author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Appellant, v. Orlando ROSS, Respondent.
    No. A03-1341.
    Court of Appeals of Minnesota.
    March 23, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; James C. Backstrom, Dakota County Attorney, Kevin P. Shea, Assistant Dakota County Attorney, Hastings, MN, for appellant.
    Robert D. Miller, Minneapolis, MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Law-enforcement officers received a tip from a confidential, reliable informant (CRI) stating that a man named “O” would be arriving at a particular address in Apple Valley with crack cocaine. After the officers set up surveillance, the CRI called and stated that 0 would be driving a rental car and described 0⅛ clothing in detail. Respondent, Orlando Ross, arrived at the appointed time, and the officers detained and searched him, finding crack cocaine. The district court found that there were insufficient indicia of the CRI’s reliability to conclude that there was probable cause to search respondent and ordered the evidence suppressed and the charges dismissed. We reverse.

FACTS

On May 30, 2003, Agent Jason Weishaar was contacted by a CRI. The CRI had previously provided accurate information resulting in successful arrests. The CRI stated that crack cocaine was going to be delivered to 7265 Upper 127th Street in Apple Valley, Minnesota, at 2:30 p.m. The CRI identified the deliveryman as “O” and provided O’s license plate number; a vehicle registration check revealed that the license plate was registered to respondent.

Weishaar and other law-enforcement officers set up surveillance at the stated address. While the officers were waiting, the CRI contacted Weishaar again and informed him that O would instead be driving a maroon rental car and wearing a black golf hat and a blue shirt; the CRI also said that the drugs would be in the trunk of the car. Shortly after this, apparently around 2:30 p.m., respondent arrived at the scene in a maroon rental car wearing a black golf hat and a blue shirt. Respondent was detained and handcuffed and the trunk of the car was searched; the search yielded a number of respondent’s personal items and two baggies of crack cocaine, one weighing 42.76 grams and the other weighing 18.77 grams. Respondent was arrested and charged with possession of a controlled substance in the first degree pursuant to Minn.Stat. § 152.021, subds. 2(1), 3(a) (2002).

The district court ordered suppression of the evidence and dismissal of the charges, reasoning that there was no evidence of the CRI’s reliability or the CRI’s basis of knowledge. This appeal followed.

ISSUE

Did the district court clearly err in suppressing the evidence obtained during the warrantless search of respondent’s car?

ANALYSIS

When appealing from a pretrial suppression order, the state must show that the district court clearly erred and that the ruling has a critical impact on the case. State v. Cook, 610 N.W.2d 664, 666 (Minn.App.2000), review denied (Minn. July 25, 2000). This pretrial order has a critical impact because it resulted in the dismissal of the case. Thus, the only question for this court is whether the district court clearly erred.

Both the United States and the Minnesota constitutions protect citizens from unreasonable searches and seizures. U.S. Const, amend. IV; Minn. Const, art. I, § 10. A search conducted without a search warrant is presumptively unreasonable and therefore unconstitutional. State v. Munson, 594 N.W.2d 128, 135 (Minn. 1999). One exception to this rule is that warrantless searches of automobiles are not unreasonable if supported by probable cause. United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982).

Probable cause means that there is “a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Wiley, 366 N.W.2d 265, 268 (Minn.1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). Whether the information provided by a confidential informant is sufficient to establish probable cause is determined by examining the totality of the circumstances, particularly “the credibility and veracity of the informant.” Munson, 594 N.W.2d at 136. If a case is close, the lack of a warrant may weigh against finding probable cause. Cook, 610 N.W.2d at 667.

There are six factors for determining the reliability of confidential, but not anonymous, informants: (1) a first-time citizen informant is presumably reliable; (2) an informant who has given reliable information in the past is likely also currently reliable; (3) an informant’s reliability can be established if the police can corroborate the information; (4) the informant is presumably more reliable if the informant voluntarily comes forward; (5) in narcotics cases, “controlled purchase” is a term of art that indicates reliability; and (6) an informant is minimally more reliable if the informant makes a statement against the informant’s interests. State v. Ward, 580 N.W.2d 67, 71 (Minn.App.1998). An informant’s reliability is not enhanced if the informant merely gives information that is easily obtained. State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App.1991). The second factor is fulfilled by a simple statement that the informant has been reliable in the past because “this language indicates that the informant had provided accurate information to the police in the past” and thus gives “the magistrate ... reason to credit the informant’s story.” Wiley, 366 N.W.2d at 269. There is no need for law-enforcement officers to provide specifics of the informant’s past veracity. Munson, 594 N.W.2d at 136.

Here, the second and third factors are at issue and, according to appellant, provide the basis for a determination of probable cause. There is no warrant application and accompanying affidavit at issue; therefore, this court is to examine the totality of the circumstances. Id. The district court found that “there is no basis to characterize the informant as a confidential reliable informant” because the complaint provides “no specifics regarding any prior contacts between the police and the CRI that form an adequate conclusion that the informant is reliable.”

But neither Munson nor Wiley require that specific details of the past veracity of the CRI be alleged, and thus the district court’s conclusion that more information was necessary was incorrect. Munson, 594 N.W.2d at 136; Wiley, 366 N.W.2d at 269.

The district court also found that the basis of the CRI’s knowledge was suspect because it could have been easily obtained from rumor. See Albrecht, 465 N.W.2d at 109 (stating that easily obtained information does not enhance an informant’s credibility). But here the CRI provided detailed information concerning the color and type of the suspect’s hat, the color of the suspect’s shirt, the car the suspect would be driving, and the time and place of the suspect’s arrival. This level of information far exceeds the easily obtainable information that was at issue in Albrecht. See id. (noting that police corroborated only the address of the defendant’s home and his ownership of a pickup truck parked there).

Respondent argues that the fact that the CRI called law enforcement a second time to state that the suspect would be driving a different car than the one originally stated indicates that the CRI is unreliable. On the contrary, this correction enhances the CRI’s reliability and refutes the district court’s conclusion that the CRI was operating on rumor because it shows the CRI had very current information and was careful to update police.

Not only did the CRI appear to be operating from personal knowledge, but the officers verified the CRI’s information. The officers verified the time and place of arrival, the car, the hat, the shirt, and a given name that was consistent with the street name. Thus, because the police were able to verify many details of the informant’s tip, the third factor leans heavily in favor of finding probable cause.

Respondent relies heavily on State v. Cook in support of the district court’s suppression order. In Cook, a CRI provided a tip to law enforcement officers that the defendant was selling crack cocaine at a YMCA. 610 N.W.2d at 666. The CRI stated that there was crack cocaine in the defendant’s waistband and gave a physical description of the defendant, the clothing the defendant was wearing, a description of the defendant’s car including its license plate, and the defendant’s name. Id. The officers verified that a person matching the description of the defendant and his car were at the YMCA and arrested him. Id. This court concluded that the police lacked probable cause to arrest the defendant. Id. at 669. The crux of our reasoning, though, was that the CRI “did not predict any future behavior” by the defendant; thus leading to a conclusion that the CRI had only passed along easily obtainable information and not inside information. Id.

Prior to Cook, the supreme court concluded that there was probable cause when a CRI stated that two defendants driving a green rental car would be at a specific address at a specific time and gave the names of the two defendants and police corroborated all of the details in the tip, including the identities of the occupants before searching the vehicle. Munson, 594 N.W.2d at 136. The supreme court stated, “[W]e hold that the corroborated details of the CRI’s tip, together with the past reliability of the CRI, gave the police probable cause to believe that the [vehicle] was carrying illegal drugs and thus justified the search of the [vehicle] under the motor vehicle exception.” Id. at 136-37.

Here, Munson is controlling because the CRI provided a detailed prediction of future behavior that was corroborated by police before the search. The key distinguishing characteristic for us in Cook was whether the CRI predicted future behavior. Cook, 610 N.W.2d at 669. That key element was lacking in Cook and led to a conclusion that there was not probable cause. But here there was information predicting future behavior by respondent, specifically that he would appear at a specified address at a specified time in a described vehicle, all of which was verified by law-enforcement prior to the search. Thus, Cook does not lead to a conclusion that there was not probable cause. The district court’s order suppressing the seized evidence was in error and is reversed.

DECISION

The district court clearly erred in suppressing the evidence found in respondent’s rental vehicle.

Reversed.


source: Caselaw Access Project

author: ROBERT H. SCHUMACHER, Judge.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Wayne Earl DAHL, Appellant.
    No. A03-375.
    Court of Appeals of Minnesota.
    March 23, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Frederic W. Knaak, Knaak Kan-trud, P.A., Fridley City Attorney, Vadnais Heights, MN, for respondent.
    Randall D.B. Tigue, Randall Tigue Law Office, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SCHUMACHER, Presiding Judge; WILLIS, Judge; and WRIGHT, Judge.
   OPINION

ROBERT H. SCHUMACHER, Judge.

Appellant Wayne Earl Dahl challenges his conviction of violating Fridley, Minn., City Code § 214.04.6 (2002), which prohibits the use of “motion signs” throughout Fridley. He argues the ordinance is facially unconstitutional under the First Amendment of the United States Constitution. We conclude the ordinance is a valid time, place, or manner regulation under the test set out in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). We also conclude the evidence was not “insufficient as a matter of law,” and because the issue was not properly raised before this court, we decline to address Dahl’s argument that the trial court erred in excluding a defense witness. We affirm.

FACTS

Dahl operates a chiropractic clinic on the corner of Osborne Road and Highway 65 in Fridley. For many years he displayed an alternating “time and temperature” sign on top of a traditional, flat advertising sign at his clinic. Between December 2000 and January 2001, Dahl decided he wanted an automatic changeable sign “so that we could provide public service messages, et cetera.”

In early 2001, Dahl applied for, and Fridley granted him, a special use permit to operate an automatic changeable sign. Under Fridley, Minn., City Code 214.07.1.A (2002), the special use permit is issued subject to “[cjonformance to the sign requirements within that district.” Fridley, Minn., City Code § 214.04.6, which prohibits the use of “motion signs,” applies to all districts within Fridley. Scott Hickok, Fridley’s community development director, testified that Dahl had obtained a special use permit to operate an automatic changeable sign, but the special use permit was granted upon the conditions that (1) the sign be operated within all of the confines of the law, (2) a building permit be obtained, and (3) the sign be constructed in accordance with the law. Hickok is responsible for enforcing Fridley’s city code.

Dahl’s new sign was installed in late December 2001. Dahl testified he initially let the sign sit blank because he was unsure what the sign could display. In March 2002, Dahl turned the sign on, displaying the message “Walk In For Better Health,” accompanied by flickering snowflakes. That evening, Sergeant Crestik of the Fridley police issued Dahl two citations for violating Fridley’s sign ordinances.

On Monday morning, Dahl contacted Hickok to discuss his situation. Dahl attended a meeting that day with Hickok, the city attorney, and Paul Bolin. Dahl testified that at this meeting the city told him the citations had been issued because the snowflakes “flash[ed]” and that when the message spread apart before changing, the sign created the illusion of motion and therefore violated the city’s sign ordinances.

At this meeting, the discussion moved from the message that was displayed to whether Fridley would cite Dahl for displaying a waving American flag. Dahl testified that he was told, “If you [display the flag] we want to know when you’re going to do it because we don’t want the police to have to be on over-time when they arrest you.” Dahl then countered with, “How about seven o’clock on Thursday night?” Hickok, however, testified to a very different version of the flag discussion. He testified, Fridley’s statement was, “The American flag is fine, but don’t run contrary to those two elements that have been discussed.” Hickok testified that Dahl responded, “I’m going to turn it on. As a matter of fact, let me give you the date and time.... And if the city doesn’t want to change the code, I will embarrass them into doing so.”

At approximately 7 p.m. on Thursday, April 3, 2002, Dahl turned on the sign displaying a waving American flag. He was issued a citation for violating the sign ordinances. He was also issued additional citations thereafter.

The city charged Dahl with four counts of violating Fridley, Minn., City Code § 214.04.6 for operating a sign displaying motion, four counts of violating Fridley, Minn., City Code § 214.04.4 (2002) for operating a sign that caused traffic distraction, four counts of violating Fridley, Minn., City Code § 214.04.7 (2002) for operating a sign using flashing lights, four counts of violating Fridley, Minn., City Code § 214.07.1 (2002) for operating a sign with messages changing more than every 15 minutes, and four counts of violating Minn.Stat. § 609.74, subd. 2 (2000), for operating a sign that caused a distraction that endangered or harmed passing motorists. Dahl moved to dismiss the complaint, and the trial court issued an order dismissing the charges for distracting traffic under Fridley, Minn., City Code § 214.04.4 and the charges for operating a sign with messages changing more frequently than 15 minutes under Fridley, Minn., City Code § 214.04.07.1.

The case proceeded to trial on the charges of displaying a motion sign and a flashing sign under city ordinances, and endangering or harming motorists under Minn.Stat. § 609.274. The jury found Dahl not guilty of displaying a flashing sign and not guilty of causing a distraction that endangered or harmed passing motorists but found him guilty of displaying a motion sign. The court sentenced Dahl on all four counts of displaying a motion sign to identical, concurrent sentences of 30 days in jail, stayed, and a $700 fíne, $300 of which was stayed.

ISSUE

Is a city ordinance that prohibits operating signs that revolve, rotate, have moving parts, or give the illusion of motion an unconstitutional abridgement of the freedom of speech?

ANALYSIS

Dahl argues the motion sign ordinance violates the First Amendment to the United States Constitution. Evaluating the constitutionality of a statute is a question of law, which this court reviews de novo. Hamilton v. Comm’r of Pub. Safety, 600 N.W.2d 720, 722 (Minn.1999).

Under Fridley city code, a “motion sign” is a “sign which revolves, rotates, has moving parts or gives the illusion of motion.” Fridley, Minn., City Code § 214.02.19 (2002). Another provision of the code lists signs that are prohibited in all districts of the city. Fridley, Minn., City Code § 214.04 (2002). Included in the list of prohibited signs are “[a]ny motion signs.” Fridley, Minn., City Code § 214.04.6.

The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const. amend. I. The freedom of speech clause applies to the states through the Fourteenth Amendment, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n. 1, 116 S.Ct. 1495, 1501 n. 1, 134 L.Ed.2d 711 (1996). Provisions of law that regulate a medium of communication, such as the posting of signs, often affects speech and are subject to first amendment scrutiny. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 2042, 129 L.Ed.2d 36 (1994) (stating “because regulation of a medium inevitably affects communication itself, it is not surprising that we have had occasion to review the constitutionality of municipal ordinances prohibiting the display of certain outdoor signs”).

If a provision seeks to limit when, where, or how means of expression may be used, it is analyzed to determine if it is a valid “time, place, and manner” regulation. Hill v. Colorado, 530 U.S. 703, 725-26, 120 S.Ct. 2480, 2494, 147 L.Ed.2d 597 (2000). A provision of law that regulates the time, place, or manner of protected speech must be narrowly tailored to serve the government’s substantial and content-neutral interests while leaving open ample alternative channels, but the regulation need not be the least restrictive or least intrusive means of doing so. Ward v. Rock Against Racism, 491 U.S. 781, 797-803, 109 S.Ct. 2746, 2757-60, 105 L.Ed.2d 661 (1989); see Hill, 530 U.S. at 725, 120 S.Ct. at 2494 (holding statute was valid time, place, and manner regulation “under the test applied in Ward”).

The Fridley motion-sign ordinance serves the government’s substantial and content-neutral interest and leaves open ample alternative channels. The prohibition of motion signs does not disfavor any message and therefore is a content-neutral regulation. See Ward, 491 U.S. at 791, 109 S.Ct. 2746 at 2754, 105 L.Ed.2d 661 (stating “principle inquiry in determining content neutrality ... in time, place, or manner cases ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys”). Fridley’s goal in prohibiting motion signs is to promote traffic safety by limiting driver distractions, which is unquestionably a substantial government interest. See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-8, 101 S.Ct. 2882, 2892-93, 69 L.Ed.2d 800 (1981) (stating it “is far too late to contend” traffic safety is not a substantial government interest).

Finally, the regulation leaves open ample alternative channels because it allows any speech on a sign that does not revolve, rotate, have moving parts, or give the illusion of motion. See Ward, 491 U.S. at 802, 109 S.Ct. at 2760 (concluding regulation limiting sound amplification at Central Park Bandshell “easily met” ample alternatives requirement where “the guideline continues to permit expressive activity in the bandshell, and has no effect on thé quantity or content of that expression beyond regulating the extent of amplification”).

In examining whether a time, place, or manner regulation is narrowly tailored to serve the government interest there is a crucial distinction to be made when the regulation “does not entirely foreclose any means of communication.” Hill, 530 U.S. at 726, 120 S.Ct. at 2494. When a regulation does not foreclose the means of communication, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (quotation omitted). Where a legislative body has made a reasonable determination that its legitimate interest would be served less effectively without the regulation the courts should defer to that decision. See id. 491 U.S. at 800, 109 S.Ct. at 2758 (stating it is not court’s prerogative to replace its judgment for “the responsible decisionmaker concerning the most appropriate method for promoting significant government interests or the degree to which those interests should be promoted” (quotation omitted)); Hill, 530 U.S. at 727, 120 S.Ct. at 2495 (where regulation does not foreclose means of communication, court “must accord a measure of deference to the judgment” of legislative body).

Here, the city code only prohibits the manner in which signs can operate. It does not prevent use of signs as a means of communication; any message can be displayed on a sign as long as the sign does not revolve, rotate, use moving parts, or give the illusion of motion. Fridley determined that its legitimate goal of preventing traffic accidents would be served less effectively if motion signs were not prohibited. We see no reason to conclude such a common-sense determination is unreasonable, and therefore we defer to Fridley’s decision to prohibit motion signs in order to promote traffic safety.

Dahl also argues that the evidence was “insufficient as a matter of law” to support his conviction for operating a motion sign because Fridley had granted him a special use permit to operate an automatic changeable sign and it is “physically] impossible to change the message on an automatic changeable sign without engaging in what the sign ordinance would deem ‘flashing’ or ‘motion.’ ” Under the ordinance that allowed the city to issue the special use permit, the permit is issued subject to “[cjonformance to the sign requirements within that district.” Fridley, Minn., City Code 214.07.1.A. Since the prohibition against motion signs applies throughout Fridley, a special use permit for an automatic changeable sign does not excuse the grantee from the prohibition against motion signs.

Dahl also argues he is entitled to a new trial because “it was plain error to exclude the testimony of [a witness].” Since he provides no legal argument or authority and we see no obvious prejudicial error, we deem this issue waived. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App.1997) (stating assignment of error in brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection).

DECISION

The Fridley city ordinance prohibiting motion signs does not violate the First Amendment. The evidence is sufficient to support Dahl’s conviction.

Affirmed.

      . The Fridley city clerk has certified that the provisions of the city code cited in this opinion were in effect in 2002 during the events at issue. We have relied on the certification by the city clerk and refer to all provisions as though actually issued in 2002.

      . Contrary to Dahl’s contention, parts I through IV of Metromedia express the opinion of a majority of the Supreme Court. See Metromedia, 453 U.S. at 540-41, 101 S.Ct. at 2909-10 (Stevens, J., dissenting in part) (joining Parts I through IV); City of Ladue, 512 U.S. at 49, n. 8, 114 S.Ct. at 2042, n. 8 (noting five Justices joined in Part IV).


author: LANSING, Judge.

text:
    STATE of Minnesota, Respondent, v. Randall Wayne ENYEART, Appellant.
    No. A03-360.
    Court of Appeals of Minnesota.
    March 23, 2004.

      Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuehar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.

      Robert D. Sicoli, Law Offices of Robert D. Sicoli, Ltd., Minneapolis, MN; and Sarah M. Aho, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

LANSING, Judge.

Randall Enyeart was convicted for knowingly filing fraudulent tax returns, willfully evading income taxes, and intentionally evading motor-vehicle taxes, on the theory that he sought to avoid taxation by fraudulently creating the appearance that he was a resident of Alaska. On appeal from the judgment of conviction, Enyeart challenges the constitutionality of Minn. R. 8001.0300 (2001), the propriety of the jury instructions, the determination that federal law does not preempt Minnesota’s method of calculating days spent in the state, and the admission of Minn. R. 8001.0300 into evidence. Because we conclude that the domicile rule is neither unconstitutionally vague nor preempted by federal law and that the district court did not abuse its discretion either in instructing the jury or in admitting the domicile rule into evidence, we affirm.

FACTS

Randall Enyeart began working as a commercial pilot for Northwest Airlines (NWA) in 1979. He later married, had two children, and moved to Minnetonka. His children were enrolled in Minnetonka public schools, and he claimed Minnesota residency on his federal and state income-tax returns from 1993 until 1997.

In August 1997, Enyeart and his wife separated. Enyeart remained in the family’s Minnetonka home, and his former wife and children moved to Deephaven. In December 1997, Enyeart notified NWA electronically that he had changed his residency to Alaska effective September 1997. But he continued to live in the Minnetonka house — and to homestead and insure it as a residence — until the house was sold in April 1999.

In early 1998, Enyeart completed a client-information form for accountant Linda Gasch, in which he indicated that he had moved his residence to Anchorage, Alaska. Relying on that information, Gasch listed Enyeart in his 1997 income-tax return as a part-year resident of Minnesota and a part-year resident of Alaska.

In April 1998, Enyeart filed a dissolution petition in which he indicated that he resided at the Minnetonka address and had been a Minnesota resident for not less than 180 days immediately preceding the commencement of dissolution proceedings. The dissolution judgment awarded Eny-eart joint legal and physical custody of his two sons.

In November 1998, Enyeart applied for an Alaska driver’s license. A certified record from Alaska indicates that Enyeart surrendered his Minnesota license. But according to Minnesota records, his license was not surrendered. Enyeart’s 1995 Ford Expedition remained in Minnesota and was insured on the premise that it was garaged in Minnetonka. Also in November 1998, Enyeart registered to vote in Alaska. Up to that time, Enyeart had been registered to vote in Minnesota.

In connection with his 1998 state returns, Enyeart told Gasch that his residence continued to be in Alaska and that he was now flying international flights only. Based on that information, his Minnesota income taxes amounted to only $509. Had he claimed Minnesota residency in 1998, his state income tax would have been $14,471. Enyeart also claimed a homestead credit on his Minnetonka house for 1998 and received a $906 rebate. To be eligible for this property-tax rebate, the property must be (1) homesteaded, and (2) the taxpayer’s “principal place of residence.”

In April 1999, Enyeart purchased a townhouse in Shorewood, Minnesota. Enyeart paid the earnest money for the townhouse with a check from his NWA credit union bearing his Minnetonka address. And he bought homeowner’s insurance. On May 3, Enyeart filed a homestead application for the townhouse, in which he indicated that he intended to occupy the property. Two weeks later, he filed a relative homestead application, listing his brother as the occupant and himself as the non-occupying owner. Enyeart listed the Minnetonka house as his current address.

Enyeart also executed a statement of occupancy in connection with a mortgage submitted for recording, indicating that he planned the townhouse to be his “principal residence.” In an affidavit prepared by the title company for execution at closing, Enyeart indicated that he had lived at the Minnetonka address for the past ten years. And in a residential-loan application, Eny-eart declared that he was the sole owner of the townhouse and that the townhouse was to be his principal residence. At closing, he provided the mortgage company with a copy of his Minnesota driver’s license.

In September 1999, Enyeart’s flight base moved from Minneapolis to Detroit, Michigan. Later that month, he applied for an automobile loan through the NWA credit union. In the application, Enyeart listed the townhouse as his residence and stated that he had lived there for four months. In October 1999, he applied for a home-equity loan that had an occupancy requirement. Enyeart used the townhouse as security.

In November 1999, Enyeart bought a 2000 Ford Expedition from a dealer in Buffalo, Minnesota, and paid with a check bearing his Shorewood address. The purchase agreement listed a Minnesota mailing address and Minnesota telephone numbers. Enyeart paid no sales tax on the vehicle because he told the dealer that he planned to transfer title to Alaska. Had he claimed Minnesota residency, the tax due on the vehicle would have been $1,422.18. Enyeart registered the Ford Expedition in Alaska in January 2000.

Even though he claimed Alaska residency and was based out of Detroit, Enyeart continued to have his NWA pay stubs and withholding information sent to the Minneapolis/St. Paul base during 1999 and 2000. Enyeart did not file a 1999 Minnesota income-tax return, claiming that he was an Alaska resident. Had he claimed Minnesota residency in 1999, he would have had to pay $11,454 in state income taxes.

In January 2000, Enyeart told Hennepin County officials that he had been a Henne-pin County resident for the past ten years and had resided at the Shorewood address for the past nine months. In February 2000, he stated under oath that he lived at the Shorewood address and had lived there since April 1999. And in September 2000, he signed and filed emergency-notification cards with his sons’ school that listed the Minnetonka address and Minnesota telephone numbers as his contact information.

In February and August 2000, Enyeart listed the Shorewood address in his application for a medical certificate of fitness, which he needed to maintain his commercial-pilot’s license. Before then, he had used the Minnetonka address. Enyeart listed his Alaska address for the first time in February 2001. In December 2000, Enyeart applied for a second home-equity loan. Once again, Enyeart listed the Shorewood address as his current address and used the townhouse as security.

In his 2000 federal income-tax return, Enyeart continued to claim Alaska as his state of residence. Had he claimed Minnesota residency and filed a state income-tax return, he would have had to pay $15,036 in state income taxes.

Using Enyeart’s flight schedules, bank records, Federal Aviation Administration records, and court documents, the state calculated the number of days Enyeart was present in Minnesota during the last three months of 1997 and the calendar years 1998, 1999, and 2000. The state attributed a day to Minnesota residency only if there was evidence that Enyeart was beginning or ending a flight in Minnesota or that he was conducting business in the state (closing a loan or attending a doctor’s appointment, for example). The state did not count days in which Enyeart flew into or out of Minnesota in transit to another state or days in which Enyeart conducted business in another state. The state documented that in 1998 Enyeart spent 194 days in Minnesota and only twelve full days in Alaska. In 1999, Eny-eart was in Minnesota 144 days and in Alaska two full days. In 2000, Enyeart was in Minnesota 186 days and in Alaska two partial days.

Enyeart’s bank records indicate that between January 1998 and December 2000, Enyeart made 240 ATM transactions in Minnesota. During the same period, he made only three transactions in Alaska. Enyeart’s bank records were mailed to his Minnetonka address until he moved in April 1999. His bank records for the remainder of 1999 and 2000 were mailed to his Shorewood address. Enyeart’s cell phone records also show that the vast majority of calls were made to locations within Minnesota.

The Minnesota Department of Revenue (DOR) began investigating Enyeart after receiving a tip from Enyeart’s brother in August 1999, indicating that Enyeart was evading state income taxes. Investigators discovered that Enyeart was listed in metro-area phonebooks at either his Minne-tonka or his Shorewood address from 1997 until 2000.

In March 2001, Enyeart attempted to have the relative homestead status on the Shorewood residence removed for the tax year 2000 because his brother had moved out. Enyeart backdated the letter requesting the removal to January 1999. The relative homestead status was removed in 2001 and a penalty was assessed. On the day he requested the removal of the relative homestead status, Enyeart also contacted his insurance company to change his mailing address from Minnesota to Alaska.

In June 2001, Enyeart gave DOR agents a handwritten letter from his father and a typewritten letter from fellow NWA pilot Tim Branaman, indicating that Enyeart lived in Alaska. He also gave the DOR a photocopy of a lease agreement he signed with a storage facility in Minnesota. The photocopy, dated September 1999, showed an address and telephone number in Anchorage. The original, however, which DOR agents later obtained, listed Eny-eart’s Shorewood address and Minnesota telephone numbers.

During a search of Enyeart’s Shorewood residence in September 2001, DOR agents did not find any financial records for the years 1997 to 2001. Agents discovered that Enyeart’s computer hard drive contained a letter identical to the letter, purportedly from his father, that Enyeart had submitted to the DOR, and a proposed letter directed to the DOR, purportedly from Branaman. In his testimony Brana-man admitted that Enyeart essentially wrote the letter that actually went to the DOR. The first page of the letter on Eny-eart’s hard drive outlines the history of them friendship and Branaman’s gratitude to Enyeart for providing him a place to stay in Minneapolis in the early years of their employment. At the bottom of the first page, the letter states “we have had the opportunity to experience the following in Alaska together.” At the top of the second page Enyeart wrote: “(use your imagination here)” and left ten blank lines.

A search of the Anchorage condominium revealed that Enyeart had no personal belongings there. The maintenance man for the condominium complex testified that although Enyeart received mail at the condo, he had seen Enyeart only one time before September 2001.

In March 2002, the state charged Eny-eart with one count of filing a fraudulent tax return for the 1998 tax year in violation of Minn.Stat. § 289A.63, subd. 2(a) (2002); two counts of tax evasion for the 1999 and 2000 tax years in violation of Minn.Stat. § 289A.63, subd. 1(a) (2002); and two counts of failure to pay motor-vehicle taxes in violation of Minn.Stat. § 297B.10(a) (2002). The court denied Enyeart’s motion to dismiss the charges on grounds of vagueness, reasoning that the statutes under which Enyeart was charged were not unconstitutionally vague. A jury subsequently found Enyeart guilty as charged. This appeal followed the judgment of conviction and sentence.

ISSUES
I. Is Minnesota’s domicile rule unconstitutionally vague?
II. Did the district court commit prejudicial error by refusing to instruct the jury that they had to agree on which theory of residency the state had proved?
III. In cases involving the non-domiciliary status of an air-carrier employee, does federal law preempt the state’s method for counting days spent in Minnesota for income-tax purposes?
IV. Did the district court impermissi-bly shift the burden of proof to Enyeart by admitting into evidence a copy of the rule that requires taxpayers claiming to be nonresidents to have available for examination adequate records to substantiate that they spent more than one-half of the tax year outside Minnesota?

ANALYSIS

I

Enyeart first argues that the rule governing whether a person is domiciled in the state for income-tax purposes is “too ill-defined to form the basis for a criminal prosecution.” Specifically, Enyeart argues that the rule is unconstitutionally vague on its face and as applied because it does not specify what factors a taxpayer must satisfy to establish domicile in a particular state and invites arbitrary and discriminatory enforcement. We disagree.

Laws are presumed to be constitutionally valid. Minn.Stat. § 645.17(3) (2002); Associated Builders & Contractors v. Ventura, 610 N.W.2d 293, 298 (Minn. 2000). The presumption of constitutional validity governs the adjudication of constitutional challenges until disproved beyond a reasonable doubt. Hickman v. Group Health Plan, Inc., 396 N.W.2d 10, 13 (Minn.1986). Courts have a duty to uphold legislative enactments as reasonably certain when possible, and should “resort to all acceptable rules of' construction to discover a competent and efficient expression of the legislative will.” State v. Suess, 236 Minn. 174, 180, 52 N.W.2d 409, 414 (1952). The courts’ power to declare a statute unconstitutional should be exercised “with extreme caution and only when absolutely necessary.” State v. Fingal, 666 N.W.2d 420, 423 (Minn.App.2003), review denied (Minn. Oct. 21, 2003).

The void-for-vagueness doctrine requires that statutes define an offense (1) with sufficient definiteness and certainty that persons of ordinary intelligence can understand what conduct is prohibited or mandated, and (2) in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983); State v. Newstrom, 371 N.W.2d 525, 528 (Minn.1985). The doctrine is based on fairness and is not designed to “convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972), quoted in State v. Willenbring, 454 N.W.2d 268, 270-71 (Minn. App.1990), revieiu denied (Minn. May 30, 1990). The vagueness doctrine does not preclude the use of broad, flexible standards that require persons subject to a statute to exercise judgment. State v. Kuluvar, 266 Minn. 408, 417, 123 N.W.2d 699, 706 (1963). Instead, uncertainty invalidates a statute only when those subject to it cannot determine with reasonable certainty whether a particular act is forbidden or permitted. Id.

A person is a resident for purposes of taxation if the person is either (1) domiciled in Minnesota, or (2) domiciled outside Minnesota but maintains a place of abode in the state and spends in the aggregate more than one-half of the tax year in Minnesota. Minn.Stat. § 290.01, subd. 7 (2002). The term “domicile” means

the bodily presence of an individual person in a place coupled with an intent to make such a place one’s home. The domicile of any person shall be that place in which that person’s habitation is fixed, without any present intentions of removal therefrom, and to which, whenever absent, that person intends to return.

Minn. R. 8001.0300, subp. 2 (2001). The most significant factor in determining domicile is the person’s intent to remain in a fixed place. Manthey v. Comm’r of Revenue, 468 N.W.2d 548, 550 (Minn.1991).

Rule 8001.0300 lists twenty-six items courts must consider in determining whether a person intended to make a particular state his or her home:

A. location of domicile for prior years;
B. where the person votes or is registered to vote, but casting an illegal vote does not establish domicile for income tax purposes; C. status as a student; D. classification of employment as temporary or permanent; E. location of employment; F. location of newly acquired living quarters whether owned or rented; G. present status of the former living quarters, i.e., whether it was sold, offered for sale, rented, or available for rent to another; H. whether homestead status has been requested and/or obtained for property tax purposes on newly purchased living quarters and whether the homestead status of the former living quarters has not been renewed; I. ownership of other real property; J. jurisdiction in which a valid ■driver’s license was issued; K. jurisdiction from which any professional licenses were issued; L. location of the person’s union membership; M. jurisdiction from which any motor vehicle license was issued and the actual physical location of the vehicles; N. whether resident or nonresident fishing or hunting licenses purchased; 0. whether an income tax return has been filed as a resident or nonresident; P. whether the person has fulfilled the tax obligations required of a resident; Q. location of any bank accounts, especially the location of the most active checking account; R. location of other transactions with financial institutions; S. location of the place of worship at which the person is a member; T. location of business relationships and the place where business is transacted; U. location of social, fraternal, or athletic organizations or clubs or in a lodge or country club, in which the person is a member; V. address where mail is received; W. percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours of employment) that the person is physically present in each jurisdiction other than Minnesota; X. location of jurisdiction from which unemployment compensation benefits are received; Y. location of schools at which the person or the person’s spouse or children attend, and whether resident or nonresident tuition was charged; and Z. statements made to an insurance company, concerning the person’s residence, and on which insurance is based.

Minn. R. 8001.0300, subp. 3 (2001).

Rule 8001.0300 does not specify the amount of evidence necessary to prove an intention to change one’s domicile. On the contrary, the rule provides that “[n]o positive rule can be adopted with respect to the evidence necessary to prove an intention to change a domicile.” Minn. R. 8001.0300, subp. 2; see also Manthey, 468 N.W.2d at 550 (stating that “[n]o magic formula exists for determining a change in one’s domicile”). Instead, a person’s intention to change domiciles is proved by acts and declarations, and of the two forms of evidence, acts shall be given more weight than declarations. Minn. R. 8001.0300, subp. 2.

In addition to the twenty-six factors the rule lists, several presumptions are relevant to a determination of domicile. First, the place where a person’s family is domiciled is presumed to be that person’s domicile, and the domicile of a parent who has legal custody of a child is presumed to be the child’s domicile. Minn. R. 8001.0300, subp. 2. Additionally, one’s domicile is presumed to be the place where one lives. Id. And once domicile is established, it is presumed to continue until the contrary is shown. Id.; see Comm’r of Revenue v. Stamp, 296 N.W.2d 867, 870 (Minn.1980). The absence of an intention to abandon an existing domicile is equivalent to an intention to retain it. Minn. R. 8001.0300, subp. 2.

To succeed in a facial challenge to vagueness outside the context of the First Amendment, a complainant must demonstrate that the law is impermissibly vague in all its applications. Vill. of Hoffman Estates v. Flipside, 455 U.S. 489, 495-96, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). Enyeart argues that the domicile rule is facially vague because it does not indicate how many of the twenty-six factors it lists are necessary to establish domicile. Enyeart specifically argues that because expert testimony from a DOR agent failed to show a regulatory scheme with a fixed method for weighing the factors, a taxpayer could not exercise the required criminal intent to violate the requirements. We disagree.

The DOR agent testified that the rule does not provide a fixed method for weighing the domicile factors, but it nonetheless provides guidance. As an example, he noted that subpart 2 of the rule informs taxpayers that their actions will be given more weight than their declarations. The agent pointed out that the rule is not “extremely difficult,” and that the rule’s application is ' governed by “common sense.”

The fact that ■ taxpayers must rely on common sense and intelligence to determine whether their conduct complies with the law does not render the law unconstitutionally vague on its face. See Kuluvar, 266 Minn, at 417, 123 N.W.2d at 706 (providing that use of broad, flexible standards requiring exercise of judgment is not constitutionally precluded). A law that is flexible and reasonably broad' is nonetheless constitutional if it is clear what the law as a whole proscribes. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). A criminal statute need not be drafted with absolute certainty or mathematical. precision. See, e.g., Suess, 236 Minn. at 180, 52 N.W.2d at 414. Instead, to comply with due process, criminal statutes drafted in general and flexible terms must furnish only a test based on criteria that “[persons] of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” Id. Specificity will always be limited by the necessity to draft statutes that are general enough to address the diversity of human conduct and specific enough to provide adequate notice. See Colten, 407 U.S. at 110, 92 S.Ct. at 1957. A statute that is flexible and reasonably broad will thus be upheld if people of common intelligence do not have to guess at what the statute means or differ as to its application. Suess, 236 Minn, at 180, 52 N.W.2d at 413-14. All that is required is reasonable certainty. Id.

Although the domicile rule does not provide a magic formula for determining when a taxpayer has established an intention to change domiciles — relying instead on an exhaustive list of determinative factors — it specifies a standard of conduct that ordinary people of reasonable intelligence can understand. Contrary to Eny-eart’s claim, the statute, does not' defy common understanding but relies on it, and few . people — if any — could misapprehend what they need to do to establish an intention to change domiciles. The theoretical possibility.of an erroneous classification of a taxpayer as a domiciliary resident is insufficient to establish that the statute provides no comprehensible standard of conduct at all. The rule is thus not unconstitutionally vague on its face.

Enyeart next argues that the rule is vague as applied to him, because some of the regulatory factors support a finding that he was an Alaska resident while others favor a finding that he was a Minnesota resident. Contrary to Enyeart’s argument, however, this case is a paradigm of domiciliary residence.

After declaring a change of domicile in 1997, Enyeart continued to live, in his Minnetonka house until 1999, and he insured and homesteaded the house. He subsequently bought the Shorewood townhouse and signed a statement of occupancy and a residential-loan application in which he indicated that he planned the townhouse to be his principal residence. Eny-•eart bought homeowner’s insurance and filed a homestead application for the townhouse in 1999..

Although his flight base moved from Minneapolis • to Detroit in 1999, Enyeart continued to have his bank records and his NWA pay stubs and withholding information sent to the Minneapolis/St. Paul base. And he continued to list his Minne-tonka or Shorewood address as his current address on his checks, in his dissolution petition, on loan applications, on applications for homestead status and medical certificates of fitness, and on school-emergency-notification cards for his sons. Eny-eart also retained his Minnesota driver’s license and used it routinely for identification purposes. Not surprisingly, in January 2000, Enyeart told Hennepin County officials that he had been a Minnesota resident for the past ten years. These facts clearly reflect Enyeart’s intention to remain in Minnesota.

The number of days Enyeart spent in Minnesota and Alaska confirm Enyeart’s intention to make Minnesota his home. Records show that in 1998, Enyeart spent 194 days in Minnesota and twelve days in Alaska. In 1999, he spent 144 days in Minnesota and two days in Alaska. And in 2000, he spent 186 days in Minnesota and two partial days in Alaska. Enyeart kept no personal belongings in his Alaska condominium, and he made only three ATM transactions in Alaska between January 1998 and December 2000. By contrast, during the same period, he made 240 ATM transactions in Minnesota.

Finally, Enyeart’s fraudulent attempts to create the appearance that he was an Alaska resident leave no doubt as to his intent to remain in Minnesota while obtaining the tax benefits of claiming to be an Alaska resident. Enyeart backdated changes he made in NWA’s computerized employee database that identified his residence. He also backdated a letter he wrote in March 2001 to remove the relative homestead status on the Shorewood townhouse for the tax year 2000. In addition, Enyeart drafted a letter for his father to send to the DOR, indicating that Eny-eart was a resident of Alaska. And he drafted a letter for fellow pilot Tim Brana-man to send the DOR, in which he urged him to “[u]se [his] imagination” to write about experiences they had in Alaska. Finally, Enyeart submitted to the DOR a photocopy of a mini-storage receipt that had been altered to reflect his Anchorage address and phone number. Enyeart’s claim that the regulatory scheme is vague as applied to him lacks merit.

II

Enyeart also argues that the district court committed prejudicial error by refusing to instruct the jury that they had to agree unanimously on which theory of residency the state had proved. Specifically, Enyeart argues that the district court should not have permitted the state to proceed on the theory that he was a domiciliary resident, and that because the court failed to give his requested instruction on unanimity, it is impossible for a reviewing court to determine whether the jury found him guilty on the theory that he was a domiciliary resident or a nondomicil-iary resident. We do not agree.

First, as we have just concluded, the revenue department rule is not unconstitutionally vague. The state, therefore, properly prosecuted Enyeart on both residency theories. Second, the jury’s finding of guilt on the charges based on his 1997 and 1999 conduct, which were premised on a domiciliary-resident theory, clearly establishes that the jury believed Enyeart was a domiciliary resident. Finally, “unanimity is not required with respect to the alternative means or ways in which the crime can be committed.” State v. Begbie, 415 N.W.2d 103, 106 (Minn.App.1987) (quotation omitted); review denied (Minn. Jan. 20, 1988); see also Schad v. Arizona, 501 U.S. 624, 633, 111 S.Ct. 2491, 2497, 115 L.Ed.2d 555 (1991) (holding that submission to jury of alternative theories of criminal charge, without requiring jury’s agreement on a theory, was not unconstitutional); State v. Day, 501 N.W.2d 649, 653 (Minn.App.1993) (holding that appellant’s right to unanimous verdict not violated when instruction allowed jury to convict without specifying which alternative theory of guilt applied). Instead, “[u]na-nimity is required only with respect to the ultimate issue of the defendant’s guilt or innocence of the crime charged.” Begbie, 415 N.W.2d at 106 (quotation omitted).

Ill

Enyeart brought a pretrial motion to dismiss charges premised on the theory that he was a nondomiciliary resident, claiming that 49 U.S.C. § 40116 (2000) preempts the state’s method of calculating days spent in Minnesota in cases involving the nondomiciliary status of air-carrier employees. The district court denied the motion. Enyeart subsequently moved for a jury instruction requiring the jury not to count days he flew in, out of, or over the state in determining residency. The court denied the motion, and instead instructed the jury that

a person shall be treated as present in Minnesota on any day if the person is physically present in the State of Minnesota at any time during the day. However, a person in transit between two points outside of Minnesota who is physically present in Minnesota less than 24 hours will not be treated as present in Minnesota.

Enyeart now argues that because federal law preempts the domicile rule’s method for counting days spent in Minnesota, the district court abused its discretion by denying his requested instruction.

District courts have considerable latitude in selecting the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn.1990). But jury instructions may not materially misstate the law. State v. Pendleton, 567 N.W.2d 265, 269 (Minn.1997). We review jury instructions to determine whether, taken as a whole, they fairly and accurately state the law. Gray, 456 N.W.2d at 258.

In determining whether state law is preempted by federal law, a reviewing court’s sole task is to ascertain Congress’s intent. See Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987). When Congress legislates in a field traditionally occupied by the states, this court must start with the presumption that the states’ historic police powers were not to be superseded by the federal law unless that was the clear and manifest purpose of Congress. Dahl v. Charles Schwab Co., 545 N.W.2d 918, 922 (Minn.1996).

Federal law preempts state law when Congress expressly states that state law is preempted. Cal. v. ARC Am. Corp., 490 U.S. 93, 100, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989). Absent an express statement by Congress, congressional intent to preempt state law in a particular area may be inferred when the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation. Barnett Bank of Marion County, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 1108, 134 L.Ed.2d 237 (1996). When Congress has not occupied the field, state law may nevertheless be preempted when compliance with both state and federal law is impossible, Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or when state law is in “irreconcilable conflict” with federal law, Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S.Ct. 3294, 3299, 73 L.Ed.2d 1042 (1982). An irreconcilable conflict exists when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).

Preemption, however, should not be “lightly presumed.” Guerra, 479 U.S. at 281, 107 S.Ct. at 689. To avoid a finding of preemption, a federal law and a state system of regulation should be read in tandem, particularly in cases where the state law or regulation at issue touches on traditional areas of state sovereignty, such as taxation. See ARC Am. Corp., 490 U.S. at 101, 109 S.Ct. at 1665; Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 127, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973).

In relevant part, 49 U.S.C. § 40116 provides that the pay of air-carrier employees is subject to taxation by only two states: the state where the employee resides and the state where the employee earns more than fifty percent of his or her pay from the carrier. Id., (f)(3)(A), (B). The bill “reserves to the individual states the present practice of taxing substantial compensation which is earned by a nonresident,” but it “limit[s] that practice ... to states wherein more than 50 per centum of the non-resident interstate carrier employee’s compensation is earned.” S.Rep. No. 91-1261, at 5 (1970), reprinted in 1970 U.S.C.C.A.N. 5039, 5043.

Minn.Stat. § 290.01, subd. 7 (2002) defines “resident” as “any individual domiciled outside the state who maintains a place of abode in the state and spends in the aggregate more than one-half of the tax year in Minnesota.” For tax purposes, presence within the state for any part of a calendar day constitutes a day spent in the state. Id. But “a person in transit between two points outside Minnesota who is physically present in Minnesota less than 24 hours, will not be treated as present in Minnesota on any day during transit.” Minn. R. 8001.0300, subp. 4 (2001). Eny-eart’s argument that the federal statute preempts the state’s method for calculating the number of days a taxpayer spends within and without Minnesota ignores the rule.

Enyeart argues that state law conflicts with the federal statute by equating residency with physical presence in the state and thereby allowing taxation by more than the state of residency or the state where the employee earns more than fifty percent of his or her pay from the airline. But state law does not equate residency with mere physical presence. On the contrary, it precludes such an equation by requiring that in determining the number of days spent in the state, time spent by a taxpayer in transit not be counted as time spent in Minnesota. Contrary to Eny-eart’s argument, a person’s mere presence in the state does not render him or her liable to state taxation. Instead, presence in the state counts only if the person subject to taxation remains in the state for more than twenty-four hours. See Minn. Stat. § 290.01, subd. 7; Minn. R. 8001.0300, subp. 4.

Enyeart also argues that state law thwarts or stands as an obstacle to the federal statute’s objective of limiting multi-state taxation. But by providing that a person in transit between two points outside Minnesota who spends less than twenty-four hours in the state will not be treated as present within the state, the rule avoids taxing air-carrier employees with minimal or transitory contacts with the state and thereby furthers the federal goal of avoiding multistate taxation.

Enyeart urges this court to read the federal statute to preclude a state from considering any part of a day in which an air-carrier employee works in Minnesota as a day spent in the state, claiming that a different reading would allow the state to tax income generated from less than fifty percent of scheduled flight time. But the state’s residency requirements are not based on a pilot’s scheduled flight time within the state but on the pilot’s physical presence in the state for at least twenty-four hours, enjoying the services and protections the state affords. A rule that would make residence contingent on flight time would unduly limit the state’s legitimate interest in taxing state residents, an interest the federal statute expressly recognizes by permitting states to tax pilots who are residents.

Because Minn.Stat. § 290.01, subd. 7 is not in “irreconcilable conflict” with 49 U.S.C. § 40116, it is not preempted. The district court’s instruction accurately stated the law and does not, therefore, constitute an abuse of discretion.

VI

Enyeart last argues that the district court committed prejudicial error by admitting Minn. R. 8001.0300 (2001) into evidence without redacting the portion of the rule that requires any person claiming to be a nonresident of the state to “have available for examination adequate records to substantiate that more than one-half of the tax year was spent outside Minnesota.” Id, subp. 5. Enyeart claims that the rule impermissibly shifted to him the burden of proving his innocence.

Evidentiary rulings rest within the district court’s broad discretion and will not be reversed absent an abuse of that discretion. State v. Lee, 645 N.W.2d 459, 465 (Minn.2002). A defendant claiming that the district court abused its discretion in admitting evidence bears the burden of proving both error and prejudice. Id An error is prejudicial only if it “substantially influence[s] the jury to convict.” Id

In every criminal prosecution, the state has the burden of proving the charged crime beyond a reasonable doubt. State v. Robinson, 604 N.W.2d 355, 362 (Minn.2000). The tax-evasion charges in this case required the state to prove beyond a reasonable doubt that Enyeart was either a domiciliary or a nondomiciliary resident of Minnesota. The court so instructed the jury.

Minn. R. 8001.0300, subp. 5, requires taxpayers claiming to be nonresidents of Minnesota to maintain adequate records to substantiate their claim that they spent more than one-half of the tax year outside Minnesota. Admittedly, the rule places an administrative burden on taxpayers to maintain tax records and permits an inference that taxpayers who do not maintain such records might have been lying about their nonresident status. But the rale does not release the state of its obligation of proving beyond a reasonable doubt, with or without the taxpayer’s records, that the taxpayer spent more than one-half the tax year in the state. And a conviction could not be based merely on evidence that the taxpayer failed to maintain adequate records.

The admission of the rule clearly did not help Enyeart; but it did not shift the burden of proof to him. The fact that the jury was able to draw negative inferences from Enyeart’s failure to maintain records, does not render the rule inadmissible. Inferences are permitted when they have a “reasonable relation to the circumstances of life as we know them,” and the facts “are likely to be much more easily provable by the defendant than by the state, and the nature of the charge ... make[s] it fair to call on the defendant to produce evidence.” State v. Reps, 302 Minn. 38, 51, 223 N.W.2d 780, 788-89 (1974) (quotation omitted).

Even if we were persuaded that the rule was improperly admitted, the error would be harmless because the jury was properly instructed that the state had the burden of proof and Enyeart’s counsel stated in closing argument that the jury instructions controlled. Counsel specifically told the jury that Enyeart was not required to prove the number of days he spent outside the state and drew a distinction between civil eases, where the taxpayer has the burden of proof, and criminal cases, where the state is required to prove the number of days a taxpayer spends in the state. Most important, the evidence overwhelmingly establishes that Enyeart spent more than 183 days in the state during 1998 and 2000 and was thus a domiciliary resident of Minnesota. Any error in admitting subpart 5 of the rule is thus harmless.

DECISION

The district court correctly concluded that the domicile rule is neither unconstitutionally vague nor preempted by federal law. And the district court neither abused its discretion by refusing to instruct the jury that they had to agree on which theory of residency the state had proved nor shifted the burden of proof by admitting rule 8001.0300 into evidence without redacting subpart 5.

Affirmed.


author: RANDALL, Judge.

text:
    In the Matter of the Petition of NORTHERN STATES POWER COMPANY for Review of its 1999 All source Request for Proposals.
    No. A03-836.
    Court of Appeals of Minnesota.
    March 30, 2004.

      Peter H. Grills, O’Neill, Grills, & O’Neill, P.L.P.P., St. Paul, MN, for relator Pimici-kamak Cree Nation.
    Mike Hatch, Attorney General, Cassandra Opperman O’Hern, Assistant Attorney General, Steve H. Alpert, Assistant Attorney General, St. Paul, MN, for respondent Minnesota Public Utilities Commission.
    Allison F. Eklund, Jacobson, Buffalo, Schoessler, & Magnuson, Ltd., St. Paul, MN, for respondent Nisichawayasiht Cree Nation.
    Eric F. Swanson, Winthrop & Wein-stine, P.A., Minneapolis, MN, for respondent Manitoba Hydro.
    Timothy R. Thornton and Michael C. Krikava, Briggs and Morgan, P.A., Minneapolis, MN, for respondent Northern States Power Company d/b/a Xcel Energy.
    Mark A. Hallberg, Hallberg & McClain, St. Paul, MN; and Douglas J. MacKenzie (pro hac vice), Campbell & Marr, Winnipeg, Manitoba, Canada, for respondent Split Lake Cree Nation.
    Considered and decided by KLAPHAKE, Presiding Judge, RANDALL, Judge, and FORSBERG, Judge.

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

   OPINION

RANDALL, Judge.

This certiorari appeal arises out of decisions made by the Minnesota Public Utilities Commission to approve Manitoba Hydro as a future electricity resource and to approve a power-purchase agreement between Xcel Energy and Manitoba Hydro. Relator argues that the commission erred in (1) denying its request for a contested case hearing, and (2) failing to adequately consider the environmental and socioeconomic costs associated with the Manitoba Hydro Project. We affirm.

FACTS

Manitoba Hydro is a Crown (Canadian) Corporation owned by the Province of Manitoba, with capital assets in service exceeding $7 billion, making it the fourth largest electrical utility in Canada. Manitoba Hydro has engaged in energy trading with Minnesota utilities since 1970, and has electricity-trading partnerships with several Minnesota utilities, including Xcel Energy, Minnesota Power, Great River Energy, Otter Tail Power Company, and MinnKota Power Cooperative. Virtually all of Manitoba Hydro’s existing generation is hydroelectric, consisting of a system of dams, reservoirs and electric generation facilities that were built in connection with the Manitoba Hydro Project.

Construction of the Manitoba Hydro Project (the Project), also known as the Churchill-Nelson Hydroelectric Project, began in the 1960’s. This project was a joint undertaking by Canada, the province of Manitoba, and Manitoba Hydro, and constituted an enormous effort that contained three fundamental elements: (1) the Churchill River Diversion; (2) the Lake Winnipeg Regulation; and (3) a series of generating stations on the Nelson River. As part of the Churchill River Diversion, the Churchill River was dammed at the eastern outlet of Southern Indian Lake, which is part of the Churchill River system. The Missi Falls Controls Structure raised the level of Southern Indian Lake by approximately three meters, causing the lake to over flow southward through a man-made channel into the Rat-Burnt-wood Rivers system, which empties into the Nelson River. Because roughly 75% of the flow of the Churchill River was diverted into the Nelson River, generating stations could be installed on one river (the Nelson River) rather than two rivers.

The second element, the Lake Winnipeg Regulation, controls the water level of Lake Winnipeg, the eleventh largest freshwater lake in the world. Because the Nelson River drains Lake Winnipeg, the Jen-peg Control Structure was built on the Nelson River near the northern outlet of the lake to hold back water in the lake during spring and summer months when flows are naturally at their highest. The Jenpeg Control Structure then releases water into the Nelson River in winter months when electricity demand is the greatest. The effect of this process is to make Lake Winnipeg function as a huge storage reservoir. Additionally, channels were constructed to bypass shallow and narrow passageways in the water system to double the potential flow from Lake Winnipeg into the Nelson River.

Finally, the third element consists of five major dams that have been built on the Nelson River. With a combined capacity of 3830 megawatts, these dams generate three quarters of the electricity produced in Manitoba. A twin set of transmission lines, approximately 900 kilometers in length, deliver power from the Nelson River to southern Manitoba. All elements are located within the boundaries of Canada.

Since the inception of the Manitoba Hydro Project in the 1960’s, there have been concerns regarding the environmental and socioeconomic consequences the project has had' on the surrounding ecosystem. To help alleviate these concerns, the Northern Flood Agreement was signed in 1977. The Northern Flood Agreement (NFA) is an agreement between Manitoba Hydro, the Province of Manitoba, the Government of Canada (collectively known as the “Crown Parties”) and five Cree Nations, including Cross Lake Cree Nation, now known as Pimicikamak Cree Nation (relator). Pursuant to the NFA, the Crown Parties are to provide mitigation and compensation to the Cree Nations for adverse effects of the Manitoba Hydro hydroelectric operations, including socioeconomic effects. Because of the uncertainty of these impacts, both at the time of the initial construction of the hydroelectric facilities and into the future, the NFA recognized that it was not possible to foresee all of the impacts or who might be impacted. Thus, the NFA established an arbitration process and fully empowered the Arbitrator “to fashion a just and appropriate remedy.” NFA, paragraph 24.6, spells out the dispute-resolution process and is a 27-year-old source of relief for relator.

Unrelated to the NFA, Minn.Stat. § 216B.2422 (2002) and Minn. R. Ch. 7843 require that Minnesota electric utilities file resource plans every two years identifying the sources of electricity that will be used to serve electric customers. In January 1998, Xcel Energy filed its resource plan that forecasted that the demand for electricity would increase by 1.7% per year between 1998 and 2012, creating a need for an additional 1,207 to 3,031 megawatts of capacity by 2012. The resource plan stipulated that a portion of the increased demand would be met by acquiring some 2,400 megawatts of new generation that would be secured through competitive bidding.

Shortly after the resource plan was filed, Xcel Energy submitted a proposal to revise its competitive bidding process. By Order dated August 25, 1998, the Minnesota Public Utilities Commission (Commission) approved the five-step bidding process. Under the bidding process, interested bidders, including Manitoba Hydro, submitted proposals.

On April 6, 2000, Xcel Energy submitted its Final Evaluation Report to the Commission, announcing Manitoba Hydro as one of three bidders with which Xcel Energy would negotiate power purchase agreements (PPA). Shortly thereafter, various parties including relator urged the Commission to investigate certain issues related to the Manitoba Hydro bid prior to submission of a final PPA. Respondents, Manitoba Hydro, Xcel Energy, Nisicha-wayasihk Cree Nation, and Split Lake Cree Nation, all filed comments and/or participated in an all-day hearing held on November 30, 2000. At this hearing, respondents recommended that the Commission approve the selection of Manitoba Hydro as a winning bidder, and allow the process to move forward to negotiation of a PPA and submission of that PPA to the Commission for a review and approval.

On February 7, 2001, the Commission issued its Order rejecting requests for further investigation, approving the final bid selections, and opening the docket regarding externality values. In rejecting relator’s request to examine further the alleged socioeconomic costs related to Manitoba Hydro’s bid, the Commission stated that “proper consideration of the socioeconomic impacts of Manitoba Hydro’s current bid does not alter [Xcel Energy’s] selection of Manitoba Hydro.” The Commission also deemed “the socioeconomic impacts of this generation to be adequately internalized by Manitoba Hydro pursuant to the December 16, 1988[NFA].” The Commission explained that the NFA provides the framework for its parties to address their grievances and obtain bargained-for compensation. Relator is a signatory to the NFA. Based on its analysis, the Commission concluded that Xcel Energy adequately considered the socioeconomic costs as required by Minn.Stat. § 216B.2422, subd. 3, and no further evaluation of Manitoba Hydro’s bid was necessary.

After the Commission issued its February 7, 2001, Bid Selection Order, Xcel Energy negotiated the PPA with Manitoba Hydro. In September 2002, the PPA was submitted to the Commission for approval. Shortly thereafter, relator filed a petition requesting a contested case hearing regarding the Manitoba Hydro PPA.

A hearing was held before the Commission on December 19, 2002, to consider relator’s request for a contested case hearing, and Xcel Energy’s request for approval of the Manitoba Hydro PPA. By Order dated March 18, 2003, the Commission declined to reconsider its February 7, 2001 Order (finding a contested case hearing unnecessary). The Commission first concluded that relator’s petition for a rehearing was untimely. Then, despite relator’s untimely request for a rehearing, the Commission considered relator’s position and determined that “the socioeconomic costs of the Manitoba Hydro Project have been adequately internalized by Manitoba Hydro, have been taken into account in this matter, and no further inquiry into the specifics of those costs need to be made.”

The Commission also approved the Manitoba Hydro PPA. In reaching its conclusion, the Commission determined that the PPA is in the best interests of the Minnesota ratepayers. The Commission denied relator’s request for a contested case hearing to “further explore” the extent of alleged socioeconomic impacts associated with the PPA. Relator argued that the Commission should impose meaningful conditions upon its approval of the PPA to ensure that Manitoba Hydro lived up to its promises under the NFA. The Commission refused to adopt the role requested by relator, stating that “[t]he NFA is a treaty under Canadian and international law and is governed and enforced by its terms under Canadian and international law.”

On April 7, 2002, relator filed a petition for reconsideration and rehearing, requesting that the Commission either accept the specific monitoring and reporting requirements proposed by relator or reconsider the decision to deny a contested case hearing in this matter. The Commission denied relator’s request by Order dated June 2, 2003. This appeal followed.

ISSUES
I. Did the Minnesota Public Utilities Commission err by denying relator’s request for a contested case hearing in regard to the Commission’s consideration of a Power Purchase Agreement between Xcel Energy and Manitoba Hydro?
II. Did the Commission fail to adequately consider the environmental and socioeconomic costs associated with the Manitoba Hydro Project?

ANALYSIS

I.

The standard of review of an agency decision denying a contested case hearing is governed by Minn.Stat. 14.69 (2002). This statute provides that a reversal is warranted only if the agencys decision is: (1) in violation of constitutional provisions, (2) in excess of the agencys statutory authority or jurisdiction, (3) made upon unlawful procedure, (4) affected by other error of law, (5) unsupported by substantial evidence, or (6) arbitrary or capricious. Id Decisions of administrative agencies enjoy a presumption of correctness, and deference should be shown by courts to 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). A reviewing court may not substitute its own judgment for that of an administrative agency when the finding is properly supported by the evidence. Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963).

Relator argues that it is entitled to a contested case hearing to determine the socioeconomic and environmental effects of the Manitoba Hydro Project. The Minnesota Public Utilities Commissions rules provide that:

If a proceeding involves contested material facts and there is a right to a hearing under a statute or rule, or if the commission finds that all significant issues have not been resolved to its satisfaction, the commission shall refer the matter to the Office of Administrative Hearings for contested case proceedings.

Minn. R. 7829.1000. Thus, for relator to be entitled to a contested case hearing, relator must show that it is entitled to a contested case hearing under a statute or rule and that there are contested material facts.

A. Entitlement to hearing under a statute or rule

Relator contends that when viewing the contested case procedural safeguards contained in the Minnesota Administrative Procedure Act (APA) together with the environmental provisions of the integrated resource planning statute, a right to a contested hearing is created. The APA defines a contested case 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 (2002). The APA contested case procedures state that [a]n agency shall initiate a contested case proceeding when one is required by law. MinmStat. 14.57(a) (2002). Thus, the APA itself provides no right to a contested case hearing, but only sets forth the procedures to be followed when another statute grants such a right. Cable Commn. Bd. v. Nor-West Cable Commn. Pship., 356 N.W.2d 658, 665 (Minn.1984).

Relator asserts that the statute under which the right to a contested case hearing is created is MinmStat. 216B.2422, subd. 3 (2002). This statute provides:

Environmental costs, (a) The commission shall, to the extent practicable, quantify a range of environmental costs associated with each method of electricity generation. A utility shall use the values established by the commission in conjunction with other external factors, including socioeconomic costs, when evaluating and selecting resource options in all proceedings before the commission, including resource plan and certificate of need proceedings.
(b) The commission shall establish interim environmental cost values associated with each method of electricity generation by March 1, 1994. These values expire on the date the commission establishes environmental cost values under paragraph (a).

Minn.Stat. 216B.2422, subd. 3.

There is nothing in the plain language of Minn.Stat. § 216B.2422, subd. 3, that provides for the right to a contested case hearing. Had the legislature intended to require a contested case hearing, it could have provided for one. See In re Deregulation of Installation & Maintenance of Inside Wiling, 420 N.W.2d 650, 655-56 (Minn.App.1988) (stating that since the legislature did not require a contested case hearing under the statute, the court could assume that a contested case hearing is not required in the case of a summary investigation by the Commission). The APA specifically states that there is no right to a contested case hearing unless another statute provides such a right. See Minn.Stat. § 14.57(a). Because the plain language of section 216B.2422, subd. 3, does not specifically provide for the right to a contested case hearing, a hearing is not created under the statute.

Despite the lack of plain language requiring a contested case hearing, relator asserts that a right to a contested case hearing is created under Minn.Stat. 216B.2422 subd. 3(a), Minn. R. 7843.0500, subp. 3, claiming these provisions legally require the Commission to make specific findings of fact regarding the extent of uncompensated and unremediated environmental and socioeconomic costs of the Manitoba Hydro Project before approving the pending PPA. Because of the complexity of the factual determinations, relator contends that the only way for the Commission to fulfill this legal obligation is to hold a contested case hearing.

Section 216B.2422, subd. 3(a), states that [t]he commission shall, to the extent practicable, quantify and establish a range of environmental costs associated with each method of electricity generation. Minn.Stat. 216B.2422, subd. 3(a). But the statute goes on to state that it is the utility that shall use the values established by the commission in conjunction with other factors, including socioeconomic costs when evaluating and selecting resource options. Id. The plain language of the statute does not require the Commission to make specific findings regarding the extent of uncompensated and unreme-diated environmental and socioeconomic costs of a project.

Here, the Commission did establish a range of environmental effects pursuant to section 216B.2422, subd. 3(a). This was accomplished when the Commission considered the external costs, including socioeconomic costs in the evaluation of the Manitoba Hydro bid. The Commission confirmed that external costs had properly been taken into account when it reviewed Xcel Energys request that the Commission approve Xcel Energys selection of the Manitoba bid in its February 7, 2001 Order. This was the extent of the Commissions obligations under the statute. Under the statute, any further examinations of the effects regarding the extent of uncompensated and unremediated environmental and socioeconomic costs of the Manitoba Hydro Project were to be carried out by the utility, Xcel Energy. Accordingly, section 216B.2422, subd. 3(a), does not require the Commission to make specific findings of fact regarding the extent of uncompensated and unremediated environmental and socioeconomic costs of the Manitoba Hydro Project before approving the pending PPA.

Aso, relators contention that Minn. R. 7843.0500, subp. 3, requires the commission to consider environmental and socioeconomic costs is misplaced. This section, entitled Commission Review of Resource Plans, provides:

Subp. 3. Factors to consider. In issuing its findings of fact and conclusions, the commission shall consider the characteristics of the available resource options and of the proposed plan as a whole. Resource options and resource plans must be evaluated on their ability to:
A. maintain or improve the adequacy and reliability of utility service;
B. keep the customers’ bills and the utility’s rates as low as practicable, given the regulatory and other constraints;
C. minimize adverse socioeconomic effects and adverse effects upon the environment;
D. enhance the utility’s ability to respond to changes in the financial, social, and technological factors affecting its operations; and
E. limit the risk of adverse effects on the utility and its customers from financial, social, and technological factors that the utility cannot control.

Minn. R. 7843.0500, subp. 3. Based on the plain language of the rule, Minn. R. 7843.0500, subp. 3, only applies to the Commissions consideration of Resource Plans. The proceeding from which this appeal stems relates to Xcels bid selections and PPAs implementing its bid selections, not its Resource Plans. Consequently, the Commission was not obligated to consider environmental and socioeconomic costs under Minn. R. 7843.0500, subp. 3, and relator is not entitled to a contested case hearing under Minn.Stat. 216B.2422, subd. 3(a), and Minn. R. 7843.0500, subp. 3.

Relator also contends that a contested case hearing may be implied, even though it is not specifically stated in an agency statute. In support of this argument, relator cites Minn. Pub. Interest Research Group v. Minn. Envtl. Quality Council, 306 Minn. 370, 237 N.W.2d 375 (Minn. 1975). In Minn. Pub. Interest Research Group, interested parties petitioned Minnesotas Environmental Quality Council (EQC) seeking preparation of an environmental impact statement in connection with the construction of an exploratory copper-nickel mine in northern Minnesota. The EQC denied the request, and the matter was appealed to the district court. The district court held that a contested case hearing was not required, and the matter was not subject to judicial review. On appeal to the Minnesota Supreme Court, the court determined that Minn. Stat. 116D.04, subd. 3, (1974) did not specifically state a right to a hearing regarding a petition. Id. at 379, 237 N.W.2d 375. But, the court concluded that a right to a hearing regarding a petition was implied by the purpose of the act. Id.

Although the court in Minn. Pub. Interest Research Group found an implied right to a hearing under section 116D.04, subd. 3, the statute at issue here is a completely different statute. There is no case law stating that section 216B.2422, subd. 3(a), implies a right to a contested hearing. In fact, this court has stated that when the legislature does not require a contested case hearing under a particular statute, the courts can assume that a contested case hearing is not required under the statute. See In re Deregulation of Installation & Maintenance of Inside Wiring, 420 N.W.2d at 655-56 (stating that since the legislature did not require a contested case hearing within Minn.Stat. 237.081, the court could assume that a contested case hearing was not required in the case of a summary investigation by the Commission).

Relator asserts that the Commission has acknowledged that the purpose of the integrated resource planning statute is to ensure that utilities give adequate considerations of factors whose public policy importance has grown in recent years, such as the environmental and socioeconomic impacts of different mixes. Thus, relator claims that a right to a contested case hearing must be implied to ensure that the purpose of the environmental review provisions of the integrated resource planning statute is accomplished.

In In re Solid Waste Permit for the NSP Red Wing Ash Disposal Facility, 421 N.W.2d 398, 405 (Minn.App.1988) review denied (Minn. May 18, 1988), the petitioners argued that the Environmental Rights Act and the Environmental Policy Act guaranteed them a right to a meaningful hearing which they claim they were denied. In support of their position, the petitioners cited the broad provisions in Minn.Stat. 116B.01 (1986) that grants all Minnesota citizens the right to the protection, preservation, and enhancement of air, water, land, and other natural resources located within the state. Id. The petitioners also cited the specific portion of that statute that provides it is in the public interest to provide an adequate civil remedy. Id. The court held that the environmental acts alone do not create the right to a contested case hearing, but it was through Minn. R. 7001.0130 that' the right to a contested hearing is .attained. Id.

Here, there is no implication that a contested case hearing is required to ensure that the purpose of the environmental review provisions of the integrated resource planning statute is accomplished. The mere existence of the statute does not create a right to a contested case hearing. See id. It is only through a specific statute or rule that a right to a contested case hearing arises. There is no statute or rule here providing for a right to a contested case hearing, and one cannot be implied.

Finally relator argues that the Minnesota Pollution Control Act (MPCA) Rules can help provide guidance when deciding whether to grant a contested case. Under the MPCA, an agency must grant a petition to hold a contested case hearing if it finds:

(A) there is a material issue of fact in dispute concerning the matter pending before the agency;
(B) the agency has the jurisdiction to make a determination on the disputed material issue of fact; and
(C) there is a reasonable basis underlying the disputed material issue of fact or facts such that holding of a contested case hearing would allow the introduction of information that would aid the agency in resolving the disputed facts in making a final decision on the matter.

Minn. R. 7000.1900, subp. 1. Relator asserts that because all three factors are satisfied here, a contested case hearing is appropriate.

We do not find a reason to refer to the MPCA for guidance. The MPUC has its own rule stipulating when a party has a right to a contested case hearing. See Minn. R. 7829.1000. Accordingly, we decline to turn to the MPCA for an implied right to a contested case hearing.

B. Material facts

Minn. R. 7829.1000 provides that to be entitled to a contested case hearing, relator must show that there are contested material facts. The burden is on the relator, as the party requesting a contested case hearing, to demonstrate the existence of material facts that would aid the agency in making a decision. In re Solid Waste Permit for the NSP Red Wing Ash Disposal Facility, 421 N.W.2d at 404. There must be some showing that evidence can be produced that is contrary to the action proposed by the agency. In re Amendment No. I to Air Emission Facility Permit No. 202I-85-OT-1, 454 N.W.2d 427, 430 (Minn.1990).

Here, relator argues that its factual affidavits clearly demonstrate that there are material issues of fact in dispute. Relator asserts that the affidavits address the nature, character, and extent of environmental and socioeconomic harms that have been caused by the Manitoba Hydro Project. But, none of the parties involved in the case, including Xcel Energy and the Commission, disputed the proposition that power generation in Manitoba has caused environmental and socioeconomic harm to relator. Thus, any issues concerning the environmental and socioeconomic damages caused by the Manitoba Hydro Project are not disputed material facts. See In re N. States Power Co. Wilmarth Indust. Solid Waste Incinerator Ash Storage Facility, 459 N.W.2d 922, 923 (Minn.1990) (holding that relator was not entitled to a contested case hearing because relator had not raised sufficient issues of material fact).

Relator also contends that the affidavits directly challenge the Commissions conclusion that the externalities have been internalized by the NFA, thus creating a material issue of fact. We disagree. Manitoba Hydro has a legal obligation under the NFA. The legal obligation under NFA is designed to fully address grievances and to internalize all impacts and costs causally related to the Manitoba Project. The Commission recognized Manitoba Hydros obligation under the NFA, and determined that because of the existence of the treaty, the question of whether relator had been fully compensated, or whether all the parties had abided by the NFA was immaterial to approving the PPA. Whether Manitoba Hydro breached its obligations to relator pursuant to the NFA is an issue beyond the jurisdiction of Minnesota state courts. Relators claim of a dispute between itself and Manitoba Hydro concerning the NFA does not raise a material dispute to be resolved by the Commission. A dispute under the treaty and NFA is appropriately decided under Canadian law. That avenue has been and is available to relator. For purposes of this appeal, relator has not shown any material facts in dispute.

Because there are no material facts in dispute, and because Minn.Stat. 216B.2422, subd. 3, does not provide for the right to a contested case hearing, relator has failed to satisfy both of the requirements necessary for a contested case hearing as set forth in Minn. R. 7829.1000. The Commission could have granted relator a contested case hearing, but it was not error not to do so. Accordingly, we conclude that the Commission did not err by denying rela-tors request for a contested case hearing.

II.

Relator argues that the Commission failed to adequately consider the environmental and socioeconomic costs associated with the Manitoba Hydro Project. We disagree. As stated in the above analysis, section 216B.2422, subd. 3(a), and rule 7843.0500, subp. 3, do not require the Commission to make specific findings of fact regarding the extent of uncompensated and unremediated environmental and socioeconomic costs of the Manitoba Hydro Project before approving the pending PPA. The Commission recognized this, and stated in its March 18, 2003 order that:

In its February 7, 2001 Order, the Commission did not make, nor did it need to make, findings regarding the specific adverse affects of the Manitoba Hydro Project. Whatever those harms are, they are guaranteed to be paid and/or remedied under the NFA. In that sense, they have been adequately internalized by Manitoba Hydro, evaluated by Xcel and considered by the Commission.

To the extent that the Commission did consider the environmental and socioeconomic effects of the Manitoba Hydro Project, the considerations were adequate under the applicable law and circumstances of this case. The Commission recognized the existence of the NFA, which is intended to address the impacts of hydroelectric projects in Manitoba, both at the time of the initial construction and into the future. The NFA acknowledges that it is not possible to foresee all of the impacts or whom the Manitoba Project might impact. Therefore it sets out programs and principles for compensation or mitigation of Project impacts.

Under the NFA, the Arbitrator has been given a number of plenary powers. Pursuant to Article 24.6, the Arbitrator is given broad authority and power to make awards capable of implementation and to fashion an appropriate remedy in respect of any and all adverse effects of the Project on any person ... The NFA further provides the Arbitrator with the power to make additional orders in respect to failure to comply with or give effect to any provisions of the NFA, the power to hear any claim and determine if it arises directly or indirectly out of the Project or arises by failure to comply with or give effect to any provisions of the NFA, gives the right to order interim compensation prior to determining any issue in totality, and gives the ability to hear any claim or matter before any actual damage has occurred.

It has to be pointed out that relators real agenda is not a contested case hearing because a hearing does not accomplish anything. What relator wants to accomplish is to hopefully block Xcel Energy from buying power. If that happens, the loss of that contract will put economic pressure on Manitoba Hydro to satisfy relators compensation issues, which, if settled, would then not interfere with Manitoba Hydro contracting with Excel Energy. In essence, this lawsuit by relator is a collateral end run around the NFA, which contains within its four corners relators remedies. Manitoba Hydro is a Canadian project, located in Canada, involving Canadian waters and Canadian Indian tribes. The project is approximately forty years old, contains a lengthy agreement detailing rights and obligations of all parties, and, as stated above, contains arbitration provisions carefully setting out the settlement of grievances. Nothing in this aforementioned enumeration involves Minnesota courts. We decline to become entangled in Canadian disputes. The environmental and socioeconomic impacts caused by the Manitoba Project are capable of being addressed under the NFA. It is possible there are merits to relators claims for compensation and for more attention to their needs. That issue is not before us. The Commissions conclusions were adequate on the issue it.had authority to decide.

DECISION

A contested case hearing is not required by statute or rule. The Commission’s denial of relator’s request for a contested case hearing was not erroneous.

The power purchase agreement between Xcel Energy and Manitoba Hydro does not extend to an examination by a Minnesota agency or Minnesota courts of the 1977 Northern Flood Agreement involving Canadian entities, the government of Canada, and five Canadian Cree nations. Those issues are controlled by the arbitration provisions of the NFA.

Affirmed.

      . The Churchill and Nelson Rivers are large rivers that flow in a roughly parallel direction from west to east, and empty into the Hudson Bay in northern Manitoba.

      . The other four Cree Nations include: respondent Split Lake Cree Nation, respondent Nisichawaysihk Cree Nation, York Factory (Cree tribe) and Norway House (Cree tribe).

      . Relator is the only Cree Nation involved in the NFA that opposed Manitoba Hydro as the winning bidder. The other four Cree Nations are against relator and they support the Minnesota Public Utilities Commission.

      . Notably the court in Minn. Pub. Interest Research Group, did not actually order the agency to hold a contested case hearing because the court held that the hearing that had previously been provided to the aggrieved party by the agency was sufficient. Minn. Pub. Interest Group, 306 Minn, at 380, 237 N.W.2d at 381.