In the balance

Decision out on Mississippi Landing injunction


Decision hung in the balance Friday, May 17 as attorneys for three separate litigants made their cases before Judge Douglas B. Meslow of the Minnesota Tenth Judicial District Court in Washington County.
On one side stood the plaintiff Friends of Grey Cloud, a local environmental group seeking a stop order for the Mississippi Landing plat, pending further environmental review. On the other side stood Rachel Development of St. Michael, Minn. and the city government of Cottage Grove, named as respondents in the case.
With Friends of Grey Cloud filing under the Minnesota Environmental Resources and Minnesota Environmental Policy Act, no decision was made at the hearing itself, which took place Friday morning via Zoom and was over by 10:08 a.m.
Among the points raised by attorneys Bryan Huntington and Rob Stefanowicz for Rachel Development was one in reference to the Rusty Patch Bumblebee, asserting that this fell under the federal Environmental Protection Act (EPA) while statute referred to “permit of the state.” The state and federal governments being separate bodies, federal environmental standards did not fall within the definition of “pollution” for the state environmental assessment. Also among points raised by the Rachel legal team was a habitat assessment by Midwest Natural Resources that showed potential impact to the Rusty Patch Bumblebee as being limited to just 12 acres, due in part to prior site degradation. The Rusty Patch Bumblebee being federally protected, it was stated that plaintiff had “burden of proof” for its assertions and could not use “newspaper articles” (Star Tribune) in making its claims, including on PFAs.
Of great import to the case at hand was the bond amount for securing injunction, an amount upwards of $3 million cited as based on risk, whereas the plaintiff seeking injunction had asked for just $1,000, citing a lack of financial resources. There were no affidavits of this financial need, Stefanowicz said, while statute laid out the amount rather than plaintiff ability. State statute 65.03 states the sum to be “as the court deems proper.”
Appearing on behalf of plaintiff Friends of Grey Cloud, meanwhile, Greenfire Law attorney Jessica Blome argued several case points. Susann Bradford and Miles Ringsred also on the legal team.
With special time spent on the Rusty Patch Bumblebee, Blome said the site had “rewilded” since its closure in 2017, citing expert testimony and saying that long eared bats were potentially on site as well. Federal Fish and Wildlife Services was allowed to speculate and survey, Blome said, whereas it did not allow a non-complaint survey. A previous survey was carried out in January 2022, during the hibernation period of the Rusty Patch Bumblebee. An injunction would provide opportunity to carry out a new survey outside the bee’s hibernation period.
“Plaintiff and its members would be irreparably harmed” if the development was allowed to go forward without mitigation, Blome said.
Countering this, the attorney for Rachel Development cited sign off by the U.S. Fish and Wildlife Service, saying they would have known of potential rewilding and taken this into account before acting. Additionally, the removal of trees potentially used for habitat by long eared bats meant that the question of their presence was moot, a point disputed in turn by Blome, who referenced photos and drone footage as evidence against this assertion.
As to other species besides the Rusty Patch Bumblebee, Judge Meslow voiced the view that materials submitted seemed “speculative” on this point.
With two attorneys (John Baker and Katherine Swenson) on the city legal team, the city’s argument had subtle differences than that of Rachel.
Arguing on behalf of the Cottage Grove city government that MEPA (Minnesota Environmental Protection Act) was the proper grounding and decision point for the case at hand, Baker also defended the temporary closing of access to open space at Mississippi Dunes Reserve, saying there was no reason for the city to do what it has never done, the practice simply not existing in Cottage Grove.
“Any project that involves the reorienting of roads will have an occasional closure,” Baker said.
Access to the Dunes Reserve has been moved from the golf course gate to a temporary road off Grey Cloud Trail South during the project.
The Tenth District Court as proper venue was also disputed, relevant in that cases must be filed in the right court and circuit to move forward.
Up for final consideration May 17 was the question of PFAs, the plume of which was asserted by Friends of Grey Cloud to appear as being present under the development.
Linked to health problems including cancer but disputed by the respondents in court as being present on the construction site, this same point was said to impact MERA as to the matter under dispute.
In the end, no decision was made on the spot, Judge Meslow saying he would look into the arguments presented and make his ruling. Response briefs by the different parties were struck from the public record, only the plaintiff’s attorney seeking their inclusion.