State Ex Rel. Skeie v. Minnkota Power Cooperative, Inc.

SHERAN, Chief Justice.

This is the reconsideration of an appeal from the judgment of the Polk County District Court dismissing plaintiffs’ action under Minn.St. 116B.03 to enjoin Minnkota Power Cooperative, Inc. (Minnkota) from constructing a power, line on a proposed route across plaintiffs’ property. On May 16, 1978, this court restrained construction of the power line pending disposition of the *373appeal. After consideration and decision without oral argument, on October 13,1978, we issued a per curiam opinion affirming the dismissal. Plaintiffs petitioned for reconsideration, which was granted on October 26, 1978, by a special term panel of the court. The case was set for oral argument and heard by the court en banc on November 2, 1978. Once again, we affirm. Having had the benefit of oral presentations by the parties and further study of the issues, we direct that this opinion be substituted for the original, which is withdrawn.

In July, 1976, Minnkota began eminent domain proceedings to condemn property along the proposed route of a 230-kilovolt, high-voltage transmission line from a' substation near Winger, Minnesota, to a new substation near Wilton, Minnesota. Construction of the line had begun in June, 1974; thus, the line was exempt from the requirements of the Minnesota Power Plant Siting Act, Minn.St. 116C.51, et seq., under the savings clause, § 116C.67. Only 13 of the 54 miles of line were not completed when these proceedings were begun.

The route proposed by Minnkota crossed land owned by plaintiffs and rented to a tenant farmer. Three double-pole towers were planned on the approximately five-eighths of a mile route across the Skeie property. The route crossed open farmland approximately 277 feet south of the farm building site.

Plaintiffs objected to the proposed route and brought an action under the Minnesota Environmental Rights Act, (MERA) Minn.St. c. 116B, to enjoin construction. They alleged that the line would destroy or impair a protectable natural resource, specifically, the productive agricultural use of the land. They further asserted that feasible and prudent alternative routes existed that would be less destructive. Their action was consolidated with the eminent domain proceedings for trial.

The trial court heard evidence that the proposed line would hamper the operation of farm machinery, make aerial spraying more hazardous, affect the installation of pivotal type irrigation, interfere with a proposed private landing strip and affect television reception, as well as evidence on five alternative routes, two considered and rejected by Minnkota and three offered by plaintiffs. Subsequently, the court granted Minnkota a perpetual easement along the proposed route and dismissed plaintiffs’ claims under MERA.

Plaintiffs contend that the trial court erred in ruling that the productive use of farmland was not a natural resource protected by MERA and in giving inadequate consideration to feasible and prudent alternatives. Our original opinion held that plaintiffs had not established a prima facie case under MERA and, by implication, any consideration of alternatives was therefore not relevant. This conclusion follows from our view of MERA, of which further explanation may be in order.

The Minnesota Environmental Protection Act is intended to preserve the environment in its natural state from pollution, impairment or destruction. Minn.St. 116B.01 to 116B.13; County of Freeborn v. Bryson, 309 Minn. 178, 243 N.W.2d 316 (1976). To prevail in this case, it was necessary for the landowner to establish prima facie that the installation of the power line through his cultivated field was “likely to cause the pollution, impairment or destruction of the air, water, land or other natural resources located” on the premises involved. Minn.St. 116B.04. No attempt was made to make such a prima facie case unless it can be said that the presence of the line in and of itself constitutes “pollution, impairment or destruction” of the land. We do not think that the legislature so intended.

The evidence introduced by the landowner was limited to facts demonstrating that the use of his cultivated fields would be made more difficult because of the presence of the power line. No evidence was offered to show that the land would be polluted or impaired or destroyed in any specific way by the line or that the environment would be otherwise significantly adversely affected by its presence. If the landowner had introduced evidence to prove that the presence of the power line would have made the *374soil sterile; or caused its erosion; or limited its cropping potential, in some significant, irreversible way, we would have a different situation. But this was not done. The missing evidence is that which distinguishes intrusion upon land which cannot be compensated by damages from those which can. The distinction is a critical one.1 No Power Line v. Minn. Environmental Quality, 262 N.W.2d 312 (Minn.1977).

Since the appellant failed to make a pri-ma facie case of entitlement to the protection of the MERA, the trial court was not free to evaluate alternative routes. Minn.St. 116B.04, ¶ 2.

Were we to hold that intrusion upon “land” or “soil” which makes its cultivation and use more difficult constitutes a prima facie case of pollution, impairment or destruction of the environment, MERA would be extended beyond the scope which the legislature intended. Whether such an extension is a good thing or not is something that the legislature, rather than this court, should decide. This consideration is of special significance in dealing with environmental legislation which so much involves the weighing of considerations of public policy — a role best performed by the elected representatives of the people. The legislature, when it adopted the MERA, authorized “any person” to challenge any use of land (except by a family farmer for farm-related activity) which, in his perception, adversely affects natural resources. This new power which the legislature has created should not be extended into areas where its use was not clearly intended.2

Affirmed.

. In addition to the disruption of farming operations, which was the thrust of the landowner’s complaint, there is evidence in the record that the power line will have certain minor impacts on the natural environment itself. Respondent’s Exhibit Z and Finding of Fact No. 5 of the trial court. The landowner contends that in rejecting his prima facie case we have considered only disruption of farming operations to the neglect of these other impacts. In this regard, we note the requirement of Minn.St. 116B.02, subd. 5, that the adverse impact complained of must be material. Whether because the anticipated impacts here fail to meet this requirement or because the placement of this power line in any alternative location would result in similar adverse impacts, we are not persuaded that the trial court’s ruling on this point is clearly erroneous.

. We note that in the Power Plant Siting Act, Minn.St. 116C.51, et seq., from which this power line is exempt, the legislature established procedures and standards for considering effects on farming and determining a suitable route.