BY ED FELIEN
First, I want to thank the friends and supporters who came downtown to see me try to slay the dragon.
The judge asked me why I was doing this. If you don’t like the decisions they make, then there are elections. I said, these elected officials took an oath of office to protect the public welfare. They’re not doing it. They are threatening to destroy a valued cultural resource in South Minneapolis. All I am asking is that they remove the boulders blocking the flow of Minnehaha Creek under the 30th Avenue footbridge, and that they commission a new profile of Minnehaha Creek from the outlet at 27th Avenue to a point past the 30th Avenue footbridge to determine the control point for the water level of Lake Hiawatha.
The attorney representing the Park Board said I lacked legal standing to bring an action against the Park Board and that my facts were wrong.
I responded to their argument:
Respondents claim that Petitioner has no legal standing to bring forth a Writ of Mandamus to force the Minneapolis Park and Recreation Board to remove boulders from Minnehaha Creek that are causing the flooding of homes in the area and the flooding of Hiawatha Golf Course.
Petitioner has used Hiawatha Golf Course as a source of recreation for almost seventy years. It is one of the reasons Petitioner has chosen to live most of his life in South Minneapolis. He and his African-American friends take pride in knowing that Hiawatha was home to the first national golf tournament open to African Americans, The Bronze. The legend—that Joe Louis, the Brown Bomber, over-clubbed the third hole with a five iron and drove his ball through a picture window across 43rd Street—is part of the folklore of South Minneapolis. We are saddened that the Park Board has deliberately neglected the care and maintenance of Hiawatha. They spend an average of $642,742 for maintenance of Minneapolis taxpayer-supported golf courses in St. Anthony Village, St. Louis Park, Golden Valley, and one in Northeast Minneapolis that borders Columbia Heights. These courses serve mostly suburbanites. They spend $117,611 less than that average on maintenance at Hiawatha that serves inner city residents, and this year they eliminated the resident discount. We feel short-changed.
And now they are talking about reducing pumping groundwater out of the golf course and back into Lake Hiawatha. This will flood the golf course and most certainly destroy it. The justification for reducing pumping was that the Park Board was exceeding an amount specified on the original Minnesota Department of Natural Resources’ permit. There was never an order from the DNR to reduce pumping; however, the Park Board used the difference to manufacture a mandate. As Kathryn Kelly wrote in Southside Pride last month, “And, let us remember Park Board President Bourn’s question to Mr. Schroeder last year. He asked, ‘So, no one is making us do reduced pumping. If we do this, we are doing this because WE want to?’ Mr. Schroeder replied, ‘Yes.’ ” https://southsidepride.com/2019/07/01/back-to-the-20s/
The Park Board claims it is planning a wetland restoration, but this seems a very artificial restoration because a recently created dam that has no obvious purpose is holding back more than 2 feet of water in Lake Hiawatha that should be flowing down Minnehaha Creek.
Park commissioners swear an oath to protect the public welfare. The willful destruction of an historic cultural resource and the transformation of it into a swamp seems contrary to the public interest and a violation of the public trust. However, the Petitioner’s Writ of Mandamus has a much narrower focus and asks for a much more limited action.
The Petitioner, empowered by the Tenth Amendment to the U.S. Constitution that recognizes that all powers of governance not restricted by the federal or state governments are reserved for the people; recognizing that the State of Minnesota provides a remedy for the malfeasance of an elected public body through a Writ of Mandamus; understanding that as a taxpayer in Minneapolis and a patron of Hiawatha Golf Course the Petitioner has the fiduciary responsibility to monitor the care of a cultural resource held in the public trust; having asked Michael Schroeder and the Park Board for over a year through personal emails and the pages of Southside Pride, a monthly newspaper delivered to 50,000 homes in South Minneapolis, to either justify or remove the boulders that have formed a rock weir under the 30th Avenue footbridge that has caused flooding of local homes and the Hiawatha Golf Course; the Petitioner asserts legal standing and asks the court to order the Park Board to remove those unnatural barriers that restrict the flow of water from Lake Hiawatha to Minnehaha Creek.
Respondents claim, in addition to alleging the Petitioner does not having legal standing, “it is also important for the court to be aware that Petitioner’s ‘factual’ basis for the writ is fraught with inaccuracies and that the process for alleviating the water issues at Hiawatha Golf Course are still in the process and any court action would be premature.”
This statement is typical of the obfuscation and distortion the Park Board has used to characterize its plans. There is no process in place for “alleviating” the problem of flooding at Hiawatha Golf Course. The Community Advisory Committee has not been established to ease or reduce the problem of flooding (the normal meaning of the term alleviate) but to rationalize the exacerbation of the problem of flooding by reducing pumping.
Respondents quote the Barr report: “The lowest channel elevation is 809.0 feet and lowering the control for the water levels in Lake Hiawatha to that elevation (approximately 1.5 feet) would require excavation of approximately 2000 feet of creek channel, replacement/lowering of utility crossings under the creek bed, and the associated permitting for these activities.”
The highest active utility pipe crossing Minnehaha Creek is the interceptor at 808. Petitioner answered these questions in an article in Southside Pride in July of 2018:
Michael Schroeder wrote to me: “If it were practical to remove ALL the obstructions to flow of the creek below Lake Hiawatha, it would reduce the elevation of the lake. However, as we’ve discussed previously, there are AT LEAST 19 obstructions in the first 2,000 feet of the creek below Lake Hiawatha, with the weir being one of those 19. Removal of some might be possible; removal of all would likely be impracticable.”
In spite of all my research I could not find 19 obstructions in the first 2,000 feet of the creek.
Enrique Velázquez, the surface water and sewers manager of Business Operations for the City of Minneapolis, Public Works, wrote to me:
“Here is a summary of pipes underground shown in Figure 9 from upstream to downstream:
1. City sanitary at 28th Ave: top of pipe appears to be at 808’
2. MCES interceptor sanitary sewer (city lines flow into this): top of pipe appears to be slightly below 808’
3. City sanitary at 29th Ave: top of pipe appears to be at 806.5’
4. City sanitary at 30th Ave: top of pipe appears to be at 805’
5. MCES interceptor sanitary sewer (same pipe as #2 above): top of pipe appears to be slightly above 807’
6. City sanitary just east of Nokomis Ave: top of pipe appears to be at 806.5’. ”
Aside from the permanent artificial obstructions (the weir at 27th Avenue, the abandoned gas pipeline at 28th Avenue and the rock weir at 30th Avenue) the other obstructions to the flow of the creek would be the accumulated sand and silt that have been dumped onto city streets in the winter that flow into the storm sewers from Chicago Avenue in the west to 27th Avenue in the east, from Lake Street to 43rd Street. The sand that flows into Lake Hiawatha dumps into the north shore of the lake. When Theodore Wirth dredged the lake in 1929, the depth was 33 feet. Today it is hard to find a depth of 12 feet. There are smaller storm sewer outlets from 29th Avenue to 36th Avenue that dump sand directly into the creek. Once the obstructions are down and the flow of the creek returns to normal, most of that sand and debris will probably move downstream.
Respondents say, “Petitioner presents to the court that removing the ‘weir’ will alleviate flooding of the golf course and the area around it.” Barr Engineering has determined that the rock weir is 810.7 feet above sea level and is the control point for the water level of Minnehaha Creek and Lake Hiawatha. The highest point of a municipal sewer line crossing Minnehaha Creek is the Metropolitan Interceptor line with a crown of 808 feet above sea level at 28th Avenue. These facts are easily verifiable in the Barr Engineering Report and through the Minneapolis Engineering Department. The Petitioner argues that by removing a wall (dam or weir) that is 810.7 feet tall leaving the only other obstruction at 808 feet, the difference would be 2.7 feet. This is simple subtraction and rudimentary mathematics and shouldn’t require additional documentation.
The Responders admit the rock weir is the high point that controls the water levels of Minnehaha Creek and Lake Hiawatha when they quote the Barr Engineering report: “The existing control of water levels in Lake Hiawatha is either the high point in the channel upstream of 28th Avenue South (where there is a gas main crossing the creek) or the rock weir under the pedestrian bridge at 30th Avenue South.”
If you look east and down into the creek from the 28th Avenue bridge you can see a concrete structure that is the casing for an inactive gas pipeline belonging to CenterPoint Energy.
From the article in Southside Pride:
“The utility line is mentioned in the 6/21/2017 memo from Jennifer Koehler, PE & Kurt Leuthold, addressed to Michael Schroeder, Park Board planner, and Katrina Kessler, city engineer: ‘Hiawatha Golf Course Area—Water Management Alternatives’: ‘There is an abandoned CenterPoint gas main along 28th Avenue South and crosses on the downstream side of the 28th Avenue bridge. It is unclear if the abandoned main has been removed, but there are no other active lines crossing under Minnehaha Creek between Lake Hiawatha and Nokomis Avenue.’ ”
The pipe seems to be at the level of the creek bed. There doesn’t seem to be a noticeable drop in the water level of the creek after it passes the structure. This doesn’t seem like the point that controls the water level. The water flowing over the rock weir, on the other hand, takes a noticeable drop.
However, since that photo was taken last year, there seems to have been some moving of boulders and much of the old boulder dam has been moved. It’s not clear if there is now a noticeable drop in the water level.
That is why it is necessary for this court to mandate to the Park Board to remove the boulders that could raise the level of Minnehaha Creek and Lake Hiawatha, and then contract with an engineering firm to do a profile of Minnehaha Creek to determine the new control point for the water level.
It is possible that the unused gas pipeline at 28th Avenue is at about the same height as the rock weir. In that case the Park Board should ask CenterPoint to remove their pipeline. The point of this lawsuit is to return the level of Minnehaha Creek to what it was when the 11-foot-in-diameter interceptor sewer line crossed the creek in 1928. The crown of that sewer line is 808 feet above sea level. That was probably the control point for the water level of Minnehaha Creek and Lake Hiawatha when Theodore Wirth dredged Lake Hiawatha in 1929 and created the park, ball fields and golf course by 1934. The average depth of the creek is 18 inches to 2 feet. This means the height of Lake Hiawatha, before the construction of all the artificial dams and weirs, was probably 809.5 to 810 feet above sea level. Today the lake is on average more than 812 feet above sea level. If we could lower the water level of the lake by 2 feet we would seriously reduce the danger of flooding in the surrounding homes and golf course. And that would lower the need for pumping, which the Park Board claimed was its original intent. If it serves the public interest to reduce pumping groundwater out of the land surrounding Lake Hiawatha, then why not remove the artificial barriers that are blocking the flow of water out of the lake?
The judge said he’d take the measure under advisement. His staff explained that means he could take 90 days to reach a decision.