The fight between wildlife supporters and farmers over use of land has come to Clear Lake, southwest of New Ulm.

The state Department of Natural Resources (DNR) is trying to force a rural New Ulm man to seal a drainage tile near Clear Lake, claiming the tile has lowered the lake level without a permit.

That lowered lake level has lessened the productivity of the lake and vicinity for waterfowl nesting, brood rearing and feeding, the DNR says.

THE FARMER, Lester Hillesheim, Rt.2, New Ulm, says the lake was excessively high due to blockage of the natural outlet and his title was necessary to allow him to farm his land. He says the DNR is trying to take his land without due process of law.

His attorney, James Malecki, said in Brown County District Court this week that the natural outlet at the north end of Clear Lake had been blocked in 1973 by an unknown person to protect land between the outlet and the Big Cottonwood River from flooding.

Malecki said the level of Clear Lake rose considerably above the ordinary high water level as a result, flooding Hillesheim’s land. Because of this, Hillesheim installed a tile to clear his land.

THE DNR got into it almost two years ago when complaints came in that Hillesheim’s tile was discharging Clear Lake water. A DNR survey in April 1974 found the runout elevation at the north end of Clear Lake to be 977.7, the elevation of the Hillesheim tile to be 975.6.

That summer the Commissioner of Natural Resources determined the natural original high water level for Clear Lake, without giving notice of the hearing to interested land owners or giving them an opportunity to be heard. The DNR said in court this was the procedure set by state law.

Aug. 19, 1974 the DNR sent Hillesheim a letter ordering him to remove his illegal tile by Oct. 1, 1974, and restore the area to its original condition.

Hillesheim went to attorney Don Alsop who wrote the DNR, asking for more information on the Aug. 19 communication.

NOTHING MORE was heard until the DNR filed a complaint in Brown County district court, asking for enforcement of the Aug. 19 order.

Hillesheim responded to the DNR court suit by saying the Aug. 19,1974 order was unlawful, that the 1973 law under which the DNR was proceeding was unconstitutional and was a taking of his land without due process of law.

He claimed the DNR was trying to establish a lake level for Clear Lake which was unreasonably and excessively high and which would result in the flooding of land owned by Hillesheim and his lakeshore neighbors.

HIS ATTORNEY said in court this week that the tile in question is more than 1,000 feet from Clear Lake meander lines established by a U. S. government survey, so the DNR has no jurisdiction over it.

The DNR claims the tile goes into the bed of a “bay” of Clear Lake, that the area was open water and mud flats before being drained.

Hillesheim’s attorney said the largest portion of the “bay” had been meadow and hayland until 1973. He said Hillesheim, his father and grandfather had attempted to farm the land now labeled “bay”and have paid taxes on it.

He said Hillesheim’s tile did not affect Clear Lake since there is a ridge between the lake and the “bay” which is above the high water mark.

A DISMISSAL of the complaint or else a court order returning the matter to the Commissioner of Natural Resources for a full and complete hearing was sought by Hillesheim.

The DNR attorney, William Peterson, asked the judge to order the lake restored to its condition prior to Hillesheim’s tile. He said since Hillesheim hadn’t appealed the Aug. 19, 1974 order within 30 days as prescribed by state law he was precluded from objecting now to the high water mark set by the DNR.

He said even if the matter does go to trial the DNR wants the tile blocked until the matter is settled.

Judge Noah Rosenbloom declined to order the sealing of the tile. Instead he suggested the DNR give Hillesheim a hearing on the DNR’s fixing of the high water mark for Clear Lake.

After some discussion DNR attorney William Peterson said such a hearing could be arranged in short order.He said after court that the hearing would be in Brown County. Further court proceedings are postponed until after that DNR hearing.

New Ulm Daily Journal

Jan. 4, 1976