author: BLATZ, Chief Justice. GILBERT, Justice

text:
    Linda Rae BURKSTRAND, Petitioner, Appellant, v. Steven Glen BURKSTRAND, Respondent.
    No. C0-00-813.
    Supreme Court of Minnesota.
    Aug. 30, 2001.

      Brian L. Sobol, A. Larry Katz, Katz & Manka, Ltd., Minneapolis, for appellant.
    John G. Westrick, Marcia McDowall-Nix, Westrick & McDowall-Nix P.L.L.P., St. Paul, for respondent.
    Bruce A. Beneke, Janet C. Werness, St. Paul, for amicus curiae.
   OPINION

BLATZ, Chief Justice.

This case presents the question of whether the expiration of the hearing time frames prescribed by the Domestic Abuse Act, specifically MinmStat. § 518B.01, subdivision 7(c) (2000), divests the district court of subject matter jurisdiction to hold a hearing on a petition for an order for protection. The court of appeals determined that the district court erred, as a matter of law, in issuing an order for protection for appellant Linda Rae Burkst-rand because the district court lacked subject matter jurisdiction to hold a hearing on her petition outside the statutory time frame for conducting a hearing. We reverse.

On December 28, 1999, appellant filed a petition and supporting affidavit for an ex parte order for protection against her husband, respondent Steven Glen Burkstrand. The petition requested various types of relief including restraining respondent from acts of abuse; excluding respondent from the family residence and the children’s schools; awarding appellant temporary custody of the children; and directing respondent to provide monetary support. A more limited ex parte order for protection was issued that same day restraining and enjoining respondent from abusive acts against appellant and the children, prohibiting respondent from having contact with appellant, and excluding him from the residence except to retrieve personal effects. The ex parte order also commanded respondent to appear before a referee on January 6, 2000, prepared to testify and to present evidence, and stated that the order was effective until the scheduled hearing.

Respondent filed an affidavit on January 5, 2000, refuting appellant’s allegations of abuse. The next day, the parties appeared with counsel before a referee. Respondent contested the order for protection and again denied the allegations of abuse, and appellant agreed to withdraw the issue of abuse against the children from the petition. The referee was informed that respondent had commenced a separate action for dissolution of the marriage; therefore, several of appellant’s requests for relief were deferred to that action, and the only issue remaining before the referee was the petition based on respondent’s alleged abuse of appellant.

To address that issue, the referee suggested that an evidentiary hearing commence that morning, as soon as the referee finished hearing first appearances. Appellant’s counsel notified the referee that he had a conflicting court appearance, and the referee agreed to hear the rest of the calendar and return to the matter later in the day. Due to a full calendar, however, a hearing was not possible and the referee continued the matter to the following afternoon, January 7. On January 7, respondent’s counsel was ill, and the hearing was again continued. The record indicates that on or about January 18, 2000, the referee and counsel conducted a telephone conference, during which appellant’s counsel requested that the hearing be continued until February to accommodate counsel’s vacation. Respondent, however, demanded that the hearing proceed that week. As a result, the hearing was scheduled for January 21, 2000. At the January 21, 2000 hearing, appellant again sought to continue the matter. The referee denied the motion to continue and the hearing proceeded.

Based on evidence presented at the hearing, the referee issued an order for protection valid for one year from January 21, 2000. Respondent then retained new counsel and filed a notice of review under Minn.Stat. § 484.65, subd. 9 (2000). Respondent argued that the referee lacked jurisdiction to hear and decide the case on January 21 because a full hearing on the petition was not held by the statutory deadline. Respondent also argued that there was insufficient evidence to warrant issuance of a protection order. The district court found “no error with the Referee’s Order” and affirmed the January 21, 2000 order for protection , in its entirety.

At the court of appeals, Steven Burkst-rand argued again that the district court lacked subject matter jurisdiction to conduct a hearing on January 21, because the statutory time frames for conducting a hearing on a petition for an order for protection had passed. Thus, he argued that the order for protection issued on that date was void ab initio. Linda Burkst-rand responded that the court did not lose jurisdiction over the petition, and in the alternative, that her husband waived his right to object to the January 21 hearing as being untimely because his counsel requested the continuance because of his own illness and did not request that the matter be rescheduled within the statutory time period. The court of appeals concluded that the district court lacked subject matter jurisdiction and reversed. Burkstrand v. Burkstrand, No. C0-00-813, 2000 WL 1847671, at *2 (Minn.App. Dec.13, 2000).

In this appeal, appellant Linda Burkst-rand argues that the district court retained jurisdiction to issue an order for protection despite the court’s failure to adhere to the hearing time parameters of Minn.Stat. § 518B.01, subd. 7(c). She also contends that the 1995 amendments to Minn.Stat. § 518B.01 require interpretation and clarification. Finally, she again argues that respondent waived any right to object to the timeliness of the hearing.

The parties ask us to interpret the language of the Domestic Abuse Act and the effect of its 1995 amendments to determine whether the district court’s failure to hold a hearing on appellant’s petition within the statutory time frames divests the court of subject matter jurisdiction over the petition. We review issues of subject matter jurisdiction de novo. Handicraft Block Ltd. P’ship v. City of Minneapolis, 611 N.W.2d 16, 19 (Minn.2000). Statutory interpretation is also a question of law subject to de novo review. Hibbing Educ. Ass’n v. Pub. Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985).

The Domestic Abuse Act provides a process whereby domestic abuse victims may petition for protection and relief. Minn. Stat. § 518B.01 (2000); State v. Errington, 310 N.W.2d 681, 682 (Minn.1981). A victim files a petition and supporting affidavit for an order for protection alleging the existence of domestic abuse and requesting specific types of relief. Minn.Stat. § 518B.01, subd. 4 (2000). If the petition “alleges an immediate and present danger of domestic abuse, the court may grant an ex parte order for protection * * *.” Id., subd. 7(a).

In 1995, the legislature amended portions of subdivision 7 of the Act, which deals specifically with ex parte orders. Immediately before the 1995 amendments, subdivision 7(c) required:

an ex parte temporary order for protection shall be effective for a fixed period not to exceed 14 days, except for good cause as provided under paragraph (d). A full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the temporary order. The respondent shall be served forthwith a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.

Minn.Stat. § 518B.01, subd. 7(c) (1994). The 1995 amendments eliminated the 14-day time period for the effectiveness of an ex parte order for protection and eliminated the initial requirement that a hearing be held within 7 days of issuance of an ex parte order for protection. Act of May 10, 1995, ch. 142, § 5, 1995 Minn. Laws 402, 405. Since adoption of the 1995 amendments, subdivision 7(c) reads:

Subject to [certain service requirements], an ex parte order for protection shall be effective for a fixed period set by the court, [up to one year, except when the court determines that a longer period is appropriate], or until modified or vacated by the court pursuant to a hearing. Upon request, a full hearing, as provided by this section, shall be set for not later than seven days from the issuance of the ex parte order, if a hearing is requested by the petitioner, or not later than ten days or earlier than eight days from receipt by the court of a request for a hearing by the respondent.

Minn.Stat. § 518B.01, subd. 7(c) (2000) (emphasis added). This change to subdivision 7(c) allows for some ex parte orders to remain effective for a fixed period without a hearing. The 1995 legislature also amended subdivision 7 to explicitly require the petitioner who has obtained an ex parte order to request a hearing to be held within 7 days in cases where the petitioner asks for certain types of relief, including the temporary custody and monetary support requested here. Act of May 10, 1995, ch. 142, § 5, 1995 Minn. Laws 402, 405, codified at Minn.Stat. § 518B.01, subd. 7(e) (2000). The parties disagree as to the plain meaning of the statutory language as well as the legislative intent behind the 1995 amendments. The parties also dispute the role of Minn.Stat. § 518B.01, subdivision 5(a), which sets forth a 14-day hearing time frame on petitions for orders for protection when no ex parte order for protection has issued. Minn.Stat. § 518B.01, subd. 5(a) (2000) .

When interpreting statutes our goal “is to ascertain and effectuate the intention of the legislature.” Minn.Stat. § 645.16 (2000). When the language of a statute is plain and unambiguous, it is assumed to manifest legislative intent and must be given effect. Tuma v. Comm’r of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986); see Minn.Stat. § 645.16. However, if a statute is ambiguous, we may ascertain the legislature’s intent by considering a number of matters, including the legislative history, the necessity for the law, and the consequences of various interpretations. Minn.Stat. § 645.16. In addition, we can apply certain presumptions, including the presumption that the legislature does not intend an absurd result. Minn.Stat. § 645.17(2000).

Respondent contends that subdivision 7(c) is unambiguous as to the mandatory nature of the hearing time frames when an ex parte order for protection has issued. He argues that because appellant requested a hearing, subdivision 7(c) clearly and unambiguously required that a hearing be held within 7 days of the ex parte order’s issuance. The order was issued on December 28, 1999; therefore, respondent argues that the referee lacked jurisdiction to hold a hearing on the matter after January 4, 2000.

In contrast, appellant asserts an alternate interpretation that the time frames are directory, giving domestic abuse matters priority, but not involving subject matter jurisdiction. Appellant further asserts that the effect of failing to comply with the hearing time frames in subdivision 7(c) may be the expiration of the ex parte order for. protection; however, the court would continue to have jurisdiction over the petition for at least 14 days under subdivision 5(a), which applies to petitions when no ex parte order has issued.

Contrary to respondent’s argument, nothing in the statutory language requires that the district court be divested of subject matter jurisdiction. Rather, the statute is silent as to the consequences of the district court’s failure to hold a hearing within the statutory time frames. Given this silence and the opposing interpretations of the statute, we conclude that the statute is ambiguous and look to other indicators of legislative intent, as well as the statutory language, to interpret the statute. See Minn.Stat. § 645.16.

There is no evidence in the legislative history that the legislature intended courts to lose jurisdiction upon failure to meet the hearing time frames. Instead, the legislative history demonstrates an intent to simplify the process and ease the burden on petitioners. This intent is also evident in the elimination of a mandatory hearing whenever an ex parte order has issued in the amended statute, which allows petitioners to obtain, in some circumstances, ex parte orders effective for a year or longer without a subsequent hearing. Minn.Stat. § 518B.01, subd. 7(c), (e).

In addition, divesting the district court of subject matter jurisdiction for failure to set a hearing within the statutory time frames would undermine the purpose of the Act. In Baker v. Baker, we discussed the purpose of the Act, noting the large number of assaults on domestic abuse victims by their partners and the correlating need for assistance and shelter. 494 N.W.2d 282, 285 (Minn.1992). We also recognized that the Act was enacted as one means to protect these victims. Id.; see also Errington, 310 N.W.2d at 682 (noting that the Act was enacted “to provide an efficient remedy for victims of abuse”).

Respondent’s interpretation of the Act would thwart its very purpose. If subject matter jurisdiction is divested every time a hearing on a petition for an order for protection is not held within the statutory time frames, victims of domestic abuse will be forced to begin the protection process anew. This not only has an impact on public safety, but may also penalize a petitioner when delay is caused by the court, respondent, or by other events beyond the petitioner’s control. Here, appellant performed the steps required of her by the statute in filing a petition and affidavit. The district court set the hearing date for January 6 — a date already beyond the'7-day time frame for a hearing requested by a petitioner. The record indicates that it was primarily a result of the court’s calendar that a full hearing was continued until January 7. Then on January 7, another continuance was granted as a result of respondent’s counsel’s illness — another factor not within appellant’s control. Clearly, divesting the district court of subject matter jurisdiction under such circumstances interferes with the purpose of the Act and is not a consequence dictated by the Act’s language. Thus, we hold that neither the statutory language nor the other indicia of legislative intent dictate that the court loses jurisdiction over appellant’s petition when a hearing is not held within the time frames of Minn.Stat. § 518B.01, subd. 7(c).

Nonetheless, although the district court did not lose subject matter jurisdiction, our holding does not diminish - the importance of conducting timely hearings after issuance of an ex parte order for protection. The statute requires courts to give domestic abuse matters priority in scheduling. Moreover, the statutory time frames for conducting hearings after an ex parte order for protection has issued provide procedural protections to ensure that the due process rights of respondents— who may be excluded from the family home and in other ways restrained without the right to initially contest the order — are protected. Baker, 494 N.W.2d at 287, 288 (concluding that the Act provides extensive procedural safeguards for respondents in that ex parte orders must be based on an application and sworn affidavit, are issued only by a judge or referee, and are issued for a short time period). While the statute no longer expressly provides that ex parte orders for protection are effective for only 14 days, as was the case when Baker was decided, the rights of respondents must still be protected. We conclude that the statute protects these interests by simply allowing the ex parte order to expire if a hearing is not held within the statutory time period. However, despite the order’s expiration, the court retains jurisdiction over the original petition for protection. The petition is then essentially treated as a petition for an order for protection where no ex parte order has ever been issued and is subject to the requirement that a hearing be held within 14 days. See Minn.Stat. § 518B.01, subd. 5(a).

Here, a full hearing on appellant’s petition was scheduled first for January 6, then January 7, both well within the 14-day deadline in subdivision 5(a). Because respondent’s counsel was ill, the hearing could not be held on January 7 and was rescheduled for January 21. On these facts it appears the court attempted to give the petition in this case the docket priority the legislature intended. In any event, although a full hearing on appellant’s petition was not held within 14 days after the issuance of the ex parte order, we conclude, as we did in our analysis of subdivision 7(c), that failure to hold a hearing within the 14-day time period in subdivision 5(a) does not divest the court of jurisdiction over the petition.

This conclusion comports with that of the Tennessee Supreme Court in Kite v. Kite, 22 S.W.3d 803 (Tenn.1997). Faced with a similar issue, the court held that the statutory 10 day hearing requirement at issue was a limitation on the duration of the ex parte order and not a jurisdictional limitation. Id. at 806. In so holding, the Tennessee Supreme Court concluded: (1) that the intended operation of the statute is ambiguous because it mandates a hearing within 10 days but does not define the consequences for failure to meet that requirement; (2) that the legislature could not have intended the absurd result that protection might be denied through.- no fault of the petitioner’s; (3) that it would be illogical for the legislature, having stated its intent to provide enhanced protection to domestic abuse victims, to create a jurisdictional bar to apply only to those petitioners demonstrating imminent danger; (4) that interpreting the prompt hearing requirement as a limit bn the duration of ex parte protective orders protects respondents from ongoing frivolous or retaliatory orders; and (5) that the legislature could have drafted a complete procedural bar into the statute, had it intended such a result. Id. at 805-06.

We concur with this reasoning. Like the statute at issue in Kite, Minnesota’s Act does not define the consequences for the failure to meet the hearing time frames. Because the legislature could have drafted a jurisdictional bar into the statute but failed to do so, we decline to read such a consequence into the statute. Furthermore, treating the time frames for conducting a hearing on ex parte orders for protection as jurisdictional would undermine the purpose of the Act — to provide speedy, effective relief to victims of domestic abuse. As recognized in Kite, such divestiture would be an absurd result, especially when a hearing is delayed due to causes other than the petitioner’s own actions.

The statutory time frames operate effectively as limits on the duration of ex parte orders for protection and mandate that domestic abuse cases be given docket priority. Therefore, we hold that although the ex parte order expired upon the court’s failure to comply with the statutory hearing time frames, the court did not lose subject matter jurisdiction over the original petition as amended and had the authority to conduct a hearing and issue an order for protection on January 21, 2000.

Reversed.

GILBERT, Justice

(dissenting).

I agree with the majority’s statement on public policy in regard to the importance of petitions for an order for protection in cases of domestic abuse.' However, we should not use public policy reasoning to alter a purely statutory equitable remedy. I therefore dissent because the district court’s failure to hold the hearing within the 14-day time frame as required by Minn.Stat. § 518B.01, subd. 5(a) (2000) caused the petition to expire, and the court did not have jurisdiction to hold a hearing in the absence of a petition.

Under this provision of the Domestic Abuse Act, the district court is required to order a hearing no later than 14 days after receipt of a petition for an order for protection, or, if an ex parte order has been issued under subdivision 7, those time periods apply. Minn.Stat. § 518B.01, subd. 5(a). The ex parte order in this case was issued on December 28, 1999. Because the petitioner requested relief requiring a hearing, January 4, 2000 was the court’s deadline. However, a hearing was not held until January 21, 2000. In the interim, the ex parte order expired of its own right on January 6, 2000, and the record is absent of any request for an extension of that order. Because the court did not adhere to the requirements of the Act, the petitioner was left unprotected — perhaps unbeknownst to her even from the time her ex parte order expired on January 4, pursuant to the statutory 7-day time frame, until the time of her hearing on January 21. This is contrary to the Act’s purpose of providing relief to victims of domestic abuse, and it also highlights flaws in the Act and in the majority’s analysis.

Implicit in the majority’s analysis is an alteration of Minn.Stat. § 518B.01, subd. 5, originating from appellant’s “alternate interpretation that the time frames are directory,” and based on opposing constructions of this statute by petitioner and respondent. However, mere opposing constructions should not lead us to conclude a statute is ambiguous when it is not. The statute requires that “the court shall order a hearing which shall be held not later than 14 days * * The majority opinion substitutes the word “may” for “shall” and, as altered by the court, the statute would now read in effect: “the court shall order a hearing which [may] be held not later than 14 days * * The majority’s construction is contrary to the rules of statutory interpretation, which provide that when interpreting statutory language, “shall” is mandatory, not permissive. MinmStat. § 645.44, subd. 16 (2000). But the majority has determined that this precise language is ambiguous and that construing “shall” as mandatory rather than permissive achieves an absurd result. To support its position, the majority opines that strict adherence to the 14-day time limit would not satisfy the legislature’s “intent to simplify the process and provide greater protection to petitioners.” However, under the majority’s holding, a petitioner loses interim protection if the court holds the full hearing after an ex parte order has expired. It is this gap in protection and a delay in conducting a hearing that is contrary to the purpose of the Act.

Instead of creating a theory of continuing jurisdiction when the order itself did not provide for that and the petitioner did not ask for the extension, I would affirm the court of appeals and hold that when the district court fails to order a hearing held within the required time frame, the petition expires and the court does not have jurisdiction unless the petitioner asks the court to extend the timeframe or files another petition. Although this result places a burden on the petitioner to either ask for an extension or file a new petition when a previous one expires, the burden is slight and when compared to the alternative, which could result in a gap in protection. Requiring the petitioner to request an extension of the time deadlines or file a new petition resolves the potential gap problem and is consistent with the purpose and the clear and unambiguous language of the Act.

The courts are directed to give these hearings priority, but under the majority’s holding there is no real incentive for the court or parties to do so — other than the potential loss of protection if a hearing is not held before an order expires. Petitions for orders for protection have become a significant part of our judicial system. In fact, during the year 2000 alone, over 13,000 petitions were filed in Minnesota. The high volume of this time-consuming procedure created by the legislature obviously has a major impact on the judicial system because we only have 268 district court judges in the State of Minnesota. Although the legislature did not appropriate new funds to handle this huge new case influx, it did limit the terms of existence of these petitions, which this majority opinion now nullifies. Because of the high volume and the importance of a timely hearing, the district court, as well as the lawyers who agree to take these cases, must give these hearings priority on their calendars.

Contrary to what the majority states, the initial hearing date of January 6 was not delayed “primarily [as] a result of the court’s calendar,” but initially and solely because the referee accommodated a scheduling conflict of petitioner’s lawyer. The full calendar preventing a hearing on January 6 developed later, after the petitioner’s lawyer returned from attending to another matter, which matter was not of the same character and did not have priority over this hearing. Furthermore, the designated hearing date was missed without any effort by petitioner’s lawyer to request an extension of this order by the court. When a lawyer signs on to a case such as this, he should recognize that these matters have priority on the court’s calendar and on the lawyer’s calendar. These orders for protection are in the nature of an ex parte temporary restraining order, which are entitled to priority on the calendar pursuant to Rule 65.01.

Traditionally, a temporary restraining order has been treated as a common law equitable remedy available when there was an underlying civil case pending. See, e.g., Cherne Indus., Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 91-92 (Minn.1979). A civil action is commenced by filing and serving a summons and complaint and equitable relief could be part of the case. Minn. R. Civ. P. 3.01, 7.02 and 65.01-.04. The court thus had jurisdiction irrespective of the status of the temporary equitable relief. See Minn. R. Civ. P. 65.02(c). Contrary to that traditional setting, in this case, there is no underlying civil action and the statutorily created order for protection is the sole basis for the court’s jurisdiction. It is purely a statutory remedy created by the legislature with statutorily defined purposes, procedures, and time limits.

The courts are evidently finding the time to routinely grant these ex parte orders. However, when they do so, they must be mindful of the statutory time frames and the requirement of setting aside all other matters “except older matters of the same character” on their calendars and on the lawyers’ calendars if necessary to ensure that there is a hearing within the required time frame. Then these orders would not expire by their own terms, but they could be properly extended by the court after a full hearing.

Granting of an order such as this has significant immediate collateral consequences in marital dissolution matters and in state and federal criminal cases. The legislature must have been mindful of this when they set short time deadlines within the statute for the continuation of these orders until a full hearing. However, in this case the majority acknowledges that the ex parte order expired, thus upholding the mandatory 7-day hearing requirement contained in Minn.Stat. § 518B.01, subd. 7(c) (2000). But, then, based solely on public policy rationale, the majority opinion voids the 14-day statutory time frame contained in Minn.Stat. § 518B.01, subd. 5. There is simply no continuing jurisdiction because no underlying cause of action has been served or filed and, pursuant to statute, the order lapsed and the ordered hearing date was passed over without being extended. The full hearing date was held beyond the statutorily mandated 14 days. We should not unilaterally void strict statutory time frames when the petitioner has not availed herself of procedures that would have allowed for an extension of this order and provided the corresponding continuing jurisdiction.

      . The Domestic Abuse Act authorizes referees to act for the district court in performing certain duties. Minn.Stat. § 518B.01, subd. 3 (2000).

      . Because the order for protection expired on January 21, 2001, this issue is arguably moot. However, we granted review to decide an issue capable of repetition, yet evading judicial review. See State ex rel. Doe v. Madonna, 295 N.W.2d 356, 361 (Minn.1980).

      . Minnesota Statutes § 484.65, subd. 9, provides that a referee’s recommended orders and findings are subject to confirmation by a district court judge. Notice of review must be served and filed within 10 days of effective notice of the recommended order or findings at issue. Id.

      .Hereafter, we refer to the referee and district court interchangeably.

      . Appellant argues that Hennepin County's forms and procedures do not reflect the requirements of the current statute because they require a hearing within 14 days for every ex parte order, when, under the statute, there are some circumstances when a hearing is not required and other circumstances when shorter hearing time frames are established. Because appellant requested relief such as temporary custody and monetary support that necessitates a hearing within 7 days under subdivision 7(e), a hearing was required. We take this opportunity to stress the need for uniformity and compliance with the procedural requirements of the Act, and note the 14-day time frame set forth in Hennepin County’s form is out of compliance with the current statute.

      . The 2000 amendments to subdivision 5 dealing with personal service are not at issue here. See Act of April 24, 2000, ch. 437, § 1, 2000 Minn. Laws 940, 940-41.

      . Transcripts of legislative committee meetings provide some insight into the intent of the legislature in enacting the 1995 amendments to the Act. Testimony -at a hearing of the Civil Law Subcommittee of the House Judiciary Committee indicates that one purpose of the house bill was to reduce the number of domestic abuse hearings. Hearing on H.F. 927, H. Jud. Comm./Civ. Law Sub-comm, 79th Minn. Leg., Mar. 24, 1995, (audio tape) (comments of Rep. Bishop, House chief author of the bill). The bill's chief author testified that at least one judge had expressed the concern that in about half of all scheduled domestic abuse hearings the respondent fails to appear or does not contest the ex parte order for protection. Id. Similarly, the companion senate bill was presented to the Family Law Subcommittee of the Senate Judiciary Committee by its chief author as an effort to ease the strain on court dockets and to alleviate the burden on petitioners by scheduling hearings only at the request of a party. Hearing on S.F. 864, S. Jud. Comm./ Fam. Law Subcomm., 79th Minn. Leg., Mar. 31, 1995 (audio tape) (comments of Sen. Kis-caden, Senate chief author of the bill).

      . In addition, we are not persuaded by the court of appeals' reliance on El Nashaar v. El Nashaar, 529 M.W.2d 13, 14 (Minn.App.1995), to reach its conclusion in this case that the time frames are jurisdictional. In El Nashaar, the court of appeals rejected the district court's attempt to continue an ex parte order for protection beyond the 14-day requirement in effect at that time, concluding that the district court "lacked authority to continue the * * * ex parte order in effect for more than 14 days without a full hearing and appropriate findings on domestic abuse.” Id. Even if we were bound by El Nashaar, the continuation of an ex parte order beyond the statutory time frame is a different issue than the subject matter jurisdiction question here.

      . Here, the ex parte order was issued on December 28, 1999, and, because of the relief requested by appellant, the statute required a hearing to be set within 7 days, by January 4, 2000. See Minn.Stat. § 518B.01, subd. 7(c), (e). The order, however, set the hearing for January 6, 2000, and stated that "THIS EX PARTE ORDER IS EFFECTIVE UNTIL THE HEARING SCHEDULED ABOVE * * Thus, in this case not only was the initial hearing date outside the statutory time frame, the order also expired on its face. Presented with these facts we do not decide the validity of ex parte orders for protection in situations where a hearing is set within the statutory hearing time frame but the order is then continued beyond the time frame for reasons not present in the instant case such as continuance at respondent’s request or due to respondent’s dilatory action.

      . http ://www. crimnet. state .mn.us/courts-tats.htm.

      . Respondent's counsel then became ill on January 7 and the court granted another continuance, but there is nothing in the record to indicate why a hearing could not be held within the statutorily required 14 days.

      . Minnesota Rules of Civil Procedure 65.01 provides in part that "the motion for a temporary injunction shall be set down for hearing at the earliest practicable time and shall take precedence over all matters except older matters of the same character * * Similarly, Minn.Stat. § .518B.01, subd. 3 (2000) provides that "[ajctions under this section shall be given docket priorities by the court.”

      . Minnesota Statutes § 518B.01, subd. 4 states: "There shall exist an action known as a petition for an order for protection in cases of domestic abuse.”

      . E.g., Violence Against Women Act of 1994, 18 U.S.C. §§ 2262, 2265 (1994 & Supp.1999); Violent Crime Control and Law Enforcement" Act of 1994, 18 U.S.C. § 922(G)(8) (1994 & Supp.1999); Marital Dissolution Act, Minn. Stat. § 518.131 (1998).


source: Caselaw Access Project

author: STRINGER, Justice. PAUL H. ANDERSON, J. GILBERT, Justice PAGE, Justice

license: Public Domain

text:
    NORTHWEST AIRLINES, INC., Relator, v. COUNTY OF HENNEPIN, Respondent.
    No. C7-00-1876.
    Supreme Court of Minnesota.
    Aug. 30, 2001.

      Thomas R. Wilhelmy, Laurie J. Miller, Joseph G. Springer, Fredrickson & Byron, P.A., Minneapolis, for relator.
    Amy Klobuchar, Hennepin County Attorney, for respondent.
   OPINION

STRINGER, Justice.

On certiorari from the tax court we consider whether relator’s property tax petitions filed under Minnesota Statutes chapter 278 were properly dismissed by the tax court because relator failed to submit income and expense information within the 60 day filing deadline set forth in Minn. Stat. § 278.05, subd. 6(a) (2000). Relator contends that the parcel in question, the Main Base Building at the Minneapolis/St. Paul International Airport owned by the Metropolitan Airports Commission (MAC), is not “income-producing” and therefore not subject to the filing deadline. The tax court ruled that the Main Base Building is “income-producing” property and dismissed relator’s chapter 278 petitions for failure to comply with Minn.Stat. § 278.05, subd. 6(a). We affirm.

The Main Base Building is one of several parcels leased by MAC to relator at the airport. Relator and MAC entered into a 30 year lease agreement in 1956, effective 1961, wherein MAC, as lessor, agreed to finance and construct hangers, buildings, paved areas and other improvements for relator’s exclusive use for its aircraft maintenance, overhaul and operational headquarters at the airport. MAC retained title to the land and all improvements, including those constructed by relator, but relator had 90 days after the termination of the lease to remove any improvements made by relator. The 30 year lease was a “financing” lease — that is, relator agreed to make monthly payments sufficient to fund MAC’s principal and interest payments and to pay incidental costs associated with bonds it issued to finance the construction of the base facilities and improvements. The lease also provided that one year prior to its expiration the parties would enter into “bona fide” negotiations for a new lease “upon such rates, covenants and conditions as are adequate, reasonable and fair in light of the conditions then existing at said Airport, including the then going rates and lease terms to other scheduled air carriers * ⅜ ⅝.”

The 1961 lease expired on June 30, 1991 but was extended from month to month until a new lease agreement effective January 1, 1995 was signed. The Tax Court found the 1995 lease was an arm’s length, negotiated agreement designed to arrive at fair rental value rather than amortize bond costs. The 1995 lease required relator to pay rent beginning at $83,333 per month in 1995, increasing to $383,000 per month in 2001 and decreasing to $381,250 per month in 2002 through August 31 of that year. The Main Base Building is exempt from real property taxes because it is owned by MAC, Minn.Stat. § 473.608, subd. 2 (2000), but because MAC leases the property to relator for use in connection with a business conducted for profit, relator is obligated to pay taxes on the property under MinmStat. § 272.01, subd. 2(a) (2000), as if it were the owner. Relator filed separate timely chapter 278 property tax petitions challenging the assessed value of properties it leases from MAC at the airport for taxes payable in 1997, 1998 and 1999. The parties were unable to resolve the 1997 and 1998 challenges to the value of the Main Base Building and other properties, and the tax court consolidated those for trial with the 1999 petition.

The county assessor was apparently unaware of the existence of the 1995 lease until October, 1999 when MAC provided a copy to the assessor, and relator also submitted a copy in response to respondent’s discovery request. On January 5, 2000 respondent filed a motion to dismiss the petitions under Minn.Stat. § 278.05, subd. 6(a), which provides:

Information, including income and expense figures, verified net rentable areas, and anticipated income and expenses, for income-producing property-must be provided to the county assessor within 60 days after the petition has been filed under this chapter. Failure to provide the information required in this paragraph shall result in the dismissal of the petition, unless the failure to provide it was due to the unavailability of the evidence at that time.

Relator and respondent agreed on the taxable value of all the remaining parcels subject to relator’s petitions except the Main Base Building, and the tax court’s grant of respondent’s motion to dismiss the petitions under section 278.05, subdivision 6(a) as they relate to relator’s challenges to taxes payable on the Main Base Budding is now the only matter before the court.

The tax court ruled that relator’s petitions are barred by Minn.Stat. § 278.05, subd. 6(a) because the Main Base Building is income-producing property for purposes of the 60 day rule in section 278.05, subdivision 6(a) and relator failed to provide the county assessor with the statutorily required information within the 60 day filing deadline. The tax court reasoned that property is “income-producing” if “income is being generated for the use of the property” and concluded that income is generated for the use of the Main Base Building because relator pays rent to MAC to use the property under an arms-length lease. Relator disputes the tax court’s ruling arguing that relator is not subject to the 60 day filing deadline because it owns and occupies its leasehold, and therefore for property tax purposes it is considered the owner, by definition owner-occupied property is not income-producing.

Our review of decisions of the tax court is limited to whether the court had jurisdiction, whether its decision was justified by the evidence and in conformity with the law or whether it committed an error of law. Minn.Stat. § 271.10 (2000). We review questions of law de novo. BFW Co. v. County of Ramsey, 566 N.W.2d 702, 704 (Minn.1997).

The traditional notion of “income-producing” property is property that generates rental income for its owner on the basis of an arms-length, market-based lease, see Equitable Life Assurance Soc’y. v. Ramsey County, 530 N.W.2d 544, 549 (Minn.1995) but the term is not necessarily limited to rental property. See Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 303-04 (Minn.1990). Since 1995 relator has paid MAC rental payments for the use and enjoyment of the property based on an arms-length, market-based lease. Relator contends however, citing Minn.Stat. § 272.01, subd. 2(a), (c), (d) (2000) and Minn.Stat. § 273.19, subd. 1 (2000), as well as our decisions in In re McCannel, 301 N.W.2d 910 (Minn.1980), and Northwest Airlines, Inc. v. County of Hennepin, 537 N.W.2d 488 (Minn.1995), that the Main Base Building is not income-producing property because the legislature intended that relator’s leasehold interest, not MAC’s fee interest, should be the taxable subject property-therefore we must disregard the 1995 lease.

We disagree. The legislature has plainly provided in Minn.Stat. § 273.11, subd. 1 (2000), that relator’s leasehold interest is not the property interest that is to be valued for purposes of imposing the property tax on the Main Base Building: “All property, or the use thereof, which is taxable under section 272.01, subdivision 2, or 273.19, shall be valued at the market value of such property and not at the value of a leasehold estate in such property, or at some lesser value than its market value.” Minn.Stat. § 273.11, subd. 1 (emphasis added). As the value to be determined for tax purposes is the market value of the Main Base Building, the terms and conditions of the 1995 lease, including rent, are critical, as they provide what the parties determined in an arms-length negotiation to be the value of the property, as reflected by the rent to be paid. Capitalizing the income a property generates in rent to arrive at its market value — the income approach — is one of the three traditional approaches to determining market value. It makes no difference whether the taxpayer is lessor or lessee, as the importance of the income-producing nature of the property is in arriving at a reliable market value for tax purposes. Thus we conclude that the tax court did not err in concluding that the Main Base Building is income-producing property for the periods in question.

Relator contends however, that despite section 273.11, subdivision 1, its leasehold interest is the taxable property interest at issue because section 272.01, subdivision 2(a), (c) and (d), require that it be treated as the owner of the property. Relator’s construction of section 272.01, subdivision 2 is not persuasive. Section 272.01, subdivision 2 provides in relevant part:

(a) When any real or personal property which is exempt from ad valorem taxes, and taxes in lieu thereof, is leased, loaned, or otherwise made available and used by a private individual, association, or corporation in connection with a business conducted for profit, there shall be imposed a tax, for the privilege of so using or possessing such real or personal property, in the same amount and to the same extent as though the lessee or user was the owner of such property.
⅜ ⅜ ⅜ ⅜
(c) Taxes imposed by this subdivision are payable as in the case of personal property taxes and shall be assessed to the lessees or users of real or personal property in the same manner as taxes assessed to owners of real or personal property * * *.
(d) The tax on real property of the state or any of its political subdivisions that is leased by a private * * * corporation and becomes taxable under this subdivision * * * must be assessed and collected as a personal property assessment. The taxes do not become a lien against the real property.

Minn.Stat. § 272.01, subd. 2. Paragraph (a) imposes a tax on relator for the use of MAC’S tax exempt property for commercial purposes in an amount and to the same extent as though relator was the owner of the Main Base Building. The tax is payable as a personal property tax pursuant to paragraph (c) but is to be assessed to relator in the same manner as the property tax would have been assessed to the owner of the Main Base Building— MAC. Paragraph (d) provides that relator’s personal property tax cannot become a lien against the Main Base Building. In essence, paragraphs (a), (c) and (d) of section 272.01, subdivision 2 shift the real property tax liability to relator as a personal property tax in an amount MAC would have had to pay had MAC not been an exempt property owner.

Relator’s reliance upon our decisions in McCannel and Northwest Airlines is equally unpersuasive. In McCannel we stated that relator “is treated as feeholder of the [airport] property for purposes of the taxing statute,” 301 N.W.2d at 914, and in Northwest Airlines we observed that the parties stipulated that the property relator leases from MAC at the airport is taxed as personal property pursuant to Minn.Stat. § 272.01(2) (1990). 537 N.W.2d at 488-89. Both are based squarely on the statutory framework in section 272.01, subdivision 2. The issue of what property interest is to be assessed was not raised in either case.

Relator next contends that the county should be collaterally estopped from arguing that the Main Base Building is income-producing property because in McCannel we ruled that the airport property is “special purpose,” and therefore, relator contends, as special purpose property it is not income-producing property for real estate tax purposes. McCannel, 301 N.W.2d at 914. While we observed in McCannel that the cost approach is best suited for valuing special purpose property, at no point did we say that the special-purpose nature of the property bars its assessment as income-producing property. Id. Where special-purpose property is subject to an arms-length lease, as here, it may indeed be more reliably valued using the income approach with the lease serving as a key source of information. We therefore reject relator’s claim of collateral es-toppel.

Relator also raises arguments in equitable estoppel and laches. We have held that a private party seeking to apply equitable estoppel against a government agency acting in its sovereign capacity has a heavy burden of proof, including a showing that the private party’s detrimental reliance was induced by the government’s wrongful conduct. Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 292 (Minn.1980). The assertion of the relator and the dissent that respondent unfairly changed the assessment approach is wholly unfounded, as the record supports the conclusion that the county was not aware of the 1995 lease until October 22, 1999-long after the 60 day filing deadline for the tax years at issue had passed. Relator cannot claim it relied on respondent’s conduct when it failed to inform respondent of the existence of the lease, despite numerous requests over several months. This is not an effort to take unfair advantage of the 60 day statutory requirement, as the dissent alleges — it is the application of the 60 day notice statute to a vastly different lease arrangement between MAC and relator, recently disclosed to respondent.

As to relator’s laches argument, section 278.05 subd. 6(a) confers no discretion on respondent to rely upon or waive the 60 day rule unless there is evidence that failure to comply was due to the unavailability of necessary information. Id. The petitioner must provide income and expense information within 60 days after the petition is filed or the petition must be dismissed.

Finally, relator contends that even if the Main Base Building is income-producing property, the terms of the lease are neither necessary nor appropriate for determining market value. Respondent concedes that it relies on the cost approach for the “mass assessment” of the Main Base Building, but the record also indicates that respondent did not consider the income approach for valuing the Main Base Building because it was unaware of the 1995 market-based lease. As stated above, an arms-length lease provides important information for valuing income-producing property. We conclude that the tax court did not err in determining that the 1995 lease was income and expense information relator was required to provide under section 278.05, subdivision 6(a).

We hold that the Main Base Building is income-producing property for the period covered by the chapter 278 petitions and relator’s failure to provide respondent with a copy of the 1995 lease within 60 days of filing the petitions constituted a failure to provide income and expense information as required under section 278.05, subdivision 6(a). The tax court therefore did not err in dismissing relator’s 1997, 1998 and 1999 property tax petitions with respect to the Main Base Building.

Affirmed.

PAUL H. ANDERSON, J.

(concurring).

I concur in the result reached by the majority, but write separately to clarify particular concerns I have about this case.

There is no question that the MAC is the owner of the Main Base Building. Nor is there any question that under Minn. Stat. § 272.01, subd. 2(a) (2000), Northwest must pay a tax because of its interest in the Main Base Building. Minnesota Statutes § 272.01, subd. 2(a), provides that a lessee in Northwest’s position must pay a tax on leased property “in the same amount and to the same extent as though the lessee * * * was the owner of the property.” Id. However, the tax paid is not an owner’s real estate tax, but is a personal property tax. Id., subd. 2(c).

There is also no question that when a party, such as Northwest, petitions to challenge the assessed value of a property, the 60 day rule in Minn.Stat. § 278.05, subd. 6(a) (2000), applies if the property is “income-producing property.” Id. Nor is there a question that subdivision 6 applies to both real and personal property. But the result of failing to abide by the 60 day statutory deadline is harsh-if the petitioner does not comply, the petition is dismissed. Here, the difficulty in complying with the statute is the complex scheme of classifying the petitioner as an owner/leaseholder and classifying the property as income-producing property even though the source of the income is the lease payments made by the petitioner.

It is not that difficult for us — after a petition has been filed, a tax court hearing held, and an appellate review conducted— to conclude that for purposes of Minn.Stat. § 278.05, subd. 6(a), the property at issue is income-producing. However, due to the complexity of the tax scheme, it is oftentimes difficult to fit the essential pieces together and still comply with the 60 day deadline. A high potential for prejudice to the petitioner exists because of the interaction between the tax scheme and the 60 day deadline. ■ Despite this, I conclude that no prejudice occurred here and the result reached by the majority is correct. However, I suggest that the legislature may wish to revisit this statutory. scheme and its consequences, especially in light of a legislative history that indicates that the legislature anticipated that a property owner would get notice of the applicability of section 278.05, subd. 6(a), to a petition and the respondent’s concession that, in fact, no such notice is provided. Hearing on H.F. 2890, H. Comm, on Taxes, 78th Minn. Leg., Mar. 25, 1994 (audiotape) (statement of Tom May, Assistant Henne-pin County Assessor).

On a final note, I also write to express my concern with the majority’s discussion of the income approach accounting method as part of its statutory interpretation anah ysis. The approach a county assessor uses to determine the market value of a property is not relevant to determining whether that property is correctly classified as income-producing. Thus, the discussion of the income approach is distracting. Regardless of the proper approach for determining the market value of income-producing property, Minn.Stat. § 278.05, subd. 6(a), requires a petitioner to provide the county assessor with “verified net rentable areas, and anticipated income,” which would include the lease at issue in this case.

GILBERT, Justice

(concurring in part and dissenting in part).

I generally concur with the legal reasoning of the majority, but do not believe that its analysis should be applied under these facts to deprive Northwest Airlines of a hearing. For over 20 years, since our decision in In re McCannel, 301 N.W.2d 910, 923-24 (Minn.1980), Hennepin County has been valuing this leased property by using a traditional cost approach for this special use property. Then on January 4, 2000, the county switched its appraisal approach after the 60 day filing requirement in Minn.Stat. § 278.05, subd. 6(a) (2000) had expired. The county is trying to take unfair advantage of this change in strategy without notice to Northwest after a long-term course of dealings using a different classification that did not require income figures.

The county stated that it found out about a new lease after the 60-day period had expired. But the county knew that this public property was always leased by Northwest. This facility had been under lease since 1956 and, although the initial lease expired in 1991 and was a morith-to-month lease thereafter, the county had been aware of the leased nature of this property for over 40 years. In fact, we made reference to the initial lease in McCannel. However, even though the county knew of a lease all along, until now the county had always used the traditional cost approach for this special use, leased property rather than the income approach. The tax court also noted that “[p]etitioner, as tenant of the MSP [Minneapolis/St. Paul International Airport], has filed petitions contesting the assessed value of the MSP since 1957.” The terms of the lease changed over the years, but not the leasehold nature of Northwest’s interest in the property. The county also knew that the original lease would be “market based” as of June 30, 1991, when the original lease expired, because that term was in the original lease. However, the county waited almost 9 years to change its classification.

Minnesota law provides a mechanism for a property owner to contest a real estate assessment. Minn.Stat. § 278.01 (2000). That statutory mechanism requires petitioners challenging the assessed value of income-producing property to provide certain information to the county assessor within 60 days after filing the petition. Minn.Stat. § 278.05, subd. 6(a). Failure to provide that information results in the dismissal of the petition unless the required information is unavailable. Id.; BFW Co. v. County of Ramsey, 566 N.W.2d 702, 704 (Minn.1997).

Here, Northwest failed to provide that information within 60 days, and its petition was dismissed. While this result is consistent with the language of the statute, the unfairness lies in the fact that Northwest was unaware that it was required to submit certain information and comply with the 60 day statutory deadline in Minn.Stat. § 278.05, subd. 6(a). Northwest was unaware because the county did not provide notice that it had changed its classification of the subject property to income-producing property.

Based on these facts, I believe it is unfair and inequitable for Hennepin County to benefit by its changed tactics. This result reached by the majority is especially unjust based on the Hennepin County Assessor’s office testimony in front of the House Tax Committee when the 60 day rule was adopted in 1994. The assessor testified that the county warned property owners that their property was subject to the then-current 45 day rule relating to information to be provided on income-producing property, suggesting that the county assessor would continue that practice with respect to the 60 day rule. Hearing on H.F. 7890, H. Comm, on Taxes, 78th Minn. Leg., Mar. 25, 1994 (audiotape) (statement of Tom May, Assistant Henne-pin County Assessor). However, in truth and fact, in this case the Hennepin County Assessor’s office submitted an affidavit stating the assessor’s office does not make a practice of warning property owners that information relative to income-producing property must be provided before the 60 day filing period expires. The county did not warn Northwest of its practice or its change in classification of this building, and did not even request a copy of the actual lease until over 1 year after the 60 day period had expired.

Accordingly, I would affirm the tax court’s analysis, but I would make this decision prospective and remand for a hearing on the tax years in question.

PAGE, Justice

(concurring in part, dissenting in part).

I join in the concurrence and dissent of Justice Gilbert.

      . Also known as Building B, the Main Base Building consists of office space and aircraft maintenance hangers and is located south of the main entrance drive to the airport.

      . Prior to signing the 1995 lease, MAC commissioned an appraisal of the fair rental value of the base facilities.

      . A senior appraiser at the Hennepin County Assessor's Office submitted an affidavit stating that he had not been advised and was unaware of the 1991 lease extension and the 1995 escalating rent lease until he received a copy of the lease from MAC on October 22, 1999. The dissent contends that respondent knew that the original lease had changed to a market-based lease as of June 30, 1991 because the original lease called for the negotiation of a market-based lease before its expiration. Those negotiations were not completed however, until the new lease was signed and made effective January 1, 1995. In any event, it was incumbent upon relator under Minn. Stat. § 278.05, subd. 6(a), to provide the income and expense information within 60 days after filing its chapter 278 petitions.

      . Minnesota Statutes § 273.19, subd. 1 (2000) by its terms does not apply here.

      . The other two approaches are a comparison of sales of comparable properties and replacement cost. Am. Express Financial Advisors, Inc. v. County of Carver, 573 N.W.2d 651, 657 (Minn.1998).

      . When the legislature considered the adoption of the 60 day rule in 1994, a member of the House Tax Committee expressed concern about how a property owner would know whether the subject property is "income-producing.” In response a representative from the Hennepin County Assessor’s Office testified that the county assessor warned property owners that their property was subject to the then 45 day rule relating to information to be provided on income-producing property, suggesting that the county assessor would continue that practice with respect to the 60 day rule. Hearing on H.F. 2890, H. Comm, on Taxes, 78th Minn. Leg., Mar. 25, 1994 (audiotape) (statement of Tom May, Assistant Hen-nepin County Assessor). In the matter now before this court, Daniel Salzwedel, a Senior Appraiser in the Hennepin County Assessor's office, submitted an affidavit stating that the Assessor's Office does not make a practice of warning property owners that information relating to income-producing property must be provided before the 60 day filing period expires. We share the concern expressed by the member of the Tax Committee that an owner of non-rent-generating property may have inadequate notice that the property might be assessed as income-producing property and thus be subject to the 60 day rule. While not an issue here because the Main Base Building is clearly income-producing property, the issue might not be so clear where the property is not subject to a lease.

      . Minn.Stat. § 278.05, subd. 6(a) ("Failure to provide the information required in this paragraph shall result in the dismissal of the petition, unless the failure to provide it was due to the unavailability of the evidence at that time.”).

      . Northwest Airlines, Inc. v. County of Henne-pin, No. TC 25905, TC 26548, TC 27651, 2 (Minn. T.C. Aug. 29, 2000).


author: RUSSELL A. ANDERSON, Justice.

text:
    In re STATE of Minnesota, Petitioner. State of Minnesota, Respondent, v. Nathaniel James Wilson, Appellant.
    No. C3-00-2071.
    Supreme Court of Minnesota.
    Sept. 6, 2001.

      John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, for appellant.
    Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, for respondent.
   OPINION

RUSSELL A. ANDERSON, Justice.

While in prison, Nathaniel James Wilson requested disposition of an untried complaint against him under the Uniform Mandatory Disposition of Detainers Act (UMDDA). Minn.Stat. § 629.292 (2000). The UMDDA provides that within six months of the receipt of such request or within such additional time as the district court for good cause may grant, the complaint shall be brought to trial. Id., subd. 3. If, after such request, the complaint is not brought to trial within that period, the court no longer has jurisdiction over the complaint and shall dismiss it with prejudice. Id. Before expiration of the six-month period and without deciding whether additional time should be granted, the Stearns County District Court dismissed the complaint against Wilson for failure to timely honor his request for trial. By writ of mandamus, the court of appeals vacated the district court order and remanded for further proceedings under the UMDDA. On appeal to this court, we are asked if a writ of mandamus is available to vacate the district court order and to compel the district court to determine whether to grant additional time for the complaint to be brought to trial. We conclude that the writ of mandamus is available for these purposes. We also consider whether the six-month period is tolled pending final resolution of Wilson’s motion, and subsequent appellate review, and we conclude that it is. We affirm.

Wilson was charged in Stearns County on March 30, 2000, with racketeering in violation of Minn.Stat. §§ 609.903, subd. 1(1), 609.904, subds. 1, 2 (2000). On June 14, 2000, Wilson, an inmate at a Minnesota correctional facility, requested final disposition of the complaint under the UMDDA. The Stearns County District Court received the request on June 22, 2000. Wilson’s request was delivered to the Stearns County Attorney, who forwarded it to the prosecuting attorney identified in the complaint, an assistant attorney general. The office of the attorney general received the request on June 26, 2000.

On October 19, 2000, approximately four months after receipt of the request, Wilson was arraigned. At this first court appearance the state disclosed nearly 5,000 pages of discovery documents. The following day, a public defender was appointed to represent Wilson. Approximately two weeks later, Wilson moved to dismiss the complaint because the state failed to “timely honor” his request for trial under the UMDDA. Wilson argued that the UMD-DA required that he be brought to trial within six months of receipt of his request and that, because of the state’s delay in arraigning him, it was impossible to complete discovery and prepare for trial within the time remaining in the six-month period.

On November 28, 2000, approximately one month before expiration of the six-month period, the district court granted Wilson’s motion. The district court conceded that under the UMDDA it could not “technically” dismiss the complaint before expiration of the six-month period. The district court concluded that the state was negligent because of the delay of four months from receipt of Wilson’s request to his arraignment and that Wilson could not receive a fair trial in the short time remaining in the six-month period. According to the district court, defense counsel could not adequately prepare for trial before expiration of the six-month period because of the complexity of the case and the volume of discovery. The district court rejected the state’s offer either to try the case within the six-month period or to agree to a continuance. According to the district court, Wilson should not have to choose between agreeing to a continuance, thereby waiving his right to dismissal at the expiration of the six-month period, or going to trial unprepared.

The state petitioned the court of appeals for a writ of mandamus compelling the district court to reinstate the complaint and either schedule trial before expiration of the six-month period or grant a continuance. The court of appeals granted the writ “in part” by vacating the district court’s order dismissing the complaint and by remanding to the district court “for further proceedings under Minn.Stat. § 629.292, subd. 3 [2000].” In its order, the court of appeals directed the district court to determine whether to grant, for good cause shown, additional time for the complaint to be brought to trial but did not direct the district court to schedule trial immediately or grant a continuance, as the state requested.

The first issues we consider are (1) whether mandamus is available to vacate a district court order, issued before expiration of the six-month period, dismissing a complaint for failure to timely comply with a request for trial, and (2) whether mandamus is available to compel the district court to determine whether, for good cause shown, to grant additional time for the complaint to be brought to trial. The issues are legal, requiring interpretation of statutes, and our review is de novo. Scott v. Minneapolis Police Relief Ass’n, Inc., 615 N.W.2d 66, 70 (Minn.2000).

The authority to issue a writ of mandamus is statutory. Minn.Stat. § 586.01 (2000); McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn.1989). A writ of mandamus may issue only to enforce a clear present duty. State ex rel. Brenner v. Hodapp, 234 Minn. 365, 370, 48 N.W.2d 519, 522 (1951). A writ of mandamus is not available to control judicial discretion, but the writ may require a lower court to exercise its judgment when there is a clear statutory duty to do so. See Minn.Stat. § 586.01.

To determine whether mandamus is available, we address whether the UMD-DA imposes clear statutory duties on the district court. When the language of the statute is plain and unambiguous, we must give the statute its plain meaning. See Minn.Stat. § 645.16 (2000); Kersten v. Minn. Mut. Life Ins. Co., 608 N.W.2d 869, 874-75 (Minn.2000).

We do not read the UMDDA to impose a duty on the district court to schedule trial before expiration of the six-month period since scheduling trials is left to the sound discretion of the district court. See McIntosh, 441 N.W.2d at 119. Nor is the district court required to grant additional time for the complaint to be brought to trial. We agree with the court of appeals that, under the UMDDA, whether good cause exists to grant additional time beyond the six-month period is within the judicial discretion of the district court. State v. Miller, 525 N.W.2d 576, 580 (Minn.App.1994); see also State v. Sanders, 598 N.W.2d 650, 654 (Minn.1999).

If the district court does not schedule trial within the six-month period, however, we read the UMDDA to impose a clear statutory duty on the district court to determine whether good cause exists to grant additional time beyond that period. Minn.Stat. § 629.292, subd. 3. Once the district court and prosecuting attorney have received the request, the complaint “shall be brought to trial” within six months “or within such additional time as the court for good cause shown in open court may grant.” Id. (emphasis added). By use of the disjunctive or and the mandatory shall, the statute requires that the district court either set trial within six months or determine whether to grant additional time for good cause shown. Therefore, if the court does not set trial within the six-month period, it has a clear statutory duty within that six-month period to exercise its discretion in determining whether to grant additional time for good cause shown.

If, after receipt of a prisoner’s request, the complaint is not brought to trial within “that period,” meaning the six-month period or any additional time granted, the court shall no longer have jurisdiction over the complaint and the court shall dismiss the complaint with prejudice. Id. Thus, the court loses jurisdiction over the complaint and must dismiss with prejudice only if the complaint is not brought to trial within “that period.” Id. Until that time, however, there remains an opportunity to demonstrate good cause for additional time. Therefore, we conclude that the district court’s failure to make a determination whether to grant additional time for the complaint to be brought to trial eliminated the state’s ability within the statutory six-month period to demonstrate good cause for additional time.

We look next at the district court order to determine whether the district court acted in accordance with its clear statutory duty either to set trial within the six-month period or to determine whether to grant additional time. Wilson argues that the district court implicitly decided not to grant additional time and that it is not appropriate to order the district court again to decide it. The state argues that the district court did not decide whether to grant additional time beyond the six-month period and, therefore, mandamus is available.

Our review of the district court order reveals that its focus is on whether Wilson could receive a fair trial within the time remaining in the six-month period. The district court did not decide whether to grant additional time beyond the six-month period even though it acknowledged that it could make such a decision. The court determined that the state was negligent by delaying Wilson’s arraignment for four months and that Wilson could not receive a fair trial within the time remaining in the six-month period. The court’s finding of negligence because of the four-month delay, however, is not the same as a finding that good cause has not been shown to grant additional time beyond the six-month period. The court could conceivably find that despite the state’s negligence, good cause for a continuance exists. In stating that, we also recognize that on this record the court could properly deny a continuance for lack of good cause. In any event, because it does not appear on this record that the court determined whether good cause for a continuance existed, and the UMDDA imposes on the court a duty to make that determination, issuance of the writ was proper.

We conclude that a writ of mandamus is available to vacate a district court order that dismisses a complaint for violation of the UMDDA’s six-month period before expiration of the six-month period. We also conclude that a writ of mandamus is available to compel the district court to make a determination whether to grant additional time for the complaint to be brought to trial if the court did not schedule trial within the six-month period and did not exercise its discretion in determining whether additional time should be granted for good cause shown. We hold that the district court erred when it dismissed the complaint without deciding whether to grant additional time, for good cause shown, for the complaint to be brought to trial.

The last issue we consider is whether the UMDDA’s six-month period is tolled during the pendency of a motion to dismiss the complaint for failure to comply with the time period. Determining whether the court retains jurisdiction is a legal issue and our review is de novo. State v. Pflepsen, 590 N.W.2d 759, 763 (Minn.1999).

Wilson argues that if the complaint is not brought to trial within six months of receipt of the request the plain language of the UMDDA requires that the complaint be dismissed with prejudice. Wilson further argues that appellate proceedings have no effect on the six-month period because the UMDDA makes no exceptions for appellate proceedings. The state argues that when a defendant causes a delay, the delay must be attributed to the defendant and that time must be excluded from the UMDDA’s six-month period.

We have not directly addressed whether a motion to dismiss for failure to “timely honor” a prisoner’s request for final disposition under the UMDDA, and subsequent appellate proceedings, tolls the running of the UMDDA six-month deadline. We look to other states with laws similar to those of Minnesota to provide guidance. See Elecs. Unlimited Inc. v. Vill. of Burnsville, 289 Minn. 118, 123, 182 N.W.2d 679, 683 (1971); see also State ex rel. Kemp v. Hodge, 629 S.W.2d 353, 359 (Mo.1982) (“[C]ases which have interpreted [the UMDDA] in the other jurisdictions which have adopted the uniform act * * * are valuable for interpreting the statute.”) We also look for guidance from the UMD-DA’s counterpart, the Interstate Agreement on Detainers (IAD). Johnson, 939 P.2d at 820 (“Both the IAD and the UMD-DA reflect the same policy of facilitating the speedy disposition of untried charges upon a proper request by an incarcerated person * * *.”).

States that have enacted the UMDDA and IAD permit tolling of the statutory time limit when the defendant caused or created the delay. People v. Bell, 669 P.2d 1381, 1384 (Colo.1983) (“If the delay is caused by, agreed to, or created at the instance of the defendant, it will be excluded from the speedy-trial calculation made by the court.”); Commonwealth v. Flores, Nos. CRIM. A. 91-493, CRIM. A. 91-494, 1998 WL 792466 at *3 (Mass.Super.Ct. Nov. 6, 1998) (“[T]he defendant filed the present motion to dismiss the indictments [under the IAD] which tolls the running of the 180 day clock until it is decided.”); State v. Carlson, 258 N.W.2d 253, 258-59 (N.D.1977) (tolling the UMDDA time period when defendant delayed entry of a plea, sought a continuance, filed a habeas corpus petition and relieved and obtained counsel). To hold otherwise would allow defendants to trigger a UMDDA violation simply by pursuing a motion to dismiss the complaint.

We hold that Wilson’s motion to dismiss for failure to timely honor his UMDDA request for final disposition of a criminal charge caused a delay in bringing the matter to trial, that this delay is attributable to Wilson, and that the UMDDA’s six-month period is therefore tolled until final disposition of his motion.

Affirmed.

      . The complaint alleges that Wilson and ten other individuals engaged in racketeering in Stearns, Clay, Benton and Hennepin Counties in Minnesota and Cass County, North Dakota, over the course of nearly four years.

      . Wilson claims that the six-month time limit began to run June 20, 2000, when the Stearns County Attorney received the request for disposition. The statute requires that the "prosecuting attorney” receive the request and in this case, the attorney general is the prosecuting attorney. The attorney general did not receive the request until June 26, 2000. Apparently, the district court had receipted for the request by that date. Arguably, the UMD-DA six-month time limit commenced June 26, 2000. Because the district court's order dismissing this complaint occurred approximately one month before expiration of the six-month period, we need not decide when the time limit on the UMDDA began to run.

      . The writ of mandamus may be issued to any inferior tribunal * * * to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It may require an inferior tribunal to exercise its judgment * * * but it cannot control judicial discretion.
      Minn.Stat. § 586.01.

      . Where a party has an adequate remedy by appeal, ordinarily a writ of mandamus is not available. State v. Davis, 592 N.W.2d 457, 459 (Minn.1999). We question whether the state had an adequate remedy through appeal in this case; however, Wilson has not chai-lenged issuance of the writ on this basis and we decline to address the issue.

      . Within six months after the receipt of the request and certificate by the court and prosecuting attorney, or within such additional time as the court for good cause shown in open court may grant, the prisoner or counsel being present, the indictment or information shall be brought to trial * * *. If, after such a request, the indictment or information is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall dismiss it with prejudice.
      Minn.Stat. § 629.292, subd. 3 (emphasis added).
      The UMDDA also permits the parties to stipulate “for a continuance” and permits the court to grant a continuance "on notice to the attorney of record and opportunity for the attorney to be heard.” Id.

      . Minn.Stat. § 629.294 (2000). See Johnson v. People, 939 P.2d 817, 819 (Colo.1997) (describing the UMDDA as an intrastate detainer provision involving prisoners in the custody of a state department of corrections who have charges from that state pending against them). The IAD is similar to the UMDDA but is based on federal law and applies to inmates with charges pending in another state. Johnson, 939 P.2d at 819; Minn.Stat. § 629.294.


author: GORDON W. SHUMAKER, Judge

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Appellant, v. MINNESOTA POLLUTION CONTROL AGENCY, Respondent, Boise Cascade Corporation, Intervenor, Respondent.
    No. C6-01-96.
    Court of Appeals of Minnesota.
    July 24, 2001.
    Review Granted Sept. 25, 2001.

      Brian B. O’Neill, Richard A. Duncan, Elizabeth H. Schmiesing, Kristin R. Eads, Faegre & Benson, LLP, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Eldon G. Kaul, Leah M.P. Hedman, Assistant Attorneys General, St. Paul, for respondent Minnesota Pollution Control Agency.
    Lloyd W. Grooms, Eric F. Swanson, Winthrop & Weinstine, P.A., St. Paul, for respondent Boise Cascade Corporation.
    Considered and decided by AMUNDSON, Presiding Judge, LANSING, Judge, and SHUMAKER, Judge.
   OPINION

GORDON W. SHUMAKER, Judge

Appellant Minnesota Center for Environmental Advocacy (MCEA) appeals from summary judgment in favor of respondent Minnesota Pollution Control Agency (MPCA), contending that the MPCA improperly decided against requiring a project-specific environmental impact statement (EIS) for a proposed modification of intervenor Boise Cascade Corporation’s paper mill in International Falls. Appellant also challenges the district court’s denial of its motion to supplement the administrative record.

Because the record does not adequately support respondent’s conclusion that the environmental impact of the Boise modification will not be such as to require an EIS, we reverse and remand. We need not reach the issue of the court’s denial of appellant’s motion to supplement the administrative record.

FACTS

Boise Cascade Corporation operates a paper mill on the Rainy River in International Falls. The mill consumes about 600,000 cords of wood annually to produce fiber from which pulp for the manufacture of paper products is derived. Approximately 55% of the wood is harvested from public timberlands within a 110-mile radius of International Falls.

Under consideration in this appeal is Boise’s proposal to modify its paper mill. The modification will increase the emission of air pollutants, will increase wood usage to as much as 700,000 cords annually, and will require an expansion of the timber harvest area to a 150-mile radius, or more, from International Falls.

As the “responsible governmental unit” (RGU) for the evaluation of the impact of Boise’s modification on the environment, the MPCA, with the assistance of Boise and the Minnesota Department of Natural Resources (DNR), prepared an environmental assessment worksheet (EAW). From public comment on the EAW, questions arose as to the nature and extent of the negative environmental impact of the project and the adequacy of measures to mitigate that impact. To answer those questions, the MCEA contended that a project-specific EIS would be necessary.

Because of the DNR’s expertise in forestry conservation and management, the MPCA requested that the DNR address the issues that the MCEA and others raised. Noting that the level of timber harvesting proposed as part of Boise’s modification would be consistent with that previously analyzed in a generic environmental impact statement (GEIS) prepared for the entire state between 1989-1994, the DNR concluded that a project-specific EIS would not be necessary.

The Minnesota Environmental Quality Board (EQB) approved the 1994 GEIS to assess the cumulative impact of timber harvesting in Minnesota. As described in the document itself, the GEIS is a global review that does not focus in detail on any particular project:

[Bjecause a GEIS is considered an alternative form of environmental review, projects under consideration by a GEIS are still subject to normal environmental review procedures and requirements, as well as environmental permit procurement procedures. In essence, a GEIS is considered a long-range planning document that can provide useful information regarding geographically broad and long-term consequences that are unlikely to be identified in project-specific environmental review processes. Therefore, a GEIS provides the context within which future project-specific EISs can be assessed.

In assessing the Boise project, the MPCA asked the EQB whether the GEIS is still adequate for evaluating the environmental effects of timber harvesting. The EQB qualifiedly said that it is:

While the Timber Harvesting GEIS is no longer as accurate as it was when it was completed, it is still accurate enough if used, interpreted, and qualified properly in project-specific review to adequately inform decision makers.

The GEIS identified numerous potentially significant adverse environmental effects of timber harvesting but stated that ownership constraints and mitigations would diminish the adverse impacts. However, the GEIS warned of the consequences of failing to apply constraints and mitigations to timber harvesting:

Note that if these ownership constraints and mitigations are not routinely applied to all timber harvesting and forest management activities during the next 50 years, the number and severity of significant impacts * * * will increase for all three harvest levels.

Citing the GEIS and the “ongoing implementation of programmatic mitigation authorized under the Sustainable Forest Resources Act,” the MPCA denied the MCEA’s request for a specific EIS for the Boise project.

The MCEA sued the MPCA, challenging its determination that a project-specific EIS is not necessary for the Boise modification. After hearing cross-motions for summary judgment, the district court granted the MPCA’s motion. The court noted that the EAW revealed that “there is a potential for the Boise Project to contribute adverse effects to the forest,” but the court ruled that there was substantial evidence in the record that the adverse environmental effects would be mitigated:

MPCA found that the environmental effects of the Boise Cascade Project are subject to mitigation by ongoing public regulatory authority — the third criterion to be considered in deciding if a project has the potential for significant environmental effects. MPCA’s conclusions regarding the significance of the timber harvesting effects were guided in part by reliance on timber harvesting and forest management programmatic mitigation measures required under the Minnesota Sustainable Forest Resources Act * * *.

The court explained that the Minnesota Sustainable Forest Resources Act (MSFRA) created a public agency known as the Minnesota Forest Resource Council (MFRC) “to establish guidelines for mitigation, to monitor the status of implementation and compliance, and to report on those effects.” According to the court, even though “it is true that MFRC does not have the authority to directly compel compliance with its guidelines,” the MFRC can “recommend to the governor additional measures” to address significant adverse environmental impacts discerned by the MFRC.

From the summary judgment in the MPCA’s favor, the MCEA takes this appeal, alleging principally that the MPCA’s decision not to prepare an EIS was arbitrary and capricious and that the district court erred by failing to allow supplementation of the administrative record.

ISSUE

An EIS is required for any project that has potential for significant environmental effects unless those effects are subject to mitigation. Although measures have been identified for the mitigation of the environmental effects of a paper mill expansion, many of the measures have not been performed and there is no regulatory method to assure performance. Did the district court err by holding that the responsible governmental unit properly denied a request for an EIS for the paper mill project?

ANALYSIS

Although this is an appeal from a summary judgment, the proper standard of review is of

the proceedings before the decision-making body * * *, not the findings of the trial court. * * * We review the governmental body’s determination on the basis of whether it was unreasonable, arbitrary, or capricious.

Iron Rangers for Responsible Ridge Action v. Iron Range Resources, 531 N.W.2d 874, 879 (Minn.App.1995) (citation omitted), review denied (Minn. July 28, 1995).

An agency ruling is arbitrary and capricious if the agency: (a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency’s expertise.

White ex rel. State v. Minnesota Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn.App.1997) (citation omitted), review denied (Minn. Oct. 31, 1997). An agency’s decision is also considered arbitrary or capricious if “it represents the agency’s will, rather than its judgment.” Trout Unlimited, Inc. v. Minnesota Dep’t of Agric., 528 N.W.2d 903, 907 (Minn.App.1995) (citations omitted), review denied (Minn. April 27, 1995). “Although the judiciary has the responsibility of ensuring that administrative agencies comply with legislative mandates, a presumption of administrative regularity exists.” No Power Line, Inc. v. Minnesota Envtl. Quality Council, 262 N.W.2d 312, 325 (Minn.1977). Furthermore, the courts are to show deference to the agencies’ expertise. Id.

An EAW is a document “designed to set out the basic facts necessary to determine whether an EIS is required for a proposed project.” Minn. R. 4410.0200, subp. 24 (1999). An EIS must be prepared for any project that has the potential for significant environmental effects. Minn.Stat. § 116D.04, subd. 2a (1998); Minn. R. 4410.2000, subp. 3 (1999). In determining the potential for significant environmental effects, the RGU, here the MPCA, must consider four factors:

A.[the] type, extent, and reversibility of environmental effects;
B. [the] cumulative potential effects of related or anticipated future projects;
C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and
D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, [including EISs previously prepared on similar projects].

Minn. R. 4410.1700, subp. 7 (1999).

The responsible governmental unit’s decision, after its consideration of the four factors, must be based on substantial evidence contained in the agency record. Iron Rangers, 531 N.W.2d at 880. “Substantial evidence” is relevant evidence considered in its entirety that is more than some evidence or a scintilla of evidence and is such that “a reasonable mind might accept as adequate to support a conclusion.” White, 567 N.W.2d at 730.

The MPCA and Boise contend that, although the paper mill modification may have the potential for significant environmental effects, those effects are subject to mitigation by an ongoing public regulatory authority, namely, the MFRC. “[Conditions mitigating the environmental consequences of an action may justify an agency’s decision not to prepare an environmental impact statement.” Alaska Ctr. for Env’t v. United States Forest Serv., 189 F.3d 851, 860 (9th Cir.1999). However, mitigation measures must be more than “vague statements of good intentions,” Iron Rangers, 531 N.W.2d at 881 (citation omitted), and mitigation is an important criterion to consider when determining the potential for significant environmental impacts. Minn. R. 4410.1700, subp. 7(C) (1999); see also White, 567 N.W.2d at 732. Thus, “[mitigation must ‘be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.’” Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1380 (9th Cir.1998) (citation omitted).

The GEIS identified numerous mitigation strategies designed to address the environmental impacts of timber harvesting. In general, those strategies include the reduction of areas converted to non-forest uses; rotation practices; balance procedures for age-class and cover types; protection of sensitive species and sites; road and trail plans; visual management guidelines; creation of various inventories regarding biodiversity features, and old-growth, archaeological and historical sites; pest-management strategies; retention of slash, snag trees in clear-cut areas, and cavity trees; regulation of equipment use on forest lands; and plans to increase wood fiber productivity.

The governmental responses to the recommended mitigation strategies appear to fall into seven categories: (1) proposal of guidelines, (2) adoption of guidelines; (3) land purchases, (4) identification and classification plans, (5) identification and classification activities, (6) the establishment of committees to monitor and review forest activities, and (7) the development of miscellaneous strategies.

Although some of the mitigation strategies listed in the GEIS are being implemented to some extent, it appears from this record that most are at the guideline-development or planning stages, or that additional research will be necessary before guidelines and plans can be created. On this latter point, the EAW for the Boise project states

[t]he precise effects of cumulative timber harvest, at current and projected levels, on spatial patterns in forest landscapes within the area where Boise Cascade procures wood is not scientifically known. Research beyond the scope of this EAW is required to address this potential type of impact and apply the results in developing appropriate mitigation strategies * * *. However, because the GEIS did not evaluate landscape ecology issues, the applicability of the identified GEIS mitigation to address this issue is uncertain. Therefore, in this respect the applicability of the GEIS is limited. DNR can only identify that the project may affect the spatial distribution and connectivity of habitat types, but further research and analysis is required to assess whether the effects are potentially adverse and what mitigation are available. The need to initiate and conduct this type of research in Minnesota has been identified.

(Emphasis added.) The EAW additionally notes that

the potential project-related increase in timber harvest is of the type and extent envisioned in the GEIS analysis. [F]ur-ther research is necessary to identify how timber harvest cumulatively affects the landscape-scale distribution of habitat types over time.

The court in Trout Unlimited, 528 N.W.2d at 909, said that the commissioner of agriculture’s determination that an EIS was not necessary was error where the project had a potential for significant environmental effects and the commissioner’s strategy was to “rely on monitoring or restrictive permitting procedures to reduce or eliminate those deleterious effects.” The court said: “The very purpose of an EIS * * * is to determine the potential for significant environmental effects before they occur.” Id.; cf. National Audubon Soc’y v. Hoffman, 132 F.3d 7, 17 (2d Cir.1997) (stating that the efficacy of the mitigation measures were assured because they were included as mandatory conditions in the issued permits, required implementation of a detailed plan to monitor the effects of the proposed action and the mitigation of those effects, and required monitoring of the mitigation efforts, if any were made, to ensure that they were effective and required implementation of an alternative mitigation plan, spelled out in detail, if they were not) (citing Abenaki Nation of Mississquoi v. Hughes, 805 F.Supp. 234, 245 (D.Vt.1992), aff’d 990 F.2d 729 (2d Cir.1993)).

The efficacy of the mitigation measures for the Boise project is questionable for several reasons: A great number of the measures remain inchoate and subject only to future monitoring; there are inaccuracies in and omissions from the GEIS that require further research and investigation; some of the conclusions in the GEIS about mitigation are outdated; and none of the mitigation measures is assured because none is mandated to occur.

Although the legislature enacted the SFRA ostensibly to facilitate the implementation of the GEIS mitigation strategies, compliance with the MFRC’s guidelines is voluntary. Thus, the MFRC does not truly perform a regulatory function. Without some-assurances that mitigation measures can be compelled, even good-faith intentions can have an evanescent quality and the potential for unmitigated and irreparable environmental harm remains.

The MPCA argues that this case is a “mirror image” of National Audubon Soc’y v. Minnesota Pollution Control Agency, 569 N.W.2d 211 (Minn.App.1997), review denied (Minn. Dec. 16, 1997), a case dealing with the expansion of the Potlatch Corporation’s timber-harvesting operation. Because we do not have before us the administrative record from National Audubon, we cannot tell whether or not the two cases are factually mirror images of each other. But we do know that the Potlatch EAW “targets specific mitigation measures that have been or will soon be implemented [to] address the environmental impacts associated with the Potlatch expansion.” Id. at 217 (emphasis added). The MPCA contends that the “implementation status of present mitigation measures goes far beyond those existing at the time” of Potlatch.

The record here shows that some mitigation measures have been implemented but it does not show that other, seemingly important, measures have gotten beyond the guidelines or strategizing stage. Furthermore, we find it significant that monitoring of the compliance with and effectiveness of mitigation measures is substantially lacking. In its response to public comments the DNR said:

It is correct that effectiveness monitoring is yet to be fully realized as envisioned under the SFRA. SFRA directs the FRC, in conjunction with the DNR, to institute monitoring to determine trends and conditions of Minnesota’s forests, compliance with necessary forest practices, and the effectiveness of these practices in mitigating potentially significant environmental effects. Compliance and effectiveness monitoring is an important element of the voluntarily approach that constitutes the State’s policy to address the cumulative environmental effects of timber harvest as embodied in the SFRA. Based upon the results of this monitoring, the FRC is to report to the Legislature whether the State’s forests are being used consistent with the policy vision offered under the Act.
Lack of data is -the primary source of uncertainty tied to understanding compliance and effectiveness aspects of the recently adopted FRC guidelines.

We have a concern similar to that expressed in Trout Unlimited: What assur-anees are there that reasonable mitigation measures will be in place before the harm is done? We find such assurances substantially lacking. Because of our disposition of this appeal, we need not decide the MCEA’s challenge to the district court’s denial of the motion to supplement the record.

DECISION

Considering the entirety of the record, the MPCA’s conclusion that the potentially adverse environmental effects of the Boise project are subject to mitigation by ongoing public regulatory authority is not supported by substantial evidence. Therefore, we reverse and remand to the MPCA for preparation of a project-specific EIS.

Reversed and remanded.