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STATE OF MINNESOTA IN COURT OF APPEALS A10-1025 State of Minnesota ex rel. Swan Lake Area Wildlife Association, relator, Appellant, vs. Nicollet County Board of County Commissioners, Respondent, vs. Marlin Fitzner, et al., intervenors, Respondents, vs. Minnesota Department of Natural Resources, third party defendant, Respondent. Filed May 23, 2011 Affirmed Johnson, Chief Judge Nicollet County District Court File No. 52-C5-03-000445

William G. Peterson, Peterson Law Office, P.A., Bloomington, Minnesota, and Garry D. Barnett, Barnett Law, Ltd., Mankato, Minnesota (for appellant) Scott T. Anderson, Scott E. Schraut, Ratwik, Roszak & Maloney, P.A., Minneapolis, Minnesota (for respondent Nicollet County Board of County Commissioners) Gerald W. Von Korff, Kurt A. Deter, Rinke Noonan, St. Cloud, Minnesota (for respondents Marlin Fitzner, et al.) Lori Swanson, Attorney General, Jill Schlick Nguyen, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Department of Natural Resources)

Considered and decided by Johnson, Chief Judge; Shumaker, Judge; and Randall, Judge.* SYLLABUS The district court did not abuse its discretion by ordering Nicollet County to establish a crest elevation of 973 feet above sea level for Little Lake and Mud Lake as an equitable remedy for the county's violation of the Minnesota Environmental Rights Act. The district court reasonably concluded that a crest elevation of 973 feet is in harmony with the concurrent authority of the county and the Department of Natural Resources to manage water levels pursuant to other statutory schemes. The district court reasonably concluded that the remedy sought by appellant, a crest elevation of 976 feet above sea level, would constitute an improper retroactive application of the Minnesota Environmental Rights Act. And the district court reasonably concluded that appellant's sought-after remedy would impose unnecessary hardships on the county as well as the owners of properties near the lakes. OPINION JOHNSON, Chief Judge The Swan Lake Area Wildlife Association commenced this action eight years ago with the goal of increasing the depth of two lakes in Nicollet County--Little Lake and Mud Lake--to foster better wildlife habitats. The case is before the court of appeals for the third time. In our second opinion, we affirmed the district court's judgment in favor

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI,

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