BY ED FELIEN
Attention dear friends in the Minneapolis legal community:
I hope you have the opportunity to read the following brief asking for injunctive relief from the District Court to compel the Minneapolis Park and Recreation Board and CenterPoint Energy to remove barriers that are artificially raising the level of Lake Hiawatha and justifying the closing of the Hiawatha 18-hole Golf Course. Hiawatha Golf Course was the home and origin of the Bronze Tournament—the first national tournament open to African Americans, a significant milepost in the struggle against racism.
If you agree with the basis for the brief, please help make it better. Please forward your suggestions and improvements to [email protected].
STATE OF MINNESOTA DISTRICT COURT
COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT
CASE TYPE: CIVIL
Edwin Felien, Plaintiff
v.
Minneapolis Park and Recreation
Board and CenterPoint Energy, Defendants
MEMORANDUM OF INJUNCTIVE RELIEF TO SUPPORT THE REMOVAL OF OBSTACLES BLOCKING WATER
LEAVING LAKE HIAWATHA
INTRODUCTION
On Friday, Oct. 14, 2022, Plaintiff, a property taxpayer in the City of Minneapolis wrote to the Minneapolis Park and Recreation Board:
“Hi Dawn,
“Would you direct this inquiry to Superintendent Bangoura and the MPRB Commissioners.
“Recent photos of the rock weir under the 30th Avenue footbridge [see attached photos] indicate clearly that the rock weir is the principal obstruction to the flow of water leaving Lake Hiawatha.
“As the Barr Engineering ‘Hiawatha Golf Course—Stormwater, Surface Water, and Groundwater Analysis Summary,’ February 28, 2017, said on page 25, ‘The existing control of water levels in Lake Hiawatha is either the high point in the channel upstream of 28th Avenue South or the rock weir under the pedestrian bridge at 30th Avenue South. The high point at 28th Avenue appears to be a gas main crossing the creek. The weir at 30th Avenue South appears to be manmade and its function is unknown.’
“Minnesota Statute 103G.141 PENALTIES. Subdivision 1. Misdemeanors: ‘a person is guilty of a misdemeanor who undertakes or procures another to undertake an alteration in the course, current, or cross section of public waters without previously obtaining a permit from the commissioner, regardless of whether the commissioner would have granted a permit had an application been filed.’
“By permitting the existence of the rock weir and by allowing CenterPoint Energy to obstruct the flow of water from Lake Hiawatha, thereby, according to estimates by Barr Engineering, raising the water level of Lake Hiawatha by one foot, the MPRB seems guilty of altering the cross section of public waters, and, therefore, guilty of violating Minnesota Statute 103G.141.
“Does the MPRB accept responsibility for raising the water level of Lake Hiawatha? Will they take measures to correct it?”
Hearing no response from the Minneapolis Park and Recreation Board, I wrote again to Dawn Sommers:
“Oct. 21
“Hi Dawn,
“Did you pass my email on to staff and the Board?
“If I don’t hear from you by Monday, I will assume you have no interest in corresponding on the issue of the illegal damming of Minnehaha Creek, and I will pursue other options to correct violations of Minnesota Statute 103G.141.”
On Monday. 10/24/2022, 3:34 AM, I received this email:
“Ed,
“I passed your email on to Superintendent Bangoura and Assistant Superintendent of Planning Schroeder, and I was provided with the following details. Thank you for reminding me that you had also requested I share your email with commissioners; I will do so today.
‘According to Barr Engineering Company, this rock structure is one of 16 to 20 natural and introduced features in the creek, any one of which or all in combination have the ability to control the elevation of Lake Hiawatha. Removal of one, such as the CenterPoint Energy crossing, will not impact the elevation of the lake significantly. The most significant of the structures is a very large MCES sanitary sewer. The MPRB recognizes that you have consistently suggested this could be modified to allow the lake elevation to be lowered; however, Minneapolis Public Works has suggested it is not practicable.
‘The statute that you cite does not apply as the MPRB neither undertook nor procured another to put the rock structure in the creek. Moreover, the rock structure was previously the subject of a writ of mandamus you served upon the MPRB a few years ago. You suggested, by issuance of the writ, that the Park Board had a responsibility to remove it. The judge, however, found you had no standing to seek the writ and that even if you did, the MPRB had no duty to remove the rock from the creek. The writ was therefore dismissed.’
“Dawn Sommers
“Director, Communications and Marketing”
I wrote in response:
“Attention Superintendent Bangoura:
“You say there are ‘16 to 20 natural and introduced features in the creek’ that ‘control the elevation of Lake Hiawatha.’ I think that is a misrepresentation of the facts. The rock weir at 30th Avenue, the unused gas line pipe at 28th Avenue, the remnants of the dam/weir at 27th Avenue and the copious amounts of sand the City has dumped on the streets in the winter that flow through the storm sewer system to Minnehaha Creek are the principal obstructions blocking the exit of water from Lake Hiawatha. Park Board staff continue to count the MCES and City sanitary sewer pipes as part of the obstruction, but the MCES Interceptor pipe is eight feet below ground level and the City sanitary pipes are six feet below the ground. According to sources in Minneapolis Public Works, they have to be at least six feet below the surface to avoid freezing and bursting.
“Judge Patrick D. Robben, in his Order Denying my Petition for a Writ of Mandamus said, ‘Petitioner cites no specific legal duty–be it statute, rule or regulation–that requires the Park Board to remove the rocks from Minnehaha Creek or pump a certain amount of groundwater out of Hiawatha Golf Course. At best, Petitioner represents that the Park Board has an overarching duty to protect the public welfare. Such an overarching aspirational goal–akin to ‘do the right thing’ or Google’s corporate conduct motto ‘don’t be evil’ – is not the same thing as a specific and clearly imposed legal duty for which the Court could, through a writ of mandamus, direct the Park Board as to how to carry out its duties.’ I believe the stipulations of Minnesota Statute 103G.141 offer ‘a specific and clearly imposed legal duty for which the Court could, through a writ of mandamus, direct the Park Board as to how to carry out its duties.’
“According to the stated mission of the Park Board, ‘The Minneapolis Park and Recreation Board permanently preserves, protects, maintains, improves, and enhances its natural resources, parkland, and recreational opportunities for current and future generations of our region including people, plants and wildlife.’ Removing the unnatural obstructions to the flow of water out of Lake Hiawatha will substantially lower the level of Lake Hiawatha and reduce the flooding of the natural wetland and cease ‘altering the cross section of publicwaters.’
“The parks of Minneapolis are a great gift from previous generations. We have a responsibility to future generations to be responsible stewards of our inheritance.”
A week later I wrote to the Park Board:
“Dear Superintendent Bangoura,
“May I assume you have verified the depth of the sanitary pipes running under Minnehaha Creek?
“May I assume you have discussed Park Board liability with regard to Minnesota Statute 103G.141 with legal staff?
“May I then hope to hear from you by Friday of this week, November 4, about an understanding of MPRB’s responsibility for and a commitment to a calendar for removal of obstructions that block the exit of water from Lake Hiawatha through Minnehaha Creek?
“Thank you for your kind attention to these matters.”
On 11/7/2022, I wrote:
“Dear Superintendent Bangoura,
“I was disappointed not to hear from you last week about the obstructions in Minnehaha Creek that are flooding the wetlands around Lake Hiawatha and now, Lake Nokomis. If I do not hear from you this week, I will assume you wish to settle the matter in court—an expensive and burdensome alternative.”
On 11/8 I received this:
“Hello Mr. Felien,
“Thank you for your email; we are looking into this.
“Respectfully,
“Al”
I responded 10 days later on 11/18:
“Hello Al,
“Thank you for your email of November 8 in which you say you are ‘looking into’ the artificial obstructions that are blocking the flow of water out of Lake Hiawatha.
“May I assume, by now, your legal department has verified that there is a Minnesota Statute 103G.141 that prohibits the artificial raising of the level of public lake and, thereby, the flooding a wetland.
“May I further assume you understand the Park Board has the legal responsibility to remove those artificial obstructions.
“Removal of the stone weir under the 30th Avenue footbridge would require directing the Environmental Stewardship Division to send a crew out some day next spring to remove the rocks.
“Removal of the unused gas line would require you asking your legal department to write CenterPoint and inform them of the law and their responsibility to remove the pipe.
“Removal of remnants of the dam/weir at 27th Avenue, the least significant obstruction, according to the MPRB 2017 study by Barr Engineering, might require contracting with an independent construction firm to deconstruct the structure.
“May I have your assurance that we agree on our understanding of the law?
“May I have your assurance that we agree on remedies to resolve the problem?
“I sincerely appreciate your attention to this matter,
“Respectfully,”
The final email I received from the Park Board:
“Mr. Felien:
“Thank you for bringing this to my attention.
“No, you may not make assumptions on my behalf.
“Thank you for your email.
“Al Bangoura”
I wrote a final letter to the Park Board:
“Superintendent Bangoura,
“My humble understanding of the legal process is that we are involved in the first phase: Discovery.
“I have written to you expressing my concern that the MPRB is in violation of Minnesota Statute 103G.141 and guilty of a misdemeanor by allowing artificial obstructions to stop the flow of water out of Lake Hiawatha, thereby raising the level of the lake and flooding the surrounding wetlands.
“My hope was that we could agree to these simple remedies: remove the rocks; tell CenterPoint to remove their pipe; and get bids on removal of the remains of the dam/weir.
“That is my understanding of the Park Board’s responsibilities under the law and my hopes for restoration of Minnehaha Creek and Lake Hiawatha. That will be the extent of my brief in my appeal to Judge Patrick D. Robben to reverse his Order Denying my Petition for a Writ of Mandamus.
“In the hope we can avoid a court date, as the Plaintiff, I have shared my complaint.
“It is customary at this point, after the Plaintiff has shared their brief, to ask the defendant, ‘What is your answer?’”
I received no reply.
I wrote the Minneapolis City Attorney in the hope she would enforce Minnesota Statute 103G.141:
“Dear Kristyn Anderson, City Attorney:
“Is the Minneapolis Park and Recreation Board in violation of Minnesota Statute 103G.141 by obstructing the flow of water out of Lake Hiawatha?
“As the Barr Engineering “Hiawatha Golf Course—Stormwater, Surface Water, and Groundwater Analysis Summary,” February 28, 2017, said on page 25, ‘The existing controls of water levels in Lake Hiawatha is either the high point in the channel upstream of 28th Avenue South or the rock weir under the pedestrian bridge at 30th Avenue South. The high point at 28th Avenue appears to be a gas main crossing the creek. The weir at 30th Avenue South appears to be manmade and its function is unknown.’
“Minnesota Statute 103G.141 PENALTIES. Subdivision 1. Misdemeanors: ‘a person is guilty of a misdemeanor who undertakes or procures another to undertake an alteration in the course, current, or cross section of public waters without previously obtaining a permit from the commissioner, regardless of whether the commissioner would have granted a permit had an application been filed.’
“By permitting the existence of the rock weir and by allowing CenterPoint Energy to obstruct the flow of water from Lake Hiawatha, thereby, according to estimates by Barr Engineering, raising the water level of Lake Hiawatha by one foot, the MPRB seems guilty of altering the cross section of public waters, and, therefore, guilty of violating Minnesota Statute 103G.141.
“What remedies does the City of Minneapolis have to compel the Minneapolis Park and Recreation Board to follow the law and remove those barriers?
“Thank you very much for your attention to this matter.”
I received no response.
I wrote to the president of the Minneapolis City Council, attaching the above email sent to the City Attorney:
“Council President Andrea Jenkins,
“I wrote to the Minneapolis City Attorney on January 16 to complain that the Park Board is in violation of State law by allowing artificial impediments to block the flow of water out of Lake Hiawatha. This blockage floods the natural wetlands surrounding Hiawatha Golf Course, and this consequent flooding is used by the Park Board to justify closing the 18-hole golf course that has profound cultural significance to the African American community of South Minneapolis.
“Would you kindly remind our City Attorney that it is her responsibility to enforce Minnesota laws and prosecute misdemeanors.
“Here is the email I sent:”
I have received no response.
CONCLUSION
This is a matter of some urgency. The Minneapolis Park and Recreation Board has determined to stop or reduce pumping ground water out of the wetlands surrounding Lake Hiawatha, thereby flooding Hiawatha Golf Course—a culturally and socially significant institution for the South Minneapolis African American community. They justify their action by claiming this would be a more “natural” condition, when a significant reason for the flooding is the “unnatural” stone weir and an “unnatural” unused gas line that they refuse to mitigate.
I have exhausted all nonjudicial remedies, therefore, I implore this Court to order the Minneapolis Park and Recreation Board to remove the stone weir at the 30th Avenue pedestrian bridge across Minnehaha Creek and to order CenterPoint Energy to remove their unused utility pipe near the 28th Avenue bridge.
Respectfully submitted
Edwin Felien
