author: SHUMAKER, Judge. LANSING, Judge

text:
    MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY, Appellant, v. CITY OF ST. PAUL PARK, Respondent, R. Gordon Nesvig, et al., Respondents.
    No. A05-1029.
    Court of Appeals of Minnesota.
    April 4, 2006.

      Janette K. Brimmer, James L. Erkel, Minnesota Center for Environmental Advocacy, St. Paul, MN, for appellant.
    George C. Hoff, Amanda K. Mor ken, Hoff, Barry & Kuderer, P.A., Eden Prairie, MN, for respondent City of St. Paul Park.
    Laurie J. Miller, Richard D. Snyder, Debra A. Schneider, Fredrickson & Byron, P.A., Minneapolis, MN, for respondents Nesvig, et al.
    Mike Hatch, Attorney General,- David P. Iverson, Assistant Attorney General, St. Paul, MN, for amicus curiae Minnesota Department of Natural Resources.
    Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and HALBROOKS, Judge.
   OPINION

SHUMAKER, Judge.

Respondent City of St. Paul Park, serving as the responsible governmental unit for purposes of environmental review, adopted an alternative urban area-wide review (AUAR) assessing the environmental impact of a proposed development of respondent R. Gordon Nesvig’s property. Appellant Minnesota Center for Environmental Advocacy (MCEA) filed a complaint contending that the final AUAR was inadequate. The district court granted respondents’ motion for summary judgment. MCEA appeals, challenging the scope and adequacy of' the assessment of the final AUAR. We affirm.

FACTS

The material facts are not in dispute. This litigation centers on the environmental review of a proposed development of a 667-acre parcel of land owned by respondent R. Gordon Nesvig. The property sits along the east bank of the Mississippi River in Washington County and is located within Grey Cloud Island Township and the City of St. Paul Park. The majority of the property consists of agricultural fields, old fields, and pastures. But woods, bluffs, oak savanna, and limited prairie remnants also exist, and the property includes islands, backwaters, and open water on the Mississippi River. The cliffs along the bluffs are unusual in Minnesota. There are seeps and springs along the bluffs. A bald eagle nests on the property, and two other eagle nests are within a mile of the property. Two endangered and one threatened species of mussels, along with many native species of plants, animals, and birds, are found on the property.

Part of the property is located within the Mississippi River Critical Area Corridor, permanently established in 1979 by executive order of the governor and designated as a “rural open space district.” Local government units are directed to protect the Critical Area’s resources, prevent and mitigate irreversible damage, and enhance its public value. According to the executive order, rural open-space districts “shall be used and developed to preserve their open, scenic and natural characteristics and ecological and economic functions.”

Part of the property is also located within the Mississippi National River and Recreation Area, a 72-mile corridor which is part of the National Park System. Throughout the development, the boundary of the Recreation Area is the same as the Critical Area. As part of the Recreation Area, National Park Service activities are carried out in the corridor with the cooperation of 25 local government units, including Grey Cloud Island Township and St. Paul Park, and several federal and state agencies.

In November 2002, Nesvig; developer D.R. Horton, Inc.; the township; and the city entered into an agreement to develop Nesvig’s property. The project was anticipated to begin in 2004 and to “be phased over the next 10-12 years.” In March 2003, the city and the township adopted resolutions providing for environmental review through an alternative urban area-wide review (AUAR), stipulated that the city would be the responsible governmental unit (RGU) for the review, and required that the AUAR assess three different development scenarios. A draft AUAR was completed in May 2003, made available for public review, and sent to several entities for review and comment, including federal and state agencies, local governmental units, and the Environmental Quality Board (EQB), the state entity responsible for ensuring the effectiveness of the environmental-review rules. Notice of the draft was also published in the EQB Monitor. A total of 20 different agencies, local units of government, nonprofit organizations (including MCEA), and individual citizens submitted comments. The RGU held open houses, workshops, and meetings to review and discuss the draft AUAR and comments to the draft.

In November 2003, a final AUAR was completed. The appendix to the final AUAR contained all of the comments submitted during the review process and was revised to incorporate the changes discussed at three joint workshops between the city and the township. The final AUAR was submitted to the EQB and all entities that commented on the draft. The Minnesota Department of Natural Resources (DNR) wrote a letter objecting to the final AUAR in March 2004, but the DNR withdrew its objection in May 2004 after additional meetings with the RGU. On May 17, 2004, the RGU adopted the final AUAR.

In June 2004, MCEA filed a complaint challenging the final AUAR. MCEA (1) alleged that the RGU improperly used an AUAR instead of an environmental-impact statement (EIS) to access the proposed development and that the AUAR inadequately assessed the environmental effects; (2) challenged the project settlement agreement between respondents and the township; and (3) claimed a violation of the Minnesota Environmental Rights Act, Minn.Stat. ch. 116B. A November 2004 stipulation and order dismissed most of the complaint, leaving only the issue of whether the RGU’s decision on the adequacy of the AUAR was arbitrary or capricious and not supported by substantial evidence or contrary to applicable law.

The parties submitted cross-motions for summary judgment on this issue. The district court denied MCEA’s motion, concluding that cumulative impacts within the AUAR-specified boundaries must be considered, but that cumulative impacts beyond the boundaries need not be considered. It also concluded that the AUAR is supported by substantial evidence and granted respondents’ motion. This appeal followed.

ISSUES

1. Did the AUAR process require the analysis of impacts on a geographical area larger than the project area selected by the RGU?

2. Was the final AUAR inadequate as a matter of law?

ANALYSIS

“Where there is potential for significant environmental effects resulting from any major governmental action, the action shall be preceded by a detailed [EIS] prepared by the [RGU].” Minn.Stat. § 116D.04, subd. 2a (2004). An environmental-impact statement (EIS) analyzes in part a proposed project’s “significant environmental impacts.” Id. To determine whether significant environmental impacts or “effects” exist, an RGU must consider four criteria, the most relevant to this matter being the “cumulative potential effects of related or anticipated future projects.” Minn. R. 4410.1700, subp. 7(B) (2005). A “cumulative impact” is the “impact on the environment that results from incremental effects of the project in addition to other past, present, and reasonably foreseeable future projects regardless of what person undertakes the other projects.” Minn. R. 4410.0200, subp. 11 (2005).

Minnesota statutes, however, “identify alternative forms of environmental review which will address the same issues and utilize similar procedures as an [EIS] in a more timely or more efficient manner to be utilized in lieu of an [EIS].” Minn.Stat. § 116D.04, subd. 4a (2004). An AUAR can substitute for an EIS. Minn. R. 4410.3600, subp. 1 (2005); Minn. R. 4410.3610 (2005). An AUAR’s content and format must be similar to an environmental assessment worksheet (EAW), which is a “brief document ... designed to rapidly assess the environmental effects which may be associated with a proposed project” that aids in determining whether an EIS is needed. Minn. R. 4410.3610, subp. 4; Minn. R. 4410.1000, subp. 1 (2005). An AUAR “must provide for a level of analysis comparable to that of an EIS for impacts typical of urban residential, commercial, warehousing, and light industrial development.” Minn. R. 4410.3610, subp. 4. If the RGU has adopted a comprehensive plan in compliance with specific rules, it has discretion to use an AUAR over an EIS. See Minn. R. 4410.3610, subp. 1 (providing that a “local unit of government may use the procedures” for an AUAR instead of an EIS if its comprehensive plan includes certain elements).

Under the AUAR process, the RGU first prepares a “draft environmental analysis document” that addresses the developmental scenarios established in the environmental-review rules. Minn. R. 4410.3610, subp. 5A. This draft is then distributed to the EQB and each of its members, the project proposer, federal agencies (including the Corps of Engineers, Environmental Protection Agency, and Fish and Wildlife Service), state agencies, a regional-development commission, all local governmental units within which the project will take place, and any other party who requests a copy. Id.; Minn. R. 4410.1500 (2005). The RGU is also required to publish notice of the draft in at least one newspaper of general circulation within the area of the project. Minn. R. 4410.1500. Reviewers have 30 days to submit written comments, and governmental reviewers are granted a 15-day extension upon request. Minn. R. 4410.3610, subp. 5B. The RGU “shall revise the environmental analysis document based on comments received during the comment period.” Minn. R. 4410.3610, subp. 5C. The RGU must include “a section specifically responding to each timely, substantive comment received that indicates in what way the comment has been addressed.” Id.

After these revisions are made, the RGU must distribute the new document “in the same manner as the draft document and also to any persons who commented on the draft document.” Minn. R. 4410.3610,subp. 5D. State agencies and the Metropolitan Council then have 10 days to file an objection to the revised document. Id. If no objection is made, the RGU must adopt the revised document at its next regularly scheduled meeting that is more than 15 days after distribution of the revised document. Minn. R. 4410.3610,subp. 5E. If an objection is filed, the RGU must consult with the objecting agency within five days and also advise the EQB about its proposed response to the objection. Minn. R. 4410.3610,subp. 5F. At the RGU’s request, the objecting agency, the EQB staff, and any other affected agency must meet with the RGU. Id. Within 30 days after the objection, the RGU must submit a written response that addresses each issue raised to the objecting agency and the EQB chair. Id. The RGU can address each issue by either revising the environmental-analysis document or its mitigation plan, or by explaining why it believes the issue is not relevant to the identification and mitigation of potentially significant environmental impacts. Id. Within five days after the RGU’s response, the objecting agency must advise the EQB chair of whether it accepts the response and withdraws its objection or continues to object. Minn. R. 4410.3610, subp. 5G. If the objection is continued, the EQB must place the matter on the agenda of its next scheduled meeting. Id. If the EQB finds the revised documents adequate, the RGU must adopt them. Minn. R. 4410.3610, subp. 5H.' If the EQB determines that they are conditionally adequate, it must specify the necessary revisions, and-the RGU must adopt the document with the directed revisions. Id. If the documents are inadequate, the RGU has 30 days to revise the documents and redistribute them for review under subparts 5D to 5H. Id. The RGU is also under a continuing obligation to update the AUAR and mitigation plan. See Minn. R. 4410.3610, subp. 7 (specifying scenarios under which the documents must be updated).

1. Necessity of Cumulative-Impact Analysis Beyond the AUAR-Specified Area

‘When ... the language of an administrative rule is clear and capable of understanding, interpretation of the rule presents a question of law reviewed de novo.” Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn.2002) (citation omitted). Summary judgment is proper when no genuine issue of material fact exists and when a determination of the applicable law will resolve the matter. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988).

MCEA’s first argument is geographic: that the AUAR process required the RGU to analyze cumulative impacts on a geographic area larger than the area for environmental review selected by the RGU. Respondents do not dispute the need for cumulative-impacts analysis under an AUAR, but contend that the RGU is entitled to select the study area and is required to analyze cumulative impacts only in that area.

Under the AUAR process, “[t]he RGU shall adopt an order for each review ... that specifies the boundaries of the geographic area within which the review will apply.” Minn. R. 4410.3610, subp. 3. The AUAR process can be used to “review anticipated ... developments . in a particular geographic area within its jurisdiction.” Minn. R. 4410.3610, subp 1. Furthermore, “determination of the extent and effect of [cumulative environmental impacts], and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S.Ct. 2718, 2732, 49 L.Ed.2d 576 (1976). Because the geographic boundary of the study area is left to the discretion of the RGU, a legal requirement that the RGU analyze cumulative impacts in an area beyond the proposed development is not supported by statute or rule.

To support its claim, MCEA relies primarily on a statement from the federal Council on Environmental Quality’s (CEQ) Considering Cumulative Effects Under the National Environmental Policy Act (Jan.1997): “When analyzing the contribution of this proposed action to cumulative effects, however, the geographic boundaries of the analysis almost always should be expanded.” MCEA argues that reliance on this statement is appropriate because the EQB’s own guidance for environmental review refers specifically to the CEQ’s guidance on cumulative impacts.

Appellate courts “defer to an agency’s interpretation of its own regulations.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 465 (Minn.2002) (citation omitted). The EQB provides guidance to RGUs in its Guide to Minnesota Environmental Review Rules (Apr.1998). In its discussion of cumulative impacts for an EIS, the EQB states that it “is currently studying cumulative ' impact issues and may ultimately propose changes in the rules or statutes .... In the meantime, the best source of guidance on cumulative impacts is the [CEQ’s] Considering Cumulative Effects under the National Environmental Policy Act.” But the EQB guide makes no reference to an expanded geographic requirement in its discussion of cumulative impacts for either an EIS or AUAR. In fact, the EQB guide provides that an AUAR’s “key feature is that its subject is a development scenario or several scenarios for an entire geographical area rather than a specific project.” An AUAR “is an excellent tool for review of cumulative impacts of multiple projects in a given area.” Coupled with the RGU’s discretion in selecting a geographical area for review, the AUAR process does not require the analysis of cumulative impacts beyond the selected area.

MCEA also cites several cases to support its position. It cites Trout Unlimited, Inc., v. Minn. Dep’t of Agric., 528 N.W.2d 903 (Minn.App.1995), review denied (Minn. Apr. 27, 1995), for the proposition that an RGU “must consider the impacts of many different irrigation and chemigation projects on the environment, regardless of their specific relationship to the project under consideration.” But Trout Unlimited is distinguishable. It held that the commissioner’s conclusion— that potential impacts from future projects could not be inferred from the proposed project — -was arbitrary because the “EAW itself stated that future stages of irrigation projects in the area were ‘planned or likely.’ ” Id. at 908. Here, the record shows no evidence that the RGU has knowledge of future projects in the area of the proposed development. Likewise, the remaining cases cited to support MCEA’s position interpret the national Environmental Protection Act and its regulations, and several are distinguished by the fact that the RGU did not analyze impacts from other known projects. See Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 994 (9th Cir.2004) (assessing direct cumulative effects “without regard to the other projects in the ... watershed”); Grand Canyon Trust v. FAA, 290 F.3d 339, 345 (C.A.D.C.2002) (concluding that the FAA analyzed only the incremental increase in noise pollution by a replacement airport, not the “total noise impact” on the area); Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 810 (9th Cir.1999) (ignoring cumulative impacts of “existing logging and other disturbances”); Fritiofson v. Alexander, 772 F.2d 1225, 1247 (5th Cir.1985) (noting that the environmental assessment ignored “other actions” that “may affect the same area” as the proposed project); Habitat Educ. Ctr. v. Bosworth, 363 F.Supp.2d 1070, 1077-78 (E.D.Wis.2005) (noting that the Forest Service ignored five nearby projects in setting the boundaries for an EIS and relying on CEQ guidance that an agency should consider the presence of and effect on species outside the project area). See also Kleppe, 427 U.S. at 410 n. 20, 96 S.Ct. at 2730 (stating that the NEPA “speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions”).

As the district court did, we also share MCEA’s concern about potential environmental impacts from the development of the property. But our decisions are controlled by what the law is, not what we think it should be. Policy decisions are the prerogative of the legislature. We also recognize the potential for abuse in setting the AUAR boundary, and our opinion is in no way meant to preclude claims that an RGU acted arbitrarily and capriciously in determining the geographic area for review. But MCEA does not argue on appeal that the RGU here acted in an arbitrary or capricious manner when it selected the area for review. And although several commentators to the draft AUAR, including MCEA, suggested that the RGU was misusing the AUAR process, this claim is not before us on appeal. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn.1982) (stating that issues not briefed on appeal are waived); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988) (stating that appellate courts generally will not review matters not argued and considered in the court below). Lastly, we note that the decision of an RGU to bypass an EIS and use the AUAR process is reviewable in a declaratory-judgment action. See Minn.Stat. § 116D.04, subd. 10 (2004) (providing 30 days to challenge a decision on the need for an EIS).

2. AUAR Assessment of “Cumulative Impacts”

MCEA argues that regardless of the boundary of the review area, the RGU’s adoption of the AUAR was inadequate under the law because the AUAR failed to “assessf ] the cumulative impacts from the Project and past, present and future projects, on the Mississippi Critical Area.” We review an agency decision to determine if it was “unsupported by substantial evidence in view of the entire record as submitted or was arbitrary or capricious.” Minn. Ctr. For Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn.2002). “Substantial evidence” is (1) .relevant evidence that a reasonable person might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; and (5) evidence considered in its entirety. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 668 (Minn.1984). A decision is “arbitrary or capricious” when

the agency relied on factors the legislature never intended it to consider, if it entirely failed to consider an important aspect of the problem, if it offered an explanation for the decision that runs counter to the evidence, or if the decision is so implausible that it could not be ascribed to a difference in view or the result of agency expertise.

Pope County Mothers v. Minn. Pollution Control Agency, 594 N.W.2d 233, 236 (Minn.App.1999) (citation omitted). If an agency engages in reasoned decision-making, we will affirm, even though we may have reached a different decision had we been the fact-finder. Cable Communications, 356 N.W.2d at 669. But when a “combination of danger signals ... suggest the agency has not taken a ‘hard look’ at the salient problems,” and the decision lacks “articulated standards and reflective findings,” we will intervene. Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977).

MCEA first points to the RGU’s response to the cumulative-impacts section of the AUAR. The AUAR requests that the RGU “[i]dentify any past, present or reasonably foreseeable future projects that may interact with the project described in this EAW in such a way as to cause cumulative impacts.” In response, the AUAR adopted by the RGU cites the EQB’s Recommended Content and Format Alternative Urban Areawide Review Documents (revised Oct. 2, 2000), a document that assists in the preparation of an AUAR, and states: “Cumulative Impacts. This item does not require a response for an AUAR since the entire AUAR process deals with cumulative impacts from related developments within the AUAR area.” MCEA claims that this response evades the need to consider cumulative impacts.

But the AUAR is clearly designed to address cumulative impacts. The working group that originally devised the AUAR process stated that an AUAR “provides an excellent tool for review of the cumulative impacts of multiple projects in a given area.” The EQB guidance for environmental review makes this same statement and also claims that “[w]hen cumulative impacts from concurrent or future projects are likely to be significant, review can often be better accomplished through the [AUAR] process or the related actions EIS.” Even the EQB’s Recommended Content and Format Alternative provides that “the entire AUAR process deals with cumulative impacts from related developments.” The AUAR’s failure to specifically address this question in the AUAR does not render the final AUAR inadequate.

MCEA also claims that the “selective impacts the AUAR did examine are those least damaging ... and that have no bearing ... to the Mississippi Critical Area” and that the AUAR makes “no list, or even mention, of past, present, or reasonably foreseeable future projects in or on the Mississippi Critical Area.” MCEA argues that the AUAR does not address habitat fragmentation and river-edge effects in the Mississippi corridor and the metropolitan region as a whole or impacts to mussel and large-bird species on the property site.

The record, however, shows that the AUAR considers several cumulative impacts. It addresses the impact of the development on “three Bald Eagle nests within 1 mile of the AUAR” and revises the development scenarios to move potential disturbances away from these nests. It also addresses three threatened mussel species “living in the Mississippi River in the vicinity of the AUAR area” and concludes that the three development scenarios would not create potential significant impacts. The AUAR responds to an inquiry into endangered or threatened species, rare plant communities, and other sensitive ecological resources, and identifies “27 known occurrences of rare species or natural communities within an approximate one-mile radius from the AUAR area.” Among other mitigating measures, the AUAR notes that existing habitat areas will remain unchanged, requires site-spe-eific plans to restore and improve native plant communities, proposes a “100-foot structure and road setback to the bluff-line” to protect ecologically sensitive resources, and relocates trails away from eagle nests.

Furthermore, the AUAR addresses the physical impacts to “any surface water” from “any residential or commercial development expected to physically impact any water resources.” It proposes restoration and repair of an old manure lagoon and related erosion, construction of two “outfall structures” above the Mississippi’s high-water mark as part of the storm-water management system, and implementation of on-site filtration for treated storm water. Addressing water-surface use on “any water body,” the AUAR describes the increased water-surface use resulting from the development scenarios and states that “[m]otorized boat access is not proposed.” The AUAR also discusses water quality, the effect of surface-water runoff on “receiving water bodies ..., including] major downstream water bodies,” and mitigation measures for both the entire AUAR area and a “Bay Area.”

MCEA criticizes the AUAR’s mitigation plan, alleging that there is limited discussion of the Mississippi Critical Area and mitigation measures that “simply chang[e] the law and protective designation.” An AUAR must identify and discuss measures to mitigate potential environmental impacts. Minn. R. 4410.3600, subp. ID. “Mitigation” means (1) avoiding impacts by not pursuing certain parts of a project; (2) minimizing impacts by limiting the project’s magnitude; (3) rectifying impacts through repair, rehabilitation, or restoration of the affected environment; (4) reducing or eliminating impacts over time through preservation and maintenance; (5) compensating for impacts by replacing or providing resources; or (6) reducing or avoiding impacts through pollution-prevention measures. Minn. R. 4410.0200, subp. 51 (2005). Mitigation measures must be “more than mere vague statements of good intentions.” Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 881 (Minn.App.1995) (quoting Audubon Soc’y v. Dailey, 977 F.2d 428, 435-36 (8th Cir.1992)), review denied (Minn. July 28, 1995).

MCEA points only to the discussion of the Mississippi Critical Area under the “Water-related Land -Use Management Districts” portion of the AUAR. It ignores the other parts of the AUAR discussed above that relate to the Mississippi River. It also ignores the entire mitigation plan contained in the AUAR, including extensive and specific mitigation measures concerning fish, wildlife, and ecologically sensitive areas; wetlands, the Mississippi River, and backwaters; surface-water runoff and wastewater; geological hazards and soil conditions; and “sensitive resources” with archeological, architectural, historical, and recreational value. For example, the mitigation plan mandates that the city and township “[rjequire a site-specific ... [pjlan to restore and improve native plant communities and to offset the impact of converting agricultural, deciduous forest and woodlands, and prairie remnant habitat.” The mitigation plan proposes “a 100-foot structure and road setback to the bluffline ... to protect ecologically sensitive resources such as the river, river bluffs, [and] shoreline.” Under the plan, the city and township will protect the majority of existing habitat areas from development to maintain the existing riparian habitat, wildlife corridor, and migratory bird corridor and will “[d]e-velop a tree preservation plan that will provide feasible and reasonable guidelines for mitigating impacts to desirable” tree species located outside of existing and proposed protection areas.

Relating to the Mississippi River, the mitigation plan directs the city and township to “[rjequire discharge from the storm water outfall structure ... to be directed to a wetland stilling basin to provide secondary removal of suspended sediment and nutrients prior to discharge to the river bay.” Storm water from another area of the property must be “directed to a 2-cell treatment area ... to capture and treat runoff from the proposed buildings and surrounding undisturbed land” and to provide removal of sediments and nutrients prior to entering the Mississippi River. To protect water quality, the city and township must “not permit new development to proceed if it exceeds the capacity of the waste supply system.” To control erosion, the city and township will “require temporary catch basins during grading activities on highly erodible soils,” require private developers to “submit detailed erosion and sediment control plans for review and approval to the city or township prior to project construction,” and apply for a permit from the Minnesota Pollution Control Agency that requires “the MCEA’s Best Management Practices be used to control erosion and that all erosion controls be inspected after each rainfall exceeding 0.1 inch of precipitation.”

Five government agencies, five local units of government, four nonprofit organizations, and six citizens submitted comments to the draft AUAR. The final AUAR contains detailed and sufficient responses to the substantive comments. For instance, several commentators complained that the AUAR underestimated the impacts on wildlife. The RGU admitted that some local decline in wildlife is expected from the development and that regional development pressures were causing total habitat to decline. But the RGU responded that “[preservation of riverine habitat, restoration of native vegetation communities, and increased setbacks along the bluffs are expected to mitigate adverse effects on wildlife.” Trails and other disturbances were moved further away from bald-eagle nests and “upland buffers extending to 100 feet landward [of] the bluff-line will help mitigate potential impacts on many migratory birds.” The final AUAR includes and responds to more than 80 separate comments.

We find it significant that the DNR, whose mission is in part to “work with citizens to conserve and manage the state’s natural resources ... and to provide for commercial uses of natural resources in a way that creates a sustainable quality of life,” withdrew its objection to the AUAR. In objecting, the DNR complained that the final AUAR and Mitigation Plan contained inaccurate or incomplete information relative to the identification and mitigation of potentially significant environmental impacts. The DNR felt it was important to inquire into the significant increase in building density, proposed changes in use, and the locations and sizes of the development within the Critical Area. Yet despite these concerns, the DNR withdrew its objection after “beneficial” meetings with the city, township, developer, and consultants. Importantly, the DNR noted that it “recognized that the level of project specific detail needed to fully evaluate the potential for significant impacts is not required by the AUAR process.” The DNR’s objection was the last item preventing the RGU from adopting the final AUAR. By withdrawing its objection, the DNR permitted the RGU to adopt the final AUAR.

Based on the analysis of cumulative impacts, creation of a mitigation plan, and consideration of submitted comments, the RGU’s adoption of the AUAR was supported by substantial evidence and was not arbitrary or capricious.

DECISION

The rules regarding the use of the AUAR do not require an RGU to assess cumulative impacts outside the area selected for environmental review. Here, the RGU’s adoption of the AUAR is supported by substantial evidence and is not arbitrary or capricious.

Affirmed.

LANSING, Judge

(dissenting).

I respectfully dissent. Three fundamental principles apply in this case. First, an urban areawide review (AUAR) must evaluate cumulative impacts caused by the project. Second, cumulative impacts, unlike direct impacts, are impacts outside the project area. Third, no evaluation of public responses or mitigation proposals can be adequate if a responsible governmental unit (RGU) does not properly evaluate cumulative impacts to determine what is necessary.

Although the alternative AUAR process provides for a more streamlined review of the environmental impacts of a development project than an environmental impact statement (EIS), nothing in the AUAR rules relieves an RGU of its obligation to engage in reasoned decision-making and to issue written findings in support of its determinations. See Minn. R. 4410.3610 (2005) (specifying process for AUAR); Reserve Mining Co. v. Minn. Pollution Control Agency, 364 N.W.2d 411, 414-15 (Minn.App.1985) (concluding that agency’s failure to provide written findings and reasons for its determination was arbitrary and capricious), review dismissed (Minn. June 10, 1985). Neither does the AUAR process eliminate the need to examine cumulative impacts outside the project area. To the contrary, an AUAR “must provide for a level of analysis comparable to that of an EIS for [environmental] impacts.” Minn. R. 4410.3610, subp. 4.

The district court concluded that “[t]here are no specific requirements that the AUAR consider cumulative impacts outside of the AUAR area.” But both the rules and the cases to which we look for interpretation of these rules state otherwise. The AUAR process requires the RGU, as an initial step, to “adopt an order for each review ... that specifies the boundaries of the geographic area within which the review will apply and specifies the anticipated nature, location, and intensity of [development] within those boundaries.” Id., subp. 3. This initial step need not be as comprehensive as the full scoping process of an EIS, but the RGU must define the geographic boundary of the AUAR in an independent order before the RGU may draft an AUAR. Envtl. Quality Bd., Guide to Minnesota Environmental Review Rules 15-16 (1998).

The depth of analysis required for the selection of the geographic boundary is clearly set forth in federal caselaw. Although the RGU has discretion to select the geographic boundary for analysis of cumulative impacts of the project, the selection must “represent a reasoned decision and cannot be arbitrary.” Habitat Educ. Ctr., Inc. v. Bosworth, 381 F.Supp.2d 842, 849 (E.D.Wis.2005) (quoting Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir.2002)) (concluding that agency’s geographic-boundary determination was arbitrary); see also Kleppe v. Sierra Club, 427 U.S. 390, 414, 96 S.Ct. 2718, 2732, 49 L.Ed.2d 576 (1976) (requiring deference to agency’s selection of scope of analysis). The agency’s decision must provide support for its selection and demonstrate that it considered the relevant factors. Native Ecosystems Council v. Dombeck, 304 F.3d 886, 902 (9th Cir.2002); Bosworth, 381 F.Supp.2d at 849. “The presence of species habitat outside the project area is ... a relevant consideration in determining the geographic scope of a cumulative impacts analysis.” Bosworth, 381 F.Supp.2d at 849; see also TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 864 (D.C.Cir.2006) (construing federal requirement to examine cumulative effects to mandate consideration of cumulative impacts outside project area, but within same geographic area); Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 958 (9th Cir.2003) (requiring consideration of cumulative impacts in selection of geographic boundary).

The record provides no order that sets forth the reasons for selecting the geographic boundary of the cumulative-impacts analysis. The AUAR itself refers to the geographic boundary of the project area as the geographic boundary of the cumulative-impacts review but, again, contains no discussion of the reasons for its decision to limit its analysis to the project area and no indication that the RGU considered cumulative impacts outside the project area.

The procedural failure to make an initial geographic-boundary determination that accounts for cumulative impacts outside the project area results in a legally deficient substantive consideration of these effects in the AUAR process. The limitation on the consideration of the appropriate geographic scope at the outset necessarily reduces the scope of analysis in the subsequent processes, and the overall substantive consideration becomes arbitrary. See Bosworth, 381 F.Supp.2d at 850 (observing that failure to explain reasons for selecting geographic boundary adversely affects decision-making process and renders determination arbitrary). The failure to consider the project’s impact outside the project area at any point in the determination defeats the ordinary deference that this court accords to agency decisions. See id. (stating that failure to discuss selection of area indicates agency did not employ reasoned decision-making); Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn.1977) (“[W]here there is a combination of danger signals which suggest the agency has not taken a hard look at the salient problems and has not genuinely engaged in reasoned decision making it is the duty of the court to intervene.” (quotation omitted)).

The majority recognizes “the potential for abuse in setting the AUAR boundary,” but interprets MCEA’s appeal to be limited solely to the adequacy of the final AUAR document. Whether the question is framed substantively or procedurally, the issue at the heart of the appeal remains the same: the failure to consider cumulative impacts outside the project area. The purpose of requiring a cumulative-impacts analysis is to “preclude the breaking down of projects into small component parts to avoid cumulative significance.” Colo. Wild v. U.S. Forest Serv., 435 F.3d 1204, 1221 (10th Cir.2006). The AUAR’s omission of the required cumulative-impacts analysis creates a significant risk of- serious environmental harm because the geographic area immediately surrounding the project area is designated as a critical area. The existence of the critical area not only highlights the potential for irreversible damage to important environmental resources, but also provides an alternative and readily definable geographic boundary for the AUAR.

Although a significant number of public comments were submitted throughout the AUAR process, the absence of an explicit decision on the geographic boundary of the AUAR “deprived the public of an opportunity to comment on the issue and thus assist in the decision-making process.” See Bosworth, 381 F.Supp.2d at 850 (expressing concern that procedural flaw undermines purpose of review process). The RGU cannot evade responsibility for a decision by failing to make it. The procedural irregularities are also evidenced by the evolving position of the Minnesota Department of Natural Resources (DNR). The DNR initially objected to the AUAR and later withdrew its objection. But the DNR renewed its objection in an amicus brief on appeal because of the AUAR’s failure to examine cumulative impacts outside the project area. In its brief, the DNR emphasizes the heavy ecological price of piecemeal development of discrete portions of land within the Mississippi River Corridor Critical Area without considering the environmental impacts on the entire critical area.

Requiring the RGU to consider cumulative impacts outside the.project area does not preclude development in the area. Rather, it ensures that the purposes of the Minnesota Environmental Policy Act are fulfilled by fostering informed decision-making and by avoiding incremental analysis that fails to assess adequately a project’s impact on the environment. Because the AUAR fails to comply with the requirements to analyze cumulative impacts outside the project area and is therefore inadequate, I would reverse the district court’s grant of summary judgment.

      . The CEQ is a federal agency charged with promulgating rules under the National Environmental Protection Act. 42 U.S.C. § 4342 (2000).

      . MCEA also asserts that the “EQB’s express reliance on, and citation to, the CEQ Guidance demonstrates EQB's intention to cast the cumulative effects analysis net much wider than a project's specific boundaries.” The EQB, however, has statutory authority to promulgate rules for environmental review, including, if it chooses, a rule to enhance or specifically define the geographical scope for review. The fact that it has not done so supports the argument that RGUs are entitled to use their discretion in selecting the area for review.

      . "[L]ooking to federal case law is appropriate and helpful” when the procedural protections of MEPA at issue are similar to the federal protections in NEPA. Minn. Ctr. for Environmental Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 468 n. 10 (Minn.2002).

      . The EAW is the form an RGU follows to create an AUAR. See Minn. R. 4410.3610, subp. 4 (providing that the "content and format [of an AUAR] must be similar to that of the EAW").

      . MCEA notes that the EQB revised its guidelines to recommend assessing the cumulative impacts outside the AUAR boundary. But the revisions MCEA cites were implemented in July 2004, after the RGU adopted the final AUAR.

      . See Minnesota Dep't of Natural Res., A Strategic Conservation Agenda 2003-2007 (Mar. 2005), available at http://files.dnr.state.mn.us /aboutdnr/reports/conservationagenda/full-doc.pdf (last visited Jan. 27, 2006).


source: Caselaw Access Project

author: TOUSSAINT, Chief Judge.

license: Public Domain

text:
    Frank Edward JOHNSON, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, et al., Respondents.
    No. A05-2498.
    Court of Appeals of Minnesota.
    April 4, 2006.
    See also 679 N.W.2d 378.

      Frank. Edward Johnson, Moose Lake, MN, pro se appellant.
    Brent D. Wartner, Associate Legal Counsel, St. Paul, MN, for respondents.
    Considered and decided by TOUSSAINT, Chief Judge; WRIGHT, Judge; and WORKE, Judge.
   OPINION

TOUSSAINT, Chief Judge.

This is an expedited appeal from an order denying appellant Frank Edward Johnson’s habeas petition challenging two decisions of respondents, officers and employees of the Department of Corrections (DOC), that extended appellant’s incarceration based on his refusal to make admissions as part of his mandated treatment. The district court concluded that neither decision violated appellant’s Fifth Amendment privilege. Because we conclude that respondents did not violate appellant’s Fifth Amendment privilege in sanctioning him with respect to the chemical-dependency treatment program but did violate his privilege with respect to the sex-offender treatment program, we affirm in part, reverse in part, and remand to respondents for recalculation of appellant’s supervised-release date.

FACTS

Appellant was sentenced in February 2003 to 58 months in prison for first-degree burglary and third-degree criminal sexual conduct. See State v. Johnson, 679 N.W.2d 378 (Minn.App.2004), review denied (Minn. Aug. 17, 2004). He filed his direct appeal on May 7, 2003. By then, appellant’s Program Review Team (PRT) in prison had recommended that he complete a chemical dependency treatment program, TRIAD, and a sex-offender treatment program (SOTP), while in prison. Appellant resisted participation in both programs, largely because he was appealing his conviction and did not want to admit his offenses during treatment. The DOC imposed sanctions of 90 additional days of incarceration for appellant’s refusal of the TRIAD program and 45 additional days for his refusal of SOTP.

After appellant’s chemical-dependency assessment, the prison staff recommended that he be required to enter and complete TRIAD at the prison. Appellant resisted entry into TRIAD because he did not feel he had a drug problem or needed inpatient treatment and because he was appealing his conviction. As a result, appellant was assigned 90 days of additional incarceration for this refusal of treatment, which was a disciplinary rule violation.

Similarly, after appellant’s interview with the SOTP team he was not accepted for admission because he expressed a lack of interest, indicating he was appealing his conviction and did not want to admit the offense. After a hearing, the hearing officer found there was “some evidence” to support a finding of guilty of a disciplinary violation. The officer also found that an “incident report of [a SOTP staff member] in addition to [appellant’s testimony, clearly establishes that [appellant] did not accept placement into the treatment unit.”

Appellant filed a petition for a writ of habeas corpus. The district court denied the petition, finding that the TRIAD program did not require appellant to answer incriminating questions and that the choice presented to him of participating in SOTP or delaying his supervised release did not rise to the level of compulsion under the Fifth Amendment. This appeal followed.

ISSUES

I. Did the disciplinary sanctions imposed by respondents violate appellant’s Fifth Amendment privilege against self-incrimination?

II. Did the hearing officer erroneously apply a “some evidence” standard of proof?

ANALYSIS

This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings if they are reasonably supported by the evidence. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17, 1998); State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn.App.1991). The court, however, reviews questions of law de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn.App.1993), review denied (Minn. Mar. 11, 1993).

I.

Appellant argues that respondents violated his Fifth Amendment privilege against self-incrimination by disciplining him for refusing to participate in treatment programs that would require him to admit his offense while he was appealing his conviction. We address first the Fifth Amendment claim as it relates to the TRIAD chemical-dependency program.

The district court’s finding that the TRIAD program did not require appellant to incriminate himself is amply supported by the record. James Kaul, the director of the program, submitted an affidavit stating that TRIAD did not mandate that an inmate discuss an offense currently on appeal, and that, if the offender refused to talk about such an offense, “staff accept that response and continue to treat the offender.” TRIAD, according to Kaul, does not terminate an offender for refusing to discuss his offense(s).

Given these facts, the TRIAD program did not compel appellant to admit the offenses he was appealing. In addition, appellant gave other reasons for refusing to participate in the TRIAD program. Thus, there is no factual basis for appellant’s Fifth Amendment argument as to the 90-day sanction for refusing to participate in the TRIAD program.

The facts are different as to the SOTP program, as the state concedes. A SOTP staff member testified that an offender is required to admit his offense and discuss its specifics before being admitted to treatment. The staff member also testified that a refusal to discuss the offense was considered a disciplinary violation.

The district court found that the choice presented to appellant to participate in treatment or face extension of prison time did not rise to the level of compulsion. See State ex rel. Morrow v. LaFleur, 590 N.W.2d 787, 792 (Minn.1999) (holding that inmate’s “choice between treatment and confinement for a larger portion of his sentence” did not rise to the level of compulsion).

The supreme court in Morrow held that a disciplinary sanction that delayed the inmate’s supervised release date by 90 days did not constitute “compulsion” for purposes of the Fifth Amendment privilege. Id. at 791-92. The court concluded “that the loss of an opportunity for an earlier supervised release date does not constitute a substantial penalty for purposes of the Fifth Amendment.” Id. at 793.

We conclude that Morrow’s holding does not reflect current Fifth Amendment law, as set forth in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). In McKune, a plurality (four justices) of the Court concluded that a mandated prison sex-offender treatment program that required the prisoner to admit his offense did not “compel” the prisoner’s admission within the meaning of the Fifth Amendment. Id. at 41-44, 122 S.Ct. at 2029-30. The plurality noted that the sanctions imposed on those who did not participate in treatment did not extend the prisoner’s term of incarceration or affect his eligibility for good-time credits or parole. Id. at 38, 122 S.Ct. at 2027. Justice O’Connor concurred, noting that a sanction involving longer incarceration would be a penalty “far greater than those [penalties] we have already held to constitute unconstitutional compulsion in the [civil] penalty cases.” Id. at 52, 122 S.Ct. at 2034-35.

As a number of federal court opinions have noted, Justice O’Connor’s concurrence, which advances the narrowest rationale in support of the result, must be treated as the holding in McKune. See Ainsworth v. Stanley, 317 F.3d 1, 4 (1st Cir.2002); Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir.2002);. Donhauser v. Goord, 314 F.Supp.2d 119, 126 (D.N.Y.2004). Although Justice O’Connor’s concurrence does not set out a standard for determining what is “compulsion” for Fifth Amendment purposes in the prison context, it does indicate that “longer incarceration” would easily meet this standard. 536 U.S. at 52, 122 S.Ct. at 2034.

The sanction imposed on appellant, like the penalty imposed in Morrow, extended the inmate’s incarceration. We believe that, under Justice O’Connor’s opinion in McKune, such a sanction constitutes “compulsion.”

The federal cases cited by the- state, although agreeing that Justice O’Connor’s concurrence is the holding of McKune, do not agree on what constitutes “longer incarceration.” Donhauser, the only case finding a Fifth Amendment violation, holds that the potential loss of good-time credits, which may increase the length of incarceration, meets Justice O’Connor’s test of “compulsion.” 314 F.Supp.2d at 127. But Ainsworth finds no “clear guideposts” in Justice O’Connor’s opinion, and therefore applies the First Circuit’s own prior test to find that a reduced opportunity for parole does not constitute “compulsion.” 317 F.3d at 5. Searcy holds that the loss of an opportunity to earn future good-time credits does not constitute compulsion. 299 F.3d at 1226-27.

These holdings may reflect the differences in calculating prison sentence durations and in determining eligibility for parole or other release in various jurisdictions. In Minnesota, the period of supervised release is “equal to the period of good time the inmate has earned.” Minn. Stat. § 244.05, subd. 1 (2004). The sentencing judge is directed to pronounce at sentencing the “amount of time the defendant will serve on supervised release,” assuming no disciplinary confinement time is added. Minn.Stat. § 244.101, subd. 2 (2004). The time to be served on supervised release may be altered “for in-prison disciplinary offenses.” State v. Schwartz, 628 N.W.2d 134, 139 (Minn.2001) (citation omitted).

The supreme court in Morrow held that “[r]educing the part of the ... sentence that is to be spent on supervised release is not a penalty” sufficient to constitute “compulsion.” 590 N.W.2d at 793. The court noted that an inmate does not have a right to a certain minimum duration of supervised release. Id. But the Supreme Court’s holding in McKune does not appear to turn on whether the release date extended by the government penalty is a matter of right. Justice O’Connor’s opinion, although it does not define the term “longer incarceration,” cites a case involving plea bargaining, which plainly involves sentence durations that are a matter for negotiation, not a matter of right. McKune, 536 U.S. at 52, 122 S.Ct. at 2034; see Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978) (holding that plea bargaining, although impacting the degree of punishment, is unlikely to drive a defendant “to false self-condemnation”). And the plurality opinion is careful to note that the prison sanction imposed did not “affect [the inmate’s] eligibility for good-time credits or parole.” McKune, 536 U.S. at 38, 122 S.Ct. at 2027. The sanction imposed here directly affected appellant’s eligibility for supervised release, the current term for “parole.”

We conclude that McKune effectively overrules the holding in Morrow that the extension of an inmate’s incarceration by delaying his supervised release date does not constitute “compulsion.” The Momw court offered other reasons for rejecting the inmate’s Fifth Amendment claim. Respondents do not offer those reasons as independent grounds for affirming in this case, but we have examined them and conclude they do not provide a basis for affirming.

Morrow notes that an inmate could be required to respond to “relevant official inquiries.” 590 N.W.2d at 794. The Supreme Court in McKune, however, did not hold that questions posed to an inmate about his criminal offense(s) as part of a treatment program are merely “relevant official inquiries.” Both the plurality opinion and Justice O’Connor’s concurrence appear to assume that, if the penalty imposed by prison officials rose to the level of “compulsion,” there would be a Fifth Amendment violation in posing such questions as a part of treatment.

Morrow also notes that an inmate subject to a mandated treatment program has a choice between fully participating in the program by admitting his offense, and facing disciplinary action. 590 N.W.2d at 792. But the fact that the inmate had a choice was not offered as an independent basis for finding no Fifth Amendment violation. Rather, the inmate’s choice was discussed only in relation to the penalty attached to that choice, and to the court’s determination that that penalty, “confinement for a larger portion of [the] sentence,” did not constitute compulsion. Id. Similarly, McKune acknowledged the inmate’s choice, while noting that “[t]he cost to [the inmate] of exercising his Fifth Amendment privilege” did not rise to the level of compulsion. 536 U.S. at 42, 122 S.Ct. at 2029. Therefore, we conclude that Morroiv does not require us to hold that, because appellant had a choice whether to fully participate in treatment, there is no Fifth Amendment violation, even if the sanction imposed on appellant for refusing treatment constitutes “compulsion.”

II.

Appellant also argues that the hearing officer used the “some evidence” standard of proof disapproved in Carrillo v. Fabian, 701 N.W.2d 763 (Minn.2005). Carrillo held that the DOC must use a preponderance-of-the evidence standard, rather than the “some evidence” standard, in disciplinary proceedings. Id. at 777.

This argument is directed only at the 45-day sanction for failure to enter SOTP. The hearing officer’s report in that case states that “there is some evidence to support a finding of guilty” of failing or refusing treatment. But the report goes on to state that the “incident report of [a SOTP staff member] in addition to [appellant’s] testimony, dearly establishes that [appellant] did not accept placement into the treatment unit.” (Emphasis added.) Thus, the hearing officer ultimately did not apply a “some evidence” standard of proof.

DECISION

The disciplinary sanction imposed for failing or refusing sex-offender treatment violated appellant’s Fifth Amendment privilege against self-incrimination. The sanction imposed for failing or refusing chemical-dependency treatment did not violate the privilege. The matter is remanded to the Department of Corrections for recalculation of appellant’s supervised release date.

Affirmed in part, reversed in part, and remanded.

      . The Eighth Circuit has held that the "better rule” is that the Fifth Amendment privilege against compelled self-incrimination continues while the conviction is being appealed. United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991); cf. Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn.App.1997) (holding there was no Fifth Amendment privilege when inmate had exhausted appeal of conviction). Respondents do not claim appellant’s privilege expired when he was convicted.


author: STONEBURNER, Judge.

text:
    In re ESTATE OF Mary Victorine Carpenter TORGERSEN a/k/a Mary V. Torgersen.
    No. A05-1429.
    Court of Appeals of Minnesota.
    April 11, 2006.

      Bruce W. Larson, Charles A. Beckjord, Law Office of Bruce W. Larson, Wayzata, MN, for appellant.
    William M. Hart, Damon L. Highly, Timothy W. Ridley, Meagher & Geer, P.L.L.P., Minneapolis, MN, for respondent.
    Considered and decided by WILLIS, Presiding Judge; SHUMAKER, Judge; and STONEBURNER, Judge.
   OPINION

STONEBURNER, Judge.

In this will contest, appellant argues that the district court clearly erred in determining that appellant did not meet his burden of proving that decedent’s November 2002 will was the result of respondent’s undue influence and .did not meet his burden of proving that decedent lacked testamentary capacity. Appellant also challenges denial of his request for attorney fees under Minn.Stat. § 524.3-720 (2004).

FACTS

Following her husband’s death in 1971 until 2001, decedent Mary Torgersen lived in Indiana near one of her four daughters, EmCele Masbaum. Appellant Ned Masb-aum is EmCele Masbaum’s husband and the nominated representative under a will executed by Torgersen in 1978.

The Masbaums provided significant non-financial assistance to Torgersen while Torgersen lived in Indiana. EmCele Masbaum provided transportation, assisted with shopping and cleaning, and managed Torgersen’s finances. Appellant, a forensic psychiatrist, arranged for Torgersen’s medical care and, by the mid-1990s, was Torgersen’s primary physician until Tor-gersen moved to Minnesota.

In 2001, EmCele Masbaum’s health problems prevented her from continuing to provide assistance to Torgersen. The Masbaums unilaterally decided that Tor-gersen would move to Minnesota to live with respondent David Groves and his wife, Andrea, who had previously invited Torgersen to live with them. Andrea Groves, one of Torgersen’s four daughters, is a certified psychiatric nurse employed full time at Hennepin County Medical Center. Respondent is her husband and is the nominated personal representative under a will executed by Torgersen in November 2002.

In May 2001, when Andrea Groves arrived for one of her regular visits with Torgersen in Indiana, the Masbaums told Andrea Groves and Torgersen that Tor-gersen was moving to Minnesota the next day. The Masbaums had already purchased airline tickets for Torgersen’s move. Andrea Groves and Torgersen worked into the night packing for the move and left for Minnesota the next day. A month later, the Masbaums brought Torgersen’s remaining belongings to Minnesota. This is the last time that appellant saw Torgersen.

EmCele Masbaum last saw Torgersen when she visited Torgersen in Minnesota in September 2001 while the Groveses were away on a vacation. In a letter to Torgersen, EmCele Masbaum described this as a “beautiful visit” and noted that Torgersen’s “thinking [was] so good.”

After EmCele Masbaum’s September 2001' visit with Torgersen, the Masbaums wanted Torgersen to return to Indiana. Andrea Groves did not want Torgersen to return to Indiana. The relationship between Torgersen and the Masbaums; which apparently had been very good, began to deteriorate. The relationship between the Groveses and the Masbaums, which had never been good, also deteriorated.

The Masbaums claim that the Groveses kept Torgersen a virtual hostage in the Groveses’ home and influenced her to disinherit EmCele Masbaum and Torgersen’s two daughters who live in Florida. Tor-gersen became convinced that the Masb-aums had “evicted” her from her home in Indiana in the middle of the night and had not delivered all of her personal property from Indiana. EmCele Masbaum, who retained control over Torgersen’s finances when Torgersen moved to Minnesota, initially refused to release Torgersen’s funds to pay for dentures that Andrea Groves helped Torgersen procure. The Groveses then assisted Torgersen in moving her funds to Minnesota. EmCele Masbaum, who held a power of attorney for Torger-sen, retained control over a USAA financial account. In a struggle over control of this account, Torgersen became convinced that the Masbaums had taken funds from the account. Attorney David Porter assisted Torgersen and respondent in the preparation of a revocation of the power of attorney held by EmCele Masbaum and a document giving Torgersen’s power of attorney to respondent. The revocation was sent to USAA, but appellant sent a letter to USAA stating that Torgersen was incompetent to revoke the power of attorney. This prompted respondent and Tor-gersen, with respondent’s assistance, to file professional complaints against appellant in Minnesota. After being informed that Minnesota did not have jurisdiction over appellant’s professional license, Tor-gersen filed a professional complaint against appellant in Indiana. Respondent also assisted Torgersen in bringing a pro se lawsuit in federal court against appellant, which was later withdrawn. Respondent testified that he wrote “a lot of complaints” for Torgersen, who “knew how to state her complaints pretty, well.”

Appellant wrote a three-page letter to Torgersen on March 15, 2002, reminding her of all of the assistance EmCele Masb-aum had given her over the years, demanding that she stop criticizing EmCele Masbaum to Andrea Groves, and accusing Torgersen of being ungrateful and self absorbed. The letter expresses the Masb-aums’ conclusion that “[EmCele] nepd[s] to rescue you, again,” and concludes, “For your peace of mind, you need to come for the visit. This may be your last chance. If you don’t and this is how you and those people want it; so be it. We will say Good-bye.” Later, the Masbaums refused to give Torgersen’s relatives the telephone number for the Groveses which prevented Torgersen from contacting her sister before her sister’s death, causing Torgersen to become more upset with the Masb-aums.

In June 2002, Torgersen executed a will that specifically excluded EmCele Masb-aum. In August 2002, Torgersen revised the will to exclude all of her daughters except Andrea Groves. In November 2002, Torgersen revised her will at her attorney’s suggestion to add the USAA account as a probate asset.

Torgersen died in April 2003 at the age of 93. Respondent petitioned for probate of the November 2002 will. Appellant objected and petitioned for probate of Tor-gersen’s 1978 will that nominated him personal representative and devised the estate equally to the four daughters. Appellant asserted that Torgersen lacked testamentary capacity when the November 2002 will was executed and was unduly influenced by the Groveses in making that will.

After a five-day trial, a referee concluded that appellant had failed to meet his burden of proving undue influence or lack of testamentary capacity and ordered probate of the November 2002 will. The district court affirmed the referee’s findings and order and denied appellant’s request for attorney fees under Minn.Stat. § 524.3-720 (2004). This appeal followed.

ISSUES

1. Was the district court’s finding that appellant failed to establish that decedent was unduly influenced in the making of her November 2002 will clearly erroneous?

2. Was the district court’s finding that appellant failed to establish that decedent lacked testamentary capacity when she made the November 2002 will clearly erroneous?

3. Did the district err by concluding that, as a matter of law, appellant is not entitled to attorney fees under § Minn.Stat. 524.3-720 (2004)?

ANALYSIS

I. Standard of review

The contestants of a will have the burden of proving lack of testamentary capacity and undue influence. Minn.Stat. § 524.3-407 (2004). On appeal from a probate court’s decision after a trial without a jury, findings of fact will be disturbed only if clearly erroneous. Minn. R. Civ. P. 52.01; In re Estate of Olsen, 357 N.W.2d 407, 411 (Minn.App.1984), review denied (Minn. Feb. 27, 1985). A finding is clearly erroneous if this court “is left with the definite and firm conviction that a mistake has been committed.” In re Estate of Balafas, 293 Minn. 94, 96, 198 N.W.2d 260, 261 (1972) (quotation omitted).

Generally this court reviews a denial of attorney fees under an abuse-of-discretion standard. See In re Estate of Van Den Boom, 590 N.W.2d 350, 354 (Minn.App.1999) (stating that “this court will not reverse a district court’s denial of attorney fees unless there has been an abuse of discretion”), review denied (Minn. May 26, 1999). In this case, however, the district court’s denial of appellant’s request for attorney fees was based on the district court’s application of a statute to the facts. The construction and application of a statute is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn.1998).

II. Undue Influence

To invalidate a will for undue influence, a contestant must show that another person exercised influence at the time the testator executed the will to the degree that the will reflects the other person’s intent instead of the testator’s intent. In re Estate of Reay, 249 Minn. 123, 126, 81 N.W.2d 277, 280 (1957). Conjecture and suspicion are insufficient to prove undue influence. Id,.; In re Estate of Novotny, 385 N.W.2d 841, 843 (Minn.App.1986) (holding will contestant’s burden of establishing undue influence was not met merely by relying on presumption of undue influence). The evidence must show that the influence exerted “was so dominant and controlling of the testator’s mind that, in making the will, he ceased to act of his own free volition and became a mere puppet of the wielder of that influence.” In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn.1981) (quotation omitted).

Courts consider several factors when determining whether a testator was unduly influenced, including (1) an opportunity to exercise influence; (2) the existence of a confidential relationship between the testator and the person claimed to have influenced the testator; (3) active participation by the alleged influencer in preparing the will; (4) an unexpected disinheritance or an unreasonable disposition; (5) the singularity of will provisions; and (6) inducement of the testator to make the will. In re Estate of Peterson, 283 Minn. 446, 449, 168 N.W.2d 502, 504 (1969); In re Estate of Wilson, 223 Minn. 409, 413, 27 N.W.2d 429, 432 (1947).

The record supports the district court’s findings that the Groveses had a confidential relationship with Torgersen and the opportunity to exercise influence. Appellant speculates that the Groveses selected Torgersen’s attorney to assist them in a plan to disinherit EmCele Masbaum. The evidence, however, demonstrates that Torgersen’s initial contact with attorney David Porter occurred in March 2002 in connection with the dispute over control of the USAA account. Porter was selected from among the names of several attorneys provided by the Groveses’ daughter, who is also an attorney. Porter testified that he met with Torgersen and, at her request, prepared documents to revoke the power of attorney held by EmCele Masb-aum and grant power of attorney to respondent.

Porter testified that he first met with Torgersen at the Groveses’ home in June 2002 to discuss a will, and he met with Torgersen alone. He described Torgersen as “just as alert and aware as anyone that I’ve ever known. She was just a joy to meet and to talk with.” The June 2002 will is the first will that expressly excluded EmCele Masbaum. Porter testified that Torgersen discussed with him why she wanted to exclude EmCele Masbaum from her will.

When Torgersen amended her will in August 2002 to additionally exclude two daughters who live in Florida, Torgersen and Porter again met alone. At trial, Porter could not recall the precise reason Torgersen gave him for wanting to exclude these daughters, and thought it had something to do with a daughter’s disability, but Porter found the reason to be rational and Torgersen to be competent.

Porter testified that Torgersen decided to amend the will in November 2002 at his suggestion that a specific provision concerning the USAA account be added to the will. Porter testified that this was the only change to the will made in November 2002. He testified that he reviewed the terms of each will with Torgersen and had her confirm her agreement with the terms. Porter testified that he understands the standard for legal competence in Minnesota and that “at the execution of each of these wills, I believed [Torgersen] to be competent.” Porter testified that he is very aware of the issue of undue influence and never sensed any undue influence being exerted by the Groveses on Torgersen.

Stephan and Elizabeth Damian witnessed Torgersen’s November 2002 will. The Daminans are friend of the Groveses. Elizabeth Damian is a psychiatric nurse who worked with Andrea Groves at the Hennepin County Medical Center. Stephan and Elizabeth Damian met Torger-sen soon after she came to live with the Groveses, and each had talked with Tor-gersen on occasions when the Groveses were not present. They testified that they never sensed any undue influence by the Groveses over Torgersen and did not sense any lack of competence on Torger-sen’s part when they interacted socially with her or when they witnessed the signing of the will.

Although appellant accuses respondent of making it his “full time job” to exercise influence over Torgersen and asserts that the Groveses’ “angry fits” and “domination]” of Torgersen induced Torgersen into excluding her other daughters from her will, there is significant evidence in the record that Torgersen’s attitude toward the Masbaums resulted from Torgersen’s perception of the Masbaums’ actions toward and communications with Torgersen. The evidence demonstrates that the Groveses shared Torgersen’s perceptions, but there is no evidence that these attitudes originated with the Groveses or were motivated by a plan to have Torgersen disinherit EmCele Masbaum. Appellant asserts that it was “abnormal” for Torger-sen to disinherit three of her daughters, but the evidence in the record of Torger-sen’s feelings about the Masbaums demonstrates a basis for Torgersen’s decision regarding the Masbaums. And there is evidence that Torgersen believed that an inheritance would not benefit her daughters in Florida. Based on our careful review of the entire record, we are unable to conclude that the district court’s finding that appellant failed to meet the burden of proving undue influence is clearly erroneous.

III. Testamentary Capacity

Testamentary capacity exists if the testator knows “the nature, situation, and extent of [her] property and the claims of others on [her] bounty ... and [she] must be able to hold these things in [her] mind long enough to form a rational judgment concerning them.” In re Estate of Healy, 243 Minn. 383, 386, 68 N.W.2d 401, 403 (1955). Factors to be considered in determining whether a testator possesses testamentary capacity include (1) the reasonableness of the property disposition; (2) the testator’s conduct within a reasonable time before and after executing the will; (8) a prior adjudication of the testator’s mental capacity; and (4) expert testimony about the testator’s physical and mental condition. In re Estate of Anderson, 384 N.W.2d 518, 520 (Minn.App.1986).

Regarding the reasonableness of the property disposition, as discussed above, evidence of the nature of the relationships between Torgersen and the Masbaums, and evidence of Torgersen’s understanding of the effect an inheritance would have on benefits received by her daughters who live in Florida, provides a context for Torgersen’s devise of her property that is not unreasonable from her perspective.

Concerning conduct before and after execution of the will, appellant argues that Torgersen’s conduct in the months following the November 2002 will shows that she lacked testamentary capacity. He refers to a December 2, 2002 conservatorship hearing in which Torgersen appeared to be “very confused” and documents signed by Torgersen requesting that the Masbaums be prosecuted for trespass if they attended her funeral. Porter testified that Torger-sen’s appearance at the conservatorship hearing was dissimilar to how she appeared when he saw her on other occasions and that, in his opinion, Torgersen was competent when she executed her June, August, and November 2002 wills.

Regarding expert testimony, appellant relies on his own diagnosis and the diagnosis of “pseudodementia” by a psychologist in March 2003. But Dr. Kiefer, Torger-sen’s treating physician in Minnesota, testified that Torgersen spoke for herself during her visits with him and did not appear to be influenced by Andrea Groves even when Groves was present during a doctor visit. His office notes of Torger-sen’s visits in August 2002 state that she was “coherent,” “alert,” and “oriented.” Notes of an October 2002 visit state that Torgersen was “lucid.” Dr. Kiefer wrote a letter three days after the November 2002 will was executed stating that “Mrs. Tor-gersen is capable of making rational decisions but is not capable of handling her finances and other such things. She definitely needs somebody to supervise her affairs, and she certainly is capable of naming an appropriate person for this capacity.” Dr. Kiefer testified that a note by an emergency-room physician dated December 26, 2002, states: “The patient is very alert, very oriented, has intact memory, knows her medications very well, knows where she took them last, knows when she took them last.” At trial, when Dr. Kiefer was given the legal definition of testamentary capacity, he opined that Tor-gersen had capacity to execute her wills.

In March 2003, Torgersen underwent a neuropsychological evaluation at Park Ni-collet Clinic performed by licensed psychologist Michael J. Furhman, Ph.D., a board-certified clinical neuropsycholgist. Dr. Furhman’s letter-report dated April 1, 2003, demonstrates that he was aware of the controversy between the Groveses and the Masbaums and their differing views about who was exploiting Torgersen. The report notes that he was hampered in receiving a full medical history by Torger-sen’s request that information not be exchanged with the Masbaums.

Despite finding that Torgersen’s cognitive abilities were impaired, which Dr. Furhman attributed one-half to organic factors and the other half as being “tantamount to pseudodementia,” Dr. Furhman concluded that Torgersen “does not show the level of cognitive impairment that ordinarily militates for legal intervention (e.g., conservatorship), assuming that informal sources of support and supervision are available and suitable to meet her needs.” Dr. Furhman’s report also stated that Tor-gersen “should not act unilaterally in matters of complexity or consequence.”

We have previously noted that “[l]ess mental capacity is required to make a will than to conduct regular business affairs.” In re Estate of Prigge, 352 N.W.2d 443, 444-45 (Minn.App.1984) (citing Congdon, 309 N.W.2d at 267); see also In re Estate of Lange, 398 N.W.2d 569, 572 (Minn.App.1986) (stating that a decedent’s “inability to negotiate a farm rental contract is not determinative of her testamentary capacity”). And even a person under a conservatorship may have sufficient capacity to execute a will. Congdon, 309 N.W.2d at 267.

Appellant asserts that Dr. Kiefer “did not testify that he had expertise, training or experience in determining testamentary capacity” and asserts that his testimony was more credible because he is a forensic psychiatrist, and “determining competency is exactly what he does.” Credibility determinations, however, especially when experts are involved, are "within the discretion of the factfinder. See In re Joelson, 385 N.W.2d 810, 811 (Minn.1986) (“Where the findings of fact rest almost entirely on expert opinion testimony, the [district court’s] evaluation of credibility is of particular significance.”). Significantly, appellant last saw Torgersen in June 2001, approximately 17 months prior to execution of the November 2002 will. At the time Torgersen was under his care, appellant had not rendered any opinion that her mental capacity was diminished. Dr. Kiefer regularly examined Torgersen during the last two years of her life, before and after the execution of the November 2002 will. Based on the evidence in the record, we cannot conclude that the district court’s credibility findings are clearly erroneous. Because there is evidence in the record supporting the finding that appellant failed to meet the burden of proving that Torger-sen lacked testamentary capacity to execute the November 2002 will, the finding is not clearly erroneous.

IV. Attorney Fees

The district court denied appellant’s request for attorney fees based on its determination that appellant is not the personal representative of Torgersen’s estate.

Minn.Stat. § 524.3-720 (2004) provides:

Any personal representative or person nominated as personal representative who defends or prosecutes any proceeding in good faith, whether successful or not, or any interested person who successfully opposes the allowance of a will, is entitled to receive from the estate necessary expenses and disbursements including reasonable attorneys’ fees incurred.

This provision allows not only personal representatives to recover attorney fees, but also specifically allows “nominated” personal representatives to recover, whether or not the will in which they are nominated is admitted to probate. By including “nominated” personal representatives as well as personal representatives, the statute contemplates persons who have been nominated as personal representatives in wills that have not been admitted to probate prosecuting or defending will contests and recovering the expenses of that litigation, so long as they act in good faith. See In re Estate of Evenson, 505 N.W.2d 90, 92 (Minn.App.1993) (deciding that an unsuccessful personal representative defending or prosecuting an action in good faith may recover attorney fees and expenses because “[r]ecovery of costs and attorney fees in will contests must not depend upon whether the will is found to be valid after litigation”).

The Uniform Probate Code’s commentary to the section that became Minn. Stat. § 524.3-720 points out that as a fiduciary for the estate’s successors, a person named as personal representative in a will that has not yet been probated is an interested person who may contest a will. See Unif. Probate Code § 3-720 cmt. (amended 1993), 8 U.L.A. 184 (1998). The comment notes that this observation applies “to the case where the named executor of one instrument seeks to contest the probate of another instrument.” Id. Even if a will is challenged before it is admitted to probate, a nominated personal representative has a duty to defend a seemingly valid will in a contest and to collect attorney fees incurred in that effort. See In re Estate of Killen, 188 Ariz. 569, 937 P.2d 1375, 1380-81 (1996) (holding that a nominated personal representative who unsuccessfully defended a will would be entitled to attorney fees unless probate court found he acted in bad faith). In this case, appellant defended a seemingly valid 1978 will against what he perceived to be an invalid subsequent will.

The public policy underlying this statute “recognize[s] that an estate as an entity is benefited when genuine controversies as to the validity or construction of a will are litigated and finally determined.” In re Estate of Flaherty, 484 N.W.2d 515, 518 (N.D.1992). The statute allows a nominated personal representative, as a fiduciary acting on behalf of the estate, to, in good faith, pursue appropriate legal proceedings without having to risk personal financial loss by underwriting the proceeding’s expenses. Id.; see also In re Estate of Healy, 247 Minn. 205, 209, 76 N.W.2d 677, 680 (1956) (stating that a personal representative is under a duty to ensure that the estate’s assets are not diverted from the course the testator prescribes). We conclude that the district court erred in determining that, as a matter of law, appellant was not entitled to attorney fees under the statute.

Whether a person challenging a will is acting in good faith is a question of fact. See Evenson, 505 N.W.2d at 91 (reviewing a district court’s finding of good faith under the clearly erroneous standard); see also In re Estate of Herbert, 91 Hawai’i 107, 979 P.2d 1133, 1135 (1999) (stating that the existence of good faith under this section is a fact question for a trial court to consider); In re Estate of Olson, 479 N.W.2d 610, 614 (Iowa Ct.App.1991) (same). In this case, the district court did not reach the issue of good faith or reasonableness of the fees claimed. Therefore, we reverse the denial of attorney fees requested by appellant and remand to the district court for a determination of whether appellant acted in good faith and, if so, for a determination of the reasonableness of the fees requested.

DECISION

Because the evidence is sufficient to support the district court’s determination that appellant did not meet the burden of proving undue influence or lack of testamentary capacity, we affirm those determinations and the order admitting the November 2002 will to probate. Because the district court erroneously concluded that appellant was not entitled to attorney fees under Minn.Stat. § 524.3-720 (2004), we reverse the denial of appellant’s request for attorney fees and remand for a determination of whether appellant acted in good faith and, if so, the reasonableness of the fees claimed.

Affirmed in part, reversed in part, and remanded.

      . The Groveses had turned off the ringer to Torgersen’s telephone. Appellant asserts that this action is evidence of Torgersen’s virtual hostage position in their household. Andrea Groves testified that she turned off the ringer at Torgersen’s request due to EmCele Masb-aum’s numerous telephone calls. She testified that Torgersen knew how to turn the ringer on and off. Respondent testified that Torgersen used her telephone “all the time” until a day or two before she died.

      . Andrea Groves testified that Torgersen removed her other two daughters from her will after visiting them in Florida and learning that an inheritance could disqualify them from public-assistance benefits.

      . The conservatorship action was dismissed by Porter because he determined that the evidence did not support the petition.

      . Respondent testified that he drafted this document at Torgersen’s request, noting that Torgersen had barred some of her husband’s friends from his funeral for perceived slights.

      . Torgersen frequently commented about the disintegration of her relationship with the Masbaums during her doctor visits. Appellant asserts that because Torgersen's accusations and paranoia about the Masbaums was unfounded, these complaints undermine the doctor's testimony that Torgersen was lucid. But no authority supports the proposition that a decedent’s mistaken belief about the motives of her children is evidence of, or establishes, lack of testamentary capacity.