STATE OF MINNESOTA DISTRICT COURT

COUNTY OF JACKSON FIFTH JUDICIAL DISTRICT

CASE TYPE: Other

State of Minnesota, by Jackson Court File No. 32-CV-10-113

Preservation Alliance,
MEMORANDUM IN OPPOSITION TO
Plaintiff, PLAINTIFF’S REQUEST FOR A TEMPORARY
INJUNCTION AND, IN THE ALTERVATIVE,
v. IN SUPPORT OF AN INCREASE IN
THE BOND AMOUNT
Jackson County, a political subdivision
of the State of Minnesota,

Defendant.

INTRODUCTION

Plaintiff seeks a temporary injunction in order to prevent Defendant Jackson

County (“County”) from demolishing the 1938 Jackson Resource Center building and

constructing a new 10,000 square foot County Services building in its place. Plaintiff

asserts that the 1938 building is a historic resource entitled to protection under the

Minnesota Environmental Rights Act (“MERA”). However, the County has

appropriately determined that no feasible and prudent alternatives to the proposed and

needed project exist. Therefore, the temporary injunction request should be denied.

FACTS

The Resource Center building is located in Jackson, Minnesota. It was built in

1938, and additions were constructed in 1962, 1975, and 1981. The Resource Center
building is owned by Jackson County. The testimony to be presented at the November

30, 2010, hearing will demonstrate that between 2002 and 2010, the Jackson County

Board commissioned a number of different studies of the County’s facilities and the

County’s space needs with special emphasis on possible reuses and costs of renovation of

the 1938 Building. These included studies by professional consultants, a joint committee,

and a citizens’ committee.

On July 27, 2010, the County Board authorized construction of a new 10,000

square foot County Services building at the site of the Resource Center where the 1938

building stands at a budget not to exceed $2.5 million. Asbestos needed to be removed

from the 1938 building prior to demolition. On September 14, 2010, the County Board

awarded a contract for asbestos abatement work and entered into a contract for asbestos

removal. The asbestos abatement work is complete.

Demolition bids were solicited by advertisements in September and October 2010.

Bids were submitted on October 21, 2010. Bids are valid, per the terms of the bid

solicitation, for 45 days, or until December 5, 2010. Though the schedule contemplated

that a demolition contract would be awarded on October 26, 2010, and demolition work

would promptly commence, the Board refrained from an award due to this pending

litigation.

On November 5, 2010, this Court granted a temporary restraining order enjoining

demolition of the 1938 Building. This Court required the posting of a $25,000 bond and

reserved the right to increase that bond at the November 30, 2010 temporary injunction

hearing.

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 ARGUMENT

I. PLAINTIFF’S REQUEST FOR A TEMPORARY INJUNCTION

SHOULD BE DENIED

A. The County Has Appropriately Determined no Feasible and Prudent

Alternatives to Demolition Exist.

The temporary injunction request should be denied because the County has

appropriately determined that no feasible and prudent alternatives to the demolition of

Resource Center building exist. As such, the County has established an affirmative

defense under the applicable environmental statute, and therefore Plaintiff will not

succeed on the merits of its action.

1. The Law
The Minnesota Environmental Rights Act (“MERA”) provides that a Defendant

may show, by way of an affirmative defense to a MERA claim, “that there is no feasible

and prudent alternative and the conduct at issue is consistent with and reasonably

required for promotion of the public health, safety, and welfare . . .” Minn. Stat. §

116B.04 (2010).1

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The affirmative defense under MERA requires defendants to demonstrate: 1) that there is no
feasible and prudent alternative; and 2) that the conduct at issue is consistent with and reasonably
required for promotion of the public health, safety, and welfare in light of the state’s paramount
concern for the protection of its air, water, land, and other natural resources from pollution,
impairment, or destruction. Minn. Stat. § 116B.04 (West 2010).

No court decision under MERA has concluded that a proposed project has met the first
requirement, that there be no feasible and prudent alternatives, but failed the second requirement
regarding the public health, safety, and welfare. In this case, the exhaustive process employed
by the County clearly demonstrates that its goal in this project was to make a decision in regard
to the Resource Center building in a manner that is consistent with public health, safety, and
welfare interests.

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 Minnesota Courts have recognized that this affirmative defense and the phrase

“feasible and prudent alternatives” originated from federal environmental statutes. See,

e.g., County of Freeborn v. Bryson, 243 N.W.2d 316, 320 (Minn. 1976); Archabal v.

County of Hennepin, 495 N.W.2d 416, 423 (Minn. 1993). Case law indicates that

Minnesota Courts have expressly adopted the interpretation and construction of the

phrase “feasible and prudent alternatives” given by federal courts interpreting federal

law, particularly Section 4(f) of the Department of Transportation Act. Bryson, 243

N.W.2d at 320; Archabal, 495 N.W.2d at 423.

The Supreme Court first discussed and interpreted the phrase “feasible and

prudent alternatives” in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

(1971) [hereinafter “Overton Park”]. The Court interpreted this phrase narrowly, holding

that the Secretary of Transportation cannot approve a project using Section 4(f) “unless

he finds that alternative routes present unique problems.” Id. at 413 (emphasis added).

The Court further described this standard as requiring “truly unusual factors present in a

particular case or the cost of community disruption resulting from alterative routes [to]

reach[] extraordinary magnitudes.” Id. Applying this standard to the facts of Overton

Park, the Court held that the Secretary of Transportation had failed to meet the

appropriate burden and remanded the case to the District Court for further review of the

record. Id. at 420.

More recently, in Hickory Neighborhood Defense League v. Skinner, the Fourth

Circuit affirmed the denial of injunctive relief sought by Plaintiff, who sought to enjoin a

road construction project. 910 F.2d 159, 161 (4th Cir. 1990) [hereinafter “Hickory

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League”]. Plaintiffs alleged that they were entitled to an injunction because the Secretary

of Transportation’s Section 4(f) evaluation did not expressly indicate a finding of “unique

problems,” which they argued was required under Overton Park. Id. at 162-63. The

Hickory League court recognized that Overton Park was controlling, however, the court

agreed with the interpretation employed by the Seventh Circuit: that the Supreme Court

“used the term ‘unique’ in Overton Park for emphasis, not as a substitute for the statutory

term ‘prudent.’” Id. at 162-63 (citing Eagle Found., Inc. v. Dole, 813 F.2d 798, 804-05

(7th Cir. 1987)).

In analyzing whether the determination that no feasible and prudent alternatives

existed was proper, the Hickory League court held that it is not necessary for the

Secretary of Transportation to show that any one single factor “presents unique

problems.” Id. at 163. Rather, the court followed the reasoning of the Seventh Circuit,

that “[a] prudent judgment by an agency is one that takes into account everything

important that matters. A cumulation (sic.) of small problems may add up to a sufficient

reason to use § 4(f) lands.” Id. (quoting Eagle Found., Inc., 813 F.2d at 805).

Turning this analysis to the proposed construction project at issue, the Hickory

League court held that the alternatives were properly rejected as imprudent. Id. at 164.

Each of the proposed alternatives either caused “operational difficulties,” or failed to

meet the needs and objectives of the project. Id. (citing Ringsred v. Dole, 828 F.2d 1300,

1304 (8th Cir. 1987) (holding that an alternative is imprudent when it fails to meet one of

the project’s main objectives); Druid Hills Civic Ass’n, Inc. v. Federah Highway Admin.,

772 F.2d 700, 715 (11th Cir. 1985) (holding that alternative is imprudent if it fails to

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fulfill the needs of a project)). The court concluded: “[A]pplying the rule of reason and

practicality, we are persuaded that the Secretary complied with the mandates of Section 4

(f).” Id. (emphasis added).

Similarly, the District Court for the Southern District of New York has recently

discussed the factors that are relevant in a Section 4(f) analysis. See Concerned Citizens

of Chappaqua v. U.S. Dep’t of Transp., 579 F.Supp.2d 427 (S.D.N.Y. 2008) [hereinafter

“Chappaqua”]. The Plaintiff in Chappaqua sought to enjoin the New York and U.S.

Departments of Transportation from felling any trees during the planned “demolition and

reconstruction” of a historic bridge. Id. at 429. The agencies evaluated three general

proposals: 1) no action; 2) repair and rehabilitation; and 3) replacement. Id. at 420.

The court recognized that, as interpreted by the Supreme Court, the term ‘feasible’

means “capable of development through sound engineering,” and the term ‘prudent’

“involves a common sense balancing of practical concerns.” Id. at 437 (quoting Overton

Park, 401 U.S. at 411). The court further held: “An agency may reject feasible

alternatives as imprudent based on a wide variety of factors, including cost, traffic

considerations, and failure to meet project objectives.” Id. (citing Monroe County

Conservation Council, Inc. v. Adams, 566 F.2d 419, 423-25 (2nd Cir. 1977)) (emphasis

added).

Applying these factors, the Chappaqua court held that each of the proposed

alternatives to the project was properly rejected as either infeasible or imprudent. Id.

Specifically, the “no action” and the rehabilitation options were properly rejected as

imprudent because they failed to meet the project’s objectives. Id. (citing Citizens

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Against Burlington, Inc. v. Busey, 938 F.2d 190, 203 (D.C. Cir. 1991) (stating “case law

uniformly holds that an alternative is imprudent” under § 4(f) if it fails to meet the needs

of a project). The specific objectives of the Chappaqua project included: providing a

safe, non-deficient structural condition for more than 30 years and minimizing

maintenance and repair. Id.

Since Overton Park (and Archabal) was decided, Congress, the Department of

Transportation, and the federal courts have refined the factors to be considered and the

conceptual analysis to be employed regarding whether “feasible and prudent alternatives”

exist. See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy

for Users or “SAFETEA-LU”, Pub. L. No. 109-59, § 6009(b), 119 Stat. 1144, 1876-77

(2005) (Congress instructed the Secretary of Transportation to “promulgate regulations

that clarify the factors to be considered and the standards to be applied in determining the

prudence and feasibility of alternatives”); 23 C.F.R. § 774.17 (Federal Regulations

promulgated by the Department of Transportation regarding the definition of “feasible

and prudent alternatives”); Citizens for Smart Growth v. Peters, 716 F.Supp.2d 1215,

1231-32 (S.D. Fla., 2010) (federal case decided May 3, 2010, recognizing that the

Federal Regulations are the appropriate source for guidance regarding when an

alternative is feasible and prudent). In accordance with this directive, the Department of

Transportation promulgated regulations clarifying and defining the appropriate factors.

Id. (citing 23 C.F.R. § 774.17). See also 73 Fed.Reg. 13368 (March. 12, 2008). The

updated regulations provide:

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 Feasible and prudent avoidance alternative.
(1) A feasible and prudent avoidance alternative avoids using Section 4(f)
property and does not cause other severe problems of a magnitude that
substantially outweighs the importance of protecting the Section 4(f) property. In
assessing the importance of protecting the Section 4(f) property, it is appropriate
to consider the relative value of the resource to the preservation purpose of the
statute.
(2) An alternative is not feasible if it cannot be built as a matter of sound
engineering judgment.
(3) An alternative is not prudent if:
(i) It compromises the project to a degree that it is unreasonable to
proceed with the project in light of its stated purpose and need;
(ii) It results in unacceptable safety or operational problems;
(iii) After reasonable mitigation, it still causes:
(A) Severe social, economic, or environmental impacts;
(B) Severe disruption to established communities;
(C) Severe disproportionate impacts to minority or low income
populations; or
(D) Severe impacts to environmental resources protected under other
Federal statutes;
(iv) It results in additional construction, maintenance, or
operational costs of an extraordinary magnitude;
(v) It causes other unique problems or unusual factors; or
(vi) It involves multiple factors in paragraphs (3)(i) through (3)(v)
of this definition, that while individually minor, cumulatively
cause unique problems or impacts of extraordinary magnitude.

23 C.F.R. § 774.17 (2010).

Very recently, in Citizens for Smart Growth v. Peters, Plaintiffs sought to enjoin a

proposed bridge improvement project in Florida, arguing that government did not

appropriately consider feasible and prudent alternatives to the project. 716 F.Supp.2d at

1219-20. The Department of Transportation examined seven (7) different alternative

corridors utilizing a multi-factor scoring matrix. Id. The matrix included considerations

of: “cost factors, traffic service factors, engineering factors, environmental factors such as

noise, air quality, wetlands impact, endangered species impact, and potential

contamination sites, and socio-economic factors such as public opinion, Section 4(f)

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impacts, economic impacts, future development, sustainability, and community

cohesion.” Id. at 1220.

Applying the factors for consideration outlined in the federal regulations, the

Peters court held that all alternatives were imprudent based upon the factors included in

the matrix. The court found that the matrix demonstrated that the alternatives were not

prudent because they “did not meet the purpose and need of the project.” Id. at 1232-34.

As such, the court held that “the cumulative factors of disruption to established

communities, additional construction and maintenance costs, and social and economic

impacts” were appropriate bases for rejecting alternatives as imprudent. Id. at 1233.

The cases discussed above show the evolution of the “feasible and prudent”

standard from Overton Park, which was decided in 1971, until the present. This history is

important to the issue at bar because Minnesota precedent, particularly Archabal v.

Hennepin County, 495 N.W.2d 416 (Minn. 1993), was decided prior to Congress

directing the Secretary of Transportation to promulgate more specific regulations, and

prior to the refinement of the notions of prudence by the courts.

In Archabal, the Plaintiffs sought to permanently enjoin Hennepin County from

demolishing the Minneapolis Armory building so that a new jail could be built. 405

N.W.2d at 417. The Armory building was built in 1935, and is on the National Register

of Historic Places. Id. at 418. Hennepin County and the City of Minneapolis sought to

build a new jail due to severe overcrowding in the old building. Id. The county

empaneled committees to examine the project. Id. These committees identified a

number of alternative locations, including the Armory site. Id. In 1990, the Public

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Safety Facility Policy Committee concluded that there was no “perfect” site, and that

each proposed location would meet some sort of opposition. Id. The Policy Committee

indicated a preference for the Armory location, but also noted that other sites would meet

the varied criteria used in site evaluation. Id.

The Minnesota Supreme Court in Archabal noted that the affirmative defense

under MERA “is apparently derived from Federal environmental law,” and therefore

expressly followed the decision of the United States Supreme Court in Overton Park. Id.

at 423. Applying the strict standard outlined in Overton Park, the court held that the

defendants failed to establish that there were no feasible and prudent alternatives to

demolishing the Armory building. Id. at 423-426. Specifically, the court stated “it

cannot be said that there is no feasible and prudent alternative, particularly when the

county’s own Task Force could itself not find one site that was clearly advantageous over

others it considered.” Id. at 423.

The court concluded: “It may well be true that the use of the Armory site may be

more convenient, indeed may be more efficient than alternative more remote sites, but

that is simply not enough under MERA and our cases. Nothing in the reasons cited, nor

the evidence underlying them, rises to the level of ‘truly unusual factors’ or ‘community

disruption of extraordinary magnitude.’” Id. at 426.

It is clear from the use of phrases such as “truly unusual factors” and “community

disruption of extraordinary magnitude” that the Archabal court was heavily influenced by

the language and rationale of Overton Park. But, as discussed herein, notions of

“feasible” and “prudent” alternatives have changed since 1971.

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 In a more recent unpublished case, attached hereto, the Minnesota Court of

Appeals demonstrated that Minnesota courts remain influenced by decisions of federal

courts interpreting the phrase “feasible and prudent.” See Friends of the Riverfront v.

DeLaSalle High School, No. A06-2222, 2007 WL 4110617 (Minn. Ct. App., Nov. 20,

2007) [hereinafter “DeLaSalle”].

DeLaSalle involved the proposed construction of an athletic facility on Nicollet

Island, where DeLaSalle High School has been located since 1898. Id. at *1.

Plaintiffs/Relators unsuccessfully sought to enjoin the project under MERA. Id. The

Court of Appeals held that the project proposer was not required to consider or evaluate

alternatives that were inconsistent with the stated goals of the project. Id. at *6 (citing

Mayo Found. V. Surface Transp. Bd., 472 F.3d 545, 550 (8th Cir. 2006)). In the case of

DeLaSalle, the project was “by definition an adjacent athletic facility with locker rooms,

concession stands, and lighting consistent with such a facility.” Id. Because the project

involved the building of an adjacent facility, the city was not required to consider any

proposed off-site alternatives because they were inconsistent with the purpose and

objective of the project. Id.

Looking to the on-site alternatives, the DeLaSalle court held that the proposer did

not act arbitrarily or capriciously in its determination that there were no prudent or

feasible alternatives when the on-site alternatives raised potential safety, access, and

economic issues. Id. at *7. This analysis is consistent with the “accumulation of factors”

approach discussed in Hickory League, Peters, and the updated federal regulations.

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 The DeLaSalle court noted that the Plaintiffs/Relators relied heavily upon

Archabal, arguing that the city and the school could not reject alternatives located off-

site. Id. at *7. The court noted, however, that Archabal was factually distinguishable. Id.

The court concluded: “Although Archabal’s emphases on the potency of MERA in

the protection of historic resources is instructive, we do not read the case to require the

city in this case to consider project sites that are not adjacent to DeLaSalle.” Id.

(emphasis added). This passage demonstrates the importance of the purposes and

objectives of a project when selecting and evaluating alternatives in order to determine

whether they are, in fact, feasible and prudent.

2. The present case is distinguishable from Archabal, both legally and

factually.

As discussed in detail above, Minnesota precedent interpreting and applying

MERA relies upon outdated interpretations of the relevant factors that are to be

considered when determining whether “feasible and prudent alternatives” exist. As such,

the case at bar is distinguishable from Archabal, both legally and factually.

i. Archabal is legally distinguishable

There have been numerous significant changes to the interpretation of the phrase

“feasible and prudent” since Archabal was decided in 1993, as demonstrated by the

federal cases, statutes, and federal regulations discussed and analyzed above. Each of the

selected cases demonstrates a step away from the rigid, narrow standard expounded in

Overton Park.

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 For example, Hickory League validates the position that an accumulation of

problems with a particular alternative, or with all of the alternatives, is sufficient to

establish that no feasible and prudent alternatives exist. See Hickory League, 910 F.2d at

165. Hickory League also recognizes that factors such as operational difficulties, flow of

traffic, and the ultimate needs and objectives of a particular project are appropriate

standards by which to compare alternatives. Id. at 163-64. The role of the courts,

according to Hickory League, is to apply “the rule of reason and practicality.”

Similarly, Chappaqua represents another step in the ongoing development of the

“feasible and prudent” standard. The Chappaqua court recognized that a governmental

entity can rely on a wide array of factors, “including cost, traffic considerations, safety,

traveler convenience, and failure to meet project objectives,” when analyzing and

considering alternatives. 579 F.Supp.2d at 437. As importantly, Chappaqua also

recognizes the well-established rule that alternatives which fail to meet the purposes of a

particular project are, “by definition,” imprudent. Id. (quoting City of Bridgeton v.

F.A.A., 212 F.3d 488, 461 (8th Cir. 2000)).

Finally, and most illustrative, is the fact that Congress expressly indicated concern

with the manner in which courts had been interpreting “feasible and prudent alternatives”

after Overton Park. This caused Congress to instruct the Secretary of Transportation to

promulgate new regulations, including a multi-factor balancing test, to guide and assist

the evaluation of “feasible and prudent alternatives.” Peters demonstrates that as recently

as May 3, 2010, federal courts have recognized the significance of the newly

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promulgated regulations and have relied upon them for guidance in applying the

standards of “feasibility” and “prudence”. 716 F.Supp.2d at 1231-32.

In short, it is clear that the analysis and factors to take into consideration when

determining whether there are any feasible and prudent alternatives has changed since

Archabal was decided. Therefore, Archabal is legally distinguishable from the case at

bar because it relied upon an outdated narrow interpretation of what constitutes “feasible

and prudent alternatives,” as well as what factors are relevant to that analysis.

ii. Archabal is factually distinguishable

Archabal is also distinguishable from the present case on its facts. In Archabal,

the studies and evaluations conducted by Hennepin County did not conclude that the

Armory site was preferable to any of the alternatives. In fact, the studies concluded that

it would be far costlier to build the new jail at the Armory site and would create further

difficulties if the facility needed to be expanded in the future. Nowhere in the studies

done by the County was it suggested that the alternatives were consistent with or met the

purposes and objectives of the project.

In contrast, the evidence will show that in the present case all of the professional

consultants, joint committees, and citizen’s committees not only concluded that the

demolition of the Resource Center was the preferred course of action, but also determined

none of the alternatives were prudent. This was a very extensive and public process,

lasting more than eight years. Plaintiff (and the public) had many opportunities to

14
participate in the process. Their ideas and opinions regarding the project were taken into

consideration and evaluated side by side with all other alternatives. Unlike in Archabal,

all of the evaluations in the present case concluded that the proposed demolition was the

preferred route, and that alternatives were imprudent.

B. Plaintiff Has Failed to Demonstrate Entitlement to a Temporary

Injunction.

1. Standards for a Temporary Injunction

Injunctive relief by its nature is an extraordinary equitable remedy. Miller v.

Foley, 317 N.W.2d 710 (Minn. 1982). Because temporary injunctive relief is granted

prior to a trial on the merits, “it should be granted only when it is clear that the rights of a

party will be irreparably injured before a trial on the merits is held.” Id. at 712. As the

Minnesota Supreme Court has explained:

Great caution and deliberation must be exercised by the trial court in the
granting of an interlocutory injunction since the injunctive process is the
strong arm of equity.

Injunctive relief should be awarded only in clear cases, reasonably free from
doubt, and when necessary to prevent great and irreparable injury.

AMF Pinspotters, Inc. v. Harkins Bowling, Inc., 260 Minn. 499, 110 N.W.2d 348, 351

(1961). The party seeking injunctive relief bears the burden of showing that sufficient

grounds exist. Id.; Minn. R. Civ. P. 65.02. In Dahlberg Bros., Inc. v. Ford Motor Co.,

272 Minn. 264, 137 N.W.2d 314 (1965), the Minnesota Supreme Court specified the

following five factors that must be shown to weigh in a plaintiff’s favor before a

temporary injunction may be ordered:

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1. The nature and background of the relationship between the parties
before the dispute giving rise to the request for relief;

2. The likelihood that the moving party will prevail on the merits;

3. The moving party’s harm if the injunction is denied compared to the

harm to the nonmoving party if the injunction is granted;

4. The public policy considerations triggered by the fact situation; and

5. The administrative burdens involved in judicial supervision or

enforcement of the temporary injunction.

137 N.W.2d at 321-22. Considering the above standards leads to one conclusion: a

temporary injunction continuing to restrain the County from pursuing demolition of the

Resource Center building should not be issued in this case.

i. The nature and background of the relationship between the parties

before the dispute weighs in favor of the County

Plaintiff is allegedly composed of citizens of Jackson County seeking input and

intervention in the demolition process. The County conducted extensive and public

processes over eight years, and engaged citizens in the analysis of alternatives to

demolition. Plaintiff, through its members, had opportunities to and did participate in

these processes. At the November 5, 2010, temporary restraining order hearing, the

Court indicated on the Record that this factor favored the County. It still favors the

County.

ii. Plaintiff is not likely to succeed on the merits of its claim

The County has appropriately determined that no feasible and prudent alternatives

to the demolition of the Resource Center building exist, as is discussed in great detail in

this memorandum and will be discussed on November 30, 2010. As such, the County has

16
established the affirmative defense provided by MERA, and therefore Plaintiff will not

succeed on the merits of its claim. The County, through professional consultants, a joint

committee, and a citizens’ committee, conducted a detailed evaluation of the various

alternatives to demolition. Each of these alternatives was compared to objective criteria,

and it was determined that all of the alternatives were imprudent based upon the object

and goals of the project. None of the alternatives that included reuse of the 1938

Building met the purposes and objectives of the project: new housing for the Human

Services Department that would be functional, efficient, secure, accessible, private,

flexible, and cost-effective.

This is consistent with MERA, which provides that economic considerations

“alone” shall not constitute a defense. Minn. Stat. § 116B.04. However, Minnesota

Courts recognize that state agencies and courts are required by law to consider both

economic impact and environmental impact. Reserve Min. Co. v. Herbst, 256 N.W.2d

808, 841 (Minn. 1977) (citing MERA, Minn. Stat. § 116B.04). The language of MERA

itself merely states that economic considerations cannot be the sole basis for concluding

that an alternative is not feasible and prudent. Here, the County has evaluated each

alternative based upon numerous non-economic and economic factors and concluded that

none of the alternatives are feasible and prudent, and are inconsistent with the objectives

of the project.

iii. Public policy considerations do not favor a temporary injunction

“Public policy considerations” refer to what is in the “public interest.” See 2A

Minnesota Practice, § 65.14, p. 178. The economics and viability of reuse have been

17
exhaustively studied in very public processes. In difficult budget times, public policy

does not support the draining of public coffers to preserve a late effort at saving an old

building. On the other hand, Plaintiff has to date failed to offer any evidence that an

economically viable market use exists for the Resource Center building, despite the

County’s eight years of study, and its own conclusion that no such use exists. Plaintiff is

a small group of residents who support historic preservation. Allowing the project to go

forward will provided needed space for the County Human Services Department allowing

the Department to function efficiently and effectively in providing services to the most

needy citizens. A new Human Services building is in the public interest.

II. IF A TEMPORARY INJUNCTION IS GRANTED, THE BOND

SHOULD BE INCREASED

Pursuant to MERA, the amount of the bond in this case should be “sufficient to

indemnify the [County] for damages suffered because of the temporary relief, if

permanent relief is not granted.” Minn. Stat. § 116B.07. Likewise, Rule 65.03(a) of the

Minnesota Rules of Civil Procedure indicates that the amount of the bond should be

sufficient to cover damages that the restrained party “may” suffer.

Additionally, Minnesota Statutes section 562.02 allows the County to seek an

order requiring the Plaintiff to file a surety bond in an amount sufficient to cover “any

loss or damage which “may” be caused to the [County] or taxpayers by such delay . . .”

Minn. Stat. § 562.02 (2010). The purpose of this statute is to obtain security in order to

protect against any loss to taxpayers caused by any delay resulting from an injunction

18
involving a public project. See Gram v. Village of Shoreview, 106 N.W.2d 553, 559

(Minn. 1960).

Minnesota Courts have held that “[t]he bond amount represents a prospective view

of damages and not a determination of actual damages.” Eide v. Bierbaum, 472

N.W.2d 193, 194 (Minn. Ct. App. 1991) (emphasis added). In regard to the amount of

the bond, courts have stated: “Security should be set in an amount which will insure

compensation to the party harmed by the erroneous issuance of an injunction.” Bioline,

Inc. v. Wilfley, 366 N.W.2d 662, 665 (Minn. Ct. App. 1985).

The $25,000 bond currently posted is insufficient to compensate the County and

its taxpayers for the damages that will accrue if permanent injunctive relief is denied.

This court indicated at the November 5, 2010, temporary restraining order hearing it was

“speculative” to believe the project costs would increase based on the onset of winter and

the incurrence of winter construction costs. At this point, it is no longer speculation that

winter is upon us and that the delay caused by this action will increase the costs of the

project.

Additionally, the bids that were received by the County are only valid until

December 5, 2010. After that, the County will need to re-solicit bids. Evidence at the

November 30, 2010, hearing will demonstrate that it is unlikely that the bids will remain

the same the second time around. The contractors will be required to figure winter

construction costs into the calculation of their bids, which will likely increase the bids.

Additionally, the lowest bid submitted to the County on October 21, 2010, was

substantially lower than its competitors.

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 Finally, Minnesota Courts have held that attorney’s fees for defending a motion

for a temporary injunction are recoverable from an injunction bond if it is determined that

the injunction was erroneously issued. See Newmech Companies, Inc. v. ISD # 206, 556

N.W.2d 22, 24 (Minn. Ct. App. 1997) (citing Lamb v. Shaw, 45 N.W. 1134, 1135 (Minn.

1902)). Courts have similarly held in situations like here, “where the sole purpose of [an]

action is to obtain a permanent injunction counsel fees incurred in defending the main

action are by like good authority damages within the term of the injunction bond.”

Pelkey v. Nat’l Surety Co., 173 N.W. 435, 436 (Minn. 1919). As such, the injunction

bond should be increased to reflect the prospective damages that will occur as a result of

an erroneous injunction.

CONCLUSION

For all the reasons set forth herein, a temporary injunction should not be issued.

In the event it is issued, an increase in the bond amount should be required as will be

more fully presented at the November 30, 2010 hearing.

RATWIK, ROSZAK & MALONEY, P.A.

Dated:_________________________
By:_________________________________
Jay T. Squires
Attorney Reg. No. 204699
Timothy A. Sullivan
Attorney Reg. No. 391526
300 U.S. Trust Building
730 Second Avenue South
Minneapolis, MN 55402
(612) 339-0060

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 ATTORNEYS FOR DEFENDANT
RRM: #147142

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