F. The Preliminary Hearing

F. The Preliminary Hearing

When the engineer files the engineer’s preliminary survey report, the auditor or the watershed district secretary notifies the drainage authority and obtains an "order" for hearing which sets the hearing not later than 30 days after the date of the order.⁶⁴⁹ A sample Order Setting Hearing on Preliminary Survey Report is found in Template D.

1. Notice

Notice of the time and place of the preliminary hearing must be given by mail to the petitioners, to the owners of all property within the watershed likely to be assessed (this information is taken from the engineer’s preliminary survey report), and to political subdivisions likely to be affected.⁶⁵⁰ It is recommended, but not required, that the notice be published at least one time as a legal notice in a legal newspaper serving the area of the proposed project. The auditor or secretary should also send a copy of the notice of hearing to the Director of the Division of Ecological and Water Resources of the Department of Natural Resources (“DNR”) though, again, the statute does not so require.

2. Preliminary Hearing Procedures

At the hearing itself, the drainage authority must examine the petition and determine if it meets the legal requirements for the type of proposed drainage project.⁶⁵¹ If the legal requirements are not met, then the preliminary hearing must be adjourned until a specified date by which the petitioners must resubmit the petition.⁶⁵² The petitioners may unanimously amend the petition and may obtain signatures of additional property owners before resubmitting the petition to the drainage authority.⁶⁵³ If the petition is not resubmitted by the specified date or the amended petition does not meet the legal requirements, the proceedings must be dismissed.⁶⁵⁴

If the petition meets the mandatory legal requirements, then after convening and opening remarks by the chairperson of the drainage authority, the floor should be turned over to the petitioners’ representative to present information regarding the petition.⁶⁵⁵ The petitioners, as well as the drainage authority, should be familiar with the engineer’s preliminary report and with the DNR Commissioner’s preliminary advisory report. The petitioners’ representative outlines the problems sought to be solved by the petitioners, describing the petitioners’ proposal to remedy them, and discusses the procedures involved.

During the preliminary hearing, the engineer will, with the use of maps and profiles, explain what is proposed, discuss the evaluation of the environmental, land use, and multipurpose water management criteria, describe the investigation of potential use of external sources of funding and technical assistance, show whose land the proposed project will cross, tell whether tile or open ditch is recommended, delineate the watershed, identify the land likely to be assessed, and give the estimated costs of construction.⁶⁵⁶

At the conclusion of the drainage project engineer’s presentation, the chairperson must have the DNR Commissioner’s preliminary advisory report publicly read and included in the record of proceedings if one was filed.⁶⁵⁷

Next, the chairperson should open the meeting for questions and/or comments by interested persons present.⁶⁵⁸ Speakers should be asked to identify themselves and be required to state the nature of their interest, such as the property they own that is affected by the proposed drainage project. Hearings should be electronically recorded, or if an appeal from an order is likely, recorded verbatim by a court reporter. Costs of having a court reporter present are chargeable to the system or petitioners. The auditor or secretary to the drainage authority should take careful minutes of the comments made.

After everyone has had at least one opportunity to speak, the chairperson should end the public comment portion of the agenda and should open the matter up for discussion by the drainage authority board. During board discussion, the chairperson should entertain a motion to accomplish one of three things:

1. If there are unanswered questions which will require more work of the engineer or other investigation, entertain a motion to adjourn the meeting to another date certain and direct the engineer and other necessary staff of the drainage authority to conduct the necessary investigations. Adjourning the meeting to a date certain avoids having to send out notices again. However, if the notices are not numerous, it might be desirable to send them out anyway. Although it is not required, a notice of reconvening of the hearing should also be published as a legal notice in the local newspaper.
   
2. Entertain a motion to take the matter under advisement without further testimony. This is the desired course of action if the drainage authority needs more time to think or desires to consult with legal counsel and/or the engineer. Taking the matter under advisement has the advantage of allowing the drainage authority and legal counsel sufficient time to prepare a proposed findings and order. The findings must be adopted at an open meeting of the drainage authority, but they can be adopted without further notice. This method seems unsatisfactory in some respects in that the participants of the meeting leave the meeting not knowing what has happened and are generally suspicious of influences that the drainage authority members may encounter outside of the meeting; or
   
3. Entertain a motion to dismiss the petition or motion to order the engineer to proceed with the preparations of the engineer’s final design survey in accordance with the requirements as discussed in Paragraph G and Paragraph H below. If such a motion is forthcoming, the motion should state with particularity the reasons for the motion. At this point, legal counsel can be helpful in assisting the drainage authority to formulate the motion in a manner which conforms to Minn. Stat. § 103E.261, subds. 4 or 5 (2015).
   

FOOTNOTES

⁶⁴⁹ Minn. Stat. § 103E.261, subd. 1 (2015).
⁶⁵⁰ Minn. Stat. § 103E.261, subd. 1 (2015).
⁶⁵¹ See Minn. Stat. § 103E.261, subd. 3(a) (2015).
⁶⁵² Minn. Stat. § 103E.261, subd. 3(b) (2015).
⁶⁵³ Minn. Stat. § 103E.261, subd. 3(b) (2015).
⁶⁵⁴ Minn. Stat. § 103E.261, subd. 3(c) (2015).
⁶⁵⁵ See Minn. Stat. § 103E.261, subd. 2 (2015).
⁶⁵⁶ See Minn. Stat. § 103E.261, subd. 2 (2015) (“The engineer shall attend the preliminary hearing and provide necessary information.”).
⁶⁵⁷ Minn. Stat. § 103E.261, subd. 2 (2015).
⁶⁵⁸ Minn. Stat. § 103E.261, subd. 2 (2015).