Thursday, February 21, 2008

Calling All Evil-Doers

It's confession time.

I do not own lakeshore property. I am in the class of people who find it more convenient to have friends who own lakeshore property than to be bothered with opening and closing the cabin each season, struggling with the installation and removal of unwieldy dock sections in nearly frozen water twice a year, contemplating the installation of a revolving door to accommodate the flow of family and folks like me, spending more on beer for my refrigerator than on hay for my horses or commuting weekly to "Up North" in traffic jams that rival the weekday experience on I-394 at 5:00 p.m.

With this point of view in mind, a point of view that admires the commitment P.O.P.U.L.A.R. members make to their lakeshore properties, notwithstanding the suffering I choose to avoid, I am shocked, shocked!, to discover that I am representing the interests of hundreds of scofflaws, Hell bent to flaunt an illegal lifestyle by covering up a patch of water wider than 8 feet during 5 months of the year.

I'm not sure how this happened. Typically, my clients all wear white hats, attend church or synagogue regularly, pay their taxes, and use me to pursue claims or resolve issues that they would unashamedly describe to their 80 year-old grandparents at Thanksgiving dinner. Apparently, that's changed.

Senator Mary Olson, in a letter to a P.O.P.U.L.A.R. member explaining her opposition to dock platforms, declared her belief that it would be an inappropriate to condone illegal behavior by grandfathering in dock platforms that violated the 2002 regulations limiting dock width to 8 feet.

In response to a February 15th editorial in the Becker Tribune that called for the allowance of dock platforms, Henry V (not the former king of England; "V" is the first initial of his last name) commented:

Intersting. (sic) The editorial totally failed to mention that large platforms are illegal under the law. They are not allowed. The DNR's general permit grants amnesty for illegal activity. Issuing general permits to change the law is no way to regulate activites (sic) that can have negative impacts on aquatic resources. We do not raise the speed limit because cars can go faster, we do not make zoning ordinances more liberal because people can place buildings closer to the lake or build higher that height requirements. Just because we can put up large platforms does not mean that we should change the law to accomodate. (sic) We are talking about placing private structures in public waters owned by all citizens. If we need to change the law then there is a proper way to do that.

Dan Siemms, an aquatic biologist from Bemidji who publishes a blog and served on the DNR's Dock Advisory Committee last year, expressed his disapproval of the issuance of the 2008 General Permit as a contravention of DAC recommendations, particularly as it legitimized illegal behavior by lakeshore owners:

In the first paragraph of our final report, we “expressed significant reservations about the wisdom of re-issuing another general permit for dock platforms, feeling that doing so might be considered an after-the-fact variance for platform docks.” Such patio platforms are illegal under existing DNR rules. A majority of DAC members felt that recommending “any sort of General Permit for platform docks would make them complicit in the degradation of aquatic habitat, the further destruction of the natural shoreline character, and the erosion of the ‘public’ nature of Minnesota waters.”

As a relevant aside, I should point out that I've tried to be extremely accurate as I generate information in support of P.O.P.U.L.A.R.'s issues. I do not want the substance of any argument to be undermined by relying on erroneous information to form its basis. I have asked the DNR to correct me if they read anything written by me that is inaccurate in any way. In light of this cautious practice, I feel justified identifying flaws in opponents' logic, especially when that logic itself relies on a misstatement of the facts.

Dan Siemms, for example, cherry-picks language from the DAC final recommendations in making his point in his blog. While it's true the introduction to the final recommendations noted that most members of the DAC were against a new permit, the document went on to outline consensus recommendations, which included parameters for a new General Permit should the DNR decide to issue one. The introductory caution was, for the most part, a reflection of the anti-dock platform stacking of the DAC and should not be construed as the official recommendation of the DAC.

Given my conviction that my clients wear white hats, attend church or synagogue regularly, etc., I knew there had to be flaw in the claim that P.O.P.U.L.A.R. consisted of a large group of law breakers. The flaw lies in the inaccuracy of describing dock platform owners as knowingly engaging in illegal behavior under 2002 (and still current) DNR regulations limiting dock width to 8 feet if outside the scope of the General Permits of 2007 and 2008.

The vast majority of P.O.P.U.L.A.R. members have had their dock platforms since before 2002. One member sent me the DNR brochure entitled "Work That Can Be Done Without a Permit" published prior to the issuance of the 2002 rules. In other words, the brochure represents the official communication by the DNR Division of Waters to, among others, lakeshore owners looking for guidance on limits the law imposes on their ability to install dock platforms. Here's what the brochure says about "Seasonal Docks" (a temporal distinction eliminated in 2002):

"These projects will not require permits from the DNR provided all listed conditions are met.
Project Restrictions
. . .
Seasonal Docks and Floating Structures
•Removed from water on a seasonal basis (before winter freeze-up)
•All components removable form lake or stream bed by nonmechanized means
•Will not be a hazard to navigation or endanger public health and safety
•Site is not a posted fish spawning area
•Will not include fuel handling or sewage facilities
•Is not used or intended to be used for human habitation, as a boathouse or as a marina
•Allows for free flow of water beneath it"

That's it. Nothing about size restrictions. No admonishment against configuring dock sections for anything other than accessing navigable waters and boarding a boat. Short version might be "Take it out in the winter and don't use it for a bathroom". Future members of P.O.P.U.L.A.R., law abiding citizens all, built platforms and used them for years (decades in some instances) in full view of the DNR and local hydrologists without interference or other challenge.

To now baldly assert, in support of eliminating the structures, that all dock platform owners have been engaging in illegal activity and should not be legitimized, ignores the reality of pre-2003 law. Since the 2002 regulations were issued at the end of the 2002 season, the 8 foot restriction was only in effect in 2003, 2004, 2005 and 2006 before the 2007 General Permit allowed platforms of up to 170 square feet.

Minnesota is celebrating it's 150th year of statehood this year. This means a few things. It means I'm getting old because I remember hearing about the centennial celebration in grade school. It also means that dock platforms have only been "illegal" for 2.7% of the time Minnesota has been a State. Finally, it means that dock platform opponents who oppose formulating a solution to the dispute that incorporates grandfathering in legacy docks because of their so-called "illegality" are engaging in smear campaigns for the lack of a substantive, accurate argument.

As a member of P.O.P.U.L.A.R., you should take the time to respond to unfavorable editorials and published comments of opponents. You should continue to contact your legislators and other public officials and make your position known. Names and addresses of legislators can be found by clicking on the "Who Represents Me?" link at You should continue to hold public servants accountable for being accurate in their discussions on this issue.

I'll follow-up in a few days with a report on my next discussions with the DNR. I've had brief initial discussions with other attorneys in the group about litigating to stop enforcement of the size restrictions should we fail to reach agreement with the DNR. We cannot expect much help from the legislature as everyone seems to be trying to "out green" one another and we'll be sure to see environmental advocates line up against us (ironically, against the REAL stewards of the lakes).

P.O.P.U.L.A.R. members with dock platforms that were first installed after 2002 should take heart. I think of you as white hatted, God-fearing members, too. You'll just have to be the subject of a subsequent blog, "What if They Passed a Regulation and Nobody Enforced It?"

P.S. Thanks to those who have forwarded nice comments about our efforts. It makes it easier to keep typing past midnight.


Anonymous said...

Regarding the 2002 DNR regulation date that is an important fact but one which should not " divide and conquer" those which can't prove what a prior owner had in place. Your concept of those dock platforms prior to Jan 2008 which are proveable or certified by the owner and do not exceed at least 200-250 square feet would be grandfathered as legacy platforms we support. The rationale to change it is simply mathematical because dock sections are 5' or 4' wide and generally 10' so 170 sq ft doesn't work.

Anonymous said...

Regarding the comment that legislators may not help because some are trying to out "green" themselves-then folks ought to remember them in this election year. This is an important issue which effects not only our family use of the lake but also the value of Minnesota lakeshore. The powers to be should resolve this issue before the ice goes out !

Anonymous said...

If litigation is the unfortunate only path to resolve this matter ( which we hope it is not) have the following issues been discussed: 1)the lack of rulemaking to require general permit lakeshore owners to restrict their zone to 50 feet ? 2)Our local county liability from citing Granny if the rulemaking is overturned in court ? 3)Class action status ? 4) Damages and accountability for the lack of enforcement, notification and administration of this issue since 2002 ?

Sam Stern said...

Quick response to the first three comments posted in response to this installment of the blog:
1. It's not my intent to abandon post-2002 dock platforms or members with more difficult certification. I just wanted to dial back on the allegations of illegal behavior and came up with the analysis posted.
2. Not everyone is up for election. We have to admit that there are more landlubber constituents than lakeshore owners. Other than using the power of the pursestring, it's a risky strategy to rely on convincing legislators there's much to be gained by supporting docks over pristine lakes. Best to leave it alone if possible. That comes from top legislative staff well-versed in the leanings of their caucus.
3. Good points on the litigation strategy. Keep in mind that the aquatic impact area is not mandated, only suggested. This was done to avoid having to go through rulemaking. Damages for non-enforcment will be tough; accountability is the core of the argument.

Anonymous said...

The 170 square feet for a platform doesn't work-how did they come up with that number or was it just a political compromise ?


10'x 5'x 1 section = 50' sq
2 sections= 100
3 " = 150
4 " = 200
5 " = 250

10'x 4'x 1 section = 40' sq
2 s= 80' "
3 " = 120
4 = 160
5 = 200
6 = 240

8'x 4'x 1 section = 32' sq
2 = 64
3 = 96
4 = 128
5 = 160
6 = 192
7 = 224

Anonymous said...

Sam, Regarding the 50' "Aquatic Impact Area" the DNR General Permit cover letter page 2 dtd. 1/23/08 and the permit Condition No. 11 sure don't sound voluntary ! It sure appears that a lakeshore owner either agrees to their terms or you are stuck with the 8' 2002 rule. Thus, this appears to be a backdoor attempt to achieve a retroactive 50' aquatic impact area without holding hearings about it and a formal rulemaking. Therefore, the denial of a general permit on the basis that a lakeshore owner cannot or will not retroactively restrict themselves to 50' discriminates against a class of lakeshore owners in favor of others. The 50' rule may make sense for a new development but can cause all sort of issues for legacy lakeshore owners. This brings into question the overall legality of the DNR rulemaking.

Anonymous said...

In reading this blog and learning more of the process that got this issue to where it is now and the political opposition that has appeared from Senator Mary Olsen, I wonder what it is that has got those like her and the DNR so fired up. This was not an issue or a problem and I had not even heard a rumbling about it. Regardless it is an issue now and lakeshore owners are being made out to be bad guys. If those on the lakes think this is the only issue they will be mistaken. After docks will come the # of boat allowed and the use restrictions. I used to love Minnesota. There are other options.