Iron Rangers for Responsible Ridge Action v. Iron Range Resources

DAVIES, Judge

(concurring specially).

I concur with the majority opinion in its entirety, but write separately because I believe, in addition, that the MCEA lacks standing to challenge the designation of the county as the RGU. The designation of a RGU is probably not ever appropriate for judicial review. And if designation ever is subject to judicial review, the MCEA here failed to exhaust its administrative remedies.

The selection of the RGU is an assignment of administrative responsibility within the government’s structure. Minnesota Rule 4410.0500 (1993) provides the procedure and time limits for government units to designate among themselves the RGU. Where two or more government units with apparent jurisdiction cannot agree on the selection of the RGU, the EQB chairperson is to determine which unit should be the RGU. Minn.R. 4410.0500, subpt. 5(B)(2) (1993). And, if there has been a prior choice of a RGU by another agency, the EQB has the prerogative to trump that selection “if the EQB determines a new designee has greater expertise in analyzing the potential impacts of the project.” Id., subpt. 6 (1993). In all cases where the RGU is designated by the EQB chairperson or by agreement of eligible government units, the selection must be made “within five days of receipt of the completed data portions of the EAW.” Id. See also Minn.R. 4410.0500, subpt. 5(B)(1) and (2) (1993) (placing five-day limit on selection process).

The IRRRB and the county agreed to make the county the RGU. The county was a reasonable choice, even if not the most appropriate RGU, because of its land use expertise and permit authority over the pro*886ject. See Minn.R. 4410.0500, subpt. 1 (1993) (RGU for mandatory categories); Minn.R. 4410.4300, subpts. 19, 28 D (1993) (mandating the RGU for projects involving residential development and forested lands). Selection of the county was not trumped by the EQB chair and became conclusive.

Here, the MCEA did not request that the EQB designate the IRRRB as the RGU when the county issued the EAW in February 1994. The MCEA failed to challenge the selection of the county as RGU in May 1994 when the MCEA sought the EQB’s review of the county’s negative declaration for the EIS. The MCEA first challenged the designation of the county as the RGU on June 9, 1994, when it sued the county to compel the preparation of an EIS before project construction. Clearly, the MCEA failed to exhaust its administrative remedies by not seeking the EQB’s determination on the appropriate RGU in the initial stages of the environmental review process, as contemplated by Minn.R. 4410.0500. See Adams v. United States Envtl. Protection Agency, 38 F.3d 43, 50 (1st Cir.1994) (to promote judicial economy and application of agency’s expertise, court declined to consider issues not raised during administrative process).

Moreover, even if the IRRRB had been selected as a RGU, the parties and this court would be exactly where we are now: this court would be reviewing the merits of the RGU’s negative declaration of the need for an EIS. Thus, for us now to review the designation of the RGU would only create further delay in the environmental review process.