(dissenting).
I respectfully dissent.
This is an inappropriate case for application of “occupation of the field” preemption as contemplated by Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 356, 143 N.W.2d 813, 819 (1966). To start with, the state legislation at issue simply grants to the White Bear Lake Conservation District the power to regulate activities on White Bear Lake. The legislature itself created no substantive regulation, and the Conservation District has not exercised power in any way relevant to the size of boats that may be docked in Birchwood Village. In effect, the majority rules that there can be preemption by a void, that a field may be fully “occupied” by an empty vessel. The majority suggests, too, that there is in this case “added regulation” by Birchwood Village where the city’s regulation is added to nothing.
“Occupation of the field” under Mangold does not mean the taking away of power; it means, rather, “squeezed out” by the action of a superior authority. Article 1, Section 10, of the United States Constitution is revealing on this point. That section illustrates how power can be taken away from a subordinate government, even in the absence of relevant substantive law enacted by the superior government.
No state shall enter into any treaty, alliance or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts;
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No state shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded or in such imminent dangers as will not admit of delay.
When establishing the White Bear Lake Conservation District, the legislature included no comparable provision granting exclusivity of power to the Conservation District.
*463There is, in addition, nowhere in the arguments or briefs of the parties, or in the opinion of the majority, a suggestion that the Birchwood Village ordinance conflicts with or overlaps any substantive rule promulgated by the White Bear Lake Conservation District. That leaves the field, at least for the time being, to the city, where it has always been.
Finally, the regulation involved in this case is fundamentally a local regulation that has no effect on the rest of White Bear Lake. At issue is the size of boats that may be permanently docked in Birchwood Village. At oral argument it was pointed out that transient boat docking was not involved; thus the issue of what size boat can be used on White.Bear Lake generally was not at issue. The only concerns addressed by the Birchwood Village ordinance are potential windstorm harm to the marina from larger boats, crowding, sight-lines, and other totally local concerns.
Until such time as the White Bear Lake Conservation District acts, all ordinary municipal powers to regulate remain with the City of Birchwood Village.