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Show 414 MINNESOTA Having thus sustained the act's constitutionality, the court went on to place a major limitation on the application of the statute. In order to justify criminal prosecution, it must be shown that the use by the public, whether "-past, present, or reasonably likely in the future- has been detrimentally affected by the change.37 In other words, a permit is not required in public waters unless public uses are in some way adversely affected. The court found that nothing in the record indicated that the defendant's acts had in fact in any way inteferred with the enjoyment of the water by public, but that, on the con- trary, navigation was actually improved. Not only are water permits revocable at the will of the commis- sioner (see sec. 3.4, infra), but they may also be awarded "subject to such conditions" as the commissioner "may find advisable or neces- sary in the public interest." 38 In practical effect, no guideline at all is provided for the exercise of this discretion, since administrative officials are expected to act in the public interest in any event. The general guidelines specified in the statute for granting or denying an application for a permit were discussed in section 3.1, supra. It is not known what types of conditions are customarily inserted in Minnesota water permits, other than the rather obvious specifica- tions such as the amount of water to be diverted, type of use, place of use, and rate of diversion. Nor does there appear to be any official indication of established criteria which may be the basis for rejecting applications outright. One study categorically declares that water permits are never issued if the water is to be used on nonriparian land. Indeed, it is suggested that the statute itself forbids such use,39 although there is nothing in the statute which purports to give ripar- ians such a preferred position, and the policy of the act certainly is not to perpetuate unused riparian privileges. Another writer, however, has said that a few Minnesota permits have in fact been issued to nonriparians for temporary sand and gravel washing, provided, of course, that the applicants have obtained access rights over the riparian land.40 He also suggests that permits customarily declare that the permittees have no right to interfere with established riparian uses, and that permits occasionally prohibit the permittee from lowering the stream level below a certain mini- mum level, particularly where smaller streams are involved. It seems fair to conclude that water permits under the Minnesota statute are, at best, unsubstantial property rights. It should be noted that the statute contains no provision for use preferences among competing applicants. Nor is there any provision that priority in time of filing gives any sort of preference over later applicants. Nor does the statute indicate that in times of scarcity any particular uses are to be preferred over others. The act gives a per- mittee no security in his use of the water over permits awarded at a later time. There is no provision purporting to define the rights of a permittee against existing riparian users. In ;fact, the State supreme court as stated that the statute "is not designed to protect private « Id. s« Sec. 105.41. See also sees. 105.44(9) and 105.46. 39 Upper Mississippi River Comprehensive Basin Study, att. No. 4: Minnesota, pp. 0-314, 0-324. 40 H. Ellis, Some Current and Proposed Water-Bights Legislation in the Eastern States, 41 Iowa L. Rev. 237, 240-41 (1956). |