author: LOVRIEN, Circuit Judge.

text:
    2005 SD 93
    John BECHEN and The Moody County Chapter of Dakota Rural Action, Petitioners and Appellants, v. MOODY COUNTY BOARD OF COMMISSIONERS, Alvin Gullickson, Martin May, Kenneth Doyle, Bill Nibbelink and Jean Larson, County Auditor, Respondents and Appellees, and Britannia Dairy, LLP and Rex Nederend Family Trust, Intervenors and Appellees.
    Nos. 23372, 23388.
    Supreme Court of South Dakota.
    Argued March 23, 2005.
    Decided Aug. 24, 2005.

      James Abourezk and Todd Epp of Abourezk and Epp Law Office, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.
    William J. Ellingson, Moody County State’s Attorney, Flandreau, South Dakota, Attorney for respondents and appel-lees.
    Mark V. Meierhenry of Danforth, Meier-henry & Meierhenry, Sioux Falls, South Dakota, Attorneys for intervenor and ap-pellee Britannia Dairy.
    William G. Beck of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for intervenor and appellee Rex Nederend Family Trust.
   LOVRIEN, Circuit Judge.

[¶ 1.] John Bechen and the Moody County Chapter of Dakota Rural Action (collectively Bechen) appeal from a judgment and order denying an application for a writ of mandamus. Bechen applied for a writ of mandamus to require Moody County to hold a referendum vote on a decision by the Moody County Board of Adjustment (Board) to issue conditional use permits for two proposed concentrated animal feeding operations. Bechen argues the trial court erred when it ruled that the decision to issue the permits was administrative and, therefore, not referable, and when it failed to rule on whether a Board decision granting a conditional use permit can be referred to a vote of the people.

FACTS AND PROCEDURE

[¶ 2.] The Moody County Commission (Commission) adopted a resolution approving the Moody County Comprehensive Land Use Plan (CLUP) on December 23, 2002. A summary of the CLUP was published on January 1, 2003, and the plan became effective on January 21, 2003. CLUP was intended to be a statement of policy that would guide the land use decisions made by the county’s governmental officials.

[¶ 3.] On January 21, 2003, Commission adopted the Moody County Zoning Ordinance. Notice of its adoption was published on January 25, 2003 and February 5, 2003. The zoning ordinance became effective on February 25, 2003. The zoning ordinance is a complete and comprehensive ordinance based on the CLUP guidelines. Both documents recognize the possibility of concentrated animal feeding operations being sited within Moody County, and provide guidelines for their placement, approval and regulation.

[¶ 4.] In March 2004 Rex Nederend Family Trust (Nederend) and the Britannia Dairy (Britannia) applied for conditional use permits pursuant to the Moody County zoning ordinance. Nederend and Britannia sought to construct separate concentrated animal feeding operations within Moody County. The operations were to feed and house between 2,000 and 3,600 head of dairy cattle. All the necessary publications and notices were made and on April 6, 2004, a public hearing was held regarding the permits. At the end of the hearing, Board announced its decision to grant the permits. The minutes of the Board were filed on that day but were not published.

[¶ 5.] Referendum petitions were submitted to the Moody County Auditor on June 7, 2004 who presented these petitions to Commission. On June 23, 2004, Commission denied the petition for a referendum vote. Commission met to reconsider its decision on June 25, 2003 but again rejected the referendum petitions. Commission based its decision on the belief that the decision to grant the conditional use permits was administrative and therefore not subject to a referendum vote of the county’s citizens.

[¶ 6.] Approximately sixty days after Commission rejected the referendum petitions, Bechen applied for a writ of mandamus. Bechen asked the circuit court to compel Moody County to schedule a public vote on the Board’s decision to grant the conditional use permits. Commission opposed the writ based on its view that the decision to grant the conditional use permits was administrative in nature. Nederend and Britannia were allowed to intervene in support of Commission. The circuit court upheld Commission’s refusal to hold a referendum vote.

[¶ 7.] The circuit court ruled that the decision approving the permits was administrative and not subject to referendum. The circuit court denied Bechen’s petition for a writ of mandamus on August 18, 2004. Although the issue was before it, the circuit court did not rule on whether a decision by a county board of adjustment can be referred to a public vote.

[¶ 8.] On August 24, 2004, Bechen filed notice of appeal to this Court pursuant to SDCL 15-26A-3(4). On September 10, 2004, Commission, along with Nederend and Brittania, filed a notice of review pursuant to SDCL 15-26A-22. On appeal both parties raised several issues for review. The Court recognizes the disposi-tive issue in this case is whether the actions of a county board of adjustment can be referred to a vote of the citizens of that county.

STANDARD OF REVIEW

[¶ 9.] The grant or denial of a writ of mandamus is discretionary, and reviewed under an abuse of discretion standard. Vitek v. Bon Homme County Bd. of Com’rs, 2002 SD 45, 644 N.W.2d 231. An abuse of discretion refers to the use of discretion that is clearly against reason and evidence. State v. Almond, 511 N.W.2d 572 (S.D.1994). “We do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.” Id. at 574. In order to compel Commission to submit the issue to referendum, Bechen must have “a clear legal right to performance of the specific duty sought,” and the Commission “must have a definite legal obligation to perform that duty.” Vitek, 2002 SD 45 at ¶8, 644 N.W.2d at 234.

ANALYSIS AND DECISION

[¶ 10.] In 2000 the South Dakota Legislature provided for the creation of county boards of adjustment and empowered these boards to grant variances from the terms of county zoning ordinances. This power was to be exercised in appropriate cases and subject to appropriate conditions and safeguards. SDCL 11-2-49. The legislature also provided that a county commission could either appoint a separate board of adjustment or the county commission could itself sit as the board of adjustment. SDCL 11-2-49 and 11-2-60. The county board of adjustment was created by and received its powers from the legislature through SDCL 11-2-49 through 11-2-65, and not from any act of the county government itself.

[¶ 11.] We note that when a county commission decides not to appoint a separate board of adjustment, but elects to sit as the board of adjustment, this does not mean that the county commission and the board of adjustment become a single entity. While the members of each board may be identical, each board remains a separate legal entity with its own distinct powers and responsibilities under state law. In Kirschenman v. Hutchinson County Bd., 2003 SD 4, 656 N.W.2d 330, the Court did not carefully draw this distinction and was not precise in the terminology it used. To the extent that Kir-schenman can be read to treat a board of county commissioners as identical to a county board of adjustment, Kirschenman is overruled.

ISSUE

[¶ 12.] Are the decisions of a county board of adjustment subject to the referendum?

[¶ 13.] In 1898 Article III, § 1 of the South Dakota Constitution was amended to grant the people of this state the power to refer the actions of the state legislature and municipalities to a public vote. However, the text of the constitutional provision covered only the legislature and municipalities. No corresponding right to refer the actions of county government, or other local units of government, was provided for in the constitutional amendment.

[¶ 14.] In 1975 the South Dakota Legislature extended the right of referendum to ordinances or resolutions adopted by a board of county commissioners. SDCL 7-18A-15. See Lowe, Restrictions on Ini tiative and Referendum Powers in South Dakota, 28 SDLRev 53 (1982). This Court upheld the constitutionality of SDCL 7-18A-15 in Hofer v. Bd. of Cty. Com’rs of McCook Cty., 334 N.W.2d 507 (S.D.1983).

[¶ 15.] We have described the people’s power of referral as a right that is to be interpreted liberally and in such a way as to permit the exercise of the people’s referendum powers. Kirschenman, 2003 SD 4 at ¶ 7, 656 N.W.2d at 333; Taylor Properties v. Union County, 1998 SD 90, 583 N.W.2d 638. We have long upheld the people’s right to refer acts of the state legislature, local municipalities, and county commissions to a public vote. However, the question whether the actions of a county board of adjustment may be referred to a public vote is one of first impression for this Court.

[¶ 16.] Commission argues that the provisions of SDCL 7-18A-15 did not create a broad right to refer the actions of “county government” like Article III, § 1 of the South Dakota Constitution created the right to refer actions of municipalities. Rather SDCL 7-18A-15 limited the right to refer actions of county government to ordinances and resolutions adopted by a board of county commissioners. Commission argues that there is no statutory right to refer the actions of a county board of adjustment. We agree.

[¶ 17.] We first note that SDCL 7-18A-15 is clear and unambiguous and limits the referendum to “any ordinance or resolution adopted by a board of county commissioners.” When the language of a statute is clear and unambiguous on its face, words and phrases must be given their plain meaning. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 676. Textually, there can be no interpretation that SDCL 7-18A-15 applies the power of referendum to a county board of adjustment.

[¶ 18.] Next we note that when the legislature decided to extend the referendum to counties, it could have included broad language similar to that used for municipalities. It could have substituted county governing bodies or county government in place of board of county commissioners. The legislature chose not to do so. We must conclude that the legislature intended the referendum provisions of SDCL 7-18A-15 to cover only the actions of county commissions and not other county boards such as the county board of adjustment.

[¶ 19.] In addition, had the legislature intended that the actions of a county board of adjustment be subject to referendum we would also expect that the legislature would have established a procedure for that to be accomplished. It did not. We note that the procedure to refer actions of a board of county commissioners is carefully crafted. It requires the publication of both an ordinance and a resolution once approved by a board of county commissioners. It also provides that an approved ordinance or resolution not take effect until the twentieth day after its publication. A petition to refer an ordinance or resolution may be filed with the auditor within twenty days after its publication. The filing of a valid petition to refer suspends the effective date of the ordinance or resolution. The filing of a petition also triggers various other statutes designed to bring the matter to a vote of the people.

[¶ 20.] By contrast, a board of adjustment is not required to publish its minutes. The minutes of its proceedings, the vote of each member upon each question, records of its examination and other official actions need only be filed in the office of the board of adjustment. Thus the provisions of SDCL 7-18A-16, setting a twenty day period from the date of publication during which to file a petition to refer, cannot be applied to a county board of adjustment which is not required to publish its decisions. SDCL ch 7-18A is silent as to how long an aggrieved person has to file a petition to refer an action of a board of adjustment. It also makes no provision to stay a decision taken by a board of adjustment to allow time for a petition to be filed or for an election to be held.

[If 21.] The legislature has not established a procedure to allow a decision made by a board of adjustment to be subject to referendum. We do not believe that this was an oversight, given the carefully crafted procedure established by the legislature to refer decisions of a county commission. Thus we must conclude that the legislature did not intend that the actions of boards of adjustment be subject to referendum.

[¶ 22.] Finally, we would expect that if the legislature had intended that the actions of a county board of adjustment not be subject to the referendum then the legislature might reasonably provide some other method of review. This the legislature has done. The legislature has enacted a comprehensive statutory scheme that allows the appeal of a decision by a board of adjustment to the circuit court. In re Yankton County Com’n, 2003 SD 109, 670 N.W.2d 34. SDCL 11-2-61 provides that any person aggrieved by a decision of a board of adjustment can petition the circuit court for a review of the legality of that decision. This petition must be presented to the court within thirty days of the filing of the decision with the office of the board of adjustment. Id. The circuit court may then affirm, reverse, or modify the decision of the board of adjustment. SDCL 11-2-65.

[¶ 23.] Given the fact that a careful review of both SDCL ch 7-18A and SDCL 11-2^49 through 11-2-65 reveals no statutory provision giving the people the right to refer the decisions of a county board of adjustment, Bechen argues that the language of SDCL 9-20-18 applies to county boards of adjustment, and that this Court has sanctioned such an interpretation. SDCL 9-20-18 essentially states that the actions of municipal governing boards are subject to referendum. Be-chen argues this provision should be read to include those boards that operate under county commissions.

[¶ 24.] The South Dakota Constitution gives the state legislature the power to classify and organize units of local government. SDConst art IX, § 1. Under that power, Title 9 of the South Dakota Codified Law was enacted to organize and regulate municipalities. SDCL 9 — 1—1(1) defines a municipality as “all cities and towns organized under the laws of this state but shall not include any other political subdivisions!.]” Further, SDCL 9-1-1© defines a “governing body” as “the board of trustees, the board of commissioners, or the common council, as the case may be, of a municipality concerned or affected!.]” Based on the definitional provisions of SDCL 9-1-1 it is clear the language “municipal governing boards” does not encompass county boards of adjustment. SDCL 9-20-18 applies the people’s power of referendum to the actions of the governing bodies of all cities and towns organized under the laws of South Dakota, specifically excluding all other political subdivisions. Again, we note that when the language of the statutes is clear and unambiguous, words and phrases are given their plain meaning. Esling, 2003 SD 59 at ¶ 6, 663 N.W.2d at 676. No reasonable reading of SDCL 9-20-18 could lead to the conclusion that it applies to either county government or a county board of adjustment.

[¶ 25.] Despite these textual limitations, Bechen argues this Court has extended SDCL 9-20-18 to cover county boards of adjustment in Kirschenman v. Hutchinson Co. Board of Commissioners, supra. In Kirschenman, the Hutchinson County Commission granted a conditional land use permit for a concentrated animal feeding operation, and then rejected attempts to refer that action to a public vote. The circuit court rejected the petition for writ of mandamus on the grounds that the action by the county commission was administrative and therefore not referable.

[¶ 26.] On appeal the parties argued the legislative versus administrative nature of the county commission’s action. We reached the conclusion that the action of the county commission was legislative and therefore reachable through referral to the people. In the Kirschenman opinion, this Court cited SDCL 7-18A-15.1 for the proposition that “The South Dakota Code provides that the authority granted to municipal governing bodies to make legislative decisions is subject to the referendum process.” Id., 2003 SD 4 at ¶ 5, 656 N.W.2d at 332. Bechen argues the use of that language to help decide a question involving a county decision accomplished a judicial extension of SDCL 9-20-18 to county government. According to Bechen, the only conclusion that can be drawn is that boards of adjustment fall under the people’s referendum powers. We do not agree.

[¶ 27.] A review of our opinion in Kir-schenman indicates the language above to be dicta of a precatory nature. In Kir-schenman, this Court dealt exclusively with the question of whether an action was legislative versus administrative. In reaching our decision that the Hutchinson County Commission had acted in a legislative manner we relied upon the provisions of SDCL 7-18A-15.1 and 7-18A-16. Any reference made in Kirschenman to the municipal referendum powers was only included as an attempt to explain our legislative versus administrative decision through the use of analogy.

CONCLUSION

[¶ 28.] Bechen has sought a writ of mandamus to compel Commission to place the decision of the Board to issue two conditional use permits to a public vote. In order for Bechen to successfully obtain the writ he must have a clear legal right to have the issue placed on a public ballot, and Commission must have a definite legal obligation to place the issue before the citizens of the county. Vitek, 2002 SD 45 at ¶ 8, 644 N.W.2d at 234. Since the decisions of a board of adjustment cannot be referred to a public vote, Bechen does not have a legal right to submit the decision of Board to a vote, and Commission does not have a legal obligation to place the issue on the ballot. The judgment and order denying the writ of mandamus is affirmed.

[¶ 29.] GILBERTSON, Chief Justice, KONENKAMP and ZINTER, Justices, and KEAN, Circuit Judge, concur.

[¶ 30.] LOVRIEN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 31.] KEAN, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . Bechen does not seek to refer the comprehensive zoning ordinance. Rather, Bechen seeks to refer the decision to grant certain conditional use permits under this ordinance.

      . SDConst art III, § 1, as amended in 1898, provided:
      The legislative power of the state shall be vested in a legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.
      This section shall not be construed so as to deprive the legislature or any member thereof of the right to propose any measure. The veto power of the executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: "Be it enacted by the people of South Dakota.” The legislature shall make suitable provisions for carrying into effect the provisions of this section.

      . SDCL 7-18A-15 provides:
      Any ordinance or resolution adopted by a board of county commissioners may be referred to a vote of the qualified voters of the county by the filing of a petition signed by five percent of the registered voters in the county, based upon the total number of registered voters at the last preceding general election, except such ordinances and resolutions as may be necessary for the immediate preservation of the public peace, health or safety, or for the support of the county government and its existing public institutions.

      . SDCL 7-18A-5 provides for the publication of an ordinance, and SDCL 7-18A-7 for the publication of a resolution.

      . SDCL 7-18A-8 provides:
      Except such resolutions or ordinances as may be necessary for the immediate preservation of the public peace, health, or safety, or support of the county government and its existing public institutions; which provide for an election or hearing on an improvement or assessment; or which call for bids which take effect upon the passage and publication thereof, every resolution or ordinance passed by a board shall take effect on the twentieth day after its completed publication unless suspended by operation of a referendum.

      . SDCL 7-18A-16 provides:
      A petition to refer an ordinance or resolution subject to referendum may be filed with the auditor within twenty days after its publication. The filing of such a petition shall require the submission of any such ordinance or resolution to a vote of the qualified voters of the county for its rejection or approval.

      . SDCL 7-18A-8, supra.

      . SDCL 11-2-52 provides:
      The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and are public records. However, the board of adjustment may destroy any record that the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historic value.

      . Bechen asks this Court to require boards of adjustment to publish their minutes in the official newspaper of the county. According to Bechen this would clear what he has labeled a murky procedure for referral of a board's decision. Bechen argues that such publication would give citizens a benchmark with which to start timing the twenty days within which they must gather the appropriate signatures to refer a board's decision. Not only is the Court being asked to find that the referendum exists as to decisions of county boards of adjustment, we are also being asked to create the procedure necessary to put that right into effect. We decline the invitation to legislate by judicial fiat.

      . SDCL 9-20-18 provides:
      The legislature finds that in making past grants of decision-making authority to municipal governing authorities, its intent was to grant that authority to the governing bodies of municipalities and that such actions, unless otherwise excluded from the referendum and initiative process by other state law, are subject to the initiative and referendum process. Therefore, the contrary holding in Baker v. Jackson, 372 N.W.2d 142 (S.D.1985) is hereby abrogated.

      . Regrettably, the language quoted above has caused some confusion as to the exact reach Kirschenman has in South Dakota referendum jurisprudence. Kirschenman was intended to be a discussion of the difference between legislative and administrative actions and nothing more. Our decision in Kirschen-man was not intended to suggest an extension of the power of referendum in county government other than actions taken by a county commission.


source: Caselaw Access Project

author: WIGGINS, Justice. CADY, J.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Melissa Jean FOLKERTS, Appellant.
    No. 03-1862.
    Supreme Court of Iowa.
    Sept. 16, 2005.

      Joseph B. McCarville, Assistant Public Defender, Fort Dodge, for appellant.
    Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Timothy N. Schott, County Attorney, and Wendy Samuelson, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

In this appeal, we must decide whether a defendant is required to be present at the deposition of an eyewitness to a crime when the attorneys question the eyewitness regarding the identity of the perpetrator of the crime. In order to avoid an impermissibly suggestive identification of the defendant during the course of a deposition, we hold the defendant is not required to be present at the deposition until the parties have completed questioning the eyewitness as to the identity of the perpetrator. For this reason, we reverse the order of the district court and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

At approximately 3:00 a.m. on July 17, 2003, three people allegedly broke into an elderly woman’s apartment while she was asleep. One of the intruders, whom the victim described as a white female in her mid-twenties and wearing a pink shirt and jeans, asked the victim for ten dollars. The victim did not get a good look at the other two intruders. The three intruders carried out the victim’s television and VCR. The woman called the police. The police found Folkerts outside the victim’s residence. The victim subsequently picked Folkerts out of a photo lineup.

The State charged Folkerts with one count of second-degree burglary and one count of fourth-degree theft. Folkerts filed a “motion to establish identification procedures” asking the district court for permission to be absent from the initial portion of the deposition taken of the victim in order for her counsel to test the victim’s recollection of the description of the perpetrator. The State resisted the motion. The district court denied Folkerts’ motion. Although concluding the defendant’s argument was “persuasive,” the court believed it was compelled to deny the defendant’s request based on this court’s decisions in State v. Davis, 259 N.W.2d 812 (Iowa 1977) and State v. Randle, 603 N.W.2d 91 (Iowa 1999), and Iowa Rule of Criminal Procedure 2.27. We granted Folkerts’ application for discretionary review, and transferred the case to the court of appeals. The court of appeals affirmed the district court’s denial of Folkerts’ motion.

II. Issue.

We must determine whether Folkerts is required to be present during the portion of the deposition when the parties question the victim regarding the identifying physical features of the alleged perpetrator.

III. Scope of Review.

Folkerts claims the district court erred in denying her motion. We review the district court’s interpretation of our criminal rules of procedure for correction of errors at law. See Randle, 603 N.W.2d at 92. The defendant also asserts her due process rights will be violated if she is required to be present at that part of the deposition in which the witness is questioned regarding the physical characteristics of the alleged perpetrator. Our review of this constitutional claim is de novo. State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004).

IV. Analysis.

1. Why the district court believed it tvas required to compel Folkerts’ presence at the deposition.

Our rules of criminal procedure provide “[i]n felony cases the defendant shall be present personally ... at ... pretrial proceedings, and ... at every stage of the trial.... ” Iowa R.Crim. P. 2.27(1). The purpose of rule 2.27(1) is to implement a defendant’s right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution. State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981). We have previously held a defendant cannot waive his or her right of confrontation in order to be absent from a discovery deposition of an eyewitness to a crime. Davis, 259 N.W.2d at 813-14. In reaching that conclusion, we stated:

[The] [defendant overlooks a common-law principle of long standing. The State has the obligation in a criminal case to prove the identity of the individual who committed the crime and to do so beyond a reasonable doubt. The State is entitled to have the accused present so that the witnesses can look into his face and answer whether he is or is not the man.

Id. at 813. In Randle, we reaffirmed our decision in Davis noting a defendant does not have a constitutional right to waive his or her right to confrontation so as to be absent from a deposition. 603 N.W.2d at 93. In Davis and Randle, neither defendant raised the issue in the context of a deposition that has the likelihood of creating a situation where an impermissibly suggestive identification procedure may occur.

2. Impermissibly suggestive identification procedures and due process considerations.

In Stovall v. Denno, the United States Supreme Court condemned the practice of singly, and not as part of a lineup, showing suspects to witnesses for identification purposes. 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). When unnecessarily suggestive pretrial out-of-court identification procedures conducive to mistaken identification that are incapable of repair are used, the Due Process Clause requires exclusion of the testimony of the identification. Id. at 301-02, 87 S.Ct. at 1972-73, 18 L.Ed.2d at 1206. The Supreme Court stated, however, that the totality of the circumstances must be examined to determine if a defendant’s due process rights were violated as a result of the identification procedure. Id. at 302, 87 S.Ct. at 1972, 18 L.Ed.2d at 1206.

In Neil v. Riggers, the Supreme Court reviewed the identification of a defendant by a victim at the police station without the benefit of a photo lineup. 409 U.S. 188, 195, 93 S.Ct. 375, 380, 34 L.Ed.2d 401, 408-09 (1972). The Supreme Court reviewed the case law and stated:

It is the likelihood of misidentification which violates a defendant’s right to due process.... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous.

Id. at 198, 93 S.Ct. at 381-82, 34 L.Ed.2d at 410-11. In Neil, the Supreme Court reiterated that if the totality of the circumstances indicates that the identification is reliable, a court does not have to exclude testimony concerning an identification derived from a necessarily suggestive procedure. Id. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. The Neil court then prescribed a two-part analysis to determine whether testimony concerning an identification procedure is admissible. Id. at 199-200, 93 S.Ct. at 382-83, 34 L.Ed.2d at 411. We adopted this two-part analysis in State v. Webb, 516 N.W.2d 824, 829 (Iowa 1994). See also State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993).

The first part of the analysis requires the court to decide whether the identification procedure was in fact imper-missibly suggestive. Second, if the court finds that the procedure was impermissi-bly suggestive, then the court must determine whether, under the totality of the circumstances, an identification made by the witness at the time of trial is irreparably tainted. Concerning the second step, the court’s focus is on whether the initial identification was reliable. Taft, 506 N.W.2d at 762. Concerning this question, the court gives weight to five factors:

(1) the opportunity of the witness to view the perpetrator at the time of the crime;
(2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the perpetrator;
(4) the level of certainty demonstrated by the witness at the confrontation;
(5) the length of time between the crime and confrontation.

Id.

The only time a court must resort to this two-part analysis is when a defendant claims the out-of-court procedure in which an eyewitness identified the defendant was impermissibly suggestive. The best way to avoid needlessly litigating a claim that an out-of-court identification was based on an impermissibly suggestive procedure is to ensure the setting in which the identification takes place does not create the opportunity for an impermissibly suggestive procedure to occur.

3. Avoiding an impermissibly suggestive identification as part of a deposition.

“At common law there was no right to take depositions, except in equity cases or by agreement of the parties.” State v. Hamilton, 309 N.W.2d 471, 477 (Iowa 1981). In 1974, we first determined a defendant could take a discovery deposition of a State’s witness. State v. Peterson, 219 N.W.2d 665, 669 (Iowa 1974). Subsequent to our decision in Peterson, our rules of criminal procedure authorized a defendant to take a deposition in a criminal proceeding. Iowa R.Crim. P. 2.13(1). This rule has special procedures for taking the deposition of a victim or witness who is a child, but does not contain any special procedures for the deposition of a victim or witness who is not a child. Id. r. 2.13(2). These special procedures allow a victim or witness who is a child to testify at a deposition out of the presence of the defendant, if doing so “would contribute to the welfare and well-being of the child.” Id. r. 2.13(2)(6) (authorizing a child to give his or her testimony behind a screen or mirror or in an adjacent room, so long as the defendant can hear or see the child’s testimony).

Any identification of the defendant made at the deposition is a pretrial out-of-court identification because neither the judge nor the jury is present when the parties take the deposition. An important purpose of a deposition is to allow a defendant to take the testimony of a witness under oath to determine the extent of the witness’s knowledge of the facts of the case. The testing of a witness’s observation of the physical characteristics of the defendant is crucial to the defense when the defendant’s only link to the crime is eyewitness identification.

Subsequent to our decisions in Davis and Randle, studies have shown the primary cause for the conviction of innocent people in our criminal justice system is mistaken eyewitness identification. Gary L. Wells, Eyewitness Identification Evidence: Science and Reform, 29 Champion 12 (2005). DNA exoneration cases show the convictions of approximately seventy-five percent of innocent persons involved mistaken eyewitness identification. Id. Therefore, it is important for the courts to ensure that any identification made or influenced by a defendant’s presence at the deposition does not create a situation where the procedure has the likelihood of violating a defendant’s right to due process of the law as guaranteed by the Fourteenth Amendment to the United States Constitution. In other words, courts should not permit unnecessarily suggestive identification procedures as a matter of good policy.

The seating of a defendant next to his or her counsel at the deposition of an eyewitness is so clearly suggestive as to be impermissible. Cf. United States v. Archibald, 734 F.2d 938, 942-43 (2d Cir.1984) (holding an in-court identification made with the defendant sitting next to his attorney at the counsel’s table is “so clearly suggestive as to be impermissible”). It is a waste of judicial resources and time to subsequently litigate whether an identification made as part of such a deposition should be admitted because it was reliable, as required by the second part of the test set forth in Neil. Judicial resources can be preserved by avoiding a situation that will likely create an impermissibly suggestive procedure and result in an inadmissible identification. See United States v. Brown, 699 F.2d 585, 594 (2d Cir.1983) (holding when the defendant timely objected to an in-court identification by an eyewitness, the trial judge should have directed the government to provide an out-of-court line-up or other protective procedure to avoid an impermissibly suggestive in-court identification).

Rule 2.13(1) was implemented to protect a defendant’s constitutional rights. It is illogical to permit the State to use a rule designed to protect the defendant’s constitutional right of confrontation to create a situation that has the likelihood to deprive a defendant of due process of law. Courts have inherent power to protect a defendant’s rights from being violated in a criminal proceeding. Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966) (requiring the police to inform a person in custody before the police can begin an interrogation of the person’s constitutional right against self-incrimination, the right to have an attorney present at the interrogation, and the right to have an attorney appointed for them if the person cannot afford one); State v. Lawrence, 167 N.W.2d 912, 914 (Iowa 1969) (stating the court has inherent power to limit attendance at a trial “to reasonably protect the rights of parties and witnesses”); State v. Eads, 166 N.W.2d 766, 768-69 (Iowa 1969) (holding courts have inherent power to compel discovery of the State’s evidence to protect a defendant’s due process rights); Hall v. Washington County, 2 Greene 473, 476-78 (Iowa 1850) (holding courts have inherent authority to compel compensation for an attorney appointed to represent an indigent defendant). To avoid the likelihood that a tainted identification may take place during the part of the deposition when the parties question an eyewitness regarding the identity of the perpetrator of the crime, the district court should allow a defendant to be absent from that part of the deposition. Accordingly, we disavow our holding in Davis and Randle to the extent those cases would require the defendant to be present at the deposition of an eyewitness when it is likely an imper-missibly suggestive identification would take place. Therefore, Folkerts’ request to be absent from the deposition of the victim during the questioning of the victim as to the perpetrator’s identity should have been granted by the district court.

As to all cases pending, if the identity of the perpetrator of the crime is at issue and a defendant makes a timely motion to be absent from that part of the deposition when the parties question an eyewitness concerning the identity of the perpetrator of the crime, the court may allow the defendant to be absent during that part of the deposition. If the court allows a defendant to be absent, questions regarding identity should take place at the beginning of the deposition. All parties shall complete their examinations of the witness regarding identity before the defendant is required to be present. After all parties have asked these questions, the defendant shall be required to be present at the deposition.

V. Disposition.

We reverse the order of the district court requiring Folkerts to be present during the entire deposition of the victim. Folkerts need not be present during the part of the deposition when the parties question the victim concerning the identity of the perpetrator of the crime. Accordingly, we remand the case to the district court for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT ORDER REVERSED AND CASE REMANDED.

All justices concur except CADY and LARSON, JJ., who dissent.

CADY, J.

(dissenting).

I respectfully dissent. Our role in an appeal is to resolve the issues presented in the case based on the facts and the governing jurisprudence. The majority steps out from its well-defined appellate role and, instead, engages in rulemaking. I would decide the case based on the issue presented and affirm the district court.

The district court in this case denied Folkerts’ request to be absent from the deposition of the victim until the lawyers completed all questions pertaining to the description of the assailant. Folkerts objected to her presence at the deposition based on due-process grounds, and the issue presented was whether Folkerts had a right under the Due Process Clause to be absent from the deposition. The district court determined she did not, and we are presented with the same question in this interlocutory appeal.

We have previously held that a defendant does not have a right to be absent from a deposition. State v. Davis, 259 N.W.2d 812, 813 (Iowa 1977); State v. Holderness, 301 N.W.2d 733, 738 (Iowa 1981); see also State v. Randle, 603 N.W.2d 91, 93 (Iowa 1999) (holding “a defendant is not vested with a right to be absent from trial”). Additionally, our rules of criminal procedure require the presence of a defendant at all critical stages of the proceedings, which may include a deposition. See Iowa R.Crim. P. 2.27(1) (stating defendant “shall be personally present at every stage of the trial” except as provided in the rule); see also State v. Turner, 345 N.W.2d 552, 559 (Iowa Ct.App.1983) (“We hold that a deposition where testimony is taken for introduction at trial is a stage of trial within the meaning of rule 25(1) [now 2.27(1)].” (citing United States v. Benfield, 593 F.2d 815, 821 (8th Cir.1979); United States v. Provencio, 554 F.2d 361, 363 (9th Cir.1977); State v. Sanchez, 130 Ariz. 295, 635 P.2d 1217, 1221 (Ct.App.1981); State v. Basiliere, 353 So.2d 820, 821-23 (Fla.1977); State v. Hooks, 202 Kan. 68, 446 P.2d 770, 772 (1968); State v. Collins, 265 Md. 70, 288 A.2d 163 (1972); State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct.App.1974))). But see Otteson v. Iowa Dist. Ct., 443 N.W.2d 726, 728 (Iowa 1989) (holding if a deposition is taken for discovery only — not for use at trial, the deposition is not a “stage of trial” for which the defendant must be present). This rule exists both for the benefit of the defendant and the State. See Davis, 259 N.W.2d at 813 (“The State has the obligation in a criminal case to prove the identity of the individual who committed the crime and to do so beyond a reasonable doubt. The State is entitled to have the accused present so that the witness can look into his face and answer whether he is or is not the man.”); Van Hoff v. State, 447 N.W.2d 665, 674 (Iowa Ct.App.1989) (“One of the more important purposes of Iowa Rule of Criminal Procedure 25(1) [now 2.27(1)] is to protect the defendant’s constitutional right of confrontation in presenting evidence from which the trier of fact determines guilt.” (Citations omitted.)).

More importantly, our United States Supreme Court has held that the linchpin of due process in the area of eyewitness identification procedures is reliability of the identification, and the Court has categorically rejected a per se rule — the approach adopted by the majority in this case — that would require a specific procedure to be followed or that would forbid the use of a particular procedure. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). Instead, due process relies on a case-by-case approach based on the totality of the circumstances. Id. (“These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.”).

Consequently, our jurisprudence instructs that the Due Process Clause does not aid Folkerts in her claim to be absent from the eyewitness’s deposition until she can show that her presence would necessarily taint the identification process and make it unreliable. Only then would a per se rule allowing defendants to absent themselves from a witness’s deposition be appropriate. The problem in this case is that Folkerts produced no such evidence, nor made any effort to produce such evidence. Instead, she asked for a per se rule, previously rejected by Supreme Court precedent. See id. Folkerts failed to show that her attorney, through artful questioning or other means, would be unable to elicit reliable responses from the deponent concerning the identification. For example, there is no requirement in the law that a defendant must sit in full view of the deponent so as to render answers to questions about physical appearance so suggestive as to make the procedure unreliable and turn it into a waste of judicial time. See State v. Williams, 166 Ariz. 132, 800 P.2d 1240, 1246 (1987) (noting the deponent need not necessarily be told who is the defendant). There are myriad ways an attorney could help ensure the questioning would render reliable answers. Furthermore, defense counsel failed to identify the types of questions he wants to ask the deponent to determine the reliability of the deponent’s prior identification, and explain how the answers would be unreliable if the defendant were present. Finally, at trial, defense “ ‘[cjounsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.’ ” Manson, 432 U.S. at 113 n. 14, 97 S.Ct. at 2252 n. 14, 53 L.Ed.2d at 153 n. 14 (quoting Clemons v. United States, 408 F.2d 1230, 1251 (D.C.Cir.1968) (Leventhal, J., concurring)).

The majority disavows our established jurisprudence, sidesteps the barren record in this case, and draws upon a psychological study about mistaken eyewitness identification to formulate a new per se rule. This is not the way courts operate. We disavow laws or rules when they violate the Constitution, not when we do not like them. A procedure exists under our law to adopt new rules of criminal procedure, and we should rely upon that process to change our rules if change is warranted. In the meantime, defendants must rely upon the Constitution, as we should, to challenge the specific procedures based upon the specific facts and circumstances.

The district court properly decided the issue in this case. I would affirm the district court. The rule adopted by the majority is improper, unnecessary, and impractical.

LARSON, J., joins this dissent.


author: VOGEL, P.J.

text:
    STATE of Iowa, Appellant, v. David HART, Appellee.
    No. 04-1152.
    Court of Appeals of Iowa.
    May 11, 2005.

      Thomas J. Miller, Attorney General, Richard Bennett And Mary Tabor, Assistant Attorneys General, Jennifer Miller, County Attorney, and James Scheetz, Assistant County Attorney, for appellant.
    Darrell Meyer, Marshalltown, for appel-lee.
    Considered by VOGEL, P.J., and MILLER and HECHT, JJ.
   VOGEL, P.J.

The State appeals an order dismissing its indictment of David Hart for possession of cocaine with intent to deliver in violation of Iowa Code sections 124.401(1)(c)(2)(b), 124.413, and 901.10(1) (2003), prohibited acts in violation of Iowa Code sections 124.402(1)(e) and 124.402(2)(a) (2003), and failure to affix a drug stamp in violation of Iowa Code sections 453B.1(1) and 453B.12 (2003). As the State failed to bring Hart to trial within ninety days of its indictment and further failed to prove that this delay was attributable to the defendant, we affirm.

I. Background Facts and Proceedings.

On March 23, 2004, the State filed its trial information. On April 5, Hart filed a written arraignment and plea of not guilty, specifically demanding his right to speedy trial. The district court filed an order on the written arraignment on April 5, noting Hart’s speedy trial demand, setting a deadline for motions of May 18, scheduling a pretrial conference for May 21, and setting trial for June 2.

On May 18, Hart served a motion to sever, an application to disclose a confidential informant, and a motion to suppress on all parties. This motion was filed the next day. On May 21, an order was entered scheduling a further pretrial conference for June 1. It was also agreed that only part of the motions set for hearing on June 1 would be addressed on that day because the court’s ruling on the application to disclose the State’s confidential informant would impact the arguments made on the motion to suppress.

At the June 1 hearing, the district court took up only the application to disclose confidential informant and an application for extension of deadlines. Following the arguments on the application to disclose, the parties addressed the application for extension of deadlines whereby the State informed the district court that,

the State has no objection to these extensions, other than noting we have speedy trial deadlines ... of June 21st, and the next trial date is June 22nd. We obviously can’t try this case tomorrow, with the pending motions, and the pending motions that haven’t even been addressed.

The district court then responded by stating,

Okay. Well, I understand you are going to need some additional time to take those depositions and address some of the other issues we have here before us, but I will try and issue a ruling on this motion [to disclose confidential informant] in the next several days.

Further depositions were then scheduled for June 11. On June 10, the district court filed its ruling denying the application to disclose the State’s confidential informant. On June 11, the State advised the district court that a hearing needed to be set on Hart’s motion to suppress. In response, the district court issued an order stating,

Both defendants remain in custody, and have demanded speedy trial, which will run on or about June 21, 2004. Separate Jury trials remain scheduled for June 22, 2004 ... the Defendants’ Motions to Suppress Evidence will be heard on the 14[sic] day of June, 2004.

On June 14, a hearing on Hart’s motion to suppress was held and the district court took the motion under advisement. On June 18, Hart filed a motion to withdraw his motion to suppress. Also on June 18, the district court faxed its ruling on Hart’s motion to withdraw to the Marshall County Courthouse. Following the withdrawal, the State, realizing the speedy trial deadline was upon it, made an oral motion to impanel the jury on June 21. The district court denied this motion because, according to the State, “it was already a fully packed motion day with two judges fully scheduled.”

On June 22, the ninety-first day, Hart filed his motion to dismiss the charges against him because the State failed to bring him to trial prior to the expiration of the ninety-day speedy trial deadline. A hearing was held on this motion with the State arguing the delay in bringing Hart to trial was attributable to him and further expressing its frustration at being unable to bring Hart to trial by stating:

The Court has advised the State that it would not bring a jury panel in yesterday because it was a court motion day. It was a full docket for both judges ... The progeny of cases after [State v. Miller, 637 N.W.2d 201 (Iowa 2001) ] disturbs the State at some point in time. It puts all the burden on the State to bring the cases to trial in a speedy manner, but I don’t think that properly addresses who has true control over the court docket. (Emphasis added).
The State can argue and request that panels be brought in and that extra judges be assigned to congested dockets, but if the Court Administrator or the Court is not available there is very little for the State to do in trying to effectuate a speedy trial demand, especially when we’ve had motions pending and they’ve been promptly ruled upon and they were set for hearing in a prompt manner given the regular and steady court congestion and lack of judges available to hear matters.

In response, the district court stated,

[I]n ... David Hart’s case ... all of the deadlines were met with the exception of one and that was bringing of the case within 90 days. Motions were timely filed. Hearings were held granted the motions to suppress were held late in the game, but it was because of the nature of the orderly flow of business of a criminal case....
I think the judges in this district and those who come to Marshall County are flexible in scheduling but sometimes we get up against deadlines where there just simply is not enough time left to accommodate everybody. I understand the frustration of the County Attorney’s Office. Mr. Scheetz in this case has done everything within his power to get this case tried. I know that he has made requests on at least two occasions ... to at least impanel the jury prior to the expiration of June 21, 2004.
He was not successful in getting juries in here for a variety of reasons.... The State of Iowa did everything within its power to get these cases resolved.

The district court then concluded the delay was not attributable to Hart and that the State failed to demonstrate good cause for the delay. The court dismissed the charges against Hart and the State appeals.

II. Scope of Review

In deciding indictment and speedy trial questions, our scope of review is for correction of errors at law. See State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001) (citing State v. Finn, 469 N.W.2d 692, 693 (Iowa 1991)). Because our review is at law, we are bound by findings of fact supported by substantial evidence. Finn, 469 N.W.2d at 693. Therefore, the appellant is entitled to prevail only if its evidence was so strong the trial court was compelled to rule for it as a matter of law. Id.

III. Issue

Iowa Rule of Criminal Procedure 2.33(2)(b) provides:

If a defendant indicted for a public offense has not waived the defendants right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be found.

Pursuant to this rule, a criminal charge must be dismissed if trial does not commence within ninety days from the filing of the charging instrument “unless the State proves (1) defendant’s waiver of speedy trial, (2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.” State v. Winters, 690 N.W.2d 903, 908 (Iowa 2005) (citations omitted). In this case Hart did not waive his right to speedy trial. Thus, the district court was required to dismiss the charges against Hart unless the State proved either that the delay in bringing Hart to trial was attributable to Hart or that there was otherwise “good cause” for the delay. Miller, 637 N.W.2d at 204. On appeal, the sole issue presented by the State for our review was whether the district court erred in not finding that Hart’s filing of motions caused a delay that should be attributed to him.

“Delay attributable to the defendant” may include whatever passage of time is “reasonably necessary” to act upon a defendant’s motion. Miller, 637 N.W.2d at 204. However, “that is not to say a defendant who files a timely motion thereby forfeits the right to be tried without lengthy and unexplained delay.” State v. Nelson, 600 N.W.2d 598, 602 (Iowa 1999). “[T]he general press of court business is insufficient to avoid dismissal under [our] speedy trial rule, even for the busy judge sitting in a high volume court.” Miller, 637 N.W.2d at 205 (quoting Nelson, 600 N.W.2d at 602).

In State v. Miller, the “trial slipped only one day past the deadline before the court was faced with a motion to dismiss.” Miller, 637 N.W.2d at 205. In denying the motion, the district court concluded that “a number of days” must be attributed to the defendant based on the time necessary for ruling on the motion to dismiss. Id. Our supreme court reversed this decision. Id. at 206. In so doing the supreme court determined the district court erred in attributing any delay to the defendant, noting that all the defense motions had been timely filed and heard with reasonable promptness and that the final ruling on these motions was made a week prior to the expiration of the speedy trial deadline. Id. at 206 (finding it significant that the district court’s ruling came down with a week to spare). Moreover, the supreme court took issue with the district court’s deference to the established trial schedule for Marshall County stating that such deference disregards the important distinction between “chronic court congestion,” which does not justify extending the ninety day speedy trial deadline, and “circumstances arising out of unique, non-recurring events which create a particular scheduling problem,” which does. Id.

Turning now to the facts in David Hart’s appeal, the record reveals that Hart’s situation, like that in Miller, was not one where defense motions were filed on the eve of the speedy trial deadline. Cf. State v. Searcy, 470 N.W.2d 46, 47 (Iowa Ct.App.1991) (filing of motion to suppress occurred just three days prior to trial); State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991) (filing occurred one week before trial). All of Hart’s motions were timely filed and were heard and ruled upon with reasonable promptness. However, unlike the facts in Miller and the companion case, David Hart’s motion to suppress was not resolved nearly a week prior to trial, but was instead resolved the Friday before the Monday on which the deadline expired. Nonetheless, it is clear that the scheduling problems referred to by the district court, the deference to which caused the trial to be set a day after the expiration of the speedy trial deadline, were not “unique, non-recurring events” but were instead “chronic court congestion.” Accordingly, we conclude the record before us establishes that the reason for the delay was the district court’s deference to its regular court business; there is no reason attributable to the defendant for a delay beyond the ninety-day deadline. The district court was correct to dismiss the trial information for violation of the speedy trial requirement of Iowa Rule of Criminal Procedure 2.33(2)(b).

AFFIRMED,

      . This order addressed Hart's, case as well as a companion case operating on the same timetable, State v. Antonio Rodegus Hart. The State also appealed the dismissal, on speedy trial grounds, of its charges against Antonio Rodegus Hart.

      . However this ruling was not filed until June 21.

      . The record is replete with references to scheduling problems caused by "a full calendar” or a "full court motion day.” Moreover, as referenced above, the State believes its oral motion to impanel a jury on June 21 was denied because "it was already a fully packed motion day with two judges fully scheduled.” Moreover, the district court specifically found that the delays were caused by "the nature of the orderly flow of business of a criminal case....”


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Richard H. MARTIN, a Minnesota Attorney, Registration No. 68135.
    N0. A05-1650.
    Supreme Court of Minnesota.
    Sept. 13, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Richard H. Martin has committed professional misconduct warranting public discipline, namely, continuing to practice law after being placed on restricted status for failure to comply with mandatory continuing legal education requirements and failing to adequately cooperate with the resulting disciplinary investigation, in violation of Minn. R. Prof. Conduct 5.5 and 8.1(a)(3).

Respondent admits his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is a 30-day suspension, effective 14 days from the date of this court’s suspension order, under Rule 15, RLPR, that respondent be required to successfully complete the professional responsibility portion of the state bar examination within one year of the date of this court’s order, that respondent comply with Rule 26, RLPR, and that respondent pay $900 in costs pursuant to Rule 24(a), RLPR. The parties further recommend that respondent be reinstated following the expiration of the suspension provided that at least 15 days before the expiration of the suspension period respondent files an affidavit with the Clerk of Appellate Courts and the Director’s Office establishing that respondent is current with Continuing Legal Education requirements and has fully complied with Rules 24 and 26, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Richard H. Martin is suspended for 30 days, effective 14 days from the date of this order, and that he comply with all conditions set forth above.

BY THE COURT:

/s/Russell A. Anderson Associate Justice


author: DIETZEN, Judge.

text:
    Dan ZANDER, et al., Appellants, v. STATE of Minnesota, Respondent.
    No. A04-2393.
    Court of Appeals of Minnesota.
    Sept. 20, 2005.

      Paul R. Haik, Krebsbach & Haik, Ltd., Minneapolis, MN, for appellants.
    Mike Hatch, Attorney General, Lisa A. Crum, Assistant Attorney General, St. Paul, MN, for respondent.
    Considered and decided by DIETZEN, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

DIETZEN, Judge.

Appellants filed claims in district court under the Minnesota Environmental Rights Act (MERA), Minn.Stat. §§ 116B.01-116B.13 (2004), alleging violations resulting from a state highway expansion project. The district court dismissed appellants’ claims by granting respondent’s motion for summary judgment. Because appellant has not presented genuine issues of material fact sufficient to support a prima facie case under MERA, we affirm.

FACTS

Appellants Dan Zander and John Zan-der own property in Waseca County, a portion of which lies within the planned construction area for the state Trunk Highway 14 (TH 14) expansion project. Due to safety concerns, TH 14, located between Mankato and Owatonna, is being expanded from two to four lanes. Appellants object to the portion of the project that will affect their property.

The planning process for the TH 14 expansion began in 1992. Environmental review of the project consisted of a draft environmental impact statement (DEIS) and a final environmental impact statement (FEIS), approval of a wetland-replacement plan by the Minnesota Board of Water & Soil Resources (BWSR), and a permit application approved by the United States Army Corps of Engineers.

Environmental-Impact Statements

To begin the environmental-review process, the Minnesota Department of Transportation (MnDOT) defined the purpose and need for the project and developed a “scoping document” to evaluate various alternative alignments. MnDOT considered the environmental, historical, social, land-use, and economic factors for each alternative. The various alternatives were reduced to four, which were evaluated in the DEIS. The transportation commissioner selected a preferred alignment, and MnDOT prepared and released the FEIS for public comment. This preferred alignment runs through appellants’ property and requires condemnation of a portion of their property. That portion of property includes about seven acres of wetlands that would be filled under the project.

Following public comment, MnDOT approved the preferred alignment on June 7, 1999. The Federal Highway Administration approved the preferred alignment and the FEIS on July 7, 1999. The United States Environmental Protection Agency also concurred and determined that the preferred alignment was the “Only Practicable Alternative.”

The preferred alignment runs adjacent to the Dakota Minnesota & Eastern (DM & E) railroad. After the preferred alignment was approved, MnDOT discovered that DM & E was planning to build a switchyard in the preferred-alignment area. MnDOT then considered an alternative plan that would have avoided the switchyard. But when MnDOT learned that DM & E had abandoned the switch-yard plan, MnDOT reverted to the preferred alignment because the alignment would have a comparatively modest impact on adjoining landowners and public safety, and more modest loss of agricultural land. Appellants did not challenge the adequacy of the FEIS following its release, and it became a final document.

BWSR Approval of Wetland-Replacement Plan

Because the preferred alignment required filling about seven acres of wetlands on appellants’ property, MnDOT was required to develop and receive approval for a wetland-replacement plan from its Office of Environmental Services. The replacement plan provided for replacement wetlands at a two-to-one ratio in the same county and watershed for the approximately seven acres of wetlands that would be filled for the project. As required by state regulations, a Technical Evaluation Panel (TEP) of representatives of BWSR, MnDOT, and Waseca County reviewed the replacement plan and found that it met the statutory requirements for replacement under the Wetland Conservation Act. See Minn.Stat. § 103G.222, subd. 1(a) (2004) (providing that wetlands drained or filled must be replaced by restoring or creating other wetland areas). The TEP concluded that the replacement wetlands would be of higher quality than those affected on appellants’ property and therefore, recommended approval.

Appellants challenged the TEP’s decision by petitioning BWSR to reject the wetland-replacement plan. Appellants’ objection to the replacement plan was based on an ecologist’s report who suspected that an endangered plant species, Sullivant’s milkweed, might exist on the property, but could not make that determination with certainty because he inspected the property late in the growing season. The report contradicted a previous survey by the Minnesota Department of Natural Resources (DNR), as well as a search of the Minnesota Natural Heritage Database, that had not revealed the existence of any endangered or threatened plant species in the area. Consequently, appellants urged MnDOT to reconsider the DM & E alternative, rather than the preferred alignment, due to the concern over the possible impact on endangered or threatened plant species.

MnDOT again compared the preferred alignment and the DM & E alternative alignment. MnDOT concluded that although the DM & E alternative did not affect any wetlands, it was more environmentally damaging because more acres of farmland would be impacted, farmers would have to travel farther to reach their fields, total expenses would increase, more railroad crossings would be necessary, and two additional curves on TH 14 would increase safety risks. MnDOT’s Office of Environmental Services approved the wetland-replacement plan and issued findings of fact and conclusions on December 31, 2003.

Based on its review of the administrative record, BWSR denied the petition without a hearing, concluding 'that the petition lacked merit and was initiated solely for the purpose of delay. Appellants brought a writ of certiorari to this court, which affirmed the decision of BWSR. In re Wetland Conservation Act, No. A04-314, 2004 WL 2857357 (Minn.App. Dec.14, 2004).

Corps of Engineers Permit Application

MnDOT applied to the United States Army Corps of Engineers (Corps) for a permit to fill the wetlands that would be affected by the project area pursuant to the requirements of the Clean Water Act (CWA), 33 U.S.C. § 1344 (2000). On May 19, 2004, the Corps held a hearing regarding MnDOT’s request for a permit for the project. In late May 2004, the Corps’ Senior Ecologist, Steve Eggers, inspected the project area. On June 4, 2004, Eggers sent an e-mail to DNR and MnDOT staff, informing them that he had observed clumps of “very robust” valerian, a state-listed threatened plant species, near, but not within, MnDOT’s right-of-way for the project. On June 10, Eggers sent another e-mail to Corps’ staff, indicating that it was likely that the valerian plants would be destroyed by construction activities and that direct impact on the valerian plants could be prevented by using the DM & E alternative. He also stated that the adverse impacts could be mitigated by using fences to protect the valerian plants during construction.

On June 17, 2004, in response to Eggers’ comments, MnDOT and DNR staff performed a survey of plant species on the project site. These officials confirmed that no Sullivant’s milkweed or valerian plants were inside the right-of-way but valerian plants did exist outside of, but close to, the right-of-way. The officials opined that the valerian plants would not be affected by construction activities. The DNR advised MnDOT that because no threatened species existed inside of the right-of-way, no DNR permit was required because no threatened species would be taken. MnDOT volunteered to protect the valerian plants from any construction impacts with use of a fence and berm. On June 18, 2004, the Corps issued a permit to MnDOT, stating that all requirements of the CWA had been met.

Subsequent Legal Challenges

In addition to appellants’ BWSR challenge, appellants initiated other simultaneous legal challenges to stop the project. When MnDOT condemned a portion of appellants’ property using the quick-take provision in Minn.Stat. § 117.042 (2004), appellants objected to the condemnation, challenging the public purpose and necessity of the project. At the condemnation-case evidentiary hearing, Robert Johnson, a senior botanist with MnDOT’s Office of Environmental Services, testified that the wetlands on appellants’ property were badly degraded from an ecological standpoint. After the hearing, the district court con-eluded that appellants had not established the existence of endangered or threatened plants and approved MnDOT’s quick-take petition. Appellants challenged the decision of the district court granting the quick-take, and this court affirmed. State v. Zander, No. A04-496, 2004 WL 2857501 (Minn.App. Dec. 14, 2004).

Appellants also moved for injunctive relief to suspend construction of the project on their property. The district court denied injunctive relief, and this court affirmed. Zander v. State, No. A04-1215 (Minn.App. July 29, 2004) (order). Appellants later voluntarily dismissed that appeal. Zander v. State, No. A04-1215 (Minn.App. Sept. 2, 2004) (order).

Subsequently, appellants filed the action that is the subject of this appeal, alleging that the project violates the Minnesota Environmental Rights Act (MERA), Minn. Stat. §§ 116B.01-.13 (2004). Respondent State of Minnesota moved for summary judgment, which the district court granted, finding that appellants had failed to meet their burden to present a prima facie case under MERA and that there were no genuine issues of material fact for trial. After the district court’s order, appellants moved for amended findings, but the district court denied their motion. Appellants now challenge the district court’s grant of respondent’s motion for summary judgment and the denial of their motion for amended findings.

ISSUES

I. Did the district court err by granting respondent’s motion for summary judgment of appellants’ claims under Minnesota Environmental Rights Act (MERA), Minn.Stat. §§ 116B.01-.13 (2004)?

II. Did the district court err by making credibility and weight-of-the-evidence determinations on a motion for summary judgment?

III. Did the district court abuse its discretion by denying appellants’ motion for amended findings?

ANALYSIS

I.

MERA Claims

Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits submitted “show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. On appeal from summary judgment, this court asks whether: (1) there are any genuine issues of material fact, and (2) the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court must view the evidence in the light most favorable to the nonmoving party. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003).

Under the Minnesota Environmental Rights Act (MERA), any person residing within the state may maintain a civil action for declaratory or injunctive relief against any other person for the protection of the air, water, land, or other natural resources within the state from “pollution, impairment or destruction.” Minn. Stat. § 116B.03, subd. 1 (2004). “Natural resources” under MERA include “all mineral, animal, botanical, air, water, land, timber, soil, quietude, recreational and historical resources.” Minn.Stat. § 116B.02, subd. 4 (2004). The phrase “pollution, impairment, or destruction” is defined, in relevant part, to be: (1) “any conduct by any person which violates, or is likely to violate,” any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit of the state, or (2) “any conduct which materially adversely affects or is likely to materially adversely affect the environment.” Id., subd. 5.

Appellate courts review de novo the district court’s conclusions of law in a MERA case. State ex rel. Fort Snelling State Park Ass’n v. Minneapolis Park & Rec. Bd., 673 N.W.2d 169, 174 (Minn.App.2003), review denied (Minn. Mar. 16, 2004). We review findings of fact under the clearly erroneous standard. Id.

Appellants assert that the project involves two protected natural resources, endangered valerian plants and wetlands, and that the project will cause the pollution, impairment, or destruction of these natural resources. Appellants argue that the record contains genuine issues of material fact that the project violates MERA because: (1) the project involves conduct that violates, or is likely to violate, an environmental-quality standard, limitation, rule, order, license, stipulation agreement or permit of the state; and (2) the project involves conduct that will, or is likely to, materially, adversely affect the environment. See Minn.Stat. § 116B.02, subd. 5 (2004).

A. Violation of Environmental-Quality Standard, Limitation, Rule, Order, License, Stipulation Agreement or Permit

Appellants contend that genuine issues of material fact preclude the district court’s grant of summary judgment to respondent because genuine fact issues for a prima facie case exist in two ways: (1) respondent violated a DNR rule that requires a permit for the taking of threatened, state-listed valerian plants, and (2) the project’s wetland-replacement plan is inadequate. See Minn.Stat. § 116B.03.

1. Valerian Plants

Appellants first argue that MnDOT failed to file for a permit required to take threatened valerian plants. See Minn. R. 6212.1800, subp. 1 (2005) (“A person may not take ... a threatened or endangered species of plant or animal without a permit from the commissioner.”). Respondent counters that the valerian plants are located outside the project right-of-way, and thus there will be no taking. In granting respondent’s summary-judgment motion, the district court determined that appellants “have failed to present any evidence that there is a state threatened plant species in the Project impact area or that the State has violated, or will violate, any environmental rule by ‘taking’ a protected plant if the Project proceeds.” We agree.

The record does not contain sufficient evidence to support the conclusion that the valerian plants will be taken so as to require a permit. MnDOT staff, DNR staff, and senior ecologist Eggers all acknowledge that the valerian plants are not growing inside the right-of-way, and thus there is no evidence in the record that the valeri-an plants will actually be taken. Viewing the evidence in the light most favorable to appellants, there are no genuine issues of fact that a protected plant species will be taken by the project such that a permit would be required. Thus, the record does not demonstrate that fact issues sufficient to support a prima facie case for a MERA claim exist regarding whether MnDOT is violating a state rule that requires an environmental permit.

Appellants further argue that construction activities will cause adverse impacts to the nearby valerian plants located outside of the project’s right-of-way. To support their position, appellants rely primarily on the affidavit of Eggers that the threatened valerian plants, while located outside of MnDOT’s right-of-way, are at risk of destruction due to construction activities for the project.

But Eggers’s affidavit did not consider MnDOT’s agreement to construct a fence and berm to avoid any potential off-site impacts. Eggers’s affidavit is based solely on the text of his June 4 and June 10, 2004 e-mails, which were written before MnDOT inspected the property on June 17, 2004, and subsequently decided to construct a fence and berm to protect the valerian plants. Thus, Eggers considered potential impacts without the benefit of knowing that a fence and berm would be constructed to protect the valerian plants. Further, Eggers, while discussing the DM & E alternative, acknowledges in the June 10 e-mail that permit conditions, such as construction of a fence could be used to protect the valerian plants. Thus, the fence that MnDOT implemented is the protective measure that Eggers advocated so that “[n]o loss of this rare species would occur.” We conclude that Eggers’s affidavit, dated before MnDOT adopted its fence and berm protective measures, is not sufficient to create genuine fact issues supporting a prima facie case of a permitting violation.

2. Wetlands

Appellants argue that because the project will require filling approximately seven acres of wetlands, it violates the legislative policy to protect air, water, land, and other natural resources from pollution, impairment, or destruction. See Minn.Stat. § 116B.01 (2004). Appellants also contend that the project violates environmental-quality standards under the Wetland Conservation Act (WCA), Minn.Stat. §§ 103G.221-103G.2372 (2004). Respondent counters that adverse wetland impacts are not entirely prohibited if replacement plans are approved under the rules and procedures outlined in Minn.Stat. § 103G.2242 (2004). The district court determined that appellants failed to present any genuine issues of material fact that the project or MnDOT’s plan for wetland replacement violated WCA.

We first address appellants’ contention that filling wetlands for the project violates the legislative policy of MERA. See Minn.Stat. § 116B.01 (“[I]t is in the public interest to provide an adequate civil remedy to protect air, water, land and other natural resources located within the state from pollution, impairment, or destruction.”). Although appellants are correct that the statute provides a remedy for pollution, impairment, or destruction of the air, water, land, and other natural resources through maintenance of a cause of action, section 116B.03 of the chapter sets forth the statutory criteria to bring such a cause of action. Section 116B.03 requires genuine issues for either a violation, or likely violation, of an environmental-quality standard, limitation, rule, order, license, stipulation agreement or permit, or a material adverse effect on the environment, to establish a MERA claim. See discussion supra Part I. Accordingly, section 116B.01 cannot be used exclusive of section 116B.03, but rather must be used in conjunction with that section. Appellants cannot demonstrate a cause of action under the legislative-policy provision of MERA alone.

Second, we address the issue of the project’s compliance with the wetland-replacement plan requirements under WCA. If wetlands are drained or filled, WCA requires that they be replaced by creation or restoration of other wetland areas. Minn. Stat. § 103G.222, subd. 1(a) (2004). The legislative mandate of WCA directs that “[w]etlands must not be drained or filled, wholly or partially, unless replaced by restoring or creating wetland areas of at least equal public value.... ” Id.; Minn. R. 8420.0100 (2005). Section 103G.2242 outlines extensive procedures for evaluation of wetland impact and replacement. Here, the record reveals that MnDOT’s Office of Environmental Services received and approved the wetland-replacement plan. Following appellant’s challenge to the approval of the plan, BWSR denied appellants’ petition and refused to hold a hearing, concluding that the petition was brought solely for the purpose of delay. On appeal, this court upheld BWSR’s decision in In re Wetland Conservation Act, No. A04-314 (Minn.App. Dec.14, 2004).

Respondent asserts that appellants are collaterally estopped from making the identical claim that was decided by this court in Wetland Conservation Act. Collateral estoppel precludes litigants from raising issues that are identical with issues previously litigated and which were necessary and essential to the former judgment. Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn.1990). Four elements are needed to succeed on a collateral-estoppel defense:

(1) the issue was identical to [the issue] in a prior adjudication;
(2) there was a final judgment on the merits;
(3) the estopped party was a party or in privity with a party to the prior adjudication; and
(4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.

Id. This court has stated that administrative processes that do not involve hearings or agencies acting in judicial or quasi-judicial capacities do not preclude MERA claims. Fort Snelling, 673 N.W.2d at 177. “The rights and remedies provided [in MERA] shall be in addition to any administrative, regulatory, statutory, or common law rights and remedies.... ” Minn.Stat. § 116B.12 (2004).

We agree with respondent’s assertion that appellants are collaterally es-topped from relitigating the propriety of the wetland-replacement plan approved by BWSR. First, BWSR’s decision approving the wetland-replacement plan, affirmed by this court, was an administrative process in which BWSR was acting in a quasi-judicial capacity. Although BWSR denied appellant’s request for a hearing, appellant had the opportunity to present written argument and additional evidence to supplement the record. Similarly, this court’s consideration of appellants’ challenge to BWSR’s decision was a judicial determination in which appellants had the opportunity to submit written and oral argument. Because appellants had the opportunity to present their case to BWSR and this court, we conclude that the doctrine of collateral estoppel applies to appellants’ challenge that the wetland-replacement plan violated a WCA standard or rule. See 673 N.W.2d at 177.

Second, appellants’ challenge that the wetland-replacement plan violated a WCA standard or rule satisfies the four elements of collateral estoppel. See Aufderhar, 452 N.W.2d at 650. First, appellants’ current challenge to the adequacy of the wetland-replacement plan under WCA is identical with that which was presented to BWSR and appealed to this court. Second, BWSR issued a final judgment on the merits, which was affirmed by this court on appeal. See Wetland Conservation Act, No. A04-314 (Minn.App. Dec. 14, 2004). Third, appellants, as the estopped party, were a party in the prior adjudication. Fourth, appellants had a full opportunity to litigate their challenge to BWSR’s approval of the wetland-replacement plan before this court. Although BWSR did not afford appellants the opportunity for a hearing because it concluded that their petition was brought solely for the purpose of delay, it did allow appellants to present written argument and additional evidence to supplement the record; and appellants had the opportunity to submit written and oral arguments to this court, which constitutes a full and fair opportunity to be heard. See Aufderhar, 452 N.W.2d at 650. Because the four elements of collateral estoppel have been met, appellants are collaterally estopped from again raising the identical claim questioning the adequacy of the wetland-replacement plan.

In Wetland Conservation Act, we stated that “the MERA claims are separate and inapplicable to this appeal” and that “we emphasize that we do not reach the ultimate questions raised by [appellants] under MERA.” 2004 WL 2857357, at *5. Our ruling in Wetland Conservation Act did not preclude claims under MERA that the wetland-replacement plan will materially and adversely affect the environment. But a final judgment on the merits approving a wetland-replacement plan under Minn. Stat. § 103G.222 (2004), collaterally estops appellant from maintaining a cause of action asserting that the wetland-replacement plan violated an environmental-quality standard or rule under Minn.Stat. § 116B.03, subd. 1 (2004), of MERA. Minn. Stat. § 116B.02, subd. 5 (2004).

B. Material Adverse Effect

Appellants argue that the district court failed to recognize that genuine issues of material fact exist over whether the project will materially adversely affect the environment and its natural resources, i.e., valerian plants and wetlands. Respondent argues that appellants have failed to make a showing of genuine issues of material fact to constitute a prima facie case under MERA.

Minnesota courts use a five-factor test to determine whether a project will have a material adverse effect, or is likely to a have material adverse effect, on the state’s natural resources under MERA. See Schaller v. County of Blue Earth, 563 N.W.2d 260, 267 (Minn.1997) (developing and outlining five-factor test). The following five factors are flexible guidelines and need not all be present or material to find a material adverse effect:

(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected;
(2) Whether the natural resources affected are rare, unique, endangered, or have historical significance;
(3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the affected resources are easily replaceable (for example, by replanting trees or restocking fish);
(4) Whether the proposed action will have significant consequential effects on other natural resources (for example, whether wildlife will be lost if its habitat is impaired or destroyed);
(5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the direct and consequential impact of the proposed action.

Id.

We consider the possible impact on the valerian plants and wetlands in turn.

1. Valerian Plants

Appellants argue that they have presented genuine issues of material fact of a material adverse effect on the environment because the project will destroy a robust community of state-listed threatened vale-rian plants. But all the expert affidavits agree that the valerian plants only exist near to, but outside of, the right-of-way. In that regard, Eggers indicated that fencing and protecting the valerian plants would be sufficient to prevent the loss of the species in the area. And MnDOT has voluntarily agreed to construct a fence and berm to protect the valerian plants. Thus, MnDOT’s measures to protect the valerian plants located outside the construction right-of-way that could be indirectly effected, preclude a finding of any genuine issues of material fact of potential adverse effects on the valerian plants.

Further, appellants fail to specifically address the Schaller factors to make their case for a material adverse effect on the valerian plants. See 563 N.W.2d at 267. And our review of the record fails to reveal a material adverse effect. First, the vale-rian plants are not directly located within the construction right-of-way and a fence and berm will be constructed to protect the valerian plants. See id. Second, appellants did not present evidence of potential impacts on the valerian plants if MnDOT utilizes a fence and berm during the construction of the project. See Schaller, 563 N.W.2d at 267. Thus, appellants have failed to establish genuine issues of material fact under Schaller; the mere fact that the valerian plants are rare, without further evidence of how they will be affected despite the protective measures, does not suffice to meet appellants’ burden. Because appellants have failed to present any further evidence, we conclude that there are no genuine issues of material fact regarding the valerian plants.

2. Wetlands

Appellants assert that the destruction of wetlands will have a material adverse effect on the environment. The district court failed to comment on this claim, other than to state that appellants have not presented any evidence that the project’s filling of wetlands will be materially adverse to the environment.

Here, appellants again fail to specifically address the Schaller factors in support of their material-adverse-effect contention. Our analysis of the record fails to reveal a material adverse effect. First, it is undisputed that the project will require filling seven acres of wetlands. See id. But the wetlands will be replaced by a two-to-one ratio under a replacement plan pursuant to WCA. See Minn.Stat. § 103G.222, subd. 1(a). Moreover, the TEP found that the replacement wetlands will be of higher quality than the wetlands that will be filled. Second, the wetland replacement plan will replace the filled wetlands by a two-to-one ratio in the same county; and due to the two-to-one replacement ratio, the project will not result in a net loss of wetlands. See Schaller, 563 N.W.2d at 267. We conclude that without evidence of a material adverse effect under Schaller, and given that the wetland-replacement plan was upheld under WCA, appellants do not present genuine fact issues for a material adverse effect on wetlands even when we view the evidence in the light most favorable to them.

II.

Credibility and Weight of the Evidence Determinations

Appellants argue that the district court improperly judged the credibility of the witness affidavits and weighed the evidence in granting respondent’s motion for summary judgment. “The district court’s function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist.” DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn.1997). The district court “must not weigh the evidence on a motion for summary judgment.” Id. But the court is also not required to ignore its conclusion that the evidence presented has no probative value and that reasonable persons could not reach different conclusions from the evidence presented. Id. A mere metaphysical doubt on a factual issue is not sufficient to defeat a motion for summary judgment. Id. at 71.

To argue that the district court improperly made credibility judgments, appellants point to alleged genuine fact issues over the threat to the valerian plants. Appellants contend that the district court improperly compared Eggers’s opinion regarding the danger to the valerian plant with the opinions of members of MnDOT’s staff and the DNR’s staff who concluded that while the valerian plants were outside of the actual construction right-of-way, construction of a fence and berm to protect the plants would be sufficient. We conclude that this evidence lacks probative value because Eggers’s e-mails were written before the fence and berm were planned; and he ⅜ previously stated that constructing a fence and berm would protect the plants from adverse construction impacts. The district court was not required to ignore its conclusion that appellants’ case lacked evidence sufficient to survive summary judgment. See DLH, 566 N.W.2d at 70.

We conclude that the lack of genuine issues of material fact regarding the threat to the valerian plants defeats appellants’ claim of improper weight and credibility determinations by the district court.

III.

Motion for Amended Findings

Appellants argue that the district court improperly denied their motion for amended findings of the district court’s order granting respondent’s summary-judgment motion. A party may move the district court to amend or add findings to its order under Minn. R. Civ. P. 52.02. A district court’s denial of a posttrial motion for amended findings will not be disturbed absent an abuse of discretion. Fort Snelling, 673 N.W.2d at 177-78. A motion for amended findings must identify the alleged defect and explain why the findings are defective. Id. at 178. Further, the moving party must show that the district court was compelled to make the requested findings and failed to do so to overturn a district court’s denial of the motion. Id.

Here, appellants’ motion for amended findings argued that it was inappropriate for the district court to mention appellants’ prior challenge to MnDOT’s condemnation proceeding. But this fact was part of the procedural history of the dispute and was not inappropriate. The remainder of the motion reiterates at length appellants’ arguments that the district court rejected in its order. Because appellants do not raise any findings that the district court was compelled to make or failed to make, the district court did not abuse its discretion in rejecting the motion for amended findings. Cf. Edina Cmty. Lutheran Church v. State, 673 N.W.2d 517, 523 (Minn.App.2004) (district court’s findings of fact must be sufficient to permit meaningful appellate review). Thus, we conclude that the district court did not abuse its discretion by denying the motion for amended findings.

DECISION

Appellants have failed to present genuine issues of material fact to support a prima facie case for violations of MERA. Because appellant’s challenge to the wetland-replacement plan under Minn.Stat. § 103G.222 (2004) was the subject of a final judgment on the merits, appellant is collaterally estopped from maintaining a cause of action under MERA asserting that it violated an environmental standard or rule. Finally, the district court did not improperly judge the credibility of the witnesses or weigh the evidence on a motion for summary judgment and its findings were sufficient. Accordingly, we affirm the district court’s grant of respondent’s motion for summary judgment.

Affirmed.

      . This court denied appellants’ motion to combine their BWSR challenge with an appeal of the condemnation of their property. In the Matter of the Wetland Conservation Act Appeal, Nos. A04-314 & A04-496, 2004 WL 2857357 (Minn.App. Apr. 27, 2004).