The claims presented in the instant case are complex. They involve issues of first impression for Minnesota courts. Whatever this Court does almost certainly will be appealed by whichever party is most disappointed and perhaps by all three. Thus, absent a settlement, this Court’s decision will likely be the first word in an extended legal dialogue.

Summary judgment “shall be rendered” when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. To avoid summary judgment, the non-moving party must present specific facts demonstrating that there is a genuine issue based upon a dispute of material fact that warrants a trial. Minn. R. Civ. P. 56.05; Borom v. City of St. Paul, 184 N.W.2d 595, 597 (1971).

MERA allows political subdivisions, among others, to maintain a civil action in district court for declaratory or equitable relief in the name of the state of Minnesota against any person “for the protection of the air, water, land, or other natural resources located within the state . . . from pollution, impairment, or destruction.” Minn. Stat. § 116B.03, subd. 1. “Pollution, impairment or destruction” is defined as consisting of two types of conduct: 1) “conduct” that violates, or is likely to violate, “any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof” or 2) “conduct” that “materially adversely affects or is likely to materially adversely affect the environment.” Minn. Stat. § 116B.02, subd. 5. To establish a prima facie case for either Count I or Count II, Plaintiffs must identify first, the existence of a protectible natural resource and second, “pollution, impairment or destruction” of that resource. Minn. Stat. § 116B.03, subd. 1.

I. INDOOR QUIETUDE IS A PROTECTIBLE NATURAL RESOURCE UNDER MERA

NWA and the MAC argue Plaintiffs cannot state a MERA claim because “indoor quietude” is not a protected natural resource under the statute. [FN 7] MERA’s definition of “natural resources” includes “all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources.” Minn. Stat. § 116B.02, subd 4 (emphasis added).

[FN 7] NWA argues, if MERA claims were extended to include indoor quietude, MERA claims could be asserted against the manufacturers of blenders, hairdryers, and other household appliances. This seems most unlikely. People can choose to turn on their blenders, they get no choice about airplane noise.

Defendants’ argument is unconvincing. “Natural resource” is defined specifically to include “all … quietude” without specification of “natural quiet.” MERA does not only protect quietude in its natural state—its application is not limited to the remote and pristine parts of Minnesota. [FN 8] The Minnesota Supreme Court and Court of Appeals have provided a broad reading of this scope in its gun club cases. See Minnesota Pub. Interest Research Group v. White Bear Rod and Gun Club, 257 N.W.2d 762 (Minn. 1977); Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, 624 N.W.2d 796, 806 (Minn. Ct. App. 2001). In these cases, the courts explicitly considered the effects of noise on the use of property, including the effects on sleep. These courts were not deterred because the areas in issue included human development and thus sounds. The proper measure for quietude in this case is the average quietude in an urban area.

[FN 8] As noted in this Court’s Order Denying Defendants’ Motion to Dismiss: “[P]eople living around MSP have the right to the same quietude as those who live in Blaine, or Eden Prairie, or Woodbury, or other parts of the metropolitan urban area, but not the quietude enjoyed by those who live in remote rural areas such as Blackduck.”

See Alevizos v. Metro. Airports Comm’n of Minneapolis and St. Paul, 216 N.W.2d 651, 663 (Minn. 1974).

The Legislature intended the practical application of MERA to protect the environmental resources throughout Minnesota. It is unreasonable to think that when outside noise is so pervasive that it penetrates through walls, only the outside quietude would be protected. The residents living near MSP are entitled to an indoor escape from the noise that they bear for the benefit of all Minnesotans. Indeed, the Legislature directed a mitigation program in 1996 for that reason.

II. INDOOR QUIETUDE IS BEING POLLUTED AND IMPAIRED

A. The MAC Has Engaged In Conduct That Adversely Affects The Environment.

The first count of Plaintiffs’ complaint alleges that the MAC engaged in the second type of conduct contemplated under MERA’s definition of “pollution, impairment or destruction.” In particular, the complaint alleges that “noise pollution from MSP materially adversely affects the environment by impairing the natural resource of quietude.” The complaint further alleges that the “MAC’s failure and announced intention to continue to fail to implement an adequate noise insulation program in the 60 to 65 DNL will materially adversely affect the environment and fails to minimize the impact of MSP operations on the environment.”

Defendants argue they are entitled to judgment as a matter of law on Count I because Plaintiffs cannot show actionable “conduct” that will “materially adversely affect the environment.”

1. The MAC has engaged in actionable conduct.

The conduct in question is the combination of MSP’s expansion, which increases the noise level in the surrounding communities, and the MAC’s failure to mitigate that noise as they had committed. It is impossible to separate these things when the MAC used the mitigation in order to secure MSP’s expansion in its current location.

Defendants maintain this court lacks the jurisdiction to order relief that would affect airport operations, as federal law preempts all state efforts to affect aircraft operations. Minn. Pub. Lobby v. MAC, 520 N.W.2d 388 (Minn. 1994). They assert Minnesota Public Lobby, unequivocally states that the Noise Control Act of 1972 leaves “no room for local curfews and other local controls” that impinge upon aircraft operations. Id. at 390. Congress intended to preempt state law in the aircraft noise area because state regulation would severely limit the flexibility of FAA in controlling air traffic flow. Id. Defendants assert that since federal law preempts all state laws affecting aircraft operations, the only possible MERA conduct in the Cities’ action is the difference between the noise benefits of the five-decibel noise reduction package that the Cities seek and the noise benefits of the proposed MAC air condition only plan. Defendants argue summary judgment is appropriate because the parties agree that the MAC’s air condition only mitigation will not adversely affect indoor quietude. In fact, it will either improve or have no affect on interior quietude and as a result cannot constitute “pollution, impairment or destruction.”

The MERA remedy Plaintiffs seek—implementation of the proposed and promoted five decibel noise mitigation program—does not impinge upon aircraft operations. In Minnesota Public Lobby, the court held that the relief sought by the plaintiffs would bring the airport into compliance with the relevant noise standard only by “substantially reducing airport operations at MSP, converting the surrounding residential areas to nonresidential uses, or moving the airport.” Id. (emphasis added). Minnesota Public Lobby drives home the point that the type of claim that will be preempted is one that will “substantially impact[] operations at MSP,” or “impinge on aircraft operations,” or “substantially reduce aircraft operations,” or “purport to control aircraft flight” or “impose a curfew on airplane takeoffs.” Id. Here, without affecting airport operations, Plaintiffs seek to mitigate the effects of the noise caused by the expansion of MSP. This Court is not ordering MSP to cease operating. The MAC is not ordered to stop letting planes fly at certain times. It is required to follow through with its commitment to insulate homes in the DNL 60 to 64 contour.

Defendants argue MERA does not give this court the authority to require mitigation for the effects of conduct. They argue in comparison that MERA provides a court with the authority to enjoin a gun club from operating because it is impairing quietude but it does not provide a court with the authority to order the gun club owner to provide residential noise mitigation or to pay damages to nearby homeowners. However, the facts in Defendant’s hypothetical are notably different than the facts presented here because of the preemption issue. It is impossible to enjoin an airport from operating because such action is preempted from federal law. Airports cause intense noise that harms the environment. MERA has a “broad remedial purpose” and is a flexible tool for the protection of that environment. County of Freeborn by Tuveson v. Bryson, 243 N.W.2d 316, 322 (Minn. 1976). The MAC and the Legislature have already determined it is necessary to provide some relief to those affected by noise so loud that it disturbs their daily lives.

2. The MAC’s conduct materially adversely affects the environment.

Noise in the DNL 60 to 64 contours materially adversely affects the environment. The MAC has acknowledged the seriousness of the issue and developed and promoted programs to mitigate the effects of debilitating noise on residents in DNL 60 dB in exchange for expanding MSP in its current location. Specifically, the MAC’s enabling statute; the Legislature’s directive to the MAC in 1996 to develop a program and submit a recommendation on noise mitigation in the DNL 60 dB; the MAC’s 1996 Noise Mitigation Program fulfilling that requirement; the 1998 FEIS—a joint effort between the MAC and the FAA for environmental review by state and federal agencies which adopted the 1996 MSP Noise Mitigation Program; the Metropolitan Council’s conditioned approval of the MAC’s airport expansion expenditures in 2002 on the MAC reaffirming its commitment to provide noise mitigation in the DNL 60 to 64; among other things, are proof that noise mitigation in the DNL 60 plus was deemed “significant,” “materially adverse,” and worthy of protective measures.

At the hearing, Defendants argued that the expansion did not increase the noise in the surrounding communities. They point to the 1998 FEIS which evaluated a no action alternative, that is, no new runway, as opposed to the new runway. The FEIS showed that there would be fewer people in the DNL 60 to 64 contours under the expanded airport than there would have been had the runway not been included. This was true for a short time at best. [FN 9]

[FN 9] The FEIS’s comparison of the noise impacts of the MSP Alternative and no action alternatives was conducted only for the year 2005, soon after the planned opening of the new runway. This allowed no consideration of the potential effects that adding 25% more runway capacity would have in later years when the old airport configuration would no longer be able accommodate all demand. See MAC, Official Statement re: the Series 2005 Bonds at 47 (May 26, 2005) (“Runway 17/35 is being constructed in order to meet future growth in passenger and aircraft activity at the Airport…”); MAC, Talking Points on Richfield at MACC00998 (“MSP 2010 plans include construction of a North/South runway which will provide a 25 percent increase in capacity.”). The FEIS assumed that the number of operations in 2005 would be 2.3% lower for the no action scenario than the MSP Alternative “due to increasing capacity constraints.” FEIS at V-74. The FEIS did look at “sensitivity scenarios” for higher levels of operations up to the year 2020, but did not compare MSP Alternative versus no action conditions. FEIS at App. H. In addition, the 2005 assessment assumed use of the new Runway 17/35 at levels that have not materialized in fact, meaning that more operations are going over Minneapolis and Eagan than assumed. P. Dmytrenko Dep. at 63:2-64:14.

3. MERA is properly construed to regulate airport noise.

Airport noise is sui generis within the subject matter of environmental regulation because of the overwhelming presence of the FAA’s role in promoting aviation and directing interstate commerce. There is no legislative history for MERA and its inclusion of quietude. Thus, it is improbable the authors of MERA anticipated a situation where MERA would be implicated by a negotiated process extending for eleven years, involving three governors, seven legislatures, multiple mayors, city council members, and other interested governmental and non-governmental agencies. Interpretation of MERA must address the circumstances of this unique situation.

MERA establishes that the protection of natural resources is the state’s “paramount concern.” Drabik v. Martz, 451 N.W.2d 893, 896 (Minn. Ct. App. 1990). “[I]t is the duty of the courts to support the legislative goal of protecting our environmental resources.” County of Freeborn by Tuveson v. Bryson, 243 N.W.2d 316, 321 (Minn. 1976). It seems more prudent to read the statute consistently with the policy favoring environmental protection rather than favoring the unlimited power claimed by the Metropolitan Airport Commission to spread and increase noise on its neighbors.

Plaintiffs have established a prima facie case by demonstrating that quietude of residents near MSP is a protectible natural resource that is being impaired in the DNL 60 to 64 contours by the MAC’s operation and development of MSP combined with its failure to provide adequate mitigation. Trial to the Court on any factual disputes remaining as to Count I will be held the week of February 12, 2007. [FN 10] At that time, other appropriate remedies will be addressed in more detail.

[FN 10] It is not clear how the disputed facts affect the resolution of Count I but because the Cities did not move for summary judgment on Count I, the matter will be adressed at the pretrial conference.

B. The MAC Has Created and Violated an Enforceable Environmental Quality Standard.

The second count of Plaintiff’s complaint alleges that the MAC engaged in the first type of conduct contemplated under MERA’s definition of “pollution, impairment or destruction.” MERA is violated when plaintiff can show that “the defendant’s conduct violates” or is likely to violate an “environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit promulgated or issued by” a state regulatory agency. Minn. Stat. § 116B.02, subd. 5. All parties have moved for summary judgment on Count II.

1. The MAC has engaged in actionable conduct.

As discussed above, the conduct in question is the combination of MSP’s expansion together with the MAC’s failure to mitigate the noise caused by the airport as they had repeatedly committed to do from 1996 through 2001.

2. The MAC created and violated an environmental quality standard.

The primary dispute is whether there is a “standard” or “limitation” relating to sound insulation in the DNL 60 to 64 contours that would fall under MERA. MERA does not define the term “standard.” Thus, this Court is asked to define a term in a statute that the Legislature and case law interpreting that statute have in no way made clear, at least to airport noise.

Plaintiffs contend that the 1996 Noise Mitigation Program and 1998 FEIS that incorporated it by reference unambiguously provided that the mitigation to be provided in the DNL 60 to 64 contours was the same five-decibel noise reduction package that was provided to the homes within the DNL 65 plus contours. They argue the MAC’s commitment is the standard and that standard is enforceable because the MAC has a mandatory duty to minimize the impacts of noise pursuant to its own enabling statute, the 1996 Law, as well as both MERA and MEPA.

At the hearing, Defendants argued what was “committed” to in the 1996 Noise Mitigation Program is not an issue this Court needs to address because the legal question is not what the standard is but whether the 1996 Noise Mitigation Program and the 1998 FEIS created a standard.

Defendants argue the 1996 Noise Mitigation Program and the 1998 FEIS cannot create an “environmental quality standard” because they were not promulgated through the MAC and they do not include substantive and enforceable environmental limitations. Kennedy Bldg. Assocs. v. Viacom, Inc., 375 F.3d 731, 743-44 (8th Cir. 2004). Kennedy Bldg. Assocs. construed MERA’s “environmental quality standard” language in the context of compliance to an alleged violation. See Minn. Stat. § 116B.03, subd. 1. As a defense to an alleged violation of an “environmental quality standard,” MERA allows parties to argue that they are acting “pursuant to any environmental quality standard, limitation, rule, order, license…” that MPCA or three other state agencies issue. Id. In Kennedy Bldg. Assocs. the court determined that an environmental quality standard only refers to substantive and enforceable standards. Defendant argues that the reference to “environmental quality standard” in the MERA compliance defense defined in Kennedy Bldg. Assocs. is identical to the language in MERA’s “pollution, impairment, or destruction” definition. Compare Minn. Stat. §116B.03, subd 1 (environmental quality standard compliance defense) with Minn. Stat. §116B.02, subd. 5 (defining “pollution, impairment, or destruction” or natural resources as violation of an environmental standard). Thus, the term should have the same meaning in both statutory provisions—an “environmental quality standard” must be substantive and affirmatively imposed.

Defendants then argue that the only way for the MAC to create a “substantive” standard is for them to promulgate it through their enabling statute. In particular, the MAC’s enabling statute establishes express administrative procedures with which the MAC must comply before promulgating any rule, regulation, or ordinance, including specific public notice and public hearing requirements. Minn. Stat. § 473.608, subds. 17 & 18.

The MAC argues it did not promulgate the 1996 Noise Mitigation Program as a binding ordinance, rule or regulation under its enabling statute; it simply adopted the policy recommendations of the Noise Mitigation Committee. The MAC also argues it did not promulgate the 1998 FEIS as a binding ordinance, rule, or regulation, rather, the FAA and the MAC prepared the FEIS under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370f, and the Minnesota Environmental Policy Act (“MEPA”), Minn. Stat. §§ 116D.01- 11. According to the MAC, the 1998 FEIS merely incorporated and discussed the 1996 Noise Mitigation Program.

Defendants also argue these documents are not substantive and enforceable because the 1996 Noise Mitigation Program was merely a resolution and the FEIS is only an information gathering document. They assert MEPA does not convert mitigation measures outlined in the 1998 FEIS into independently enforceable substantive obligations. See Nat’l Audubon Soc’y v. MPCA, 569 N.W.2d 211, 217 (Minn. Ct. App. 1997) (mitigation measures need not be substantive standards, but must be more than “mere vague statements of good intentions”). The MAC asserts that the project and the mitigation are separate things—that while the MAC may have had a duty to look at project alternatives it had no such duty to review and choose mitigation measures that minimized harm to quietude. Thus, they argue any alleged commitments found in these documents have no substantive effect.

The MAC’s argument is reductionist and selective. A “standard” is less formal than a rule or ordinance and specific promulgation procedures are not necessary to create a standard. Courts have recognized the term “standard” as being one that might have to be tailored to the circumstances of a given case. MERA is “couched in general terms, leaving the agencies the duty of determining precisely what standards will fulfill the environmental policy enunciated by the Legislature.” In re Indep. Spent Fuel Storage Installation, 501 N.W.2d 638, 649 (Minn. App. 1993). In Indep. Spent Fuel Storage Installation, the court directed the Minnesota Public Utilities Commission to “determine the standards that are appropriate under the Minnesota Environmental Rights Act and the Minnesota Environmental Protection Act and apply those standards.” Id. Thus, MERA and its case law contemplate that agencies, like the MAC and the Metropolitan Council, will determine or issue the standards that are appropriate to the circumstances. [FN 11]

[FN 11] Plaintiffs properly cited case law from New Jersey and California supporting their assertion that the term “standard” should be broadly construed. See Citizens for a Better Environment v. Deukmejian, 731 F. Supp. 1448, 1454 (N.D.Cal. 1990) (court determined that a standard under the citizen suit provision of the Clean Air Act, need not be reduced to numerical formulas to be deemed a standard); Borough of Kenilworth v. Dep’t of Transp., 376 A.2d 1266, 1273 (N.J. Super. Ct. App. Div. 1977) (the New Jersey Action Plan procedure for reviewing impacts of highway projects, together with the regulations under which the plan was formulated constituted a “standard” under New Jersey’s Environmental Rights Act).

The mitigation measures discussed in the 1996 Noise Mitigation Program and the 1998 FEIS were far more than vague statements of good intentions. They became substantive environmental quality standards because: (1) they were implemented through formal action of the MAC that involved extensive opportunities for public comment and involvement; (2) they were intended to induce reliance by other government entities and the public; and (3) they were created in response to statutory obligations to minimize the impact of airport noise.

First, the procedures undertaken to adopt the 1996 Noise Mitigation Program and implement the 1998 FEIS were more stringent than the MAC’s express administrative procedures. The same level of process was undertaken to pass the resolution for the 1996 Noise Mitigation Program and for the 1998 FEIS as is required in the MAC’s enabling statute to pass ordinances or regulations, with the exception of the fact that the 1996 resolution was not published in a newspaper as a legal notice and the publication was not reported to the Secretary of State. Minn. Stat. § 473.608, subd. 17. For the FEIS, at least eight public hearings were held, three public comment periods were provided and public notice was given through newspapers, the Federal Register, press releases and press conferences. Except for the word used, “resolution” versus “regulation,” it appears that the procedures for the adoption of these programs or standards, were far more elaborate than the minimum required by the enabling statute.

Second, mitigation measures adopted in the 1996 Noise Mitigation Program and the 1998 FEIS were intended to induce reliance by other government entities and the public. Minneapolis and Eagan commented early in the environmental review process that they would not oppose the expansion and retention of MSP in its current location if mitigation were provided in the DNL 60 to 64 contours. The MAC then committed, inter alia, to expand the insulation program to the DNL 60 contour in the 1996 Noise Mitigation Program and the 1998 FEIS. The MAC further secured commitments from Minneapolis, Bloomington and Richfield not to challenge the expansion of the airport. The MAC also secured federal approval from the FAA on that condition that it implement the 1996 Noise Mitigation Program. It also secured EQB’s approval of the FEIS by repeatedly stressing the commitment to provide “standard sound insulation” to the 60 DNL contour that would exceed the standards of the FAA and Metropolitan Council.

In addition, in March 2002, the Metropolitan Council approved the MAC’s 2002 projects, including the construction of Runway 17-35, contingent on the MAC’s reaffirming its $150 million funding commitment for a full insulation program. The Council’s condition specifically referred to the $150 million commitment identified in the Airline Lease Agreement. The 1999 Airline Lease Agreement explicitly provided the MAC with airline permission to spend $150 million for sound insulation in the DNL 60-65 contours. The Metropolitan Council has also adopted the 60 to 64 DNL contour standard in their Development Guide for 2004. The Transportation Policy Plan within that Guide provides that new development and major redevelopment of existing homes in the DNL 60 to 64 contours is incompatible, even if acoustical treatment were incorporated in the structure and outside uses restricted. In denying the motion to dismiss, this court said, “It should not be easy for public bodies to break commitments on which so many private and public entities have claimed to rely.”

Lastly, the mitigation commitment is substantive because the Legislature explicitly directed the MAC to minimize the effects of its operations on nearby residents and to provide sound insulation to affected residents. [FN 12] Minn. Stat. §§ 473.602; 473.655.

It is the purpose of sections 473.601 to 473.69 to: ... (2) assure the residents of the metropolitan area of the minimum environmental impact from air navigation and transportation, and to that end provide for noise abatement, control of airport area land use, and other protective measures; and (3) promote the overall goals of the state’s environmental policies and minimize the public's exposure to noise and safety hazards around airports.

[FN 12] In addition to arguing that MAC’s enabling statue requires it to provide mitigation, Plaintiffs also argue MERA and MEPA create substantive standards that are binding on the MAC. The farthest this Court can take the Cities’ arguments regarding MERA and MEPA is that the statutes provides some inherent and significant guideline to follow —- that direction being toward environmental protection rather than against it.

It is hereby determined and declared that the purposes of sections 473.601 to 473.679 are public and governmental; ... and that the development, extension, maintenance, and operation of the system in such a manner as to assure the residents of the metropolitan area of the minimum environmental impact from air navigation and transportation, with provisions for noise abatement, control of airport area land use, and other protective measures, is essential to the development of air navigation and transportation in and through this state ...

In 1996, as part of the legislation to conclude the Dual Track Process, the Legislature directed the MAC to consider whether to provide insulation to homes in the 60 to 65. Id. § 473.661 subd. 4(f). In the same legislation, the Legislature directed the MAC to undertake the 2010 capital plan, which was subject to the MAC’s obligations to minimize and mitigate noise impacts. The requirement to proceed with the capital plan must be read in light of the explicit direction from the Legislature in § 473.602 and § 473.655, which require the MAC to implement noise mitigation in the DNL 60-65 contours if necessary to minimize noise impacts and if feasible. Through the sound insulation commitments in the 1996 Noise Mitigation Program and the 1998 FEIS, the MAC established the minimum standards for meeting these statutory requirements. Had the MAC not been under a statutory duty to provide this insulation in the DNL 60-65, its implementation of the 1996 Noise Program would have been in excess of its authority. The MAC’s general authority does not provide it with general authority to insulate residences apart from its obligations to provide necessary mitigation. The noise mitigation program was by definition a legal requirement and not a gratuitous gesture capable of being withdrawn upon change of mind. [FN 13]

[FN 13] To rule otherwise would approve a massive public ‘bait and switch’ on the homeowners and the affected cities.

Further, the only package that was contemplated before 2001 was the five decibel reduction package. The MAC “committed” in the 1996 Noise Mitigation Program that “the program be expanded after completion of the current program to incorporate the area encompassed by the 2005 60 DNL.” (emphasis added). The MAC’s use of the definite article “the” denoted that it contemplated expanding “the residential sound insulation program” for the 65+ contours to the 60 to 64 DNL contours. The only excuse for non-compliance with the mitigation was if the MAC’s bond rating slipped below “A”.

There is nothing in the 1996 Noise Mitigation Program or in the Committee minutes or materials that identified anything other than a five-decibel reduction package, except in contours below the DNL 60. The Noise Mitigation Program addressed a “modified program” in the 54 plus DNL contour that was deleted from the program’s final adoption in 1996. Nowhere is the term “modified program” used except when addressing the 54-decibel program.

The fact that the MAC adopted a $150 million figure is also persuasive. The cost estimate for completing the sound insulation package in the 60 to 64 was essentially the same as the estimate for the package in the 65 and higher. The program characterizes these costs as an estimate of the total cost, not a range of costs based on different packages or a high estimate based on the most expansive package. From everybody’s perspective, the 60 to 64 program was supposed to be identical to the 65 dB and up program.

The MAC’s commitments to provide the five decibel reduction package fit within MERA’s call for adherence to any “environmental standard, limitation, rule, order, license, stipulation agreement, or permit.” It created a standard.

3. Now that the MAC has built its project, it cannot rescind the standard.

The MAC contends that, even if it issued a standard, it changed that standard in 2001, 2002, and again in 2004. Minnesota courts expressly recognize the right of an administrative agency such as the MAC to reconsider its decisions. Turnbladh v. Dist. Court, 107 N.W.2d 307, 312 (Minn. 1960). In August 2001, after receiving extensive public input, the MAC passed a mitigation recommendation for homes in the projected 2005 60 to 64 DNL contours subject to a budget of $150 million. The MAC passed a different mitigation program again in April 2002, when it recommended a five decibel mitigation package for homes in the projected 2005 64 and 63 DNL contours, as well as testing to determine if a mechanical package was necessary to meet the 45 DNL interior noise level for homes in the projected 2005 60 to 62 DNL contours. Finally, the MAC passed yet another mitigation program in July 2004 when it recommended the mechanical mitigation package for homes in the projected 2007 60 to 64 DNL contours.

In short, Defendants argue even if a sequence of events could constitute an environmental quality “standard” or “limitation” in 1996, the MAC changed that “standard” or “limitation” three times between 2001 and the end of 2004. Each time, the MAC held public Committee and full Commission meetings at which it discussed the technical and financial merits of a variety of mitigation options in the 60 to 64 DNL contours. After considering the mitigation options set forth, the MAC determined in November 2004 that the proposed mechanical mitigation package would allow homeowners within the 60 to 64 DNL contours to meet the interior noise target of 45 DNL. [FN 14] The public process between 2001 and 2004 was similar to the public process involved in the development of the 1996 Noise Mitigation Program and the consideration of the 1998 FEIS.

[FN 14] Neither the 1998 FEIS nor the 1996 Noise Mitigation Program relied upon the 45db threshold. MAC asserted in these documents that it was going beyond the threshold. Moreover, if the MAC followed the indoor quietude in the 45 DNL there would be no mitigation. If it was MAC’s goal to be at 45 decibels than a program in the 60 to 64 range would be unnecessary.

[FN 15] Even without MERA, the cities may have a claim for equitable estoppel. See County School Board of Henrico County Virginia v. RT, 433 F. Supp.2d 692, 707-08 (E.D.Va. 2006).

III. PLAINTIFFS’ CLAIMS ARE NOT CONTRACT CLAIMS AND ARE ENFORCEABLE UNDER MERA.

Defendants argue the Cities’ causes of action attempt to enforce the MAC’s purported promise or “commitments” to implement a five decibel noise reduction package for the residents in the 60 to 64 DNL contours. Defendants further argue that because MERA does not provide a cause of action for claims that arise from the alleged impaired use of the property, diminution in value, and breach of contract, this Court should grant summary judgment on all Plaintiffs’ MERA claims.

Plaintiff's MERA claims are not using MERA to enforce a contract. Plaintiffs MERA claims seek enforcement of (1) the general provisions of MERA protecting against the quietude within the State of Minnesota, and (2) a specific environmental standard that was created in a regulatory context and is enforceable through MERA.

This Court has already found Plaintiffs’ claims to be based on MERA in its order denying Defendants’ motion to dismiss.

[T]he legislature by MERA has declared quietude to be a protectible resource, and charged MAC with the duty of ensuring that it is a good neighbor as to noise. If no one else can set a standard for noise around the airport, but MAC has done so by its official actions surrounding the DNL 60 dB standard, then it is reasonable to see if MAC, as operator, has met the demand of MAC, as regulator, of airport noise.

The Cities seek injunctive relief and not damages. The relief sought is that which will prevent or reduce future injury from the MAC’s activities rather than compensate the plaintiffs for past injuries or reduction in property value. None of the Cities will receive any money from the MAC, instead they will receive protection from the MAC’s impairment of the environment that they live in.

Plaintiffs assert claims that are enforceable under MERA.

IV. THE MAC IS REQUIRED TO IMPLEMENT THE FIVE DECIBEL PACKAGE PURSUANT TO ITS ENABLING STATUTE.

A court may issue a writ of mandamus “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” Minn. Stat. § 586.01. A writ of mandamus may issue only if a statute or regulation imposes a clear and unequivocal duty to act in the precise manner the party seeking the writ requests. State v. Wilson, 632 N.W.2d 225, 227 (Minn. 2001).

The same standards identified with regard to Count II of the Complaint constitute mandatory duties for purposes of the mandamus statute. The MAC’s duties may have been ambiguous before, but with this court’s declarations, its duty is now clear. The MAC must be given a reasonable opportunity to fulfill that duty. Thus, the mandamus claim at this time is premature. The Court reserves ruling on Count III.

The issues in the instant case are complex. Many of the arguments have never been addressed by Minnesota case law. A full record is required to insure any appellate courts have a full record for consideration. [FN 16]

[FN 16] Given that the ultimate decision here will involve policy determinations needed to resolve legislative ambiguity, a direct appeal to the Supreme Court may be apt.

The Cities’ partial motion for summary judgment is hereby granted.

SCA