FILED

 

STATE OF MINNESOTA
August 6, 2019
IN COURT OF APPEALS DFHDE DF

In the Matter of the Denial of Contested 
Case Hearing Requests and Issuance of
National Pollutant Discharge Elimination 
System State Disposal System Permit No. A19-0118
MN0071013 for the Proposed Northmet A19-0124
Project St. Louis County Hoyt Lakes and

Babbit Minnesota.

 

Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Reyes,
Judge.

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND FOR THE
FOLLOWING REASONS:

These consolidated appeals are taken from an order by respondent Minnesota
Pollution Control Agency (MPCA) granting a National Pollutant Discharge Elimination
System/ State Disposal System permit (the permit) to respondent Poly Met
Mining, Inc. (PolyMet) for its NorthMet project.

On June 25, 2019, this court issued an order granting relator WaterLegacy?s motion
for a transfer to district court, pursuant to Minn. Stat. 14.68 (2018), for hearing and
determination of alleged procedural irregularities related to the grant of the permit. That
order was based on undisputed extra-record evidence that the MPCA and
Environmental Protection Agency departed from typical procedures in addressing the

permit, engaging in multiple telephone conferences and in-person meetings, some of which

are not re?ected in the administrative record; (2) the EPA prepared written comments on
the draft permit; (3) those written comments were never submitted to the MPCA and are
not part of the administrative record; (4) instead the written comments were read to MPCA
during an April 5, 2018 telephone call; and (5) notes taken during that call have not been
included in the administrative record, and are believed to have been discarded. The order
was also based on disputed extra-record evidence on the issues of whether (1) it was
unusual for EPA not to submit written comments; and (2) the MPCA sought to keep the
comments out of the public record. Based on this evidence, this court stayed these
appeals and transferred the matter to Ramsey County District Court for the limited purpose
of an evidentiary hearing and determination of the alleged irregularities in procedure. The
hearing is to be held as soon as practicable, and the district court has scheduled a pre-
hearing conference for August 7, 2019.

On July 2, 2019, relators ?led a motion to stay the permit, arguing that such relief
is warranted by the pendency of the district court proceedings and the imminence of
construction on the NorthMet project. The MPCA and PolyMet oppose the motion.

Filing a certiorari appeal from an agency decision does not stay that decision, but
the agency or this court may grant a stay. Minn. Stat. 14.65 (2018). Generally, a party
seeking a stay in a certiorari appeal must ?rst request the stay from the agency, and this
court reviews that decision for an abuse of discretion. See Minn. R. Civ. App. P. 115.03,
subd. 108.02, subd. 2; DRJ, Inc. v. City ofSt. Paul, 741 141, 143 (Minn. App.

2007). Relators did seek a stay of the permit from the MPCA in December 2018 and do

not challenge the denial of that stay request. Instead, the issue here is whether, in light of
subsequent procedural developments in this court, it is appropriate to stay the permit.

When considering a motion to stay, relevant factors may include ?whether the
appeal raises substantial issues; injury to one or more parties absent a stay; and the public
interest, which includes the effective administration of justice.? Webster v. Hennepin
County, 891 290, 293 (Minn. 2017). Effective administration of justice includes
protecting appellate jurisdiction, avoiding multiple lawsuits, and preventing the defeat of
?the objects of the writ of error.? Id. (quoting State v. N. Pac. Ry. C0., 22 569,
574 (Minn. 1946)). A stay motion requires an individualized inquiry into the factors most
relevant to the particular case. Id.

On the unique facts of this appeal, we conclude that staying the permit is warranted.
A substantial issue has been raised as to the regularity of the proceedings in
granting the permit, and this court has ordered the exceptional remedy of a transfer to
district court to hear and determine those irregularities. And, although the parties dispute
the effect of staying the permit on the project as a whole, relators have identi?ed injuries
to their environmental interests should the project proceed, and we are cognizant of the
?dif?culty of stopping a bureaucratic steam roller, once started.? Sierra Club v. US. Army
Corps of Engineers, 645 F.3d 978, 995 (8th Cir. 2011) (holding that ?steam roller? effect
was proper consideration in determining whether to grant injunctive relief against permit
where allegation was that environmental harm would occur through inadequate foresight
and deliberation). We are also persuaded that a stay will both promote the public interest

and protect this court?s appellate jurisdiction. Accordingly, we conclude that it is

3

appropriate to stay the permit, at least through the pendency of the district court
proceedings.

IT IS HEREBY ORDERED:

1. The motion to stay is granted.

2. The NorthMet permit MN0071013 is stayed pending further
order of this court.

Dated: August 6, 2019

BY THE COURT

324%

Edward J. Clea?iry 
Chief Judge