Legislating Underground Space Use: Minnesota's Mined Underground Space Development Act Susan Nelson and Walter H. Rockenstein II Introduction costs in outlying areas, where develop• remedy would mean that court cases n May 23, 1985, Governor Rudy ment is traditionally less expensive. The might be needed to establish the city's Perpich of Minnesota performed smdy's legal analysis indicated that some authority to develop mined underground 0 an historic act by signing the Min• institutional barriers to mined under• space- an expensive and time- nesota Mined Underground Space De• ground space development existed. How• consum• ing approach with uncertain velopment Act into law. The law is ever, many potential issues were already results. And the prospect of such a court thought to be the first of its kind in the covered in state law because of Minne• test could discourage potential United States and, perhaps, the world. sota's extensive mining industry and ac• developers. Regular readers of Underground Space companying mining rules and regula• Consequently, the Minneapolis City are aware that the subsurface of Minne• tions. (see "The City of Minneapolis's Council directed SUBSPACE ASSOCI• apolis has been the subject of much re• Authority To Develop Mined Under• ATES to prepare enabling legislation that search in recent years. The city's substan• ground Space: A Case Study of the De• would remedy the legal problems iden• tial potential for mined underground velopment of Legislative Policy in Min• tified in the SUBSPACE smdy, for intro• space has been recognized for several nesota," Underground Space 9:2-3). duction in the 1985 Minnesota Legisla• years, and was quantified in 1983 (see While the legal issues were important, tive Session. This initial bill became the "Planning the Development of Under• the consensus was that they could be ad• act that Governor Perpich signed in May ground Space," Underground Space dressed through enabling legislation that 1985. 7:2,86-103). While those findings cre• would modify existing statues to explic• The Minnesota Mined Underground ated considerable interest among city of• itly include mined underground space de• Space Development Act enables cities to ficials, several questions remained unan• velopment. Failure to seek a legislative develop mined underground space for in• swered. Were subsurface development dustrial and commercial purposes by au- and use economic? Were there substan• tial instirutional or legal barriers to its development? In 1984-5, a smdy of the legal and economic feasibility of mined underground space development was performed by SUBSPACE ASSOCI• ATES, an interdisciplinary Minneapolis consulting group, for the city of Minne• apolis to address these issues (see Under• ground Space 9:2-3,143-47). The SUBSPACE smdy found that the cost of developing mined underground space in the Minneapolis downtown area is extremely competitive with surface de• velopment, and is even competitive with Susan Nelson is a planner and member of sub• space Associates, Minneapolis. She currently serves as Executive Director of the American Underground-Space Association. Walter H. Rockenstein II is a partner with the Minneapolis law firm of Faegre & Benson. He specializes in real estate development, land use Minnesota Governor Rudy Perpich (seated) signs the Minnesota Mined Underground Space planning, and environmental law. From 1974 Development Act into law. Standing, left to right: Melva Radke, lobbyist for the city of Min• through 1983, Mr. Rockenstein was a member neapolis; State Senator Larry Pogemiller, chief Senate author of the bill; Susan Nelson and of the Minneapolis City Council. He is also a Walter Rockenstein of the SUBSPACE consulting group; and State Representative Sydney Pauley, member of Subspace Associates. chief House author of the bill. Underg round Spare, Vol. 9, pp. 289-292, 1985. 0362-0565/ 85 $3.00 + .00 Primed in [he U .S.A. All rights reserved. 289 Copyright © 1986 Pergamon Journals Ltd. thorizing them to use in subsurface areas Second, a significant anti-urban bias ex• long interest in geology. Rep. Pauley had those development and redevelopment isted in the 1985 session of the Minnesota also demonstrated considerable interest powers they now exercise on the surface. Legislature, primarily as a function of re• in mined underground space by attend• The key powers authorized by the act apportionment. Reapportionment re• ing all sessions of the Subspace '83 con• include: flected a nationwide trend in which the ference. Senator Larry Pogemiller, a population-and, therefore, the political member of the Senate Tax Committee ( 1) The power to undertake mined un• power-is shifting to the suburban and and a two-term Democrat from Minne• derground space projects; rural areas. Tactically, a Minneapolis-only apolis, agreed to be the chief author in (2) The power to eminent domain to ac• bill might suffer an early defeat. the Senate. quire suitable subsurface areas; There were several reasons for drafting Next, the city sought legislators with (3) The power to bond; a bill that would affect only the seven• valuable expertise in underground space ( 4) The power to use tax increment fi• county metropolitan region of Minne• as co-authors. Many of the senior mem• nancing; sota. The primary reason was that the bers of each house of the legislature were ( 5) The power to provide public facili• geologic structure that underlies Minne• familiar with the concepts and potential ties; apolis also underlies most of the metro• of underground space. Senate Majority (6) The power to use industrial revenue politan region. A regional bill would Leader Roger Moe had attended the bonds; have facilitated the process of describing 1980 Rockstore Conference in Stock• (7) The power to enter into contracts. the affected geologic strata in the legis• holm, Sweden. House Minority Leader lation-an early concern of the bill's Fred Norton had been an active member The act specifically authorizes cities to drafters. Also, some supporters of the bill of the University of Minnesota's Under• use their comprehensive planning, zon• argued that the most significant devel• ground Space Center Advisory Board for ing, and other land use controls to protect opment to occur in the state in the fore• several years, and had been Speaker of subsurface areas designed as suitable for seeable future will be in the metropolitan the House in a previous session. Both mined underground space by both public region because of the area's healthy econ• men agreed to co-author the legislation and private entities. The act also contains omy and the declining agricultural and in their respective houses. unique provisions to protect the unde• mining economies in the rest of the state. Also asked to author the bill in the veloped subsurface resource from dam• But the arguments for statewide leg• House were Rep. Todd Otis, a four-term age due to haphazard drilling. islation were the most persuasive. First, Democrat from Minneapolis who has although geologic formations vary, specialized in energy policy and conser• mined underground space development vation; Rep. David Bishop, a two-term Early Decisions appears possible in most of Minnesota. Republican from Rochester, Minnesota While some cities may not have the need (in the southeastern part of the state); and Areas Affected by Legislation to develop large contiguous areas of Rep. Don Valento, a four-term Repub• A major strategic decision was whether mined space, they may want to develop lican from suburban St. Paul, who is a to introduce legislation that affected Min• smaller areas to meet unique objectives civil engineer and chairman of the Local neapolis only, the seven-county metro• or for energy conservation reasons. A and Urban Affairs Committee, which politan region, or the state as a whole. state-wide bill would assure all cities in would hear the bill. Senate Minority There were arguments for and against the state this opportunity without their Leader Glenn Taylor, from south-central each position. having to return to the legislature to ask Minnesota, was also asked to be an author Traditionally, a bill presenting a new for special premission. Second, since sup• in the Senate. All of these individuals concept such as development of subsur• port for the issue in the legislature was agreed and contributed to the eventual face space has a greater chance of passage not confined to metropolitan-area legis• passage of the act. lators, city officials concluded that, tacti• if it is introduced as a local bill. But in this case a Minneapolis-only bill would cally, it would be possible to pass a state• Supporters Identified have had two strikes against it from the wide bill. The risk was that mining start. First, although the city had funded interests might see a threat in the bill and It is a well-known fact that a piece of the research that provided the impetus move to block it. Since the city was pre• legislation is easier to defeat than to pass. for the bill, city policymakers did not pared to work with mining interests if Passage requires the cooperation and sup• have the resources to support a Minne• objections arose, it appeared that a state• port of all involved parties, while defeat apolis-only bill. Passage of the Minnesota wide bill could succeed. requires only one obstacle-one com• Mined Underground Space Develop• mittee, one house, or the governor in ment Act, while enthusiastically endorsed The Act's Authors opposition. Thus, an early task for the and supported by many city officials, wits The next early strategic decision con• bill's proponents was to identify and con• not a high priority in the city's legislative cerned authors for the act. The first con• solidate support for the Mined Space Act program. City Council members viewed cern was with choosing the chief author both within and outside the legislature.