that Ronald and Dee Johnson’s motion to accept their untimely response to the petition is granted. Dated: July 14, 1994 BY THE COURT: /s/ {Mllegible] Chief Justice ANDERSON, J. took no part. App. 92 This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1992). STATE OF MINNESOTA IN COURT OF APP#ALS CX-93-2452 Hennepin County Randall, Judge District Court File No. 91-18099 Ronald R. Johnson, et al., John F. Bonner, III Respondents, Teri Ellen Bentson Parsinen, Bowman & Levy 100 South Fifth Street Suite 1100 Minneapolis, MN 55402 VS. City of Shorewood, et al., Thomas B. Humphrey, Jr. Daniel W. Voss Larkin, Hoffman, Daly & Lindgren, Ltd. 1500 Norwest Financial Center 7900 Xerxes Avenue South Bloomington, MN 55431 Filed May 17, 1994 Office of Appellate Courts Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Randall, Judge ——oEoEoEeEeEeEeEeeEeEeEeEeEeEeEeEeEeEeEeEeeE=E=aaamm>_ a App. 93 UNPUBLISHED OPINION RANDALL, Judge Respondents Ronald R. and Dee L. Johnson petitioned the trial court for a writ of mandamus to compel appel- lants City of Shorewood and its city council to commence inverse condemnation proceedings. The trial court found a physical taking had occurred and issued a writ of manda- mus to compel condemnation proceedings. Vhe trial court also awarded respondents $33,878.54 in attorney fees, costs, and expenses pursuant to Minn. Stat. § 117.045 (1992). We affirm. FACTS In 1981, respondents purchased a 20-acre parcel of land in Shorewood, Minnesota. A drainage ditch runs through the low area of the property. In 1975, the city had conducted a storm water study which proposed that the low area be used as a storm water drainage basin. At the time respondents purchased the land, there was no pond on the property ana water flowed through the ditch. In 1984, the city built a control pond on city property next to respondents’ property both for aesthetic reasons for a nearby development and to serve as a collection point for storm water runoff. The city also built a pond control structure designed to maintain a normal water level of 910 feet in the pond. The trial court found that at that level, the pond extended onto respondents’ property, and that “[wlater levels typically exceed the 910-foot elevation and have been observed at an elevation of 911.5 feet during fair weather.” In addition, the trial court found: App. 94 19. Two to three times per year, during major storm events, water in the pond has risen above 914 feet and poured through the top of the pond control structure. 20. As the elevation of water in the pond rises, more water backs up onto the property. 21. The pond and pond control structure do not provide any benefit to [respondent’s] property. 22. The pond control structure was designed and constructed to be permanent, but is capable of being removed or altered. Based upon these findings, the trial court concluded that there has been a physical taking of respondents’ property “up to an elevation of 914 feet since December 31, 1984,” and that respondents’ property “is expected to flood to this level with sufficient frequency to constitute a permanent physical invasion.” Appellants challenge this determination and the atterney fee award. DECISION I. Private property may not be taken for public use “without just compensation.” U.S. Const. amend. V. The Minnesota Constitution also requires compensation for private property “taken, destroyed or damaged for public use.” Minn. Const. art. I, § 13. Whether a taking has | occurred is a question of law which this court reviews de novo. Alevizos v. Metropolitan Airports Comm’n, 298 Minn. 471, 484, 216 N.W.2d 651, 660-61 (1974); Thompson v. City of Red Wing, 455 N.W.2d 512, 516 (Minn. App. 1990), pet. for rev. denied (Minn. June 26, 1990). App. 95 * * * The trial court properly found that the taking was enough of a permanent nature to call for constitutional compensa- tion and to issue a writ of mandamus to compel the city to begin inverse condemnation proceedings. We agree and affirm. IT. Minn. Stat. § 117.045 (1992) entitles landowners to petition for reimbursement of attorney fees upon success- fully compelling eminent domain proceedings. Spaeth, 344 N.W.2d at 823; Thompson, 455 N.W.2d at 518. If manda- mus to compel the proceedings is not the appropriate remedy, attorney fees may not be awarded under Minn. Stat. § 117.045. McShane, 292 N.W.2d at 260. Since the trial court found the flooding constituted a permanent physical taking, mandamus is appropriate. Therefore, the award of attorney fees was appropriate under the statute. We affirm the award of attorney fees. Affirmed. “ 5-11-94 /s/ (Iegible] App. 96 STATE OF MINNESOTA DISTRICT COURT FOURTH JUDICIAL DISTRICT Court File No. 91-18099 COUNTY OF HENNEPIN Ronald R. Johnson and Dee L. Johnson, Plaintiffs/Petitioners, on: FINDINGS OF FACT, CONCLUSIONS OF City of Shorewood and the LAW AND ORDER Shorewood City Council, FOR JUDGMENT said Council consisting of Mayor Barbara J. Brancel, and Councilpersons Rob Daugherty, Daniel Lewis, Kristi Stover and Robert Gagne, Defendants/Respondents. The above-entitled matter came on for court trial before the Honorable Ann Montgomery, Judge of the above-named Court, on June 22, 1993. John F. Bonner III, Esq., appeared on behalf of the Johnsons. Thomas B. Humphrey, Esq., appeared on behalf of the City of Shore- wood and the Shorewood City Council (hereinafter collec- tively the “City”). Post-trial submissions were received by the Court on July 21 and 28, 1993. Based upon all the arguments, files, records and proceedings herein, including the stipulated submissions of the parties, the Court makes the following: ae a ae Pe App. 97 FINDINGS OF FACT 1. The Johnsons purchased the parcel of land in question (the “property”), located within the City of Shorewood, in 1981. The property consists of approxi- mately 11 acres of knolls and 9 acres of low, flat land. 2. At the time the Johnsons purchased the property, the land in the low area of the property was composed of marsh-type soils which are unsuitable for development. 3. Prior to the time that the Johnsons purchased the property, the City had designated the low area as wetland. The parties dispute the legality of this designation. 4. A drainage ditch runs diagonally through the low area from the northeastern corner to the southwestern corner of the property. After it exits the property, it contin- ues through a subdivision called Waterford, which lies to the south of the property, and ultimately joins Purgatory Creek. The elevation of the bottom of the ditch where it exits the property at the southwest corner is 902 feet. 5. In 1975, prior to the Johnsons’ ownership, a Comprehensive Storm Water Study conducted by the City proposed that the low area of the property be used as a storm water drainage basin for storm sewer runoff from north of the property. The study did not propose that a pond or dam be built in the drainage ditch. 6. At the time the Johnson purchased the property, there was no pond on the property and water flowed freely through the ditch. 7. In 1984, in conjunction with the construction of the Waterford development to the south and west of the property, the City constructed a control pond in the ditch App. 98 on City property abutting the south boundary of the property. 8. The purpose of the pond was twofold: (1) to pro- vide an aesthetic feature, and (2) to serve as a collection point for storm water runoff from Waterford so that the water could be directed into the drainage ditch. Ponding of storm sewer runoff allows sediment to settle out of the water, which prevents pollution downstream, and allows the rate of water flow downstream to be controlled to prevent erosion of the water channel. 9. Storm drainage facilities were designed and constructed to direct strom water directly into the pond from three directions: (1) from Muirfield Circle to the northwest, (2) from Waterford Place east of the pond, and (3) from Waterford Place west of the pond. In addition, water flows into the pond through the drainage ditch from the northeast. 10. In conjunction with creating the pond, the City constructed a pond control structure to maintain a mini- mum level of water in the pond and to control the rate of water flow into the ditch below the pond. 11. Calculations of storm water levels and the design for the pond control structure were submitted by the City to the Riley Purgatory Creek Watershed District which subsequently granted a permit for construction of the pond and pond control structure. 12. Based on the design of the pond control structure and the topography surrounding the pond area, the Watershed District designated a 100-year storm event flood plain at an elevation of 917.1 feet. App. 99 13. The 100-year storm event is an engineering design mandate which plans for a rainfall that statistically appears on average once every 100 years. This level must be taken into consideration when designing water-control structures. 14. The Watershed District permit prohibits con- struction at elevations lower than 919.1 feet, two feet above the 100-year flood plain. 15. Upon receipt of the permit, the pond control structure was installed in accordance with the specifica- tions approved by the Watershed District. 16. As constructed, the pond control structure has three openings through which water can enter the struc- ture from the pond: (1) a six-inch diameter side inlet at the 910-foot elevation, (2) a twelve-inch diameter side inlet at the 911.5-foot elevation, and (3) a thirty-six-inch drop inlet at the 914-foot elevation. Water that enters the structure flows into a culvert and then flows into the preexisting drainage ditch south of the pond. 17. The pond control structure is designed to main- tain a normal water level in the pond at an elevation of 910 feet. At that elevation, the pond backups up onto the Johnsons’ property. 18. Water levels typically exceed the 910-foot eleva- tion and have been observed at an elevation of 911.5 feet during fair weather. 19. Two to three times per year, during major storm events, water in the pond has risen above 914 feet and poured through the top of the pond control structure. App. 106 20. As the elevation of water in the pond rises, more water backs up onto the property. 21. The pond and pond control structure do not provide any benefit to the Johnsons’ property. 22. The pond control structure was designed and constructed to be permanent, but is capable of being removed or altered. CONCLUSIONS OF LAW 1. There has been a physical taking of the Johnsons’ property up to an elevation of 914 feet since December 31, 1984. The Johnsons’ property is expected to flood to this level with sufficient frequency to constitute a permanent physical invasion. - 2. Neither the designation of a 100-year flood plain at 917.1 feet, nor the restriction on building below 919.1 feet constitute a taking of the Johnsons’ property. There is mo permanent physical invasion or appropriation of the Johnsons’ property at these elevations. 3. Further, the restrictions on construction do not constitute a regulatory taking because they do not detri- mentally affect the potential uses of the Johnsons’ prop- erty. 4. Although the pond control structure is “remov- able,” it was constructed as a permanent fixture. Thus, even if the City removes the structure and eliminates the resultant flooding of the Johnsons’ property in the future, under First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987), the physical invasion of the Johnsons’ property during the period in App. 101 which the pond control structure was operational is an irreversible taking which requires compensation. 5. Because the physical taking of the Johnsons’ property to elevation 914 feet is irreversible, there is no adequate remedy other than an order of mandamus compelling commencement of inverse condemnation proceedings. 6. The Johnsons have successfully brought an action compelling the initiation of inverse condemnation proceed- ings and are, therefore, entitled to an award of reasonable attorney fees and costs under Minn. Stat. § 117.045. ORDER FOR JUDGMENT 1. The City of Shorewood shall immediately com- mence condemnation proceedings for the purpose of compensating the Johnsons for all damages which arise out of, and reasonably relate to, the taking by the city of the Johnsons’ property. 2. The City shall pay to the Johnsons the amount of $33,878.64 as reimbursement for reasonable attorney fees, costs and expenses incurred in bringing this action. | NOTWITHSTANDING GEN. R. PRAC. 125, LET JUDGMENT BE ENTERED IMMEDIATELY. BY THE COURT: /3/ Ann Montgomery Ann D. Montgomery Judge of District Court Dated: this 17th day of August, 1993 App. 102 MEMORANDUM Ronald and, Dee Johnson petition for a writ of man- damus compelling the City to commence eminent domain proceedings to compensate them for the taking of a portion of their property by flooding due too the construction of the pond and poud control structure. The United States Constitution provides that “private property [shall not] be taken for public use without just compensation.” U.S. Const. amend. V. The Minnesota Constitution requires compensation when private property is “taken, destroyed or damaged for public use.” Minn. Const. art. I, § 13. The legal standards for determining whether a taking has occurred were discussed at length in an earlier Order in this matter and that discussion is incorporated into this Memorandum. (Order of May 27, 1993.) The City concedes that there has been water ponded on the Johnsons’ property continuously at an elevation of 910 feet since December 31, 1984 and that these circum- stances constitute a physical taking to that elevation. The City argues, however, that increases in the water level above 910 feet are only occasional and do not constitute a taking of the property to those higher elevations. “Whether occasional flooding is of such frequency, regular- ity, and permanency as to constitute a taking and not merely a temporary invasion for which the landowner should be left only to a possible recovery of damages is a question of degree, and each case must stand on its own peculiar facts.” Nelson v. Wilson, 239 Minn. 164, 172, 58 N.W.2d 339, 335 (1953) (emphasis in original); see also Spaeth v. City of Plymouth, 344 N.W.2d 815, 822 (Minn. 1984). App. 103 Although the pond control structure was designed to maintain a “normal” water level at 910 feet, the water level in the pond is routinely higher than 910 feet. Two to three times each year, high volume runoffs from major storms have increased the water level to at least the 914- foot elevation and it is reasonable to infer that the water level regularly rises to between 910 and 914 feet during storms of low to moderate severity. When storm runoff causes water in the pond to rise to the 914-foot opening of the pond control structure, the water will be sw. ftly drained away through the large, thirty-six-inch opening at the top of the structure. Thus, the likelihood that water will rise above that level for any significant period of time is slight and should occur infrequently, if at all, in any particular year. Nevertheless, the Johnsons argue for a ruling that a physical taking of the properiy has occurred up to the 919.1-foot elevation, the level below which development is restricted based on the 100-year flood event. The Johnsons argue that these restrictions are akin to a physical taking because they are based cn the “statistically anticipated” and “inevitable” invasion of water every 100 years. They also argue that the designation of the low area of the property as a flood plain and as part of the City’s storm water drainage system is an “appropriation” of that property. With respect to the Johnsons’ first argument, inevita- bility is not the only criteria which must be met under the Nelson test for a physical taking by flood; rather, flooding must be sufficiently frequent, regular and permanent. 239 Minn. at 172, 58 N.W.2d at 335. While the Nelson decision states that this test must be applied on a case-by-case basis, id., it is difficult to conceive of any case in which App. 104 short-term flooding once every 100 years or so would be considered a perraanent physical invasion. The Johnsons’ second argument is based on similari- ties between their claims and those in Spaeth v. City of Plymouth, 344 N.W.2d 815 (Minn. 1984). In Spaeth, the City of Plymouth developed a Storm Water Drainage Plan which designated the low area of the plaintiff’s land as a ponding area. fd. at 817. When property abutting the plaintiff’s lot was developed, a dam was built in a drain- age uitch in order to create a pond in accordance with the City’s drainage plan. Jd. at 818. By the time of the trial, a large portion of the plaintiff’s property had remained flooded by the pond for three years and the flooding was expected to continue. Jd. at 822. The court held that a portion of the plaintiff’s property had been taken and that eminent domain proceedings must be commenced. Jd. The Joknsons’ argument suggests that the Spaeth court held that the entire portion of the plaintiff’s prop- erty that had been designated either as “the ponding area” or as a “flood plain” had been taken, whct»er or not it had actually experienced flooding at the time of the decision. The Spaeth decision is not clear on what portion of the plaintiff’s property was taken. The references to the City’s drainage plan were made with respect to the issues of perm.inency and the City’s responsibility for the flooding, rather than to the geographical extent of the taxing. See id. at 820-22. The essential factor supporting the decision that a taking had occurred in Spaeth was the occurrence of continuous flooding. Jd. at 822. The reasoning in Spaeth does not compel a conclusion that mere designation of an area as being subject to flooding is sufficient to constitute a physical taking of property without a finding of actual or probable flooding on a frequent basis. App. 105 While it is possible that a flood plain designation and the associated restrictions on development could result in a regulatory taking, the Johnsons do not contend that the restrictions on development below 919.1 feet constitute a regulatory taking of their property. Application of the Nelson test to the facts of this case supports a conclusion that flooding on the Johnsons’ property from the backup of pond water has occurred, and will continue to occur so 'ong as the pond control stracture is in place. with sufficient frequency and regularity at levels up to 914 feet in elevation to constitute a physical taking of the property to 914 feet. Generally. if a taking has occurred, the proper remedy is a writ of mandamus to institute inverse condemnation proceedings to determine the amount of compensation to be made. Haeussler v. Braun, 314 N.W.2d 4, 9 (Minn. 1981). Mandamus shall not issue, however, if the taking or damage is not irreversible and where there is an adequate remedy at law, such as an injunction against enforcement of a regulation or ordinance. McShane v. City of Fairbault, 292 N.W.2d 253, 259 (Minn. 1980). The McShane court commented that mandamus would interfere with the municipality's discretion to either repeal the regulation that had been found to be a taking or to institute eminent clomain proceedings. Id. The City argues that mandamus is similarly inappro- priate in this case and that the Court should issue an injunction requiring the City to remove or alter the pond control structure to allow for the free flow of water through the drainage ditch. This proposal does not protect the city’s legislative discretion; rather, it makes the choice for them by requiring the City to take affirmative action to App. 106 change the status quo. This result is quite different than the outcome in McShane where the municipality was enjoined from taking further action (enforcing a regula- tion) until it had decided whether or not to pursue emi- nent domain proceedings. Defendants argue that they may, in fact, decide to pursue condemnation proceedings instead. An order giving them a choice of complying either with an injunction or a writ of mandamus is inappropri- ate; such an order could delay prompt relief for the John- sons. Further, an injunction is simply not an adequate remedy in this case. The physical taking of the property that has already occurred by continuous flooding at the 910-foot elevation is not “reversible.” In McShane, the taking that was enjoined was a regulatory taking; the City of Fairbault had imposed development and use restrictions on land below the flight path to the city airport. Jd. at 255. The qualitative difference between physical and regulatory takings has been recognized by the U.S. Supreme Court which has held that physical invasions are per se takings, while regulations are not takings unless the impact of the regulation on property rights is not justified by the public interests io be served. Agins v. City of Tiburon, 447 U.S. 255, 260-61 (1980); Lucas v. South Carolina Coastal Council, ____ U.S. __, 112 S. Ct. 2886, 2893 (1992). Un’ike a regulation, once a physical invasion like a flood occurs it is irreversible, even thouch it may end. Tne City may still choose to remove the pond and pond control structure and eliminate the continued taking of the Johnsons’ property. This action would be a factor for the condemnation commiss‘oners to consider in determin- ing the amount of damages to be paid to the Johnsons. App. 107 Because mandamus will issue in this case, the John- sons are entitled to an award of attorneys’ fees and costs under Minn. Stat. § 117.045 which provides for such reimbursement when a plaintiff successfully brings an action compelling eminent domain proceedings. They are not entitled to full reimbursement, however, because a substantial portion of this case involved claims which were resolved against the Johnsons by summary judgment. See Spaeth, 344 N.W.2d at 823. Counsel for Plaintiffs has requested reimbursement of $43,487.23 for costs and expenses incurred in bringing this action, including attorney and expert fees. (Bonner Aff. dated July 21, 1993 and Bonner Aff. dated August 6, 1993.) A review of the invoices submitted in support of this request reveals that the total amount of attorneys’ fees requested by Plaintiffs does not include amounts that have already been paid to Plaintiffs’ counsel. (Bonner Aff. dated July 21, 1993, Ex. 1: $62.75 paid 12/31/91, $131.25 paid 2/28/92, $11,497.80 paid 10/29/92, and $120.54 paid 11/30/92.) It appears that this was an error in calculation and that the actual total costs and expenses incurred by Plaintiffs in bringing this action should be $55,299.57. Plaintiffs were charged $19,832.17 for attorneys’ fees and costs for the month of June 1993 and $3336 for expert witness fees for that same period. (Bonner Aff. dated July 21, 1993 and Bonner Aff. dated August 6, 1993.) Those costs and expenses were incurred after the summary judgment order was issued in this action. They were generated almost completely with respect to litigating the physical taking claim for which condemnation proceedings will be compelled and they should be fully rermbursed. In addition, it is appropriate for the City to reimburse the Johnson for one third of the remaining $32,131.40 in fees /:pp. 108 and expenses incurrd prior to the summary judgment motion. Plaintiffs shall be awarded $33,878.64 for reim- bursement of reasonable fees and costs incurred in obtaining a writ of mandamus compelling condemnation proceedings. ADM App. 109 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Ronald R. Johnson and Dee L. Johnson, Plaintiffs/Petitioners, vs. City of Shorewood and the Shorewood City Council, said Council consisting of Mayor Barbara J. Brancel, and Councilpersons Rob Daugherty, Daniel Lewis, Kristi Stover and Robert Gagne, Defendants/Respondents. Court File No. 91-18099 ORDER The above-entitled matter came on for hearing before the Honorable Ann Montgomery, Judge of the above- named Court, on Plaintiffs/Petitioners’ motion for sum- mary judgment on the liability issues. This motion was originally heard on October 13, 1992 but was withdrawn by agreement of the parties pending settlement discus- sions. The motion was reargued on April 15, 1993. Teri E. Bentson, Esq., and John F. Bonner III, Esq., appeared on behalf of the Johnsons. Thomas B. Humphrey, Esq., ap- peared on behalf of the City of Shorewood and the Shore- wood City Council (hereinafter collectively the “City”). The court, having considered all the arguments, files, records and proceedings herein, App. 110 IT IS HEREBY ORDERED: 1. Plaintiffs’ motion for summary judgment on its claim that their Property has been taken without just compensation as a result of Defendants’ construction of a culvert, pond and pond control structure in Waterford is DENIED. 2. Summary judgment is GRANTED for Defendants for all claims related to street and utility access to the Northwest Quadrant of Plaintiffs’ Property. _ 3. The third condition stated in Defendants’ Resolution No. 42-91 for approval of the Plaintiffs’ application for a plat of the South Quadrant of their Property which states: 3. At such time as the northwest corner of the property is platted, the applicant shall dedicate the designated wetland portion of the property or provide a drainage and conservation easement over it to the City for protection of the wetland area. is hereby DECLARED INVALID. Summary judgment is GRANTED for Plaintiffs on this claim. 4. Summary Judgment is GRANTED for Defendants with respect to all other claims related to Resolution No. 42-91. BY THE COURT: /s/ Ann D. Montgomery Ann D. Montgomery Judge of District Court Dated: this 27th day of May, 1993 NN App. 111 MEMORANDUM Plaintiffs/petitioners Ronald and Dee Johnson own approximately twenty acres of undeveloped land (the “Property”) in the City of Shorewood. The Johnsons’ allege that various actions by the City in response to their application for plat approval for part of the Prop- erty, and relating to the development of land surround- ing their Property, have resulted in a taking of the Johnsons’ Property without just compensation in con- travention of the Fifth Amendment to the United States Constitution and Article 1, Section 13 of the Minnesota Constitution. The Johnsons also allege that the condi- tions the City has imposed on final approval of their plat application are an abuse of its police power. The John- sons seek declaratory relief and petition for a writ of mandamus compelling the City to commence eminent domain proceedings. The Johnsons have moved for summary judgment. * * * II. Issues 5. Did the designation of the Johnsons’ field as wetland constitute a taking? * * * Designation of the Field as Wetland The Johnsons have also claimed that the designation of the field as a protected wetland is a taking of their rights to use and develop that portion of their Property. The designation occurred in 1973. (First Bonner Aff. Ex. D; Pis.’ Supplemental Mem. in Supp. Summ. J. dated April 12, 1993.) This designation was prior to the Johnsons’ purchase of the property in the early 1980’s. There is no \ App. 112 basis for arguing that a pre-ownership designation has “taken” any of the property rights that the Johnsons obtained when they purchased the property. Summary judgment is granted for the City on this issue. * * * Wolds NOISTAIGENSaY V LiquiAl LSIXa . z= ATIWaa LON Od ASHL - SaSOduud DNILIVId 4 YOd NMVUG AYAM ALUAdOUd .SNOSNHOL ; Yar FHL NIHLIM NMOHS SONIGTING FHL xx a SPORE oD re re 2, A, Ye yf 8 |“ MOW¥IE LATLY Ae a3 Kis 1 e5in App. 114 Gj Se 4 sa 2 ‘ “=> > 4 ne AA v—_. \ ‘) . ENGI) EXRYRIT C. “THE “Xounsons! “PROPERTY Lo 2S App. 116 STATE OF MINNESOTA DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT Ronald Richard Johnson, Plaintiff, ORDER VS. ¥ (Filed Feb. 2, 2000) City of Shorewood, Court File No. AC 99-7447 Defendants. The above-entitled matter came on for hearing before the undersigned, one of the Judges of the above-named Court, on the 4th day of January, 2000, upon Plaintiff’s motion to amend his complaint and for pretrial conference. Erick G. Kaardal, Esq. Appeared for and on behalf of Plaintiff. James Susag, Esq. appeared for and on behalf of Defendant. Based upon the arguments of counsel and upon all the files, records and proceedings herein, and the Court being fully advised in the premises, IT IS HEREBY ORDERED: 1. That Plaintiff’s motion to amend his Complaint is DENIED. Plaintiff’s case shall be limited to the origi- nal claim he removed from Conciliation Court. 2. This matter is set for trial on Friday, February 25, 2000, at 9:30 A.M. pursuant to the enclosed Order for Trial. 3. The attached Memorandum is part of this Order. App. 117 LET JUDGMENT BE ENTERED ACCORDINGLY. BY THE COURT: Dated: 1-31-00 /s/ Peter J. Lindberg Peter J. Lindberg Judge of District Court MEMORANDUM This case arises out of a dispute between Plaintiff Ronald Johnson and Defendant City of Shorewood over the price of a map Plaintiff purchased from Defendant. Ac- cording to his original complaint, Plaintiff paid $300.00 more than the price he was promised by Defendant. After the trial at Conciliation Court, Plaintiff removed the case to District Court pursuant to Minn. Gen. R. Prac. 521. On September 30, 1999, this Court heard a motion by Defendant to dismiss and a motion by Plaintiff to amend his complaint. At the hearing, Defendant argued that Plaintiff's motion to amend should be denied because Plaintiff’s proposed amended complaint had taken a small conciliation court claim and expanded it into a fourteen unrelated claims. Plaintiff argued that the claims he wished to expand were related to his conciliation court claim. At that time, Plaintiff had submitted an amended complaint which made numerous claims, none of which seemed to be related in any way to the underlying concilia- tion claim for $300.00. The motion to dismiss was denied. With respect to the motion to amend, the Court granted Plaintiff’s motion only to the extent that Plaintiff would be allowed to amend to include claims for breach of con- tract “arising out of the allegations in the Complaint”. App. 118 At the pretrial in this matter, it became clear that Plaintiff intended to litigate numerous issues in addition to his claim for the map overcharge of $300.00. It also became apparent that Plaintiff and Defendant have already been involved in extensive litigation. Like the claims that Plaintiff now wishes to add to his complaint, these claims all relate to the use of, and water drainage onto, Plaintiff’s property. After reviewing numerous court orders and Appellate Court decisions, the Court has been made aware of the substantial history of litigation be- tween the parties. Defendant claims that all of the issues that Plaintiff wishes to bring have been previously liti- gated. Plaintiff acknowledges the history of his claims, but argues that the issues he now raises have not been liti- gated. Without ruling on this issue, the Court is convinced that these claims are not properly dealt with in the con- text of this case: a removal of a small claim from Concilia- tion Court. For Plaintiff’s claims to be brought, several additional parties would have to be added and numerous new issues Would need to be plead, leaving a case that would have little if anything to do with Plaintiff’s original claim. Interestingly, Judge Thomas Carey faced a very similar issue involving the same Plaintiff and the City of Minnetonka. That case, as where, involved a claim of a “continuing nuisance, i.e., unwarranted and unnecessary water flowage onto the plaintiff’s land.” On March 14, 1997, Judge Carey denied a motion by Minnetonka to dismiss with prejudice, but did dismiss the case, sua sponte, without prejudice. In his Order, Judge Carey articulated his reasons, stating that “I am convinced that there is a continuous issue which will] survive this litiga- tion and it must be resolved.... it cannot be resolved, App. 119 unless and until all the parties bearing responsibility and having the authority to remedy are brought together in a common forum.” Judge Carey further noted that the City of Shorewood was necessary but unnamed party. By contrast, we are presented with a situation here where Shorewood is named, but Minnetonka is not. This Court agrees with Judge Carey. If these parties are to finally and fully resolve Plaintiff’s claims, a case must be brought that includes all necessary parties and issues. This may include both Shorewood and Minnetonka, as well as the other parties Plaintiff has claims against. The case at hand is not the forum in which to do this. At the time this motion to amend was heard, the parties had already come in for a pretrial conference. The Court will not push this case back when, in its posture as a removal from Conciliation Court, it is ready for trial. The previous Order of the Court allowing Plaintiff to amend his com- plaint to include breach on contract claims is rescinded as it is now clear that these do not arise out of the allegations in Plaintiff’s original complaint, nor are they appropri- ately litigated here. Accordingly, this case will proceed to trial forthwith, with Plaintiff’s case limited to his original claim relating to the map. PJL App. 120 STATE OF MINNESOTA ; DISTRICT COURT COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT File No. PD 96-13128 Ronald R. Johnson, Plaintiff, ORDER AND vs. MEMORANDUM City of Minnetonka, (Filed Mar. 14, 1997) Defendant. The above-entitled matter came on for hearing before the Hon. Thomas H. Carey, Judge of District Court, on March 11, 1997, at the Hennepin County Government Center, Minneapolis, Mn. Plaintiff appeared pro se. James Golembeck, Esq., appeared representing defendant. IT IS HEREBY ORDERED: 1. Defendant’s motion, the City of Minnetonka, for dismissal with prejudice in the above-entitled matter is herein denied. 2. The Court sua sponte is dismissing without prejudice the above-entitled matter. 3. The attached Memorandum is made a part hereof. BY THE COURT: /s/ Thomas H. Carey Thomas H. Carey Judge of District Court Dated: March 13, 1997 App. 121 - MEMORANDUM The Court is convinced that Ronald R. Johnson, as owner of substantial and valuable property in the City of Shorewood and abutting the City of Minnetonka, has raised substantial questions concerning his rights in relationship to developers in the area. However, the present status of this litigation makes resolution impossi- ble. We are involved with the City of Minnetonka, the City of Shorewood, state aid road, and a private developer. A solution to Mr. Johnson’s problems cannot be reached until the following occurs: 1. He hires an attorney who has an understanding of the law. Obviously Mr. Johnson is a very intelligent man with substantial education; however, he is attempting to represent himself and he is not doing it with much suc- cess. 2. An action be brought against all parties having rights and an interest in the issue, seeking equitable relief and abatement of what appears to be a continuing nui- sance, i.e., unwarranted and unnecessary water flowage onto the plaintiffs land. 3. If necessary, an action be commenced in appropri- ate legal terms to secure the relief due the plaintiff, if any. The Court wishes to emphasize that the present status of this suit shows that indispensable parties are absent, the theories of legal liability are erroneous, and serious immunity issues exist relative to the rights of the City of Minnetonka and the unnamed City of Shorewood. At first blush, the Court normally would grant the summary judgment and dismiss this litigation once and for all. However, I am totally convinced that there is a App. 122 continuous issue which will survive this litigation and it must be resolved. Lastly, it cannot be resolved, unless and until all the parties bearing responsibility and having the authority to remedy are brought together in a common forum. I am mindful that misjoinder is not a ground for dismissal (See MRCP 21), However, Rule 19.01 clearly states: “A person who is subject to service of process should be joined as a party in the action if, A, in the person’s absence complete relief cannot be accorded among those already parties.” (19.01 MRCP) I am convinced that the absence of Shorewood and the contractor will make permanent resolution of this dispute impossible. [Illegible signature and date] App. 123 March 2, 1993 Construction-Operations Regulatory (93-02124-SF-JJY) > Mr. Ronald and Ms. Dee Johnson P.O. Box 350 Excelsior, Minnesota 55331 Dear Mr. and Ms. Johnson: We have reviewed the information you provided about your project to clean out a farm ditch and your iequest to remove an existing culvert and control structure. The project site includes wetland adjacent to an unnamed ditch that is tributary to Purgatory Creek in the N 1/2 NE 1/4 NE 1/4 Sec. 36, T. 117 N., R. 23 W., City of Shorewood, Hennepin County, Minnesota. We believe that you may need an individual Depart- ment of the Army Section 404 (Clean Water Act) permit for this work. The proposed project appears to involve a discharge of excavated material and grading of existing spoil banks in wetland and it may affect a substantial area of wetland. Some agricultural ditch maintenance work can qualify for an exemption from a permit, although the exemption involves strict guidelines. Generally, an exemption in- volves excavation that is limited to the original dimensions (depth, width, and cross section) of the ditch. Moreover, the majority of the affected wetlands must ordinarily have been farmed a majority of the time that the ditch has existed (at least 51 percent of the wetland farmed 51 percent of the time). Finally, the affected wetland must not be converted to new uses. Pasture, for example, must App. 124 not be converted to cropland, and agricultural uses must not be converted to nonagricultural uses. If you believe that the work qualifies for an exemption, please send us supporting information. If the project qualifies for an exemption, we will notify you promptly. According to the information you provided, the pro- posed project appears to be further complicated by its relationship to a dam constructed by the City of Shore- wood. We understand that you are attempting to reach a resolution of this situation with Shorewood and the Riley- ~ Purgatory-Bluff Creek Watershed District. We would appreciate receiving additional information about any work that may be related to such a resolution. If the project does not qualify for an exemption, the work may require an individual permit. Because we must notify certain other agencies about your project-(through a public notice) and provide them a reasonable opportunity to comment, our review for this projects may take at least 90 days. Controversial and complicated projects may take longer, partly because we provide applicants an opportu- nity to review and respond to any comments we receive on our public notice. Applications that require additional information also involve delays until we can obtain the information necessary for our review. You can help expe- dite our review if you take the following steps: * Fill out the application completely and specifically. Please note the enclosed instructions, although the orange booklet refers to a previous application form rather than the enclosed form. * Provide additional information that will simplify review of the project. App. 125 * Send accurate drawings, including smaller 81/2 by 11 inch copies for our public notice. Please note the en- closed guidelines. Following them will help ensure that your drawings will be accurate and usable. * Send a wetland delineation map, based on a delinea- tion conducted according to the 1987 Corps of Engi- neers manual. A list of consultants who have indicated an interest in performing delineations is en- closed. We can also delineate the wetlands, although we may not be able to perform a definitive delineation until after the spring thaw. * Explain the need for the project, including public and private benefits that may result from it. * Please describe any alternatives considered when planning the project. This consideration should in- clude other potential sites and other methods of ac- complishing the desired result. Our regulations often prevent issuance of permits when there are less- environmentally-damaging alternatives available. For instance, if the project involves placing fill in a water or wetland, there may be a way to accomplish the pro- ject purpose but without filling, or without filling as large an area. Even when the project is permitted, the permit may require compensatory mitigation for any lost wetland. This mitigation may involve creation of new wetiand or restoration of drained wetlands. If your project would include any temporary place- ment of excavated or fill material into a waterbody or wetland, you may also need authorization for that work. Be sure to include that information in your permit applica- tion. You may also need State, county, watershed, and/or city permits or approvals for this project, including ap- provals required by the State Wetland Conservation Act or a. oe eee eee ee eee hl eee, hUCml ell OO , App. 126 the U.S. Department of Agriculture (if you are in any Federal farm programs). Any approval or exemption from our agency does not remove the need to obtain other approvals. If you have any questions, please contact Joe Yanta at (612) 220-0362. Sincerely, - Enclosures Ben Wopat Chief, Regulatory Branch Construction-Operations Division App. 127 [LOGO] DEPARTMENT OF THE ARMY : ST. PAUL DISTRICT, CORPS OF ENGINEERS 180 E. KELLOGG BLVD. ROOM 1421 ST. PAUL, MINNESOTA 55101 March 17, 1993 Reply to Attention of Construction-Operations Regulatory (93-02124-SF-JJY) Mr. Ronald and Ms. Dee Johnson P.O. Box 350 Excelsior, Minnesota 55331 Dear Mr. and Ms. Johnson: We have received your March 15, 1993, request that we issue an exemption for your proposed ditch mainte- nance and that we instruct the City of Shorewood and the Riley-Purgatory-Bluff Creek Watershed District to remove road and dam fill. The project site includes wetland adjacent to an unnamed ditch that is tributary to Purga- tory Creek in the N 1/2 NE 1/4 NE 1/4 Sec. 36, T. 117 N., R. 23 W., City of Shorewood, Hennepin County, Minne- sota. As stated in our March 2, 1993, letter, we reviewed the information you provided about the ditch cleanout and the requested removal of an existing culvert and control structure. With the information we have, we still believe that you may need an individual Department of the Army Section 404 (Clean Water Act) permit for cleanout. The proposed project appears to involve a discharge of exca- vated material and grading of existing spoil banks in wetland, and it may affect a substantial area of wetland. According to the National Wetland Inventory map and App. 128 other sources, the affected area appears to have been a wetland before the dam and road construction in the mid- 1980's; and it appears to remain a wetland today. Our earlier letter explained that some agricultural ditch maintenance work can qualify for an exemption from a permit, although the exemption involves strict guide- lines. Generally, an exemption involves excavation that is limited to the original dimensions (depth, width, and cross section) of the ditch. Moreover, the majority of the affected wetlands must ordinarily have been farmed a majority of the time that the ditch has existed (at least 51 percent of the wetland farmed 51 percent of the time). Finally, the affected wetland rst not be converted to new uses. Pasture, for example,, must not be converted to cropland, and agricultura! uses must not be converted to nonagricul- tural uses. If you believe that the work qualifies for an exemption, we urge you to send us supporting information. We have no specific information that indicates an exemp- tion is warranted for this ditch. If you provide information documenting that the project qualifies for an exemption, however, we will notify you promptly. Without such documentation, we cannot consider the work exempt. As our earlier letter noted, the proposed project appears to be further complicated by its relationship to road and dam fill placed by the City of Shorewood. We understand that you are attempting to reach a resolution of this situation with Shorewood and the Riley-Purgatory- Bluff Creek Watershed District. We would appreciate receiving additional information about any work that may be related to such a resolution. We do not have any informa- tion that suggests we have any authority to require the city or the watershed district to remove this fill. The fill was authorized by a nationwide general permit that did not App. 129 require detailed review or agency coordination. Federal permits do not authorize any injury to the property rights of others, and the Federal Government does not assume liability for any damages caused by the permitted action or related unpermitted actions. As also noted in our earlier letter, you may need State, county, watershed, and/or city permits or approvals for this project, including approvals required by the “tate Wetland Conservation Act. You should also-contact the U.S. Department of Agriculture if you are in any Federal farm programs or if future owners or renters may be in any Federal farm program. Any approval or exemption from our agency does not remove the need to obtain other approvals. If you have any questions, please contact Joe Yanta at (612) 220-0362. Sincerely, /s/ Ben Wopat Ben Wopat Chief, Regulatory Branch Construction-Operations Division CC: Tim Keane Joel Dresel Tom Humphrey App. 130 February 7, 1994 Construction-Operations Regulatory (93-02124-SF-JJY) Mr. Ronald and Ms. Dee Johnson P.O. Box 350 Excelsior, Minnesota 55331 Dear Mr. and Ms. Johnson: We have received your October 18, .993, letter that provided additional information about the result of your suit against the City of Shorewood concerning the berm the city constructed across a ditch that drains your property. The project site includes wetland adjacent to an unnamed ditch that is tributary to Purgatory Creek in the N 1/2 NE 1/4 NE 1/4 Sec. 36, T. 117 N., R. 23 W., City of Shorewood, Hennepin County, Minnesota. As stated in our March 2 and March 17, 1993, letters we still believe that you need an individual Department of the Army Section 404 (Clean Water Act) permit for a cleanout of the ditch. The proposed project appears to involve an excavation in a ditch through a wetland and possibly grading of existing spoil banks in wetland, and it may affect a substantial area of wetland. According to the National Wetland Inventory map and other resources, the affected area appears to have been a wetland before the dam and road construction in the mid-1980’s; and it appears to remain a wetland today. As those earlier letters also noted, the road and berm fill was authorized by a nationwide general permit for headwaters and isolated waters that did not require detailed review or agency coordination. In many instances, App. 131 this type of permit did not even require the responsible party to notify our office before doing the work. Even though the work may have been authorized under such a permit, Federal permits do not authorize any injury to the property rights of others, and the Federal Government does not assume liability for any damages caused by the permitted action or related unpermitted actions. Under current laws and regulations, work in this area requires a more detailed review. According to the regional conditions for the nationwide general permit, any work that may adversely affect more than 3 acres of headwaters and isolated waters, including wetlands, requires an individual permit review, unless it qualifies for exemption. The judgment of Hennepin County District Court does not exempt you from the need to obtain a Section 404 permit. However, the results of that court action and other information that you can provide are factors that we should consider in our public interest review of any permit application that you might make for a ditch cleanout. Our earlier letters explained that some agricultural ditch maintenance work can qualify for an exemption from a permit, although the exemption involves strict guidelines. Generally, an exemption involves excavation that is limited to the original dimensions (depth, width, and cross section) of the ditch. Moreover, the majority of the affected wetlands must ordinarily have been farmed a majority of the time that the ditch has existed (at least 51 percent of the wetland farmed 51 percent of the time). Finally, the affected wetland must not be con- verted to new uses. Pasture, for example, must not be converted to cropland, and agricultural uses must not be converted to nonagricultural uses. As we stated in those App. 132 earlier letters, if you believe that the work qualifies for an exemption, we urge you to send us Supporting infor- mation. We now have no specific information that indicates an exemption is warranted for this ditch. If you provide information documenting that the project qualifies for an exemption, however, we will notify you promptly. Without such documentation, we cannot consider the work exempt. As we also noted previously, you may need State, county, watershed, and/or city permits or approvals for this project, including approvals required by the State Wetland Conservation Act. You should also contact the U.S. Department of Agriculture if you are in any Fed- eral farm programs or if future owners or renters may be in any Federal farm program. Any approval or ex- emption from our agency does not remove the need to obtain other approvals. For your convenience, the new joint Federal-State- Local water permit application/notification form is enclosed. If you have any questions, please contact Joe Yanta at (612) 220-0362. Sincerely, Enclosures Ben Wopat Chief, Regulatory Branch Construction-Operations Division App. 133 RON JOHNSON January 27, 1996 PO Box 350 “~y Excelsior, MN 55331 Tel: 474-8171 Fax: 938-2369 Mr. Ben Wopat US Corps of Engineers 180 E. Kellogg Blvd., Rm 1421 St. Paul, MN 55101-1479 RE: N 1,2, NE 1,4, NE 1,4, Sec. 36, T. 117N, R.23W City of Shorewood, Hennepin County, Minnesota Dear Sir: Enclosed is a copy of your March 17, 1993 letter for your convenient reference. Enclosed also is the opinion of the Minnesota Appellate court dated May 11, 1994. There was a taking of the property to elevation 914 by the City of Shorewood as of December 31, 1984. The taking was for the purpose of collection and storage of storm water as Shorewood in- tended in 1975. Enclosed also is a letter of opinion dated November 28, 1995 by a professional engineer and a certified soils specialist with McCombs, Frank, Roos, Associates, inc. (MFRA) who field surveyed the property. The property was not a wetland prior to the 1984 taking. MFRA was listed by the USCOE as qualified. Mr. Kepple is a wetland law specialist with Dorsey & Whitney. His group successfully prosecuted simiiar fact cases on behalf of landowners against regulatory agency. I am an engi- neering graduate of the University obtained while a Research Associate (ass’t professor). My family has been in farming, construction, and land development businesses since 1921. I taught surveying during the Korean war in App. 134 the US Army (missile navigation) and did satellite recon- naissance development work for NASA (1964-7). Collec- tively, I believe the court, MFRA, Dorsey & Whitney and I am qualified to rebut the conclusions reached in your letter based on overly generalized and inaccurate data. As indicated, the City decided to flood the property and designated it a wetland basin in 1975. Your data appears derived from this unlawful act and designation and aerial photography and not from a specific field survey. Please issue the letter I requested 3 years ago. In sum, in 1975 the City wrongfully decided to create a “wetland basin” on the property. The area is wrongfully shown on the City’s 1979 wetland map. To create the basin, the City in 1984, under a USCOF permit, wrong- fully dammed my ditch outlet. (The City, not the devel- oper, constructed the streets and utilities for the adjoining subdivision), The trial court found the obstruction is 12 feet above my ditch bottom and concluded there was a physical taking in 1984 which caused the flooding and wet conditions. MFRA describes in detail the wrongful ditch manipulations and discharges to the site. I had rented the property beginning in 1970; purchased it from the owner’s estate in 1981. The low area was kept dry by the large ditch. The ditch self scoured. That changed in 1984 when the City damaged the ditch and the property. The City claims the area is subject to City Wetland Con- servation. (In making this assertion, the City relies on USCOE communications, in particular, with Bradley Nielsen and Ronald Peterson. Mr. Nielsen is City Planner. Mr. Peterson is an attorney and “wild life biologist”). After three reconnaissance surveys, MFRA concluded the City App. 135 imposed the restriction after the taking; the area was not a wetland before. Mr. Kepple opines legal “wetland” cannot be created by damming up an adjoining land- owner’s ditch without his authority. Therefore, my prop- erty did not and does not have Section 404 wetland. Please issue the disclaimer and amend your records accordingly. The issue of the amount of damages is set to go before the jury. The court gave the City two choices: (1) end the taking and pay damages during the taking or (2) acquire fee ownership. So far, the City has done neither. Appar- ently the City is waiting to see what amount the jury will likely award before deciding. As indicated, the taking occurred in 1984. Any applicable regulations must be those in effect as of 1984 according to Mr. Kepple. If you have any other questions please do not hesitate to contact me by mail or phone. If I am out kindly leave a message on my machine and I will get back to you. Thank you for your serious reconsideration of this matter. Sincerely yours, /s/ Ron Johnson Ron Johnson App. 136 [LOGO] McCombs Frank Roos Associates, Inc. 15050 23rd Avenue North, Telephone Engineers Plymouth, Minnesota 612/476-6010 Planners 55447-4739 612/476-8532 Fax Surveyors November 28, 1995 Mr. William J. Kepple Dorsey & Whitney 220 South Sixth Street 22nd Floor Minneapolis, Minnesota 55402 SUBJECT: Johnson’s Shorewood Property MFRA #10428 Dear Mr. Kepple: McCombs Frank Roos Associates, Inc. (MFRA) visited the site and reviewed the reconnaissance report dated Novem- ber 3, 1995 by Kelly Bopray of this firm. We have also reviewed Shorewood’s 1967 topographic maps (OSM), its Lowland and Wetland Ordinance No. 70 dated 1973; Stormwater Study dated 1975 (OSM) referencing Ordi- nance No. 70; and, the City’s Wetlands Map dated 1979. An OSM document dated January 25, 1982 indicates Ordinance No. 70 was still in effect at that time. At Section 3, Ordinance No. 70 states: SECTION 3. DEFINITION AND ESTABLISH- MENT OF WETLAND CONSERVATION AREA The wetland conservation areas within the Vil- lage of Shorewood, hereinafter referred to as the protected area, is defined and established to be the shore line of Lake Minnetonka, Galpin Lake, Christmas Lake, Lake Mary, Silver Lake, Lake App. 137 . Virginia, and the low areas adjoining any water course and drainageway or body of water subject to meandering, flowing or overflow, including ar- eas of marsh, wooded marsh, submerged marsh, inundation areas as shown upon the attached wetlands map. Said map is hereby made a part of this Ordinance and two copies thereof shall re- side on file of the office of the Village Clerk for public inspection. (Ordinance No. 70 dated March 12, 1973.) A subsequent Ordinance, Chapter 1102, entitled, “Wetland Developments,” at 1102.3 contains substantially the same language. A map captioned Nielsen August 20, 1992, Exhibit 1, bears the handwritten title, “Wetland Ordi- nance Map (79),” and includes the subject property. However, prior to the 1984 taking, Johnson’s property would not have been a “lowland adjoining any water course and drainageway or body of water subject to mean- dering, flowing or overflowing.” Simply stated, the subject property beyond the ditch boundaries was not a wetland and, by the language intent of the City Ordinances, No. 70 or Chapter 1102, was not subject to the terms of the Ordinance prior to the 1984 taking. The property slopes southwest to a natural drainageway through which the . ditch outlet was dug (USGS & 1967 OSM topos). The scope and effect of the ditch on Mr. Johnson’s property lowered the wate> table and eliminated surface ponding as obvi- ously intended. (Bopray report.) MFRA estimates that roughly 2,740 cubic yards of spoil was excavated and placed in intermittent piles along and approximately 15 feet from the ditch banks. The ditch was dug long ago as indicated by mature trees growing in the spoil and mature (10-12" diameter) stumps at the 912 contour which grew inside the ditch banks. These were App. 138 located east of the foot bridge. The ditch is indicated on the City’s 1967 topography (OSM) and in the 1975 and 1985 Hennepin County aerial photos. (Peterson; Bopray) MFRA located the original ditch crossection under and behind silt removed during the survey including the exposure of compacted dragline bucket marks. This was done at 26 locations between ditch head at station 0+00 to Station 8+75, 90 feet east of the foot bridge. This could not be done in the lower reaches of the ditch without signifi- cantly disturbing the site due to built-up silty sediment. There the ditch was probed, striking logs in the silt above __the ditch bottom. These locations indicated significantly lower elevations and higher ditch gradients than in the upper and mid portions of the ditch. At its head the ditch bottom is at elevation 912 and slopes to 910 at the mid point length of the ditch. Shorewood’s 1975 Comprehensive Stormwater Study (OSM) indicates the City intended to use the property as a stormwater holding basin. It recommended the City procure easements for stormwater discharges from the north (near the head of the ditch). However, due to the drainage ditch and the outlet, the property would not pond stormwater unless the outlet was manipulated. The hydrology of the ditched lowland changed in 1984 with City construction of the Waterford Place street berm over and across the ditched drainageway. A 36" diameter culvert was placed through the berm fill at the elevation of the surface of the natural drainageway. The ditch would have been excavated below this elevation in the likely range of 902 to 904 such that the culvert inlet at 906 itself would constitute a manipulation of the ditch outlet. An OSM document dated July 3, 1984, indicates Trivesco, App. 139 developer of the south and west adjoining Waterford Subdivision, requested Shorewood to raise the culvert above the ditch bottom to create a pond or, alternately, deepen the ditch bottom. The topo and as-builts (OSM) indicate the City chose the former approach. The culvert inlet north of the Waterford Place berm is not to daylight. A 36" diameter plugged T-section with vertical riser was added. The riser was a 6" diameter inlet at 909.98, a 12" diameter inlet at 911.40 and a 36" diameter drop inlet at 914.08 (OSM). This further manipulated the ditch outlet. During fair weather the resultant ponded water level had been observed at or near 911.5 (Waterford 2nd Addition as-built by S&M, August 28, 1986; Court Order August 17, 1983, finding No. 18; Bopray report photo near station 11+50 mid October 1995). During moderate to heavy rainfall events, events having frequen- cies of recurrence of less than once per year, the water level would rise to 914. The design high-v. ater level is 917.1 (OSM). MFRA staked the 914 contour in the ditch to its head. (Bopray photo and Existing Conditions Exhibits). The bottom of the stakes were placed at elevation 914. This is the elevation of the 36" diameter drop inlet of the City’s control structure. The smaller control structure orifices at 910 and 911.5 would only provide limited capacity outlet. Simply stated, the bottom of the stakes are at the eleva- tion to which the City substantially raised Mr. Johnson’s ditch outlet. The ditch contour 914 is outside the ditch banks in the lower reaches; is at the bank top 100 feet west of the foot bridge; and is nearly at the top in the mid portion of the ditch. A taking to elevation 914 substan- tially eliminated the scope and effect of the ditch and would reduce the effect of the natural surface drainageway App. 140 which outlet at 908 at the property line before the ditch was dug. In addition to manipulation of the ditch outlet, the John- son property is impacted by run-off discharges to the site from adjoining developments. Upstream from the berm, three Waterford storm sewers (18", 21" 24" diameter) discharge. Near the upper end of the ditch, the 24" north adjoining Sandy Hills Subdivision culvert and the Vine Hill Road curb-cut/swale, across from east adjoining 1992 Ashcroft development, discharge onto the property. Run- off from these sources, backed-up by the berm and the control structure, would cause the water to rise to 914 from a 1.5" rainfall event and to 917.1 for a 6" event. (OSM and Watershed District data.) At 914 the ditch would back-up to its head and nearly to the bank tops at its mid- point. At 917.1 water would pond over and beyond the ditch banks throughout the majority of its length. The Watershed District imposed a floodplain freeboard eleva- tion of 919.1 over the lowland, which, prior to the 1984 project, had natural drainage to 900 on the adjoining south property through the ravine. (Watershed District 1984 letter; 1967 OSM topo.) Off-site discharges onto the property from the north and east have deposited sediment to the area and caused water to pond at elevation 917. The ponded water along the north property line resulted in washing gullies to the ditch. (Bopray report; OSM topos.) This appears to be responsible for recent north ditch bank collapses in its upper reaches. Silt from such sources ends up in the ditch and, unless cleared by adequate ditch gradient, would build up in the ditch. App. 141 In addition to manipulation of the ditch outlet elevatien and discharges to the site, the ditch’s hydraulic gradient has been manipulated. The original ditch gradient indi- cates that prior to the 1984 taking, higher water velocities would have carried silt to the City designated wetland south of Waterford. There the gradient levels off which could allow silt to settle out prior to entering the Purga- tory Creek ditch. Since 1984, additional silt discharges to Mr. Johnson’s site hacked-up by the berm would result in more silt and lower water velocities allowing silt to settle ‘ in the ditch. A silt mound (elevation 912.6) had built-up in the lower reaches of the ditch higher than the ditch bottom elevation at the head. Water standing in the mid-section of the ditch would reduce its scope and effect. Without maintenance, silt accumulations would be expected to continue up the ditch beyond the southwest portion of the property. This maintenance task would apparently be left to the landowner, Mr. Johnson. It is reasonable to con- clude that he would have to perform minor ditch mainte- _nance through the built-up silt to, at best, utilize the limited capacity 910 and 912 control structure outlets. A retrofit for the City’s Waterford system would be unplug and extend the culvert inlet to daylight at the property line and wrap the berm completely around the pond created by the control structure. At the upper end of the ditch, a curb and catch basin retrofit on the west side of Vine Hill Road could return Ashcroft Subdivision run-off back to the existing Minnetonka storm sewer east of the road. The Shady Hills Subdivision 24" storm sewer could be extended down the slope north of the property line and buried under Mr. Johnson’s land discharging directly into his ditch. Altogether, these improvements would cost on the order of $50,000 (1995). App. 142 The 1984 taking impacted the property in other ways. Sewer and water utilities in the Vine Hill Road exist and stubs to the property. However, City Ordinance disallows platting minimum lot area (20,000 square feet) inside a Wetland Conservation Area. Out of 6 available Vine Hill lots, 3 or 4 would not be plattable under this criteria; the same with 1 to 4 possible Waterford Circle lots. Trivesco proposed 4 lots and the City constructed utility stubs for 4 lots. (OSM July 3, 1984 memo and City as-builts.) The northwest parcel has been severed by the taking and the imposed Conservation Area. It is landlocked precluding development of an additional 9 lots. City Ordinance required Waterford streets brought to the property line. Where this was intended (Waterford Outlot C assessing Waterford Circle), apparent deed restrictions subsequently imposed on the outlot precludes northwest access. Access could be provided east of the Waterford pond lateral to Waterford Place. The pond is in Waterford Outlot A owned by the City. A street would be a compati- ble use. If apparent deed restrictions over this outlet were modified, Mr. Johnson could import additional fill to grade a street if the City chose to extend the ditch culvert to the property line. The culvert extension bypassing the pond, could be placed under this new street. To provide access to the lots north of the ditch, the culvert could be further extended and turned northeast by Mr. Johnson to inter- cept the ditch east of the street crossing. Finally, the ditched lowland had potential to be devel- oped into hobby farm acreage. MFRA located an upland knoll centered in the lowland which would Support an App. 143 agricultural building site (as outlined by Mr. Johnson) with access east and west along the ditch bank. Very truly yours, McCOMBS FRANK ROOS ASSOCIATES, INC. /3/ Gregory J. Franke Gregory J. Frank, P.E. /s/ Kelly J. Bopray Kelly J. Bopray, CPSS Certified Professional Soil Scientist App. 144 ADDENDUM NO. 1 SURVEY OF DRAINAGE DI TCH, SURROUNDING SOILS, VEGETATION OBSERVATIONS RON JOHNSON PROPERTY SHOREWOOD, MINNESOTA November 19, 1996 MFRA #10428 Introduction: This report is addendum No. 1 to McCombs Frank Roos Associates, Inc. (MFRA) reports dated November 3 and 28, 1995. These earlier reports referenced the vegeta- tion on the Johnson site only as a side note, and concen- trated on the hydrology of the site which controlled the status of the basin under various wetland regulatory programs. Additional observations and interpretations of the site vegetation is presented here as support to our conclusions on the scope and effect of the drainage ditch prior to and after the city constructed the Waterford Place berm and stormwater pond. Historical Background: The following general history was obtained from trials in Hennepin County District Court files No. CD2344 and 91-18099: The low land basin on the Johnson property was ditched in the mid 1950’s. The ditch was excavated in a northeast to southwest direction and continued off the Johnson property through a natural ravine that extended to wetland at an elevation of approximately 900 ft. At that time, the basin consisted of organic soils which supported a mixture of marsh grasses and App. 145 mature trees. Excess water drained freely through the ditch and preventing surface ponding in the basin. The drainage ditch allowed a portion of the basin to be cultivated as evident by the old dead furrows, and the mature wooded areas were used as a pasture. Since 1972, the Johnson’s have used the property as an ex- tension of their backyard and had vegetable gardens in the rich soils of the basin. In 1984 the City of Shorewood constructed the Water- ford Place roadway berm (south of the Johnson prop- erty) across the ravine and blocked the ditch. The berm was constructed and no outlet for ditch provided in order to surcharge and compact the soils below the road crossing of the ravine. The berm remained in place for approximately one year, completely prevent- ing any drainage of the Johnson site. An April 1985 aerial photograph shows that the berm had caused water to flood to approximately a 914 elevation, before the spring and summer rains fell. Subsequent rains caused the water levels to rise to an elevation sufficient to cause a “tractor bridge” to float down to the Water- ford Place roadway berm. This bridge was replaced with the existing foot bridge at approximately the same location. The impounded water caused the ditch bank to collapse in several areas and sediment and debris filled much of the ditch. The flooding also re- sulted in damage to many of the mature trees in the basin, and the understory vegetation was drowned out. Later in 1985, the roadway berm was intentionally breached to release the imponded water. A culvert was laid at the surface elevation of the ravine which was above the elevation of the original ditch through the ravine. A water control structure was attached to the north end of the culvert to create a stormwater pond immediately north of the newly constructed Waterford Place road. The control structure was designed to App. 146 create a normal water level at elevation 910 which is approximately 8 feet above the original ditch bottom at the Waterford Place road crossing. The orifices on the control structure were not maintained regularly and the water elevation remained at about 912 feet in fair weather, with average seasonal precipitation. Drain- age calculations indicated that rainfall events that ex- ceed 1.5 inches results in a pond elevation above 914 feet. The control structure raised the ditch outlet from approximately 902 feet to between 910 and 914 feet. This reduced the scope and effect that the drainage ditch had on removing water from the basin on the Johnson site. The Johnson’s filed a lawsuit in 1991 and the City of Shorewood requested the ditch and surrounding land not be cleared as evidence. MFRA became involved in this suit in 1993. After the first trial, the Johnson’s began to clear the downed trees in the ditch and removed some of the ac- cumulated sediment. This partially restored the drainage to the basin, however these efforts were lim- ited due to the change in the outlet elevation described above. Instead of having free flowing drainage from the site, the water control structure caused permanent ponding extending to the middle part of the ditch and ponding beyond the top of ditch banks where the ditch leaves the Johnson site. Since 1983 development in the area south and west of the property has continued and additional stormwater runoff has been routed into the City’s pond. Because the pond level controls the water level on the Johnson property, the additional storm- water runoff has caused the flooding of the Johnson property to increase in frequency and elevation, In late summer and fall of 1995, MFRA conducted additional field reconnaissance work on the site. Re- ports of our findings are part of the court files. MFRA App. 147 surveyed the /ocation and dimensions of the ditch in- clucing locations where the original ditch dimensions were evident. MFRA also surveyed the location and elevation of significant features near the ditch includ- ing upland vegetation, culverts and soil boring loca- tions. Calculations based on the Natural Resource Conservation Services (formerly the Soil Conservation Service) Scope and Effect documents indicated the original ditch dimensions were sufficient to effectively remove wetland hydrology from the entire basin. Mr. Johnson stated that prior to the damming of the ditch, it was reasonably close to its original dimensions. Sev- eral on-site observations by MFRA supports Mr. John- son’s statement. Based on this evidence, MFRA concluded that from the mid 1950’s until 1984 the ba- sin did not meet the mandatory wetland hydrology cri- teria and therefore was not a jurisdictional wetland. During the trial it was questioned whether wetland hydrology was required to meet the definition of a wet- land in 1984. The U.S. Environmental Protection Agencies wetland definition clearly states wetland hy- drology is the key factor in determining if an area was a ibaa apt wetland. The EPA defined wetlands . those areas that are inundated or swiurated by mine or groundwater at a frequency and duration sufficient to support, and that under normal circum- stances, do support a prevalence of vegetation typically adapted for life in saturated soil conditions” (40 C.F.R. 230.3t; Dec. 24, 1980). Furthermore, the Corps of Engineers Regulatory Guidance Letter (RGL 82-2) Clarification of “Normal Circumstances” in the Wet- land Definition stated “... we do not intent, by this clarification, to assert jurisdiction over those areas that once were wetlands and part of an aquatic sys- tem, but which, in the past, have been transformed into dry land for various purposes.” These statements clearly state the Corps of Engineers policy in 1984 was App. 148 that if an area no longer meets the wetland hydrology criteria, it would not be considered a wetland. On May 15, 1996, the U.S. Army Corps of Engineers issued a written exemption under the Clean Water Act Section 404 to conduct maintenance to return the ditch to its original dimensions. Additional correspondence between the Corps of Engineers, Mr. Johnson, and MFRA resulted in the Corps of Engineers issuing a let- ter of authorization on July 12, 1996 for a concept plan to re-establish the original ditch outlet by modify- ing the City’s water control outlet structure. This con- cept plan would also qualify for the drainage exemption under the Minnesota Wetland Conservation Act because any wetlands that may have been re- established as a result of damming the ditch, have been in existence less than 25 years. Vegetation Survey: Although the jurisdictional wetland status of the Johnson site clearly hinges on the hydrology component, it appeared that our vegetation observations needed to be formalized. Below is a compilation of the vegetation observation made during several site visits. 1. In terms of making a routine vegetation analysis the dominant plants species in the basin include: Reed Canary Grass (FACW+), Common Mallow (not listed), Kentucky Bluegrass (FAC-), Common Buckthorn (FAC-), American Elm (FACW.-), Quaking Aspen (FAC), and Eastern Cottonwood (FAC+). Based on the dominant species, the basin has more than 50% FAC or wetter species (4 of 7). Since the basin has been hydrologically altered, it is important to note that Reed Canary Grass, Common Buckthorn, Quaking Aspen, and Eastern Cottonwood are all pioneer species that move into App. 149 drained wetlands as well as disturbed uplands. A significant number of upland species have become established in the basin since it was drained. When all of the identified species in the basin are considered, 29 of 57 (51%) are wetland species. With the rich organic soils and more recent ma- nipulation of the ditch outlet, the aggressive pio- neer wetland species will probably never be fully replaced by upland species through natural suc- cession. Small areas within the basin are clearly dominated by wetland vegetation where as other areas are clearly dominated by upland species but the basin on the whole is right on the border line. A list of the identified plant species in the basin is attached. During the trial, there was speculation as to a grove of Tamarack (FACW) trees on the site. MFRA had observed several Tamaracks on the site concentrated about 120’ south of the upland knoll in the basin. Upon further investigation, it was observed that all but a few of these mature Tamaracks were dead. The size of these trees suggested that they may have been present prior to the 1950’s when the site was drained. Drainage typically results in increased growth rate of this species of trees (Bradford). Although Tamarack is a wetland species, if individual trees have physi- cally adapted to dryer conditions and then are flooded for extended periods of time (1984 to 1985), it is reasonable to believe this could kill the trees. Several important upland tree and shrub species were observed to occur regularly in the basin. Mountain Ash and Apple trees which were ob- served in the basin are not listed in the National List of Plant Species that Occur in Wetlands for USF & WS Region 3. American Plum, Sumac, and App. 150 Prairie Crabapple all have an obligate upland in- dictor status (occur in wetlands 1% or less fre- quently). White Oak, White Birch, American Basswood, and Black Cherry all have a faculta- tive upland indicator status (occur in wetlands at 1 to 33% frequency). Although these species are not the dominant species in the basin, they occur more frequently in this basin than has been ob- served in wetlands in the area. The regular occur- rence of these upland species indicated the ditch makes the site considerable dryer than indicated by the dominant species which are known to pio- neer disturbed sites regardless of its wetland hy- drology status. Since 1993, MFRA has observed vegetable and flower gardens covering about 1 acre at various location in the basin. Most common vegetable crops including sweet corn, potatoes, beans, car- rots, celery, kale, peppers and melons were ob- served. These crops are known to produce exceptionally well on fertile drained organic soils, but are also very sensitive to poor drainage condi- tions. With the exception of flood damage since construction of the Waterford Place roadway, Mr. Johnson reports consistent, abundant yields from his gardens. This again supports the conclusion that the ditch provided adequate drainage to eliminate wetland hydrology from the basin. Per- ennial flowers such as Peony, Monarda, Mum, Delphinium, and Poppy were planted in various locations in the basin and their continued persis- tence also supports the absence of wetland hy- drology. Buckthorn is an upland species (FAC-) and is one of the dominant species in the basin. The larger diameter Buckthorn that was established prior to the flooding in 1984 has well anchored root App. 151 systems. The root systems on smaller diameter Buckthorn are exposed at the soil surface as a re- sult in the deterioration of the site drainage. Trees with shallow root systems are subject to more wind throw and frost heaving, which results in twisted and disturbed growth which is readily observable on the site. Mr. Johnson has reported that the pasture grasses which dominated the understory were de- stroyed and replaced by reed canary grass after the basin was flooded in 1984 and 1985. As was discussed earlier, reed canary grass aggressively invades disturbed sites. In areas where the site has been cleaned up since 1994, the reintroduced pasture grass have been able to compete with the reed canary grass. Timothy (FACU), Brome Grass (FACU), Red Fescue (FAC-), Kentucky Bluegrass (FAC-) and White Clover (FACU) dominate these areas. Native prairie grasses were also seeded, however their populations were not sufficient to identify at this time. In the absence of dominance by reed canary grass, the understory would fail to meet the hydrophytic vegetation criteria (more than 50% FAC or wetter species). : Several upland weed species were observed to have become established in the basin. These spe- cies include Common Burdock (not listed), Can- ada Thistle (FACU), Wild Geranium (FACU), and © Common Dandelion (FACU). During the trial, questions were also raised as to the timing of the ditch excavation. Aerial-photos clearly show the ditch was excavated in the 1950’s. Observations of mature trees on the spoil piles and within the ditch banks (912.0) clearly indicates the ditch was excavated to its original dimensions in a time frame consistent with the App. 152 aerial photo review (mid 1950’s) and not subse- quent to the court order (1991). Minor ditch main- tenance activities have been observed on the site since 1994. Additionally, the volume of the ditch on the Johnson site has been estimated at 2,700 cu. yds. It is not reasonable to assume this volume of material could be removed from the site with- out heavy equipment. There is no observable evi- dence that the overstory canopy has been cleared to allow equipment to operate along the ditch or trails or tire ruts that provide adequate access. CENCS-OC Garrett April 5, 1993 Office of Counsel Parsinen, Bowman & levy, P.A. John F. Bonner III 100 South Fifth Street Suite 1100 Minneapolis, Minnesota 55402 SUBJECT: Freedom of Information Act request for documents pertaining to Ronald R. or Dee L. Johnson or adjoining properties, the Riley-Purgatory-Bluff Creeks Watershed District of Hennepin County, Trivesco, Inc., City of Shorewood dam constructed in 1984-85, and documents relied on by the Corps of Engineers, St. Paul District, in their March 2, 1993, letter tc Ronald R. or Dee L. Johnson Dear Mr. Bonner: Enclosed please find copies of documents relating to the Shorewood property of Ronald R. or Dee L. Johnson or for those properties adjacent to the Johnson property. In partial response to your request for the records noted above, the following are enclosed: 1. A copy of documents which reference Ronald R. or Dee L. Johnson. 2. A copy of those portions of maps which are appli- cable to the Johnson property: National Wetland Inven- tory Map, Metro Wetland Inventory, Hennepin County Soil Survey, and the Minnesota Department of Natural Resources Inventory Map. App. 154 3. A list of possible nearby permit actions where those records with an ID number 1986 or older have been destroyed, as well as a copy of file 199201957 Highland Villa Builders, Inc., Stratford Wood III, referenced on this list, that may be an adjoining property. 4. Acopy of section 1344 of the Clean Water Act. Pursuant to 53 CFR section 518.84(b) the cost for your search is: Search — '/ hour/GS11 at $25/hour $12.50 Duplication — 47 pages at $.15 7.05 Review — ' hour/GS9 at $25/hour 6.25 Total cost of searcl: $25.80 No records were found for the following requested documents: documents between the Corps of Fngineers, St. Paul District, and the Riley-Purgatory-Bluff Creeks Watershed District of Hennepin County or Trivesco, Inc., or the City of Shorewood. Since a “no records” response was held in Oglesby v. Department of the Army, 920 F.2d 07 (D.C. Cir. 1990) to be a denial, this letter constitutes a denial of that portion your request. An appeal of this denial must be made within 45 days to U.S. Army Corps of Engineers, North Central Division, Attention: CENCD-OC/Mr. George Coil, 111 North Canal Street, Chicago, Illinois 60606-7205. Mr. Coil may also be reached at (312) 353-5654. App. 155 Should you have further questions, please contact Ivette D. Garrett at (612) 220-0499. Sincerely, Edwin C. Bankston District Counsel Enclosures Garrett OC /s/ [Illegible] cf: George Oil, CENCD-OC App. 156 DEPARTMENT OF THE ARMY ST. PAUL DISTRICT, CORPS OF ENGINEERS ARMY CORPS OF ENGINEERS CENTRE 190 FIFTH STREET EAST ST. PAUL, MN 55101-1638 [LOGO] REPLY TO ATTENTION OF March 28, 2002 Office of Counsel SUBJECT: Freedom of Information Act Requests for information on relating to Section 404 Mr. Ronald Johnson 5355 Shady Hill Circle Shorewood, Minnesota 55331 Dear Mr. Johnson: Pursuant to your above referenced Freedom of Infor- mation Act (FOIA) requests dated November 8, 2001, December 3, 2001, January 4, 2002 and March 31, 2002, enclosed are the documents we have that we feel may be additional information responsive to your requests. If you are looking for other information we have not included, please submit another Freedom of Information requesting specific or detailed listing. Your request for a permit file log information is not something our Regulatory Department uses. I have pro- vided you with a list, which could be considered a log. Also, we do not have written records of when the 1984 nation- wide permit files were purged. Our Records Management Officer has no records of the destruction. A person, who is now deceased, had originally kept those records, but after she died, the records may have been lost or thrown away, App. 157 which would have been prior to you 1993 contact with our Regulatory Branch about the 1984 road project. If you still feel, that we have records that we have not provided you, please feel free. to send us an Administrative Appeal to the following address: If you wish to appeal this as a partial denial, you must send your appeal in sufficient time to reach the Secretary of the Army no later than 60 days from the date of this letter. Send your appeal to the U.S. Army Corps of Engi- neers, St. Paul District, Attention: CEMVP-OC, 190 Fifth Street East, St. Paul, Minnesota 55101-1638. Pursuant to 32 CFR § 286.33, the costs of search, duplication and review fall within the scope of our auto- matic fee waiver. Therefore, there is no charge. Sincerely, /s/ Georgia L. Stanonik Enclosures Georgia L. Stanonik Legal Assistant App. 158 CENCS-CO-R 19 October 1993 MEMORANDUM FOR CO-R (BEN), CO-R/WESTERN (MICK), AND OC (STEVE A.) SUBJECT: Request for Information on Adath Jeshurun PDN (93-07184-JJY) and Request for Jurisdictional Clarification on the Johnson Ditch Cleanout (93-2124-JJY) 1. Enclosed are copies of the Adath Jeshurun PDN that someone has requested, plus a typical recent PDN (93- 6598-J-FY) notification and recommendation package). Can we send out Adath Jeshurun (and other PDN’s) to the public? 2. Also enclosed is our latest letter from Ronald and Dee Johnson (93-2124-JJY). They have won their suit against the city. The city apparently did more work than they told us they were going to do int 1984, but the NWP would have allowed that. Therefore, I don’t think we have a permit violation. The Johnsons also want to clean out their ditch, but I think what we said in our earlier SF letter stil] holds true. However, what do we do if the city is forced to take out the ditch plug? Also, does the possible illegality of the plug affect our jurisdiction in any way? JOY YANTA Project Manager Enclosures App. 159 Reference: RGL 82-02 Subject: WETLANDS Title: CLARIFICATION OF “NORMAL CIRCUM- STANCES” IN THE WETLAND DEFINITION Issued: 02/11/82 Expires: 12/31/84 Originator: DAEN-CWO-N Description: DEFINES NORMAL CIRCUM- STANCES, CONVERTED WETLANDS, AND AB- NORMAL PRESENCE OF AQUATIC VEGETATION 1. This letter will serve as guidance regarding Corps policy on land-use conversion as it concerns regulatory jurisdiction. Specifically, the guidance addresses situa- tions involving changes in the physical characteristics of a wetland which cause the area no longer to be a part of “waters of the United States” for purposes of the Section 404 regulatory program. 2. The current definition of “waters of the United States” delineates “wetlands” as follows, at 33 CFR 323.2: the term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. The regulations now in force cover the actual discharge of dredged or fill material into “wetlands,” as they are a part of the “waters of the United States.” However, these regulations do not discuss what effect the conversion of a App. 160 wetland to other uses (i.e. agricultural) has upon regula- tory jurisdiction, once the land-use conversion has been accomplished. 3. Nonetheless, the preamble to the current (1977) regulations does indicate some basic parameters of the intended scope of regulatory jurisdiction. In discussing the newly revised definition of wetlands, the preamble con- tains the following statements, at p. 37128 of the Federal Register vol. 42, no. 138: Our intent under Section 404 is to regulate discharges of dredged or fill material into the aquatic system as it exists and not as it may have existed over a record period of time. The new definition is designed to achieve this intent. It pertains to an existing wetland and requires that the area be inundated or saturated by water at a frequency and duration sufficient to support aquatic vegetation. Furthermore, the following remarks are made in reference to the substitution of “under normal circumstances” for “normally” in the new definition: We do not intend, by this clarification, to assert jurisdic- tion over those areas that once were wetlands and part of an aquatic system, but which, in the past, have been transformed into dry land for various purposes. The discussion on the definition of wetlands concludes with these observations, at p. 37129: Finally, to respond to those who expressed concern that our definition of “wetlands” may be interpreted as extend- ing to abnormal situations including non-aquatic areas that have aquatic vegetation, we have listed swamps, bogs, and marshes at the end of this definition to further App. 161 clarify our intent to include only truly aquatic areas. (emphasis added). 4. It is important to note the following qualification found at p. 37128 of the Federal Register vol. 42, no. 138: The use of the word “normally” in the old definition gener- ated a great deal of confusion. The term was included in the definitions to respond to those situations in which an individual would attempt to eliminate the permit review requirements of Section 404 by destroying the aquatic vegetation, and to those areas that are not aquatic but experience an abnormal presence of aquatic vegetation. Several such instances of destruction of aquatic vegetation in order to eliminate Section 404 jurisdiction actually have occurred. However, even if this destruction occurs, the area still remains as part of the overall aquatic system intended to be protected by the Section 404 program. Conversely, the abnormal presence of aquatic vegetation in a non-aquatic area would not be sufficient to include that area within the Section 404 program. (emphasis added). This policy remains in effect, regardless of the substitution of “under normal circumstances” for “normally.” 5. Many areas of wetlands converted in the past to other uses would, if left unattended for a sufficient period of time, revert to wetlands solely through the devices of nature. However, such “natural circumstances” are not what is meant by “normal circumstances” in the definition quoted above, “Normal circumstances” is determined on the basis of actual, present use of an area. Thus, it is the Corps’ policy that once a wetland area has been converted to another use which alters its wetland characteristics to where it is no longer a “water of the United States,” that App. 162 area will no longer come under the Corps’ regulatory jurisdiction. However, if the area is abandoned and over time in fact reverts to “wetlands” meeting our definition at 33 CFR 323.2(c), then the Corps’ regulatory jurisdiction has been restored. 6. This policy is applicable to Section 404 authority only, not to Section 10. 7. This guidance expires 31 December 1984 unless sooner revised or rescinded. FOR THE COMMANDER: --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1638%3A1. Public record. Not legal advice.