source: Caselaw Access Project

author: GILBERT, Justice. PAUL H. ANDERSON, Justice

license: Public Domain

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Respondent, v. MINNESOTA POLLUTION CONTROL AGENCY, Petitioner, Appellant, Boise Cascade Corporation, Intervenor, Petitioner, Appellant.
    No. C6-01-96.
    Supreme Court of Minnesota.
    May 23, 2002.

      Mike Hatch, Minnesota Attorney General, Eldon G. Kaul (#54070), Leah M.P. Hedman (# 280501), St. Paul, MN, for Appellant MPCA.
    Winthrop & Weinstine, P.A., Lloyd W. Grooms (# 188694), Eric F. Swanson (# 188128), St. Paul, MN, for Appellant Boise Cascade.
    Faegre & Benson LLP, Brian B. O’Neill (# 82521), Richard A. Duncan (# 192983), Kristin R. Eads (# 275414), Elizabeth H. Schmiesing (#229258), Anne E. Mahle (# 312861), Minneapolis, MN, for Respondent MCEA.
    Dunkley, Bennett, Christensen & Madi-gan, P.A., Michael D. Madigan (# 129586), David G. Parry (#281980), Minneapolis, MN, for Amicus Trout Unlimited, et al.
    David R. Oberstar (# 144162), Duluth, MN, for Amicus MN Timber.
   OPINION

GILBERT, Justice.

Respondent Minnesota Center for Environmental Advocacy (MCEA) brought a declaratory judgment action in district court seeking an order requiring the preparation of an Environmental Impact Statement (EIS), pursuant to Minn.Stat. § 116D.04, subd. 2(a) (2000), on Appellant Boise Cascade Corporation’s proposed Efficiency Improvement Project. Appellant Minnesota Pollution Control Agency (MPCA), as the responsible governmental unit (RGU), concluded that the proposed project did not have the potential for significant environmental effects and therefore an EIS was not required. The district court granted summary judgment to the MPCA, holding there was substantial evidence in the record to support the MPCA’s decision not to require an EIS. The Minnesota Court of Appeals reversed the district court and remanded to the MPCA for the preparation of an EIS. We reverse the court of appeals.

Boise Cascade operates an integrated pulp and paper mill on the Rainy River in International Falls, Minnesota. The mill manufactures a variety of coated and un-coated fine paper products. Wood for the mill is supplied from Boise Cascade’s tim-berlands in Minnesota, public and private timberlands, and residues from local sawmills. Boise Cascade supplies 72 percent of the wood for the mill and purchases the remainder on the outside market in the form of pulp. Currently, the mill consumes approximately 600,000 cords of wood per year.

Because the mill is not completely integrated and must purchase part of its pulp requirements, Boise Cascade has proposed an efficiency improvement project to make the mill less dependent on pulp purchased on the outside market. The improvements would increase the mill’s maximum wood consumption by up to 100,000 cords per year, bringing the total consumption to approximately 700,000 cords per year. This wood is expected to be harvested from an area within a 150-mile radius of International Falls, but some may come from farther away.

The MPCA was required by law to complete an environmental assessment worksheet (EAW) for the proposed improvement project. Because some issues surrounding the project involved management of the state’s forest resources, the MPCA requested the Minnesota Department of Natural Resources (DNR) to assist in preparation of the EAW. The legislature has designated the DNR as the appropriate agency to monitor and evaluate the trends, conditions, and other governmental interagency information under the Sustainable Forest Resources Act (SFRA). See Minn.Stat. §§ 89A.01, subds. 4, 6 (2000); 89A.07, subd. 1 (2000); 89A.09, subd. 1 (2000).

The DNR noted that the proposed project represents a maximum 2.5 percent increase in statewide harvest levels. The timber procurement area consists of approximately 11,400,000 acres of timberland and the project will increase timber harvests by an estimated range of 2,500— 6,000 acres in this base disbursed across the 150-mile wide procurement zone.

The DNR also assisted by contributing to the part of the EAW that addressed environmental impacts related to the increase in timber harvesting. The DNR relied in part upon the timber harvest and forest management guidelines promulgated by the Minnesota Forest Resources Council (MFRC) under the SFRA. In the DNR’s analysis of the potential environmental impacts, it also relied upon the 1994 Generic Environmental Impact Statement for Timber Harvesting and Forest Management (Forestry GEIS). The Forestry GEIS was prepared at the request of the Minnesota Environmental Quality Board (EQB) to examine the effect that expanded timber harvesting might have on the environment. Here, the EQB determined that the Forestry GEIS remained adequate for use in the analysis of Boise Cascade’s project.

The EAW was completed and distributed for public comment on February 19, 1999. A comment and response period followed, during which the MPCA and the DNR received comments from the MCEA and others regarding the need for an EIS and specifically responded to those comments. See Minn.Stat. § 116D.04, subd. 2a(b) (2000). At the completion of'this comment period, the MPCA concluded that the proposed project did not have the potential for significant environmental effects and that preparation of an-EIS was not required. See Minn.Stat. § 116D.04, subd. 2b(2). The MPCA made several important findings and conclusions in support of its decision, including the following:

[C]5. The MPCA finds that the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority.
⅜ ‡ ⅝ ‡
[D]4. The MPCA finds that the environmental effects of the project can be anticipated and controlled as a result of the previous environmental review, previous environmental studies, and permitting processes undertaken by the MPCA and other public agencies or the project proposer, including other EISs.
⅝ ⅜ ⅜ ⅜
CONCLUSIONS
⅜ ⅝ ⅜
2. Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigative measures have been incorporated into the project design and proposed permits. The project is expected to comply with all MPCA standards.
3. An Environmental Impact Statement is not required on the proposed Boise Cascade Efficiency Improvement Project.

The MCEA then initiated an action in district court against the MPCA for declaratory and injunctive relief, challenging the MPCA’s decision not to require an EIS under Minn.Stat. § 116D.04, subd. 10 (2000). Boise Cascade intervened and was joined as a party defendant. The MCEA argued that the MPCA unlawfully relied upon (1) the Forestry GEIS as a substitute for project-specific review and (2) unimplemented and outdated mitigation measures, including the ongoing implementation of programmatic mitigation under the SFRA.

The parties brought cross-motions for summary judgment, and the district court granted summary judgment in favor of Boise Cascade and the MPCA and against the MCEA. The court noted the undisputed facts, including that the MPCA was the RGU for this project, and that the MPCA had enlisted the aid of the DNR’s forestry expertise. The court then addressed each issue raised by the MCEA. First, the court ruled that the issues raised regarding the Forestry GEIS were essentially the same issues that the MCEA raised before the EQB when it originally challenged the adequacy of the Forestry GEIS before the EQB. Because the MCEA did not timely appeal the EQB’s determination of adequacy, the court ruled that it was not required to address the-issue. However, the court went on to find that the MPCA did use the Forestry GEIS properly because the MPCA did not use the Forestry GEIS as a substitute for- environmental review of the project and because a comprehensive EAW was prepared in which the Forestry GEIS was used in accordance with state regulations.

Second, addressing the adequacy of mitigation issue raised by the MCEA, the court ruled that there was “substantial support in the record that the mitigation measures identified and relied upon are real, and are more than vague statements of good intentions.” (Internal punctuation and citations omitted). Further, the court approved the MPCA’s finding that:

the progress of implementing [the SFRA] and other ongoing activities of forest landowners and managers, which represents the State’s primary policy tool for addressing the cumulative environmental effects, of timber harvest, [was] sufficient to provide ongoing mitigation for any cumulative potential effects that are present consistent with the findings and recommendations of the [Forestry] GEIS.

The court ruled that this finding was not arbitrary and capricious.

The court concluded by ruling that substantial evidence in the record supported the MPCA’s conclusions. Specifically, the court ruled that, because decisions of administrative agencies generally enjoy a presumption of correctness, the MCEA had not demonstrated that the MPCA’s decision was unreasonable, arbitrary and capricious, or lacked a factual basis.

The MCEA appealed. The court of appeals concluded that while some mitigation strategies were being identified and implemented, the MPCA’s determination that the potentially adverse environmental effects of the Boise Cascade project were subject to mitigation by ongoing public regulatory authority was not supported by substantial evidence. Specifically, the court concluded that “[t]he efficacy of the mitigation measures for the Boise project was questionable” because (1) some of the measures were only monitored; (2) there were inaccuracies in the GEIS; (3) some of the conclusions in the GEIS were outdated; and (4) none of the measures were mandatory. Additionally, the court concluded that the MFRC did not “truly perform a regulatory function” and that “[w]ithout some assurances that mitigation measures can be compelled, even good-faith intentions can have an evanescent quality * * *.” It further reasoned, “[t]he 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.” Thus, the court of appeals reversed the district court and remanded to the MPCA for preparation of an EIS. We granted Boise Cascade’s and the MPCA’s petition for further review of the decision of the court of appeals.

Minnesota Environmental Law Background

Central to this case is the Minnesota Environmental Policy Act (MEPA), which requires that an EIS be prepared by the RGU whenever there is the potential for significant environmental effects resulting from any major governmental action. Minn.Stat.. § 116D.04, subd. 2a (2000). The purpose of an EIS is to provide information to evaluate proposed actions that have the potential for significant environmental effects, to consider alternatives to the proposed actions, and to explore methods for reducing adverse environmental effects. Minn. R. 4410.2000, subp. 1.

The Environmental Quality Board has promulgated rules setting forth the criteria that must be considered by the RGU when deciding whether a project has the potential for significant environmental effects and whether preparation of an EIS is required. Minn. R. 4410.1700, subp. 7. Each of the following four criteria must be considered:

A. type, extent, and reversibility of environmental effects;
B. 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 other EISs.

Id.

An EIS is meant to be prepared on a project-specific basis, but the EQB rules allow a generic environmental , impact statement (GEIS) to be prepared to study the potential impacts of similar projects taken as a whole. Minn. R. 4410.3800. However, the EQB has placed restrictions on the use of information taken from the GEIS. When an agency conducts a project-specific environmental review, Minn. R. 4410.3800, subp. 8, mandates that the information gathered and the recommendations made in the GEIS process are to be used only if the EQB determines that the GEIS remains adequate at the time the specific project is subject to review.

Here, in response to citizens’ petition concerning the impact of timber harvesting in Minnesota, the EQB began preparation of the Forestry GEIS in 1989 and completed it in 1994. The Forestry GEIS assessed environmental impacts related to increases in timber harvesting and recommended mitigation strategies to address those impacts identified as significantly adverse. In response to the Forestry GEIS, the Minnesota legislature created the Sustainable Forest Resources Act. Act of May 24, 1995, ch. 220, § 78-87, 1995 Minn. Laws 1645-53, now codified at Minn.Stat. Ch. 89A (2000). The SFRA created the Minnesota Forest Resources Council and charged the MFRC with developing recommendations that address the environmental impacts and the mitigations as recommended in the Forestry GEIS. Minn. Stat. § 89A.03 (2000). The MFRC was directed to develop voluntary comprehensive timber harvesting and forest management guidelines. Minn.Stat. § 89A.05, subds. 1, 3 (2000). These voluntary guidelines are central to the parties’ dispute in this case. Specifically, the MPCA argues that the EQB rules do not require that “mitigation by ongoing public regulatory authority” must be mandatory to satisfy Minn. R. 4410.1700, subp. 7(C).

I.

“[Djecisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to the agencies’ expertise and their special knowledge in the field of their technical training, education, and experience.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.1977). Since Reserve Mining, the legislature has codified the standard of review for agency’s decisions in contested case proceedings in the Minnesota Administrative Procedures Act (MAPA) at Minn.Stat. § 14.69 (2000). However, the MPCA’s decision was not the result of a contested case and the question arises whether the MAPA standards of review should nonetheless apply. In Reserve Mining, we began our analysis with the bedrock separation of powers principle that the legislature may not delegate to the courts “duties which are essentially administrative in character.” 256 N.W.2d at 824. We also believe that in an area such as environmental review, uniquely involving application of an agency’s expertise, technical training, and experience, the standard of review set forth in MAPA is appropriate. Therefore, despite the fact that a contested case proceeding was not held in this case, we believe application of the MAPA standards is appropriate. See Minn.Stat. § 14.69.

One of the MAPA standards of review is whether the agency’s decision is affected by error of law, and the MCEA argues that the decision not to prepare an EIS is contrary to law. The MCEA further argues that because the issue presented requires interpretation of the MEPA and the EQB rules implementing that statute, review by this court is de novo. See St. Otto’s Home v. Minn. Dep’t of Human Sens., 487 N.W.2d 35, 39 (Minn.1989). Here, the statute requires an EIS if Boise Cascade’s project will result in “significant environmental effects.”' Minn.Stat. § 116D.04, subd. 2a. A determination whether significant environmental effects result from this project is primarily factual and necessarily requires application of the agency’s technical knowledge and expertise to the facts presented. Accordingly, it is appropriate to defer to the agency’s interpretation of whether the statutory standard is met. Thus, in light of the MCEA’s remaining arguments, we review the decision not to prepare an EIS for whether it was unsupported by substantial evidence in view of the entire record as submitted or was arbitrary or capricious. See Minn.Stat. § 14.69.

A decision is supported by substantial evidence when it is supported by (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984).

II.

The MCEA makes several related arguments regarding the MPCA’s decision not to require an EIS for the Boise Cascade project. For purposes of our analysis, these arguments will be organized into two categories. First, the MCEA argues that we should affirm the court of appeals because the MPCA’s use of the Forestry GEIS was improper. Second, the MCEA argues that we should affirm because the voluntary timber management guidelines relied upon by the MPCA cannot be legally adequate mitigation.

A. Use of the GEIS

The MCEA makes two arguments regarding the MPCA’s use of the Forestry GEIS and the ramifications of its use. Specifically, the MCEA argues that, under the EQB rules, the MPCA failed to conduct additional analysis necessary to justify reliance on the Forestry GEIS. The MCEA also argues that because Boise Cascade’s project falls into one of the scenarios studied in the Forestry GEIS and because that scenario resulted in significant environmental effects unless certain mitigation measures were in place, an EIS would be required by law.

We are not persuaded by the MCEA’s arguments. “[T]he role of a court in reviewing the sufficiency of an agency’s consideration of environmental factors is a limited one * ⅜ Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 555, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). We emphasize that the EQB specifically approved the Forestry GEIS for continued use in this project, concluding that the Forestry GEIS “remains adequate for use in accordance with Minn. R. 4410.3800, subp. 8 * * It is significant that the EQB thus interpreted the Forestry GEIS to address the EQB’s criteria for an EIS as applied to this specific project. See Minn. R. 4410.1700, subp 7. We defer to an agency’s interpretation of its own regulations. St. Otto’s Home, 437 N.W.2d at 40. The MPCA has technical expertise regarding water, air, and land pollution. See Minn.Stat. § 116.01 (2000). Similarly, the DNR assisted the MPCA for several years and in this process has technical expertise with respect to timber and forestry. See Minn.Stat. § 84.027, subd. 2 (2000).

The DNR represented that the Forestry GEIS is the most comprehensive, scientific assessment of forest health procedures to date. Furthermore, in the DNR’s comments and responses on timber harvest issues for the EAW, it indicated that Boise Cascade’s project was of the type anticipated by the Forestry GEIS to come forward in the coming decades. The MPCA properly relied on the DNR’s expertise and confidence in the Forestry GEIS in determining that no EIS was required. Therefore, under longstanding precedent and general principles of administrative law and based on this record, we will defer to the technical expertise of the MPCA and the DNR regarding the use and application of the Forestry GEIS. Reserve Mining, 256 N.W.2d at 824. Accordingly, we hold that the MPCA and the DNR’s use of the Forestry GEIS was not arbitrary or capricious.

B. Mitigation

In making its decision whether to require an EIS, the MPCA was required by Minn.Stat. § 116D.04, subd. 2a, to determine whether the project had the potential for significant environmental effects. Minnesota Rules 4410.1700, subp. 7, required the MPCA to consider four criteria when making the decision whether there was the potential for' significant environmental effect. The only criterion relevant on appeal is the third criterion, which requires the MPCA to consider “the extent to which the environmental effects are subject to .mitigation by ongoing public regulatory authority.” Id., subp. 7(C). The MCEA does not dispute that the MPCA, as the RGU, appropriately took the other three criteria into consideration and does not appeal from those determinations. The .other three criteria are (1) the type, extent, and-reversibility of environmental effects; (2) the cumulative potential effects of related or anticipated future projects; and (3) 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 other EISs. Id.

The MPCA addressed the mitigation criterion several times in its findings of fact and conclusions and specifically found that the “cumulative statewide effects of timber harvesting are subject to ongoing regulatory authority through the programmatic mitigation established by the Sustainable Forest Resources Act” and the guidelines developed by the MFRC. The MPCA then concluded that “the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority.” The MCEA attacks the MPCA’s analysis of the mitigation criterion in two related arguments. First, the MCEA argues that the MFRC, as established under the SFRA, does not constitute a “public regulatory authority.” Second, the MCEA argues that voluntary guidelines adopted under Minn.Stat. § 89A.05, subd. 3, cannot be considered mitigation because the MFRC lacks power to compel compliance with the guidelines.

In contrast, the MPCA argues that the court of appeals substituted its judgment for that of the MPCA and the DNR and that substantial evidence supports the MPCA’s conclusions. We agree. While the court of appeals acknowledged that some mitigation measures have been identified and implemented, it found their “efficacy * * * questionable” unless there was some assurance that the mitigation measures could be compelled. The court also concluded that monitoring of the mitigation measures was substantially lacking. In so doing, the court of appeals weighed the evidence as a trier of fact instead of analyzing the issue properly under the supported by substantial evidence standard of review.

For the MPCA’s decision to satisfy the MAPA’s supported-by-substantial-evidence standard, its decision must be supported by either (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety. Cable Communications Bd., 356 N.W.2d at 668. Contrary to the arguments of the MCEA and the conclusion of the court of appeals, our review of the record indicates that there is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that the MPCA did consider, in sufficient detail, adequate mitigation to ensure that the environmental consequences have been fairly evaluated. For example, the 36-page Appendix E of the EAW detailed an arrayof specific mitigation measures being undertaken. In addition, the record indicates that the DNR and the United States Forest Service (USFS), who own approximately one-third of all forested land in Minnesota, are actively implementing mitigation measures. The DNR has committed to meet or exceed the recommended site level guidelines in carrying out its forest management activities. Similarly, the USFS has developed certain policies for its lands to be maintained in a condition consistent with the GEIS assumptions. The EAW record also indicates that both Boise Cascade and the DNR are committed to applying the MFRC guidelines, at a minimum, to timber harvesting on land they own.. The record also indicates application of similar measures on certain county and federal lands.

Further, the record reveals another important detail overlooked by the MCEA. Specifically, we note one of the final conclusions made by the MPCA in its findings of fact and conclusions: “Areas where the potential for significant environmental effects may have existed have been identified and appropriate mitigative measures have been incorporated into the project design and proposed permits. The project is expected to comply with all MPCA standards.” (Emphasis added). The MPCA did not rely solely on compliance with the voluntary timber management guidelines as mitigation. Instead, the MPCA considered Boise Cascade’s detailed commitment to the timber management guidelines on its land (Appendix F of the EAW included 24 measures undertaken by Boise Cascade to mitigate the environmental impacts of timber harvesting), the DNR’s commitment to the guidelines on its land, as well as county and federal efforts on their land. Additionally, in its decision not to require an EIS, the MPCA concluded that its “mit-igative measures have been incorporated into the project design and proposed permits.” (Emphasis added.) Thus, it is irrelevant whether the MFRC is a public regulatory authority because the MPCA can, if necessary, enforce mitigative measures through its permitting function.

Here, Boise Cascade’s project will require changes to two permits issued by the MPCA- — an amendment to the Title V air operating permit as well as modification of a Prevention of Significant Deterioration permit. Inclusion of some of the mitigative measures into the conditions of the permits means that the guidelines are not entirely voluntary but, together with the voluntary and ongoing measures, do provide substantial evidence to support the MPCA’s finding that the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority. Importantly, MPCA is the official RGU for the environmental review of this project under Minn. R. 4410.4300, subp. 15A, and has full regulatory authority in its permitting decisions. Minn.Stat. § 116.07, subd. 4a(a). Notwithstanding the fact that the MFRC — the entity responsible for promulgation of the timber management guidelines — may lack any statutory or administrative enforcement mechanism or true regulatory authority, we conclude that the MPCA, as the RGU, does have the statutory authority to (1) prepare an EAW in the manner provided by law; (2) acknowledge and incorporate relevant MFRC guidelines, as well as other state policies and the agreements of the parties, into its fact finding determination whether an EIS is required; and (3) incorporate mitigation measures into its permits.

Thus, contrary to the court of appeals’ conclusion, based on this record we conclude that there are assurances that reasonable mitigation measures will be in place when the permit is issued. Boise Cascade has agreed to utilize numerous mitigative measures on its own land and may ultimately be required by the permit conditions to ensure that its suppliers in Minnesota also utilize such mitigation measures. As such, the record supports the conclusion that the environmental effects of this proposed project are subject to both some voluntary and mandatory mitigation that will be in place before any increased harvesting is undertaken. See National Audubon Soc. v. Minn. Pollution Control Agency, 569 N.W.2d 211, 218 (MinnApp. 1997) (affirming summary judgment for the MPCA when it determined an EIS was not required based on Forestry GEIS mitigation measures), rev. denied (Minn. Dec. 16,1997).

The parties’ focus on the mandatory or voluntary nature of the mitigation measures is somewhat misleading when the context of our review of the MPCA’s decision is recalled. Here, we are reviewing the adequacy and factual foundation of the MPCA’s decision not to require an EIS— the decision that Boise Cascade’s project does not have the potential for significant environmental effects. Specifically, we are reviewing the MPCA’s determination that the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority. In making this decision, the MPCA is required only to consider four criteria. Minn. R. 4410.1700, subp. 7. Of those four criteria, the MCEA challenges only the MPCA’s analysis of one criterion — “[t]he extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority * * Id., subp. 7(C). We are unable to find any requirement in our state’s law that the MPCA cannot consider voluntary measures in assessing mitigation. In fact, “mitigation” is defined by the rules without mention of whether these measures must be mandatory or whether voluntary measures also constitute mitigation. See Minn. R. 4410.0200, subp. 51. Importantly, the mitigation measures most relevant to this case are the timber management guidelines promulgated by the MFRC under the SFRA. By statute, the legislature required that those guidelines were to be voluntary. Minn.Stat. § 89A.05, subd. 3.

We note that preparing an EAW, making the decision whether the EAW requires an EIS, and the ultimate preparation of an EIS are essentially an information gathering and analytical process. Minn.Stat. § 116D.04, subds. la(e), 2a. With respect to mitigation, we are persuaded by the reasoning of the United States Supreme Court when it discussed mitigation in a related context. The Supreme Court stated that “[publication of an EIS * * * also serves a larger informational role. It gives the public the assurance that the agency has indeed considered environmental concerns in its decisionmaking process * * * and, perhaps more significantly, provides a springboard for public comment.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989) (internal quotation marks and citations omitted). The National Environmental Policy Act of 1969 (NEPA) is similar to the MEPA in that both primarily operate by requiring administrative agencies to take a “hard look” at the environmental consequences of government action, without imposing substantive requirements. The Court in Robertson held that NEPA did not mandate specific results but concluded that in regard to mitigation “[tjhere is a fundamental distinction * * * between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.” Robertson, 490 U.S. at 352, 109 S.Ct. 1835.

Our review of an agency’s decision is a limited one. Here, we must determine whether the MPCA’s decision is supported by substantial evidence. The MPCA’s decision is supported by substantial evidence if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. Cable Communications Bd., 356 N.W.2d at 668. Given the extensive record compiled in this case, the MPCA’s findings on mitigation, its proposed permit conditions, and assurances from the DNR and Boise Cascade that they intend to require application of the guidelines on their land, we conclude that the MPCA’s conclusion that “the potential environmental effects of the project are subject to mitigation by ongoing public regulatory authority” was supported by substantial evidence and not arbitrary or capricious. Therefore, we reverse the court of appeals and reinstate the order and judgment of the district court.

Reversed.

PAUL H. ANDERSON, Justice

(concurring).

I concur in the result reached by the majority, but I write separately because of the weakness I perceive in the majority’s mitigation analysis. Because of this weakness, the majority needs to extend itself to affirm the action of the MPCA — even given our narrow standard of review. Nevertheless, I agree that the court of appeals’ decision was in error and thus reluctantly concur in the majority’s holding. I do so because of the deferential standard of review we must apply to the decisions of administrative agencies.

The majority concludes that it does not. have to address whether voluntary mitigation measures are appropriate for consideration under Minn. R. 4410.1700, subp. 7(C). It reaches this conclusion on the grounds that the record indicates that both mandatory and voluntary mitigation measures are in place and were analyzed by the MPCA. The majority also declares that it is irrelevant whether the MFRC has regulatory authority because the MPCA has regulatory authority and can enforce mitigation through its permits.

However, the majority relies heavily on the assumption that the MPCA intended to incorporate mitigation measures (i.e., some or all of the MFRC guidelines) as necessary conditions of its air operation permits. The majority reaches this conclusion based on language found in the MPCA’s Findings of Fact and Conclusions, the document in which the MPCA made its final decision not to require an EIS. The majority specifically refers to the MPCA’s conclusion that “mitigative measures have been incorporated into the project design and proposed permits.”

While the majority’s interpretation of the language in the MPCA’s conclusion may be reasonable when taken by itself, a thorough review of the record raises serious questions about this conclusion. More particularly, the record reflects that neither the MPCA nor the DNR analyzed the potential environmental effects of Boise Cascade’s project under the assumption that mitigation measures for timber harvesting, such as the MFRC timber harvesting guidelines, would be included in any MPCA permits. Instead, the language that the majority relies upon is more likely in reference to the mitigation measures that are to be incorporated into the permits regarding air and water pollution. The MPCA’s findings contain a separate section with respect to each criteria, including mitigation; the single reference to timber harvesting mitigation in the mitigation section refers only to the ongoing implementation of the SFRA. Indeed, based on an analysis of the record, the MPCA appears to have specifically rejected incorporating timber harvesting mitigation measures into its permits.

A close reading of the proceedings before the MPCA confirms my conclusion. The record contains a letter sent to the MPCA on behalf of the Sierra Club, requesting that several mitigation measures, including the MFRC guidelines, be included as conditions in the MPCA’s permits. This is the first indication in the record that such a suggestion was ever considered. This suggestion was followed up by testimony from a Sierra Club volunteer at the final meeting of the MPCA Citizen’s Board Environmental Review Committee. The volunteer referred to the letter and reiterated the suggestion that mitigation measures be included in any permit. The committee chair then interrupted the volunteer with this comment: “Sir, you know that we’re talking about an adequacy decision of the EAW and not specific permit conditions. That would be a different process, so if you’re going to talk just about permitting conditions, that would be for another time. Okay?” At this point, the chair was referring to the only issue before the committee — whether an EIS was required for the Boise Cascade project or whether the current record was sufficient. The chair reiterated his point at the close of the volunteer’s comments, explaining that “You would get a chance, at a future date, you know. If we went ahead and determined that [the EAW] was adequate, it would go then to permit, and there is availability for public comment and to look at all that.”

Later in the meeting, a Board member raised a similar question about enforcing Boise Cascade’s commitment to the MFRC guidelines through permit conditions. In response, a member of the MPCA’s environmental review staff responded that this was “not a new suggestion.” The staff member went on to explain that inclusion of such guidelines in permits has never been done and that the agency does not advocate such an approach. The staff member stated:

I’m not aware of the agency taking that kind of action. We have had that suggestion with respect to the use of recycled fiber, to mandate recycled fiber usage. We have had — again, we have had commitments stated by companies, sometimes in writing, other times just verbally, but nevertheless commitments about implementing guidelines on lands that they made or with their loggers, sometimes writing it in the contracts that they do things, but its [sic] never been permitted.
I guess our attitude is that statements made in the record, the public record, are things that the PCA should be able to rely on when making permitting decisions, and we have not advocated carrying those over into permits.

Essentially, the MPCA rejected a suggestion very similar to the majority’s interpretation of the language in the Findings. Aside from this discussion, the record does contain discussion of permits and permit conditions, but only with respect to mitigation of air and water pollution — not with respect to the effects of timber harvesting.

I acknowledge that in reaching its holding the majority does not exclusively rely on the permit conditions, which is the reason that I concur rather than dissent. To support its holding, the majority also relies upon the mitigation measures implemented and enforced by the United States Forest Service (USFS), the DNR, and certain Minnesota counties. However, the MPCA did not address these measures as part of its specific findings on mitigation and presumably did not base its final decision on them. Although these mitigation measures are certainly not as comprehensive as those recommended in the Forestry GEIS, the mitigation measures noted by the majority do constitute more than a scintilla of evidence in the record that the MPCA did, in fact, consider the extent to which the effects of the project were subject to mitigation by ongoing public regulatory authority. When deciding matters of such import as the Boise Cascade project, it would be hoped, if not expected, that the MPCA would provide a stronger basis for its decision than was done here. But, given that our standard of review only requires that there be more than a scintilla of evidence in support of the MPCA’s decision, I concur with the result reached by the majority.

      . The MCEA is a nonprofit public interest group dedicated to responsible use of the law, science, and research to protect Minnesota’s natural resources, wildlife, and the health of its people.

      . A cord of wood is a stack of Wood 4 feet wide, 4 feet high, and 8 feet long. Webster’s New International Dictionary of the English Language 590 (2d ed.1937).

      . The EAW is a brief document (here, well over 100 pag&s) that is designed to rapidly assess the environmental effects that may be associated with a proposed project. Minn. R. 4410.1000, subp. 1. Information gathered during the EAW process and the comments received on the EAW are to be used by an agency to malee the ultimate decision whether to engage in a more detailed environmental review and prepare an environmental impact statement (EIS) on the project. Minn.Stat. § 116D.04, subd. la(c) (2000); Minn. R. 4410.1700.

      . The requirement to prepare an EAW was not triggered by the timber harvesting issues central to this case; instead, the requirement was triggered because the project involved modification of a facility with an increase in air pollution. See Minn. R. 4410.4300, subp. 15(A).

      .A generic environmental impact statement (GEIS) is used to study types of projects that are not adequately reviewed on a case-by-case basis. Minn. R. 4410.3800, subp. 1. However, preparation of a GEIS does not exempt specific projects from project-specific environmental review. Id.., subp. 8. Additionally, á GEIS may not be used in project-specific environmental review unless the Minnesota Environmental Quality Board (EQB) determines that the generic EIS remains adequate at the time the specific project is subject to review. Id'. Here, EQB determined that the Forestry GEIS remained adequate, but only if it was "used, interpreted, and qualified properly in project-specific review.” The MCEA did not timely appeal this determination of adequacy.

      . On February 17, 2000 MCEA petitioned the MPCA for a contested case hearing. The MPCA denied the petition. The district court analyzed the MPCA’s decision not to hold a hearing under Minn. R. 7000.1750 and con-eluded that this denial was proper because it was not arbitrary or capricious and had substantial support in the record. The MCEA has not appealed from the district court’s determination on this issue.

      . The major governmental action at issue in this case is the MPCA's amendment and re-issuance of air operating permits for Boise Cascade. The alteration of these permits is necessary because the project involves changes in the emission of air pollution by Boise Cascade’s facility.

      . A contested case is defined by MAPA as a "proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.” Minn.Stat. § 14.02, subd. 3 (2000). Here, MPCA’s decision not to require an EIS was not a contested case within the meaning of the MAPA because no hearing was required and the only “party” involved in the original decision was Boise Cascade.

      . Congress amended the Clean Air Act in 1990 and created the Title V program, which prohibits major stationary sources of air pollution from operating either without a valid permit or in violation of the terms of a permit. See 42 U.S.C. §§ 7660-7661f (1994 & Supp. V 1999). The states administer and enforce the Title V permit program. 42 U.S.C. § 7661a(d)(l) (1994 & Supp. V 1999). States are allowed to establish additional permitting requirements above those required by federal law. 42 U.S.C. § 7661e(a) (1994 & Supp. V 1999).
      Similarly, the Prevention of Significant Deterioration of Air Quality program is part of the Clean Air Act, but its emphasis is on ensuring that areas with levels of air pollution that exceed federal requirements remain clean and not degrade to bare compliance with federal standards. 42 U.S.C. §§ 7470-79 (1994 & Supp. V 1999); Craig N. Oren, Prevention of Significant Deterioration: Control-Compelling Versus Site Shifting, 74 Iowa L.Rev. 1, 3 (1988).

      . We note that the question whether the MEPA contains substantive protections above and beyond the procedural protections it shares with federal law is not before this court, and we will not address that issue here. Rather, we merely indicate that the procedural protections relevant to this case are similar to the federal protections found in NEPA and therefore looking to federal case law is appropriate and helpful in this case.


author: HUSPENI, Judge. GORDON W. SHUMAKER, Judge

text:
    CINCINNATI INSURANCE COMPANY, Appellant, v. Francine FRANCK, et al., Respondents, John Penniston, et al., Respondents.
    No. C4-01-1666.
    Court of Appeals of Minnesota.
    May 14, 2002.

      Peter C. Sandberg, Kari C. Stonelake-Hopkins, Dunlap & Seeger, P.A., Rochester, for appellant.
    Paul R. Dahlberg, Meshbesher & Spence, Ltd., Rochester, for respondents Franck.
    Scott R. Suter, Sawicki & Phelps, P.A., Woodbury, for respondents Penniston and AMICA Mutual Insurance Co.
    Considered and decided by GORDON W. SHUMAKER, Presiding Judge, PARKER, Judge*, and, HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

   OPINION

HUSPENI, Judge.

Appellant challenges the determination of the district court that an insured under both a primary and an umbrella liability insurance policy could reach the umbrella coverage even though he settled for less than the limits of the primary policy. Because the district court’s decision is consistent with public policy considerations expressed in Minnesota caselaw, we affirm.

FACTS

Respondent Joyce Penniston was driving a car owned by her husband, respondent Dr. John Penniston, when she struck and seriously injured respondent Francine Franck.

AMICA Mutual Insurance Company provided primary liability insurance for the Pennistons, with a bodily injury limit of $500,000. Dr. Penniston also carried additional insurance under a “personal umbrella liability policy” written by appellant Cincinnati Insurance Company. This policy had bodily injury limits of $3 million, but payments would be made only “over and above the amounts provided for in the basic policies.”

Franck and her husband entered a settlement agreement and release with the Pennistons and AMICA for $425,000. The agreement provided that the payment was in partial satisfaction of any claim the Francks may have against the Pennistons to the extent of the first $500,000, but that the Pennistons would have no personal liability in excess of $425,000. The Francks also released AMICA, agreeing that $500,000 would be credited against any judgment in the Francks’ favor, and reserved claims against the Pennistons up to Cincinnati’s limits. The agreement also provided that the settlement would be governed by Drake v. Ryan, 514 N.W.2d 785 (Minn.1994).

The Francks then sued the Pennistons. AMICA accepted Cincinnati’s tender of the defense of the action. Later, Cincinnati exercised its option to assume the defense of the lawsuit, and then brought this declaratory judgment action seeking the district court’s declaration that there was no coverage under the umbrella policy because AMICA had not paid the limit of its primary policy.

After hearing cross-motions for summary judgment, the district court granted summary judgment to the Francks, ruling that Cincinnati’s umbrella insurance policy provided bodily injury coverage. The court found it significant that the Cincinnati policy does not contain any language that requires the primary policy limits to be exhausted before coverage under the umbrella policy is available. The court rejected Cincinnati’s argument that the primary policy had to be exhausted, and concluded that, in any event, the settlement reached by the parties exhausted the primary policy limit.

Contending that the district court erred in its interpretation of the umbrella insurance policy, Cincinnati appeals.

ISSUE

Did the district court err by ruling that a settlement for less than the limits of a primary liability insurance policy nevertheless triggered excess coverage under an umbrella policy that stated that it would provide coverage only over and above that provided in the primary policy?

ANALYSIS

On review of summary judgment, this court must determine whether there exists any genuine issue of material fact for trial and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). There are no facts in dispute; thus we must independently review the district court’s interpretation of the insurance contract and application of the law. Nat’l City Bank v. St. Paul Fire & Marine Ins. Co., 447 N.W.2d 171, 175 (Minn.1989). The interpretation and construction of an insurance policy is a question of law that this court reviews de novo. State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 64 (Minn.1992).

Cincinnati agreed, through its insurance policy, to provide “[ejxcess insurance over and above the amounts provided for in basic policies * * It is undisputed that the “basic policy” applicable here is AMICA’s primary liability policy with a $500,000 bodily injury limit.

Cincinnati’s policy requires the insured to maintain basic coverage of $500,000, and provides: “We will pay only the amount which is more than the required basic policy limits and more than any other collectible insurance.” If there is other insurance in addition to the basic policy, Cincinnati provides that “the other insurance will pay first and this policy will be in excess of the other insurance.”

In deciding insurance coverage questions, we must begin with a review of the insurance policy at issue because insurance policies, like other contracts, “are matters of agreement by the parties and the function of a court is to determine what the agreement was and enforce it.” Fillmore v. Iowa Nat’l Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn.App.1984). In ascertaining what the agreement was, we must construe the policy according to the terms the parties have used, and we must give the policy language its ordinary and usual meaning so as to give effect to the parties’ intent as it appears from the contract. Dairyland Ins. Co. v. Implement Dealers Ins. Co., 294 Minn. 236, 244-45, 199 N.W.2d 806, 811 (1972). Where there is no ambiguity in an insurance policy, there is no room for construction. Id. at 244,199 N.W.2d at 811.

It is not disputed that Cincinnati’s policy is an “umbrella” policy that provides “excess” insurance coverage. The nature and the legal and practical significance of an umbrella excess insurance policy are well-known, as the Minnesota Supreme Court has explained:

An umbrella policy, typically, requires the insured to carry underlying liability insurance up to a certain limit with a different insurance company. The umbrella insurer then provides an “umbrella” over this underlying coverage by agreeing to pay that part of any claim against the insured that exceeds the limits of the underlying coverage up to the limits of the umbrella. This arrangement enables the umbrella insurer to offer high limits at a relatively modest premium. The umbrella policy is attractive to the prudent person who wants protection for the infrequent but always possible and much-to-be-dreaded catastrophic loss. The policy can be issued for a relatively modest premium because most claims are absorbed by the underlying insurer, and also because the umbrella insurer’s defense costs are ordinarily less than those of other insurers. The cost of defense is no small item. Indeed, in this case defense costs far exceeded the amount paid to settle the claim.

Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165 (Minn.1986) (citation omitted).

Umbrella insurers are generally liable only for the amount of loss or damage in excess of coverage provided by the primary policy. Seaway Port Auth. v. Midland Ins. Co., 430 N.W.2d 242, 247 (Minn. App.1988) (citing 16 George J. Couch et al., Couch on Insurance § 62.48 (2d ed. 1983)).

The plain and ordinary meaning of “excess” is that it is over and above some other quantity. See The American Heritage Dictionary of the English Language 638 (3d ed. 1992) (stating excess is “[t]he amount or degree by which one quantity exceeds another”). Applying the language of Cincinnati’s policy in its ordinary sense, the excess coverage is “over and above the amounts provided” in the AMICA policy. Although respondents argue that the absence of an exhaustion clause in the Cincinnati policy is relevant, we need not address that issue. We conclude, instead, that respondents raise a stronger, and ultimately determinative issue.

The district court noted in its thorough and lucid memorandum that to hold that Cincinnati had no duty to defend or indemnify would “nullify the intent of the settlement” or would void the settlement and “deprive the Pennistons of the protection from personal exposure that they bargained for in the agreement.” Thus, the critical question on appeal is: Did the district court correctly assess the effect of the settlement agreement on the availability of umbrella coverage? We conclude that the answer to that question is “Yes.”

We note initially that there is little merit to Cincinnati’s argument that the settlement requires Cincinnati to “drop down” and provide coverage at lower limits, thus forcing an increase in premiums for umbrella policies. Cincinnati’s duty to indemnify will be only for amounts over and above the primary policy limit. The duty to defend has already been assumed, and Cincinnati is not seeking to recover the costs of defense.

Caselaw is informative in deciding how a settlement agreement affects the question of when umbrella coverage is available. In Drake v. Ryan, 514 N.W.2d 785 (Minn. 1994), the Minnesota Supreme Court adopted the rationale of the Wisconsin Supreme Court in Loy v. Bunderson, 107 Wis.2d 400, 320 N.W.2d 175 (1982), and approved a settlement under which the plaintiff could reserve a claim against defendant’s excess liability carrier for damages exceeding the limits of the primary policy. The Drake court addressed the concerns raised by such a settlement as follows:

[Appellant] also asserts that if a primary insurer is permitted to settle for less than its policy limits, plaintiffs and the primary insurer will make “token settlements.” This concern is not well-founded. When, as in this case, plaintiffs agree to “swallow the gap” between the amount of settlement and the primary policy limits, their own self-interest generally will prevent them from reaching a token settlement.

Drake, 514 N.W.2d at 789.

After a thorough discussion of public policy considerations, the Drake court concluded that “[o]n balance, public policy considerations favor the enforcement of modified Loy releases in Minnesota.” Id. at 790.

The Drake court left for [a]nother day * * * [the] argument regarding “umbrella insurers” and the rising cost of excess insurance if primary carriers can so easily shift the cost of defense to excess insurers.

Id. at 789.

“Another day” has come in this case. Just as the Drake court found Loy to be persuasive, we find persuasive a later Wisconsin case construing Loy. Teigen v. Jelco of Wisconsin, Inc., 124 Wis.2d 1, 367 N.W.2d 806 (1985), involved an umbrella policy. Rejecting the argument that an umbrella policy must be treated differently from the primary policy in Loy, the Teigen court stated:

If the issue of the existence of a true primary/excess insurance situation had been fundamental to our reasoning behind the Loy principle, then our holding in Loy would not control in the present suit. However, that is not the case. The rationale behind our affirmance of the “Loy Release/Covenant Not To Sue” is not anchored to the issue of whether a true primary/excess insurance situation exists. The desirability of Loy-type agreements lies in the encouragement of partial settlements in future cases, thereby fostering effective and expeditious resolution of lawsuits. Partial settlements not only benefit the parties involved, but the justice system as a whole.

Id. at 7, 367 N.W.2d at 809-10.

We conclude that the Teigen rationale mirrors that of Drake, and that the public policy considerations of Drake and Teigen are identical. Certainly, the effective and expeditious resolution of lawsuits is a commendable goal; one fully consistent with the public policy of Minnesota. Indeed, as noted by the district court in this case, Minnesota has a history of approving and encouraging partial settlements of claims. See Frey v. Snelgrove, 269 N.W.2d 918, 921-22 (Minn.1978); Kellen v. Mathias, 519 N.W.2d 218, 223 (Minn.App.1994); Klimek v. State Farm Mut. Auto. Ins. Agency, 348 N.W.2d 103, 106 (Minn.App.1984).

We agree with the observation of the district court that

the strong public policy expressed in Schmidt v. Clothier and in Teigen, takes precedence over the speculative argument that Drake settlements will increase the cost of umbrella coverage. It is unlikely that plaintiffs will settle claims against primary carriers for deep discounts simply to take a chance against the excess coverage. To conclude otherwise requires the assumption that plaintiffs and their attorneys will frequently make decisions against their own best interests. It is more in keeping with the expressed policy of this state to encourage partial settlement of claims and prompt payment to injured parties.

The Drake court adopted the rationale of Loy. The Teigen court declared the public policy considerations of Loy to be equally applicable in cases involving umbrella policies. We conclude that the public policy considerations of Drake also should be equally applicable in cases involving umbrella policies.

DECISION

The district court correctly determined that coverage under an umbrella policy becomes available when the injured party, the insured, and the primary insurer reach a settlement for less than the primary policy limits and the injured party agrees to absorb the gap between the settlement amount and the primary policy limits.

Affirmed.

GORDON W. SHUMAKER, Judge

(dissenting).

I respectfully dissent and would reverse the summary judgment.

The majority focuses on the effect of the settlement between AMICA Mutual Insurance Company and the Francks and the Pennistons and applies the rationale of Teigen V- Jelco of Wis., Inc., 124 Wis.2d 1, 367 N.W.2d 806 (Wis.1985):

The desirability of Loy-type agreements lies in the encouragement of partial settlements in future cases, thereby fostering effective and expeditious resolution of lawsuits. Partial settlements not only benefit the parties involved, but the justice system as a whole.

Id. at 809-10.

Although this settlement undoubtedly benefited AMICA, the Francks, and the Pennistons, it surely did not benefit the umbrella insurer. Thus, the laudable goal of benefit to settling disputants is turned on its head if some of the parties can contrive to benefit themselves at the expense of a nonsettling party. Additionally, it is unlikely that the justice system is benefited in any respect by a judicial rewriting of the insurance contract to which insureds and umbrella insurer agreed.

Cincinnati agreed, through its insurance policy, to provide “[ejxcess insurance over and above the amounts provided for in basic policies * * It is undisputed that the “basic policy” applicable here is AMICA’s primary liability policy with a $500,000 bodily injury limit.

Cincinnati’s policy requires the insured to maintain basic coverage of $500,000, and provides: “We will pay only the amount which is more than the required basic policy limits and more than any other collectible insurance.” If there is other insurance in addition to the basic policy, Cincinnati provides that “the other insurance will pay first and this policy will be in excess of the other insurance.”

In deciding insurance coverage questions, courts must begin with a review of the insurance policy at issue because insurance policies, like other contracts, “are matters of agreement by the parties and the function of a court is to determine what the agreement was and enforce it.” Fillmore v. Iowa Nat’l Mut. Ins. Co., 344 N.W.2d 875, 877 (Minn.App.1984). As the majority notes, in ascertaining what the agreement was, courts must construe the policy according to the terms the parties have used and must give the policy language its ordinary and usual meaning so as to give effect to the parties’ intent as it appears from the contract. Dairyland Ins. Co. v. Implement Dealers Ins. Co., 294 Minn. 236, 244-45, 199 N.W.2d 806, 811 (1972). Where there is no ambiguity in an insurance policy, there is no room for construction. Id. at 244, 199 N.W.2d at 811.

Cincinnati’s umbrella policy provides only excess insurance coverage. As the Minnesota supreme court explained in Jostens, Inc. v. Mission Ins. Co., 387 N.W.2d 161, 165 (Minn.1986), the significant features of umbrella coverage are: 1) the requirement that there be an underlying policy with a different insurer, 2) an express agreement between the insured and the umbrella insurer that the umbrella coverage will be available for claims that exceed the limits of the underlying insurance, and 3) the ability of the umbrella carrier to offer high limits for a modest premium because the underlying .insurer absorbs most claims and the umbrella carrier’s defense costs, which can be substantial, can be kept low.

The majority acknowledges that umbrella insurers are ordinarily liable for losses in excess of the underlying coverage, and that the term “excess” unambiguously means the amount by which one quantity exceeds another. Under the plain language of Cincinnati’s umbrella insurance contract, there is rio coverage available until a claim exceeds the limit of the underlying policy. Only in a fictional sense has the claim here exceeded the limit of the underlying policy.'

The majority makes the same error that the district court made. Instead of beginning with the plain contract language and then enforcing the contract as agreed between the parties, the majority and the district court suggest that the enforcement of the contract will “nullify the intent of the settlement” and will “deprive the Pen-nistons of the protection from person exposure that they bargained for in the agreement.” I first note that the Pennistons did not bargain for the protection that the majority would now give to them. The Pennistons bargained for “excess” coverage, but such coverage has not yet been reached.

The focus of the district court and the majority is on upholding the intent of the settlement. To even reach that issue it is necessary to ignore the intent of the insurance contract.

The real effect of the settlement agreement is the unilateral de facto revision of the excess policy so as to thrust Cincinnati into the role of primary carrier.

The majority relies on Drake v. Ryan, 514 N.W.2d 785 (Minn.1994), and the policy rationale in Schmidt v. Clothier, 338 N.W.2d 256 (Minn.1983), in determining that exhaustion ,of a primary policy is not always necessary to reach excess coverage and in presenting the public policy goal of encouraging settlements. Neither case is sufficiently analogous to offset the rule that the plain language of the excess policy is to be honored and given effect.

Drake involved two insurers who agreed in their respective policies to provide primary coverage, and one of the insurers also agreed to provide excess coverage for a non-owned insured vehicle. Id. at 786. The supreme court expressly declined to rule on the issue squarely presented here:

We leave for another day James Ryan’s argument regarding “umbrella insurers” and the rising cost of excess insurance if primary carriers can so easily shift the cost of defense to excess insurers. State Farm is not an umbrella carrier.

Drake, 514 N.W.2d at 789.

So, Drake, not having an umbrella insurance policy to construe, had no occasion to be concerned about whether umbrella excess insurance could be reached if coverage still remained under the primary policy-

In Schmidt, the supreme court held that, for purposes of determining underin-sured motorist coverage, “[e]nforcement of policy exhaustion clauses would produce results contrary” to the no-fault insurance act. Schmidt, 338 N.W.2d at 260. Although some general legal principles are likely applicable to all insurance contracts, the no-fault act incorporates specific public policies that serve as limitations on automobile insurance. Thus, while exhaustion clauses in automobile policies violate the public policies expressed in the no-fault act, there might be no such public policy considerations in other insurance contexts. Thus, Schmidt, having been decided in a no-fault context, is not persuasive authority for any proposition here.

I believe the district court erred in not construing the Cincinnati umbrella policy according to its plain and ordinary language. The effect of that error was to convert an excess insurance policy to a de facto primary policy, in contravention of the contract language, and to shift duties and costs to the excess carrier where that carrier had no obligation to assume the duties or pay the costs. I would reverse.

      . In Drake, both policies actually paid claims from "dollar-one.” The policy covering the owner of the involved vehicle was deemed to be "primary,” and the policy covering the driver of the involved vehicle was deemed to be "excess.” 514 N.W.2d at 786.


author: G. BARRY ANDERSON, Judge.

text:
    Laurel Anne BORMANN, n/k/a Laurel Anne Spence, Petitioner, Appellant, v. Jon Bernard BORMANN, Respondent.
    No. Cl-01-1947.
    Court of Appeals of Minnesota.
    May 21, 2002.

      Martin L. Swaden, Edina, MN, for appellant.
    Daniel J. Goldberg, Messerli & Kramer, P.A., Minneapolis, MN, for respondent.
    Considered and decided by G. BARRY ANDERSON, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant mother challenges the district court’s order denying her motion to modify child support. Because the district court’s findings were insufficient to support its conclusion that mother failed to show that the current support order was unreasonable and unfair, we reverse and remand.

FACTS

The marriage of mother Laurel Anne Bormann, n/k/a Laurel Anne Spence, and father Jon Bernard Bormann was dissolved on April 27,1992. The parties have one child, S.B., born in 1988. At dissolution, the district court found that father’s gross annual income was approximately $10,000. The dissolution decree awarded the parties joint physical and legal custody of S.B. The parties stipulated that father would pay $440 monthly in child support. In August 2001, the district court ordered that S.B. be allowed to reside with mother for approximately nine months each year.

On September 17, 2001, mother moved for a modification of child support, contending that father’s increased income constituted a significant change in circumstances making the current support order unreasonable and unfair. The parties agreed in affidavits that father’s gross annual income had increased to approximately $175,000. Father agreed to pay guidelines child support under Minn. Stat § 518.551, subd. 5(b) (2000 & Supp.2001), but requested that his annual obligation be offset proportionally for the three months S.B. resided with him each year.

On October 10, 2001, the district court denied mother’s motion to modify child support. The court did not make a specific finding concerning father’s current net earnings or concerning whether father’s increased income constituted a substantial change in circumstances under Minn.Stat. § 518.64, subd. 2 (Supp.2001). The court found that mother had provided insufficient information about her own earning capacity to allow the court to determine her offsetting support obligation. The court concluded that mother had therefore failed to meet her burden of proof to demonstrate that the original support order was unreasonable and unfair. This appeal followed.

ISSUE

I. Did the district court err by ruling that mother failed to show that father’s existing support obligation was unreasonable and unfair?

ANALYSIS

A district court may modify an existing award for child support if the moving party shows a substantial change in circumstances that renders the award unfair and unreasonable. Minn.Stat. § 518.64, subd. 2 (Supp.2001); Richards v. Richards, 472 N.W.2d 162, 164 (Minn.App. 1991). The moving party has the burden of proof in support-modification proceedings. Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975). In deciding whether to modify support, the district court enjoys broad discretion and will be reversed only if it abuses that discretion by resolving the question in a manner that is against logic and the facts in the record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn.1986).

On appeal, mother did not provide this court with a transcript of the child support modification hearing. Therefore, our review is limited to determining whether the findings support the district court’s conclusions of law. Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn.App.1995); see also Minn. R. Civ.App. P. 110.02, subd. 1; Duluth Herald & News Tribune v. Plymouth Optical Co., 286 Minn. 495, 498,176 N.W.2d 552, 555 (1970).

I.

The district court found that father’s gross annual income had increased “dramatically” but did not specifically address whether that increase was “substantial” under Minn.Stat. § 518.64, subd. 2(a). The district court then denied mother’s motion to modify father’s child support obligation, reasoning that mother had failed to show father’s existing support obligation to be unreasonable and unfair. Minn.Stat. § 518.64, subd. 2(a) presents a two-pronged threshold for modification: support cannot be modified absent findings of both substantially changed circumstances and that the substantially changed circumstances render the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a). To fully address the modification motion, a district court that finds that circumstances have substantially changed must then address whether those changed circumstances render the existing award unreasonable and unfair, but a finding of the lack of either threshold condition for modification renders a finding on the other threshold condition unnecessary.

Here, because the district court denied modification after finding that mother had not shown father’s existing support obligation to be unreasonable and unfair, it did not have to address whether circumstances had changed substantially. See Erickson v. Erickson, 385 N.W.2d 301, 303 (Minn.1986) (holding support modification findings inadequate where district court found substantial increase in obligor’s income but did not address whether the increased income rendered existing support obligation unreasonable and unfair); Thielbar v. Defiel, 378 N.W.2d 643, 645 (Minn.App.1985) (affirming refusal to increase support obligation where moving party presented “some” evidence that obli-gor’s income increased but “did not produce any evidence that the increased earnings ma[d]e the original support award unreasonable an unfair”). Our analysis must therefore focus on whether the district court correctly ruled that mother failed to show father’s existing support obligation to be unreasonable and unfair.

The district court ruled that mother failed to show father’s existing support obligation to be unreasonable and unfair because mother did not submit enough information regarding her own finances to allow the district court to determine her support obligation and hence the amount by which to reduce father’s support obligation under the Hortis/Valento child support formula. The Hortis/Valento formula, however, requires calculation of two separate support obligations, one for each parent (for the time the child is with the other parent) and then the offsetting of those obligations against each other to arrive at a net payment for the party with the greater obligation. See Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn.App.2001) (describing Hortis/Valento formula). Determining a support obligation is generally a function of the obligor’s net monthly income. See Minn.Stat. § 518.551, subd. 5(b) (showing guideline support to be a function of obligor’s net monthly income). Therefore, the district court’s stated inability to calculate mother’s support obligation is consistent with the limited financial information she presented to the district court.

Determining whether an existing support obligation is unreasonable and unfair, however, generally involves (but is not necessarily limited to) a comparison of the obligor’s existing obligation with what the obligation would be if it were modified. Cf. Minn.Stat. § 518.64, subd. 2(b)(1) (creating rebuttable presumption that existing support obligation is unreasonable an unfair if modified obligation is 20% and $50 higher or lower than existing obligation). Thus, while the district court’s inability to calculate mother’s support obligation may be relevant to its determination of the net support payment between the parties, that inability it is not dispositive regarding whether father’s existing support obligation is unreasonable and unfair. For this reason, the lack of information regarding mother’s finances is an inadequate basis upon which to conclude that mother failed to prove that father’s support obligation was unreasonable and unfair.

We therefore reverse the district court’s ruling, and remand for the district court to specifically address whether there has been a substantial change in father’s income and, if so, whether that change rendered father’s existing support obligation unreasonable and unfair. In doing so, the district court shall make findings adequate to explain its ruling and adequate to allow appellate review. See Minn.Stat. § 518.64, subd. 2(c)(1) (“[o]n a motion for modification of support, * * * the court * * * shall apply” the factors relative to the parties’ needs and resources and the child’s needs (emphasis added)); Stephens v. Stephens, 407 N.W.2d 468, 471 (Minn. App.1987) (district court’s conclusion as to fairness of original support order must be based on findings regarding the needs and resources of the parents and children); Martin v. Martin, 382 N.W.2d 920, 922 (Minn.App.1986) (noting district court’s failure to make findings on the present net income of the parties and the needs of the children prevents proper review of a motion to modify support). The requirement that district courts make particularized findings on child-support issues ensures effective appellate review and “offers children and both parents the benefits of a careful, complete judicial analysis of support obligations.” Quaderer v. Forrest, 387 N.W.2d 453, 459 (Minn.App.1986) (Crippen, J., concurring specially).

Mother also argues that any modification of the original support order should be made retroactive to September 17, 2001, the date mother served the motion on father. A modification of support is generally retroactive to the date the moving party served notice of the motion on the responding party. See Minn.Stat. § 518.64, subd. 2(d) (stating district court may make support modification retroactive to date motion was made retroactive). Here, the record shows mother served her motion on father on September 17, 2001. Because none of the exceptions to the general rule are alleged to be applicable here, and because there is no indication that the district court otherwise exercised its discretion to make the modification effective as of a different date, any modification to the support award shall therefore be retroactive to that date.

DECISION

We reverse the determination that mother’s failure to provide her own financial information is fatal to her motion to modify father’s support obligation and remand for the district court to readdress the question and to make findings explaining its resolution of the motion. Whether to reopen the record on remand shall be discretionary with the district court and the district court shall have discretion to resolve any problems in determining a net support payment created by any continued failure by mother to produce her financial information.

Reversed and remanded.


author: R.A. RANDALL, Judge.

text:
    STATE of Minnesota, Respondent, v. Ofiong Louis SANDERS, Appellant.
    No. C2-01-1939.
    Court of Appeals of Minnesota.
    May 21, 2002.
    Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant

      County Attorney, St. Paul, MN, for respondent.
    Steven J. Meshbesher, Meshbesher & Associates, P.A., Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, RANDALL, Judge, and STONEBURNER, Judge.
   OPINION

R.A. RANDALL, Judge.

Appellant challenges the posteonvietion court’s denial of his request to correct his sentence from 180 months to 65 months. Appellant correctly argues that the original sentence was erroneously based on the career offender statute because he did not have the requisite sequential prior convictions to qualify as a career offender. Appellant argues that the court then violated his due process rights by resentencing him under the dangerous offender statute without a hearing to allow him to contest the state’s claim that he was a dangerous offender. Appellant argues that he does not meet the requisite elements under thq dangerous offender statute, that the district court erred in sentencing appellant as a dangerous offender because its findings were not supported by the record of the original sentence, and that he was denied a sentencing hearing on the merits. We reverse and remand for hearing.

FACTS

In December 1997, a jury found appellant Ofiong Louis Sanders guilty of first-degree burglary in violation of Minn.Stat. § 609.582, subd. 1(a) (1996). Appellant’s conviction was affirmed on direct appeal to this court. State v. Sanders, No. C9-98-1232, 1998 WL 901751 (MinnApp. Dec.29, 1998), review denied (Minn. Mar. 16, 1999).

The presumptive sentence for first-degree burglary based on the offense’s severity level and appellant’s criminal history score is 65 months. In April 1998, the court sentenced appellant as a career offender pursuant to Minn.Stat. § 609.152, subd. 3 (1996), and executed a 180-month prison term.

In August 2001, appellant filed a the postconviction petition seeking to correct his sentence, arguing that he did not qualify as a career offender because he did not have five separate felony convictions as defined by the statute. The state conceded this point but then filed a written motion to resentence appellant under the new theory that appellant qualified as a dangerous offender under Minn.Stat. § 609.152, subd. 2 (1996). Without any hearing, the court determined that the record from the original sentencing hearing, which discussed only the career offender statute, satisfied the “dangerous offender” criteria, and the court sentenced appellant under the theory that he was not a “career offender” but was a “dangerous offender.” The court sentenced appellant to a 180-month prison term, the same as originally imposed by the court. Appellant now challenges the postconviction court’s decision.

ISSUES

I. Does appellant qualify as a career offender?

II. Did the postconviction court err in resentencing appellant as a dangerous offender -without a hearing, does appellant meet the statutory definition of a dangerous offender, and was the court’s determination supported by findings from the original sentence?

ANALYSIS

An appellate court’s review of a postconviction proceeding is limited to ascertaining whether there is sufficient evidence to sustain the court’s findings. Hale v. State, 566 N.W.2d 923, 926 (Minn.1997). An appellate court affords “great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001) (citation omitted). The postconviction court’s decision will not be overturned unless it abused its discretion. Hale, 566 N.W.2d at 926.

I. Career Offender

The sentencing court may depart from the presumptive guidelines and sentence a defendant as a career offender if the court

finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

Minn.Stat. § 609.152, subd. 3 (1996). Relying on State v. Huston, 616 N.W.2d 282 (Minn.App.2000), appellant argues that he does not have the requisite five prior and sequential convictions to qualify as a career offender. In Huston, this court analyzed whether the statutory definition of a prior conviction should apply to the phrase “prior felony conviction” under the replacement statute, Minn.Stat. § 609.1095, subd. 4 (1998). A prior conviction is defined as

a conviction that occurred before the offender committed the next felony resulting in a conviction and before the offense for which the offender is being sentenced under [Minn.Stat. § 609.1095].

Minn.Stat. § 609.1095, subd. 1 (1998). This court concluded that the definition of a prior conviction applied to a prior felony conviction, meaning “five sequential felony offenses and convictions are required (i.e., offense/conviction, offense/conviction, offense/conviction, etc.).” Huston, 616 N.W.2d at 283. This court determined that such a requirement “better serves the general purpose of the statute by permitting five full postconviction opportunities for reform.” Id. at 284 (quotation omitted).

The state argues that this issue is not properly before this court because appellant failed to raise this issue when he appealed his conviction. See Hale, 566 N.W.2d at 926 (citing “Knajfla rule” that issues defendant knew or should have known but did not raise at time of direct appeal will not be considered in later petitions for postconviction relief). Because this court did not issue its interpretation of the career offender statute requiring five sequential convictions in Huston until after appellant’s direct appeal, this issue cannot be barred by the Knajfla rule.

The following is a list of the offense and conviction dates of appellant’s seven prior felony offenses:

Crime Offense Date Conviction Date

First-degree burglary May 12,1992 November 12, 1993

Receiving stolen property March 3,1992 July 14,1992

First-degree burglary June 20,1992 November 23, 1992

Attempted second-degree burglary June 21,1992 November 20, 1992

First-degree burglary September 15, 1992 November 23, 1992

Attempted first-degree burglary May 28,1994 November 17, 1994

Attempted second-degree burglary May 28,1994 - November 17, 1994

Based on this court’s conclusion in Huston, appellant does not have the requisite sequence of five felony offenses and convictions to qualify as a career offender. The state conceded this issue to the postconviction court and agreed that appellant could not be sentenced as a career offender. But then the state argued that the court’s original 180-month sentence (essentially a triple upward departure) could be justified on other grounds; namely, the state moved the court to resentence appellant under the dangerous offender statute, Minn.Stat. § 609.152, subd. 2. The postcon-viction court determined that under the facts found at the original hearing, appellant was a danger to public safety because of a pattern of criminal behavior and fulfilled all the essential elements of the dangerous offender statute. The court then, without an evidentiary hearing, and relying simply on the state’s written motion, sentenced appellant to 180 months as a dangerous offender.

II. Dangerous Offender

Appellant argues his due process rights were violated because the court did not give him an opportunity for a hearing before the court resentenced him under the dangerous offender statute. We agree. The postconviction court imposed a new sentence, under a different criminal statute, when it sentenced appellant under the dangerous offender statute. When the state conceded that appellant’s criminal history did not qualify him as a career offender, appellant should have been allowed his unqualified due process right of allocution before the sentencing court to contest the merits of the state’s new theory before the court pronounced the new sentence. It was a new sentence, even though the amount of prison time, coincidentally, remained the same, because the sentence was pronounced under a new and different statute, the dangerous offender statute, that appellant had never been exposed to and had never been granted the opportunity in open court to speak against. Before sentencing a criminal defendant, a district court is required to allow both sides an opportunity to make statements relevant • to the sentence. See Minn. R.Crim. P. 27.03, subd. 3.

The state asserts that a new hearing is unnecessary because the state presented sufficient facts at- the original hearing to justify a sentence under the dangerous offender statute. Under the dangerous offender statute, the sentencing court

may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on record the basis for the finding, which may include:
(i) the offender’s past criminal behavior, such as the offender’s high frequency rate of criminal activity * * *, or long involvement in criminal activity * * *; or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.

Minn.Stat. § 609.152, subd. 2 (1996). A violent crime includes a first-degree burglary and attempted first-degree burglary. Id., subd. 1. The state relies on the supreme court’s ruling in Williams v. State, which stated that a sentencing departure will be affirmed despite improper or inadequate reasons if the record contains sufficient evidence to justify the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn.1985). We disagree. The state misses the issue. We do not agree that the state presented sufficient facts on the dangerous offender issue at the first hearing because, at that hearing, appellant was sentenced under the career offender statute, not the dangerous offender statute. The state concedes that, at the original sentencing hearing, it had a choice between asking the court to sentence appellant under the career offender statute or the dangerous offender statute. The state chose the career offender statute because it was “easier.” Appellant never had an opportunity to argue the merits of the dangerous offender statute (he did not have to!) because the state did not present this issue at the original sentencing hearing. We understand the state’s argument that perhaps there could be a factor or two needed to sentence appellant under the career offender statute that might overlap with factors needed to support a sentence under the dangerous offender statute, but so what? It is possible that under two completely disparate statutes, such as aggravated assault and murder or burglary and swindle, some factors might overlap, such as intent. That is not the point. When the notice to a defendant, and the entire contested hearing in open court, was on one issue, namely the career offender statute, it is not lawful for a sentencing court to change its mind later upon the state’s suggestion, and imprison a defendant under a brand new theory presented for the first time. The record does not reflect in any. fashion a waiver by appellant of his right of allocution. A full court hearing on the state’s new theory that he should be sentenced under the dangerous offender statute is warranted. In addition, the sentencing court cannot make a record on the dangerous offender statute, and there will be noné for meaningful appellate review, until both sides have been afforded the opportunity to argue the issue.

Appellant urges this court, to, without remand, sentence him to the presumptive sentence of 65 months. Appellant’s attorney argues that if there is a remand for a new sentencing hearing on the dangerous offender statute, the state will simply present “new and manufactured facts” to fit the dangerous offender statute. We understand appellant’s argument, but just as appellant is entitled to a full hearing to contest the state’s position and to argue for what he deems to be an appropriate sentence, the state is entitled to a hearing on its position that appellant’s criminal history satisfies the criteria for sentencing him as a dangerous offender. Appellant is protected. At the resentencing hearing, the facts must be confined to the facts of record, which were established, by both parties at the original hearing where the criteria was “career offender,” The statute is different, but the facts of appellant’s crime and his criminal history score are over, meaning they cannot “change.” The state is allowed to. argue its new theory, as long as it does not attempt to present new facts or change the record. The state, as well as appellant, could not have been aware of the Huston holding at the time of the original sentencing hearing, and the state has the same right to a hearing as appellant. For his part, appellant can argue that the facts on the record do not support a sentence under the dangerous offender statute.

We note that the state argued at oral argument that appellant did not “formally” move for a sentencing hearing. What the record shows is that appellant moved the court by written motion to correct his original sentence as a career offender following Huston’s release. If the state had agreed that, based on Huston, appellant was incorrectly sentenced as a career offender, and if the state had informed the court that it had no objection to appellant’s motion for a reduction in his sentence to the presumptive, the court could have corrected the sentence downward to 65 months without a formal hearing. By definition, this would have been what appellant requested. Instead, the state offered a brand new basis, meaning the dangerous offender statute, and urged the court to sentence appellant to almost a triple upward departure, 180 months. We conclude that because of the state’s position, that a different statute, which appellant was not given notice of and neither side discussed at the original hearing, should now be the criteria for sentencing, each party has an absolute right to a formal hearing to argue the issue on its merits.

The issue is placed in perspective when one looks at the procedure following a guilty verdict. The normal process of criminal procedure, of which criminal defense attorneys, prosecutors, and the courts are aware, simply takes over. If the conviction is for a felony, as here, the district court, following the guilty verdict, will have a short hearing on bail or lack thereof, and any other conditions that may be imposed before sentencing. The district court then informs counsel that it will order a presentence investigation and states that a date will be set for the sentencing hearing after the PSI is completed. Neither the prosecutor nor the defense attorney, has to “demand” a sentencing hearing orally or in writing. The sentencing hearing is built into the process. No district court ever states, “After the, pre-sentence investigation is complete you can send a written motion to the court for what you want and then the court will impose a sentence from chambers, but there will not be a sentencing hearing in open court.” That is essentially what happened to appellant in this case. He never received a hearing on the dangerous offender issue. Therefore, we remand this case so that appellant receives the sentencing hearing to which he is entitled.

Because we are reversing and remanding on this issue, we need not reach the merits of the other issues appellant presented.

DECISION

Defendants have an absolute right to allocution in open court when a sentence is pronounced. The sentencing court cannot sentence appellant under the state’s new theory that appellant should be sentenced as a dangerous offender until appellant is afforded a full hearing to argue the merits of the state’s new theory, on which the state has the burden of proof.

Reversed and remanded.

      . The Minnesota Legislature has since replaced Minn.Stat. § 609.152, subd. 3, with a new section for career offenders, Minn.Stat. § 609.1095, subd. 4 (1998). Act of April 6, 1998, ch. 367, art. 6, §§ 7, 16, 1998 Minn. Laws 666, 731-35. The only change to the provision is that a defendant must have “five or more” prior felony convictions to be sentenced as a career offender rather than "more than four” convictions, although this change is merely grammatical. Id.

      . The Minnesota Legislature has since replaced Minn.Stat. § 609.152, subd. 2 with a new section for dangerous offenders, Minn. Stat. § 609.1095, subd. 2 (1998). Act of April 6, 1998, ch. 367, art. 6, §§ 7, 16, 1998 Minn. Laws 666, 731-35.

      . It should be noted that this is not a situation involving State v. Calmes. State v. Calmes, 632 N.W.2d 641 (Minn.2001). "[Cjalmes' sentence was corrected by the addition of a statutory mandated conditional release term, but no sentence of actual imprisonment was imposed.” Id. at 650. In this case appellant’s sentence is not being corrected due to a typographical error or to conform to a statutory mandate. Rather, appellant is being sentenced under a completely different statute than the one considered at the original sentencing.