IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Thomas Douville, remainder interest, ) and Nettie Douville, life estate; Estate of ) Howard Hughes and Doreen Hughes, ) c/o H. Frank Hughes, P.R.; Jeffrey ) Hughes; Stanley Hughes and Lois Hughes; ) Albert D. Johnson and Vernon L. Johnson; ) Gordon E. Kollack and Roy Kollack; ) Kathleen Kollack; Roy Morris; William J. ) Newell and Donna C. Newell; Ralph ) Stegman and Jacqueline Stegman; Perry A. ) Svenson and Susan J. Svenson; William ) Symington and Lillian Symington, ) individually and as trustees of Garnet E. ) Symington Trust; Vernon Symington and ) Phyllis Symington; Walter Symington and ) Sharon Symington; Randall Wagner and ) Marion Wagner; Irene Weiss; and ) Larry R. Trenbeath, Trustee of the ) Allen Dale Trenbeath Trust, ) Appellants, ) vs. ) Pembina County Water Resource District, <BLOCKQUOT | Supreme Court No. 990307 District Court Civ. No. 98-C-36 |
APPEAL FROM JUDGMENT DATED AUGUST 12, 1999, OF
PEMBINA COUNTY DISTRICT COURT, NORTH DAKOTA,
HONORABLE M. RICHARD GEIGER, PRESIDING
BRIEF OF APPELLANTS
| Duane R. Breitling | |||||||
| Attorney for Appellants | |||||||
| ND ID #02749 | |||||||
| OHNSTAD TWICHELL, P.C. | |||||||
| 15 Broadway, STE 206 | |||||||
| Fargo, ND 58102-4907 | |||||||
| TEL (701) 280-5801 | |||||||
| FAX (701) 280-5803 | |||||||
TABLE OF CONTENTS
Page
TABLE OF CASES, STATUTES, AND OTHER AUTHORITIES iii
STATEMENT OF THE ISSUES vi
STATEMENT OF THE CASE 1
A.
Procedural History. 1B. Substantive Facts. 3
LAW AND ARGUMENT 9
A. Standard of Review Is De Novo Review of the PCWRD's Decision. 9
B. The PCWRD Misinterpreted and Misapplied the Law in Ordering Removal of These Dikes. 10
1. This application of the statutes regulating diking was incorrect. 10
a. The PCWRD determined that diverting water rendered the dikes illegal 10
b. Had the dikes been built under the present version of the statutes, the order of removal would be justifiable. 11
c. The present version of these statutes is not the version that controls. 13
2. The plain meaning of the statute which controls is that permits were not required for these dikes. 13
3. Even if resort to extrinsic aids is warranted, reversal of the PCWRD's order is mandated. 17
a. Subsequent enactments shed light on the legislature's intent.
17b. Legislative history does not warrant departure from this rule of statutory interpretation. 18
(1) The legislative history of the inclusion of "dikes" is inconclusive. 18
Page
(2) The legislative history of the inclusion of "diverting" is similarly unhelpful. 19
c. The claims of deference to agency interpretation do not warrant rejection of the plain meaning of the statute. 20
C. The Doctrine of Prescriptive Easement Mandates Reversal. 25
CONCLUSION 27
AFFIDAVIT OF SERVICE BY MAIL 28
TABLE OF CASES, STATUTES, AND OTHERAUTHORITIES
Page
CASES
Anderson v. Richland County Water Resource Bd.,
506 N.W.2d 362 (N.D. 1993) 9, 19
City of Dickinson v. Thress, 290 N.W. 653 (N.D. 1940) 17
Fennema v. Menninga, 19 N.W.2d 689 (Iowa 1995) 26
In re Persons, 334 N.W.2d 471 (N.D. 1983) 13, 22-24
Johnson v. Wells County Water Resource Bd.,
410 N.W.2d 525 (N.D. 1987) 17
Kelsch v. Miller, 15 N.W.2d 433 (N.D. 1944) 21
Lapp v. Lapp, 293 N.W.2d 121 (N.D. 1980) 11
Larson v. Wells County Water Resource Bd., 385 N.W.2d 480 (N.D. 1986) 10, 19
Little v. Tracy, 497 N.W.2d 700 (N.D. 1993) 16
MedCenter One, Inc. v. North Dakota State
Bd. of Pharmacy, 1997 N.D. 54, ¶ 17,
561 N.W.2d 634 (N.D. 1997) 20
Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc.,
531 N.W.2d 289 (N.D. 1995) 10
Messer v. State Water Commission, 332 N.W.2d 66 (N.D. 1983) 24
Nagel v. Emmons County Water Resource Dist.,
474 N.W.2d 46 (N.D. 1991) 25-27
North Dakota State Water Comm'n v. Cavalier County
Water Resource Dist., 332 N.W.2d 254 (N.D. 1983) 13, 24
Raboin v. North Dakota Workers Comp. Bureau,
1997 ND 221, ¶ 17, 571 N.W.2d 833, 837 (N.D. 1997) 16
Rynestad v. Clemetson, 133 N.W.2d 559 (N.D. 1965) 26
Page
Shiek v. N.D. Workers Comp. Bureau, 1998 N.D. 139, ¶ 16,
582 N.W.2d 639 (N.D. 1998) 20, 21
Sorlien v. North Dakota Workmen's Comp. Bureau,
84 N.W.2d 575 (N.D. 1957) 21
State v. Stockwell, 134 N.W. 767 (N.D. 1911) 17
STATUTES
N.D. Cent. Code § 28-01-04 26
N.D. Cent. Code § 47-05-01 26
N.D. Cent. Code § 47-05-12 25
N.D. Cent. Code § 47-06-02 25, 26
N.D. Cent. Code § 47-07-07 25
N.D. Cent. Code § 61-01-22 23
N.D. Cent. Code § 61-02-20 22
N.D. Cent. Code § 61-16-11 (1969) 15
N.D. Cent. Code § 61-16-15 13, 15, 17, 18, 22, 25
N.D. Cent. Code § 61-16.1-38 12, 13, 17
N.D. Cent. Code § 61-16.1-53 1, 11, 13
OTHER AUTHORITIES
1935 N.D. Laws ch. 228 § 9 20
1967 N.D. Laws ch. 474 § 4 14
1979 N.D. Laws ch. 642 § 1 14, 17, 18
1981 N.D. Laws ch. 632 § 1 17, 19
Page
Hearings on H.B. 1274 before the N.D. House
Natural Resources Comm., 46th Leg. (1979) 19
Hearings on H.B. 1274 before the N.D. Senate
Natural Resources Comm., 46th Leg. (1979) 18
House Bill 1077. 20
House Bill 1274 18, 19
N.D. Admin. Code § 89-02-01-05 23, 24
N.D. Const. art. I, § 16 27
N.D. Const. art. I, § 18 13
Black's Law Dictionary, 475 (6th ed. 1990) 16
STATEMENT OF THE ISSUES
I.
Did the Pembina County Water Resource District Board of Managers misinterpret the laws relating to the removal of unauthorized dikes, and thus arbitrarily, capriciously, and unreasonably order the removal of dikes on land owned by the appellants?
II.
Did the Pembina County Water Resource District Board of Managers misapply the law of prescriptive easement so that its order for the removal of dikes on land owned by the appellants was arbitrary, capricious, and unreasonable?
STATEMENT OF THE CASE
A. Procedural History.
On November 21, 1996, complaints were filed with the Pembina County Water Resource District (hereinafter "PCWRD") alleging the existence of illegal and unauthorized dikes near the town of Neche, North Dakota. These dikes were alleged to exist on the lands of at least 28 landowners in this area. On May 28, 1997, the PCWRD Board of Managers made a preliminary determination that illegal dikes existed and ordered their removal. App. at 8-78. The landowners requested hearings on these complaints pursuant to section 61-16.1-53 of the North Dakota Century Code. App. at 79. The complaints were consolidated and hearings held on October 29, 30, and 31, 1997. The complainants, by and through counsel, were allowed a full opportunity to present witnesses and evidence, and to conduct examinations and cross-examinations at these hearings. Thereafter, on February 10, 1998, the PCWRD Board of Managers issued 17 separate orders for the removal of the dikes on the landowners who bring the present appeal (hereinafter "landowners"). App. at 82-145.
On March 6, 1998, the landowners appealed the decision of the PCWRD Board of Managers to the District Court of Pembina County, North Dakota. App. at 146. On March 26, 1998, the complainants sought to intervene in the District Court appeal and also sought to require the landowners to post a supersedeas bond in the amount of at least $2,000,000 pending appeal. App. at 149. On April 7, 1998, the District Court entered its orders granting the permissive intervention (over the objection of the landowners) and denying the request that the landowners post a $2,000,000 bond. App. at 153.
The parties submitted briefs to the District Court, and the landowners submitted an additional affidavit. App. at 160. The District Court also heard oral arguments from the parties on August 12, 1998. App. at 163. On October 12, 1998, the District Court entered its Memoranda Decision and Order Affirming Decision of Board/Order for Additional Briefs. App. at 162.
As a result of the District Court's order, the parties made a Joint Request for Remand to the PCWRD Board of Managers for the taking of additional evidence. App. at 174. This request was granted and the District Court remanded this matter to the PCWRD Board on October 12, 1998. App. at 162-173. An additional hearing before the PCWRD Board of Managers was then held on January 13, 1999. App. at 176. On January 19, 1999, the PCWRD issued its Findings and Conclusions on Remand. App. at 177. Pursuant to this decision, the dikes were still ordered to be removed. App. at 179.
The landowners appealed this second decision of the PCWRD to the District Court on January 21, 1999. App. at 180. The appeal was again taken to the District Court of Pembina County, North Dakota. App. at 180. The District Court heard additional oral arguments on April 29, 1999. App. at 182-183. On June 8, 1999, the District Court entered its Findings of Fact, Conclusions of Law, and Order for Judgment. App. at 182-190. On the same day, the District Court also entered its Memoranda Decision Supplementing Findings of Fact and Conclusions of Law. App. at 191.
On August 12, 1999, a Judgment was entered by the District Court affirming the decisions of the PCWRD Board of Managers (pursuant to the earlier entered orders of the District Court on January 19, 1999, and June 8, 1999). App. at 196. A Notice of Entry of Judgment was served on August 13, 1999. App. at 198.
On October 8, 1999, the landowners filed a Notice of Appeal to this Court. App. at 200. Prior to that time, however, the interveners had made a motion to the District Court requesting that the landowners be required to post a supersedeas bond for the taking of this appeal. App. at 151. On October 15, 1999, the District Court entered its Memoranda Decision and Order Denying Supersedeas Bond. App. at 204. Accordingly, all matters before the trial court have been disposed of, and this case is now ripe for resolution by this Court.
B. Substantive Facts.
This case involves dikes built in the late 1960s and early 1970s along the Pembina River near Neche, North Dakota. On November 25, 1996, several people (the majority of whom were allowed to intervene in this action) filed written complaints alleging the existence of illegal and unauthorized diking by various individuals owning land surrounding Neche, North Dakota. Transcript I at pp. 7-8, ll. 15-25 & 1.(1) These complaints were lodged with the PCWRD Board of Managers, who investigated them on November 26, 1996, and May 2, 1997. Id. at p. 8, ll. 2-6. As a result, the PCWRD Board issued orders of removal of the dikes against all of the landowners. App. at 8-78. After evidentiary hearings, the PCWRD issued formal orders against the following landowners concerning their dikes:
Landowner(s) | Property on Which Dike Located: |
1.Thomas Douville and Nettie Douville | W½NE¼ of Section 32, Township 164, Range 53 |
| 2. Frank Hughes, Personal Representative of the Estate of Howard Hughes and Doreen Hughes | W½NE¼ of Section 35, Township 164, Range 54 |
| 3. Jeffrey Hughes | W½NE¼ of Section 35, Township 164, Range 54 |
| 4. Stanley Hughes and Lois Hughes | N½SE¼ of Section 31, Township 164, Range 53 |
| 5. Albert D. Johnson and Vernon L. Johnson | N½N½N½ of Section 36, Township 164, Range 54 |
| 6. Gordon E. Kollack and Roy Kollack | 60 acres in NW¼ of Section 32, Township 164, Range 53 |
| 7. Kathleen Kollack | N½NW¼, SE¼NW¼, N½NE¼, SE¼NE¼, and SW¼NE¼, all in Section 31, Township 164, Range 54 |
| 8. Roy Morris | N½SE¼ and SW¼NE¼ of Section 31, Township 164, Range 53 |
| 9. William J. Newell and Donna C. Newell | NE¼, E½NW¼, and NW¼NW¼ of Section 3, Township 163, Range 54 |
| 10. Ralph Stegman and Jacqueline Stegman | SW¼NW¼ of Section 3, Township 163, Range 54 |
| 11. Perry A. Svenson and Susan J. Svenson | E½SE¼ of Section 32, Township 164, Range 53 |
| 12. William Symington and Lillian Symington, individually, and as Trustees of the Garnet E. Symington Trust | E½NW¼ of Section 4, Township 163, Range 54 |
| 13. Vernon Symington and Phyllis Symington | NW¼ of Section 35, Township 164, Range 54 |
| 14. Walter Symington and Sharon Symington | Lots 12, 14, 29, 21, 19, 20, 18, and 30 in the N½ of Section 36, Township 164, Range 54 |
| 15. Randall Wagner and Marion Wagner | SW¼ of Section 35, Township 164, Range 54 |
| 16. Irene Weiss | Part of the NW¼ of Section 32, Township 164, Range 53 |
| 17. Larry Trenbeath, as Trustee of the Allan Dale Trenbeath Trust | W½SE¼ of Section 32, Township 164, Range 53 |
App. at 81-145.
It is undisputed that when all these dikes were constructed, no permits were obtained. Id. (¶¶ 10 of all the orders so find, a finding not challenged in this appeal). The PCWRD Board of Managers also found that with the following exceptions, all the dikes were built prior to 1979:
Landowner(s) | Work Done After 1979: |
1.Stanley Hughes and Lois Hughes | "Repair work was done in 1995." |
| 2. Gordon E. Kollack and Roy Kollack | "The dike . . . was reinforced but not raised in 1995." |
| 3. Roy Morris | "In 1995 the dike was repaired because the dike had fallen into the river." |
| 4. Perry A. Svenson and Susan J. Svenson | "Repair work has been done to the dike, but with the exception of a 40 foot section not raised. The 40 foot section was raised 6 inches in 1996."(2) |
| 5. Randall Wagner and Marion Wagner | "In 1986 the dike was moved further away from the river and an oxbow was straightened. The dike was not raised after the original construction." |
| 6. Larry Trenbeath | "The dike has been repaired but with the exception of a 40 foot section not raised. The 40 foot section was raised 6 inches in 1996." |
Id. (¶¶ 9 of the individual orders contain the findings about the dates of dike construction). Almost universally, these dikes were built from 1969 to 1974. Id. (¶¶ 3 of the individual orders contain this finding).
The PCWRD Board of Managers also found that a large number of these dikes, including the following, were built partly with the use of machinery and equipment owned and loaned by Pembina County:
Landowner(s) | Language of Order: |
1.Frank Hughes, Personal Representative of the Estate of Howard Hughes, and Doreen Hughes | "The dike was built in 1969 using in part Pembina County equipment." |
| 2. Jeffrey Hughes | "Pembina County equipment was used in part to construct the dike." |
| 3. Ralph Stegman and Jacqueline Stegman | "It was rebuilt in 1969 in part with Pembina County equipment." |
| 4. Vernon Symington and Phyllis Symington | "Pembina County equipment was used in part to construct this dike." |
| 5. Randall Wagner and Marion Wagner | "Pembina County equipment was used in part to construct the original dike in 1969." |
Id. (¶¶ 9 of the individual orders contain these findings).
The PCWRD Board of Managers also found that these dikes, and all of them, generally parallel the Pembina River, which flows from west to east. Id. (¶¶ 1 and 2 of the individual orders contain these findings). The PCWRD Board also found that each one of these dikes was capable of "retaining, obstructing or diverting more than 12½ acre-feet (15418.52 cubic meters) of water." Id. (¶¶ 8 of the individual orders contain these findings).
These findings were undoubtedly based upon the testimony of Cary Backstrand. Mr. Backstrand's actual opinion in this regard was that the dikes were capable only of diverting this amount of water. Transcript I at pp. 27-32. Mr. Backstrand testified that he conducted no tests or examinations to determine whether, nor was he rendering any opinion as to whether, any of the dikes were capable of retaining water in excess of 12½ acre-feet. Id. at pp. 39-40, ll. 19-25 & 1. According to Mr. Backstrand, a dike is something built parallel to the flow of water and thus, by definition, is not capable of retaining water. Id. at p. 41, ll. 6-17. Neither did Mr. Backstrand, or any other witness, testify that any of the complained of dikes were unsafe. Id. at p. 38, ll. 15-25.
At the heart of the first set of orders issued by the PCWRD Board was the finding that "the dike was constructed in violation of state law." App. at 84. (¶¶ 13 of all the individual orders contain exactly the same language as quoted above). As this is a pure legal issue, the "facts" surrounding the legislative history of the statutes will be set forth in detail in the LAW AND ARGUMENT section of this brief.
At the first evidentiary hearing before the PCWRD Board, evidence was adduced concerning the involvement of the predecessor-in-interest to the PCWRD in the building of a large number of these dikes. For example, Ralph Stegman testified that prior to the major dike building in 1969, a meeting was held among local landowners, county officials, and possibly water board members. Transcript I at pp. 171-175 & 182. After this meeting not only was diking encouraged, but machinery and equipment owned by the county was actually used in the building of the dikes. Id. at pp. 173-174.
Similarly, William Newell testified that, in addition to this meeting, when the dikes were actually being built, several of the members of the water board came out to the site where and when the dikes were being built. Id. at p. 318, ll. 4-17. These included at least four of the members of the water board at that time (George Brown, Bill Grandy, Leo Laxdal, and Bob Howell). Id. at pp. 318-319, ll. 18-25 & 1-7. These water board members did not voice any objection to the dike building and, more importantly, provided at least verbal support for the building of these dikes. Id. at p. 318, ll. 4-17 & p. 334, ll. 12-19.
Because, in its first set of orders, the PCWRD Board did not address the issue of whether these actions should prevent the Board's present action to remove the dikes, the District Court, upon the agreement of the parties, remanded the matter to the PCWRD Board for further proceedings on the issue of estoppel. App. at 174. Accordingly, a further hearing was held before the PCWRD Board of Managers to address this issue. App. at 176. At this hearing, additional evidence was adduced concerning the water board's involvement. In addition to supplemental testimony from Bill Newell (Transcript II at pp. 154-164), Art Wagner testified about the Water Board's involvement in the dike building in 1969. Transcript II at 119-137.
After the hearing, the PCWRD issued one set of Findings and Conclusions on Remand applicable to all the landowners. App. at 177. In these findings and conclusions, the PCWRD Board rejected the landowners' claims that, based upon the prior conduct and statements, the PCWRD should be estopped from ordering removal of these dikes.
This matter was then heard again by the District Court of Pembina County, North Dakota. On August 12, 1999, the District Court entered its Judgment affirming the PCWRD action. This appeal follows.
LAW AND ARGUMENT
A. Standard of Review Is De Novo Review of the PCWRD's Decision.
This case presents an appeal to this Court from a judgment affirming a decision of the Pembina County Water Resource District. This Court enunciated the standard of review in situations like the present. See Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 367 (N.D. 1993). Judicial review is limited to whether the PCWRD Board "acted arbitrarily, capriciously, or unreasonably . . . ." Id. This Court has concisely stated of this standard in cases such as these:
Our function is to independently determine the propriety of the Board's decision, without according any special deference to the district court's decision. Shaw at 797. Unless it is shown that the Water Resource Board acted arbitrarily or oppressively or unreasonably, or that there is not substantial evidence to support the decision, the decision should not be disturbed. Shaw at 797. "A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation."
Id.; see also Larson v. Wells County Water Resource Bd., 385 N.W.2d 480, 485 (N.D. 1986) (applying arbitrary, unreasonable, and capricious standard of review to decision of water resource board approving drainage permit). This Court gave more concreteness to the arbitrary, capricious, or unreasonable standard of review in a 1995 decision. Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289 (N.D. 1995). In this case, this Court stated:
[T]he scope of a court's inquiry [is] limited to determining if the agency acted within its jurisdiction; the agency made a mistake as to the applicable law; the agency acted arbitrarily, oppressively, or unreasonably; and the agency's determination was supported by the evidence.
Id. at 300. As will be shown herein, the PCWRD Board made several legal errors. Reversal of its decision requiring removal of the dikes is, therefore, warranted under the applicable standard of review.
B. The PCWRD Misinterpreted and Misapplied the Law in Ordering Removal of These Dikes.
1. This application of the statutes regulating diking was incorrect.a. The PCWRD determined that diverting water rendered the dikes illegal.
In each of the individual orders, the PCWRD Board of Managers found:
8. The structure is capable of retaining, obstructing or diverting more than 12½ acre feet (15418.52 cubic meters) of water.. . . .13. That the dike was constructed in violation of state law.
14. A dike is a device that can be used for water conservation, flood control regulation, watershed improvement or storage of water.
App. at 81-145. Based upon these findings,(3) the PCWRD concluded:
Since the construction of the dike was not authorized and the dike is capable of diverting more than 12½ acre feet (15418.52 cubic meters) of water, the dike must be removed.
Id. (emphasis added). In this regard, it must be noted that the language "retaining, obstructing or diverting" from findings #8 were simply verbatim recitations of the present statutory language (which will be discussed at greater length below). However, when read as a whole, there is little doubt but that these findings were merely that the dikes were capable of diverting (and not retaining or obstructing) the requisite amount of water. Hence, the conclusions of the individual orders do not indicate the dikes were capable of "retaining, obstructing, or diverting" merely that they were capable of "diverting." The issue is, therefore, squarely presented whether the PCWRD Board of Managers misinterpreted and misapplied the statutes when it determined that these dikes, built prior to 1979 and only capable of diverting water, were constructed in violation of state law.
b. Had the dikes been built under the present version of the statutes, the order of removal would be justifiable.
These dikes were ordered removed pursuant to section 61-16.1-53 of the North Dakota Century Code. N.D. Cent. Code § 61-16.1-53. That statute presently provides, in pertinent part:
Upon receipt of a complaint of unauthorized construction of a dike, dam, or other device for water conservation, flood control regulation, watershed improvement, or storage of water, the water resource board shall promptly investigate and make a determination thereon. If the board determines that a dam or other device, capable of retaining, obstructing or diverting more than twelve and one-half acre-feet [15418.52 cubic meters] of water, has been established or constructed by a landowner or tenant contrary to the provisions of this title . . . the board shall notify the landowner. . . .
Id. The notification shall include an order to remove the dike, dam or other device and that if the same is not removed by the landowner, the board may cause the removal and may assess the costs thereof against the responsible landowner.(4) Id. In consideration of the language of this section, specifically what is "unauthorized," section 61-16.1-38 comes into play. N.D. Cent. Code § 61-16.1-38. The present version of that statute provides, in pertinent part:
No dikes, dams, or other devices for water conservation, flood control regulation, watershed improvement, or storage of water which are capable of retaining, obstructing, or diverting more than twelve and one-half acre-feet [15418.52 cubic meters] of water shall be constructed within any district except in accordance with the provisions of this chapter.
Id. The statute goes on to require a permit before the building of such devices is "authorized." Under the present statutory scheme, had the dikes been constructed in 1997, for example, it appears clear that if no permit had been obtained, the dikes would have been "unauthorized" under section 61-16.1-53, and the PCWRD Board of Managers could have rightfully ordered this removal.
c. The present version of these statutes is not the version that controls.
Unfortunately for the PCWRD Board, however, these dikes were not constructed in 1997. In regard to the regulation of water, this Court has held that statutes in place at the time of construction apply and control the case. In re Persons, 334 N.W.2d 471, 474 (N.D. 1983); citing, North Dakota State Water Comm'n v. Cavalier County Water Resource Dist., 332 N.W.2d 254 (N.D. 1983). The dikes in question in this case were built between the late 1960s and the mid-1970s (primarily between 1969 and 1974). It is, therefore, this time period which becomes extremely important in determining whether the statutes, as they then existed, rendered the dikes illegal.(5)
2. The plain meaning of the statute which controls is that permits were not required for these dikes.
The precursor of the present section 61-16.1-38 is section 61-16-15 of the North Dakota Century Code. See N.D. Cent. Code § 61-16-15 (Michie 1967). In 1967, this statute was amended to read:
No dams or other devices for water conservation, flood control regulation, watershed improvement or storage of water which are capable of retaining more than twelve and one-half acre feet of water shall be constructed within any water management district except in accordance with the provisions of this chapter. Any proposal for the construction of any dam or other facilities shall be presented first to the board of commissioners of the district within which the contemplated project is located. Such board shall consider the same, and if the proposal meets with its approval, it shall forward the proposal to the state water commission as soon as possible. After receipt thereof, the state water commission shall consider the same in such detail as to it may seem necessary and proper, and shall make its recommendations and suggestions as to the propriety, efficiency, and feasibility of the proposal, and, within forty-five days of its receipt forward the same to the board of commissioners. The board thereupon shall require, or if the project is to be constructed at the expense of the district shall furnish, complete plans and specifications therefor, which shall be forwarded to the state water commission. The state water commission shall examine the same in detail and, within forty-five days of receipt of such plans and specifications shall either refuse to allow the construction of any unsafe, improper, or dangerous dam or other device which would interfere with the orderly control of the water resources of the district, or order such changes or modifications thereof as in its judgment may be necessary for safety. Any person aggrieved by any such ruling of the state water commission shall have the right to a full hearing before such commission and a full consideration of all evidence available before a final order of the state water commission shall be entered. Such order of the state water commission shall be subject to appeal to the district court as provided by this chapter.
1967 N.D. Laws ch. 474 § 4. This statute was not amended again until 1979. See 1979 N.D. Laws ch. 642 § 1. Thus, for purposes of the vast majority of dikes involved in this appeal, it is this statutory language which will govern in determining whether the dikes at issue were authorized or unauthorized.(6)
The most striking feature of the language above is that this version of the statute makes no mention of dikes whatsoever. Unlike the present version of the statute, this version does not facially attempt to regulate dikes. This is important because the legislature clearly understood the difference between dikes and dams. In fact, at the same time the above-quoted statute existed, the legislature had given the water management boards the power:
5. To plan, locate, relocate, construct, reconstruct, modify, maintain, repair, and control all dams and water conservation devices of every nature and water channels and to control and regulate the same and all reservoirs, artificial lakes, and other water storage devices within the district;. . . .
7. To regulate and control flood waters for the prevention of floods, by deepening, widening, straightening or dyking the channels of any stream or watercourse within its district, and construct reservoirs or other means to hold and control such waters.
N.D. Cent. Code § 61-16-11 (1969) (emphasis added). Indeed, this statute appears to quite clearly distinguish dams and other devices from dikes.
Another striking feature of the 1967 to 1979 version of section 61-16-15 is that it attempted to regulate only dams and devices which are capable of retaining more than 12½ acre-feet of water. Nowhere in this version of section 61-16-15 does the legislature give the authority to regulate the diversion or obstruction, rather than the retention, of 12½ acre-feet of water. In this regard, the testimony of Cary Backstrand is vitally important (and apparently simply ignored by the PCWRD). Mr. Backstrand, the head of the regulatory section of the State Engineer's office, testified:
A. The definitions that we use, which I believe is printed on the back of the application forms for dams and dikes, which is the same application form, is that if a structure is built across a drain way, across a river, or across any type of drain way, that we classify it as a dam. And if it parallels a drain way, it's classified as a dike.Q. According to that definition, then, dikes are never capable of retaining 12-and-a-half acre-feet of water. Is that a fair statement?
A. Yes, dikes divert water.
Q. Not retain.
A. They do not retain.
Transcript I at p. 41, ll. 3-17. This common-sense definition given by Mr. Backstrand is in keeping with the legal definitions of these terms. Compare Black's Law Dictionary, 475 (6th ed. 1990) (defining "divert" as "to turn aside; to turn out of the way; to alter the course of things. Usually applied to water-courses or to the unauthorized use of funds") with id. at 1316 (defining "retain" as "to continue to hold, have, use, recognize, etc., and to keep").
This is common sense and plain meaning at its core concept. Dikes divert. They turn away. Dams retain. They hold back. The language of the 1969 version of the statute is powerfully purposeful. The omission of "dikes" matches perfectly with the omission of "diverting."
This is all the analysis this Court needs to undertake in order to reverse the PCWRD Board's orders. It is well-settled law in North Dakota that the first and most overriding tenet of statutory construction is that the plain meaning controls. See Raboin v. North Dakota Workers Comp. Bureau, 1997 ND 221, ¶ 17, 571 N.W.2d 833, 837 (N.D. 1997). Further, when the plain meaning of the statute is apparent, as it is here, it is "unwise and unnecessary to delve further." Little v. Tracy, 497 N.W.2d 700, 705 (N.D. 1993). In recognizing this and the principle that when the legislature expressly mentions one thing it implies the exclusion of another, this Court in Little v. Tracy stated:
It must be presumed that the Legislature intended all that it said, and that it said all that it intended to say. The Legislature must be presumed to have meant what it has plainly expressed. It must be presumed, also, that it made no mistake in expressing its purpose and intent. Where the language of a statute is plain and unambiguous, the "court cannot indulge in speculation as to the probable or possible qualifications which might have been in the mind of the legislature, but the statute must be given effect according to its plain and obvious meaning, and cannot be extended beyond it."
Id. (quoting City of Dickinson v. Thress, 290 N.W. 653, 657 (N.D. 1940)).
The meaning of the statute is plain. It refers to dams but not dikes. It refers to retention of water but not diversion of water. Had one of these references been included and one omitted, then the statute would be ambiguous. If the statute had referred to dikes but not to diversion of water, or had the statute referred to diversion of water but not to dikes, then an ambiguity might exist. The lack of reference to either, however, evidences an internal, logical consistency. The plain meaning of this statute is that permits were not required for dikes under this version of the statute. As a result, the dikes at issue in this case were not "unauthorized." The PCWRD Board of Managers' orders of removal cannot stand. Reversal is warranted.
3. Even if resort to extrinsic aids is warranted, reversal of the PCWRD's order is mandated.a. Subsequent enactments shed light on the legislature's intent.
In 1979, the legislature amended section 61-16-15 to include "diking" as a permitted activity. 1979 N.D. Laws ch. 642 § 1. Further, in 1981, the legislature amended and re-enacted this provision as section 61-16.1-38. 1981 N.D. Laws ch. 632 § 1. At the same time, and for the first time, the legislature added the "diverting or obstructing" language to the pre-existing "retaining" trigger for permit requirement. Id. If the prior version of the statute were to be considered ambiguous (something not conceded) and resort to extrinsic aids thus warranted, these subsequent amendments are of great importance.
It has long been the law in North Dakota that the legislature is not presumed to do idle acts. State v. Stockwell, 134 N.W. 767, 780 (N.D. 1911); see also Johnson v. Wells County Water Resource Bd., 410 N.W.2d 525, 529 (N.D. 1987) (stating: "courts look to subsequent enactments and amendments as aids in arriving at the correct meaning of a prior statute"). Thus, where the legislature amends a somewhat ambiguous law, the prior law should be construed in a manner as to give the amendment meaning and not so as to render it superfluous. Id. In this case, if the statute as it existed between 1967 and 1979 required permits for dikes which diverted more than 12½ acre-feet of water, then the amendments adding references to "dikes" and to "diverting" would be superfluous. Under longstanding precedent, such an interpretation is to be avoided.
b. Legislative history does not warrant departure from this rule of statutory interpretation.
It was argued below, and apparently accepted by the PCWRD Board of Managers (or at least by the District Court, see App. at 167-170), that the legislative history concerning the inclusion of the reference to "dikes" in 1979 warranted the conclusion that even before that time dikes were required to be permitted. In so doing, error was committed.
(1) The legislative history of the inclusion of "dikes" is inconclusive.
As noted above, it was not until 1979 that the legislature included the word "dikes" in section 61-16-15. 1979 N.D. Laws ch. 642 § 1. The legislation that accomplished this was House Bill 1274. H.B. 1274. The major proponent of this legislation appears to have been Michael Dwyer and the North Dakota State Water Commission. In written testimony to the Senate Natural Resources Committee, Mr. Dwyer indicated that the word "dike" was inserted for clarification purposes only and that dikes were covered under the prior version of the statute. Hearings on H.B. 1274 before the N.D. Senate Natural Resources Comm., 46th Leg. (1979) (statement of Michael Dwyer, Counsel, N.D. State Water Comm'n). From this history alone, one might conclude that legislative history supports the PCWRD Board's position. This is not, however, the whole history of this piece of legislation.
Mr. Dwyer also testified on this bill before the House Natural Resources Committee. In that testimony, the following exchange occurred:
Rick Berg: What bothers me is that the farmers on the Red River constructed dikes on their own without approval -- would this make them guys take the dikes down?Mr. Dwyer: Legislation similar to this was proposed two years ago, but it was quite different. Two years ago there were two sections to the bill. The first section streamlined the administrative procedure and the second section gave the state engineer administrative authority to remove dikes. This bill only contains the first section dealing with administrative procedure so the answer is no-they cannot remove these dikes.
Rep. Wessman: They have to have approval.
Mr. Dwyer: This bill has nothing to do with requirements of law. This just changes the procedure for applying for that permit.
Hearings on H.B. 1274 before the N.D. House Natural Resources Comm., 46th Leg. (1979) (bold emphasis added). The legislative history of the 1979 addition of the word "dikes" is conflicting at best. It provides no reason to assume the legislature intended to do an idle act in passing H.B. 1274.
(2) The legislative history of the inclusion of "diverting" is similarly unhelpful.
As noted above, the inclusion of "diverting or obstructing" into the statute was done in 1981. 1981 N.D. Laws ch. 632 § 1. This legislation was part of a major overhaul of water management in North Dakota. See Anderson v. Richland County Water Resource Bd., 506 N.W.2d 362, 363 n.1 (N.D. 1993) (recognizing the 1981 legislation water resource districts were created and assumed the duties of the prior bodies which had control over water matters); Larson v. Wells County Water Resource Bd., 385 N.W.2d 480, 483 n.3 (N.D. 1986) (recognizing the 1981 legislation combined water management districts and boards of drain commissions into water resource districts). The legislation which accomplished this change was House Bill 1077.
A review of this bill and its legislative history reveals no specific concerns or testimony about the inclusion of the words "diverting or obstructing." Rather, the major concerns were about the change in the form of the local governing bodies. As is common in bills of this size, the legislative history is simply silent on most of the details, including the addition of the term "diverting or obstructing" to the statute. As such, the legislative history of this amendment is not sufficient to overcome the presumption that the legislature does not do idle acts. In short, the legislative history is insufficient to save the PCWRD Board's orders. Reversal is warranted.
c. The claims of deference to agency interpretation do not warrant rejection of the plain meaning of the statute.
In the proceedings below, the argument was put forth (primarily by the State Engineer who filed amicus curiae briefs) that deference should be given to the State Engineer's interpretation of the statute, and that dikes have always been required to be permitted since 1935, when the first precursor of this provision was enacted. See 1935 N.D. Laws ch. 228 § 9. It is important to note that this rule of interpretation applies only to help interpret ambiguous statutes. Shiek v. N.D. Workers Comp. Bureau, 1998 ND 139, ¶ 16, 582 N.W.2d 639, 643 (N.D. 1998) (reversing bureau's decision based upon incorrect reading of the law); MedCenter One, Inc. v. North Dakota State Bd. of Pharmacy, 1997 ND 54, ¶ 17, 561 N.W.2d 634, 639 (N.D. 1997) (refusing to accept agency's interpretation because to do so would be to add and engraft word into statute that legislature did not include). As was stated in Shiek: "an interpretation that does contradict clear and unambiguous statutory language cannot be called reasonable." Shiek, 1998 ND at ¶ 16, 582 N.W.2d at 643.
The language of this statute is clear, unambiguous, and consistent from 1969 to 1974 (when the dikes were constructed). During that time, the statute neither required permits for diking nor required permits for structures that merely diverted water. The State Engineer's attempt to engraft these terms should be rejected, just as the attempt to engraft additional language was rejected by this Court in Shiek. Shiek, 1997 ND at ¶ 17, 561 N.W.2d at 639. Deference to agency interpretation is not warranted.
Additionally, the line of cases suggesting deference to agency interpretations in the construction of ambiguous statutes begins with the tenet that deference will be given to contemporaneous construction. E.g., Sorlien v. North Dakota Workmen's Comp. Bureau, 84 N.W.2d 575, 578 (N.D. 1957) (stating: "contemporaneous administrative construction . . . may be considered and given weight in construing ambiguous statutes"); Kelsch v. Miller, 15 N.W.2d 433, 440 (N.D. 1944) (same).
The record in this case is devoid of any agency construction during the time period in question (1969 to 1974 -- when the dikes were constructed). The only documents received in this regard were Exhibit 51 (containing an Attorney General's office internal memorandum dated 1997 and a memo from an Assistant Attorney General dated 1984);(7) Exhibit 44 (containing a memo from Cary Backstrand, then a drainage engineer with the State Water Commission, to Dave Sprynczynatyk, then the Director of the Engineering Division, dated in 1979); and Exhibit 45 (containing a memo from Michael Dwyer, as counsel, to Vern Fahy dated 1979). App. at 221, 208 & 214. These memos are quite revealing both in what they say and when they say it.
In the earliest of the memos (Mr. Backstrand's), he states:
Since the law that requires a permit for the construction of a dam was not enacted until 1965, I attempted to determine if the dikes in question were in place prior to 1965.
App. at 212. This comment spurred the second memo in time (Mr. Dwyer's). Mr. Dwyer's memo stated:
Permits for dam construction pursuant to § 61-02-20 were required in 1937. Permits for dam or dike construction pursuant to § 61-16-15 were first required in 1965.
App. at 216. The next in time memo (Ms. Sand's) states:
State authority over dikes has been authorized by statute since 1935.
App. at 222. The point of these recitations is not that any of these opinions is accurate or
inaccurate. As shown above, it is the appellants' position that diking activity was not included within the scope of the statute until at the earliest 1979, and most probably 1981. The point is that when these dikes were built, there was not a longstanding, contemporaneous agency interpretation of the statute at issue. Rather, these memos show that the present position of the State Engineer is one which evolved years after these dikes were constructed. As such, there is no contemporaneous agency interpretation to which this Court should give deference.(8)
This reasoning tracks the reasoning found in a similar case involving drainage statutes. In re Persons, 334 N.W.2d 471 (N.D. 1983). In Persons, the Barnes County Water Resource District, after an investigation, entered an order to close an allegedly illegal drain. Id. at 473. The ditch at issue had been built in 1969. Id. at 472. The issue was whether Persons had complied with the then-existing permit requirements found in the statute. Id. (recognizing that when the drain was built, section 61-01-22 controlled this issue). The Court discussed the then-existing statute (section 61-01-22) as requiring a permit to drain an area comprising 80 acres or more unless constructed "under the supervision" of a state or federal agency. Id. at 473.
The issue turned on the meaning of "supervision." Id. Persons argued the drain had been constructed under the supervision of two federal agencies, the Agricultural Stabilization and Conservation Service, which had helped fund the project, and the Soil Conservation Service, which had actually supervised construction. Id. The water resource district, with the State Engineer as an amicus curiae, argued the supervision was not the type of supervision required by the statute. Id.
On appeal to the district court, the water resource district argued that "supervision" meant the type of supervision as defined by section 89-02-01-05 of the North Dakota Administrative Code. Id. (quoting N.D. Admin. Code § 89-02-01-05). The district court rejected this argument and reversed the water resource district's order. Id.
The water resource district appealed to this Court, which summarized the water resource district's argument as follows:
The Water Resource District suggests that because § 89-02-01-05 was "simply a written codification of the longstanding policy" of the State Water Commission, its provisions should provide guidance for this court in reaching its decision.
Id. at 474. This is, in effect, the same argument made by the PCWRD in this case; that deference to an agency's interpretation of the meaning of a statute (in fact the same agency and for the same time periods)(9) should mandate the meaning of a statute.
This Court had little trouble rejecting this argument in Persons because the agency interpretation was not contemporaneous. Id. This Court stated:
As this court has recently noted, the version of a statute in effect at the time the drainage system is built should apply to that case. See North Dakota State Water Commission v. Cavalier County Water Resource District, 332 N.W.2d 254 (N.D. 1983). See also Messer v. State Water Commission, 332 N.W.2d 66 (N.D. 1983). Section 89-02-01-05, NDAC was promulgated after the drain was constructed and is therefore immaterial to our consideration of this case.
Id. (emphasis in original). In short, because the agency interpretation was after the fact, it was not entitled to the deference that was requested.
This is exactly the situation in the present case. The dikes were built between 1969 and 1974. The evidence before the PCWRD Board of Managers shows the earliest administrative agency interpretation was not until 1979,(10) at least five years after the dikes in question were built. Just as in Persons, therefore, the purported agency interpretation is immaterial. It certainly does not provide support for this Court to assume the legislature committed idle acts in the 1979 and 1981 amendments to section 61-16-15. The interpretation given the statute by the PCWRD was legal error. It mandates reversal.
C. The Doctrine of Prescriptive Easement Mandates Reversal.
Easements by prescription are common law concepts and have been defined as the "creation of incorporeal interests by the lapse of time." Nagel v. Emmons County Water Resource Dist., 474 N.W.2d 46, 48 (N.D. 1991). Although North Dakota statutes do not provide the specific elements for the creation of a prescriptive easement, such statutes do recognize by implication the possibility of obtaining prescriptive rights. See N.D. Cent. Code § 47-07-07 (outlining the extent of a servitude by the nature of the enjoyment by which it is acquired); 47-05-12 (governing the extinguishment of a servitude acquired by enjoyment); and 47-06-02 (establishing the time by which a right by prescription shall be acquired).
Prior to 1991, caselaw in North Dakota had not established the specific requirements for acquiring a prescriptive easement. In Nagel, the North Dakota Supreme Court, adopting American Law Institute suggestion, held that a use of land creates an easement by prescription provided the use is (1) adverse, (2) continuous and uninterrupted, and (3) for the period of prescription. Id. at 48.
In Nagel, the landowners sued the county and the Emmons County Water Resource District for alteration of a natural drainage pattern. In Nagel, the modifications had occurred more than 20 years prior to the commencement of the action. Accordingly, the trial court held, and the North Dakota Supreme Court affirmed, that Emmons County had acquired a flowage easement by prescription, thereby barring Nagel's lawsuit.
The right or ability to drain water across the land of another is a property right recognized under North Dakota law. See N.D. Cent. Code § 47-05-01; Rynestad v. Clemetson, 133 N.W.2d 559, 563 (N.D. 1965). This property right, however, like any other property right, can be created by prescription as in Nagel, but if prescriptively acquired by another, can also be lost by prescription. Just as the draining of water for a prescriptive period will create a right to continue draining, the erection of a barrier or dike impeding the natural flow of water from the dominant estate to the servient estate for a prescriptive period will extinguish the right. Fennema v. Menninga, 19 N.W.2d 689, 691 (Iowa 1995). The period of prescription in North Dakota is 20 years. N.D. Cent. Code §§ 47-06-02 and 28-01-04.
The findings of the PCWRD and the evidence adduced at hearings support a determination that the dikes have acquired this prescriptive status.(11) At paragraphs 11 and 12 of the individual orders, the PCWRD found:
11.The use of the dikes is adverse to downstream landowners.12. The flooding has been periodic for over 20 years and there have been years when there was no flooding.
Id. Further, the evidence before the PCWRD was that as a result of these structures, and ever since the date of the construction of the dikes in 1969, the flow of water has been altered. See, Transcript I at p. 475, ll. 7-15 (testimony of Larry Wilwant) and p. 569, ll. 15-17 (testimony of Cameron Wilwand).
The fact that there may not have been major floods, detrimental and offensive enough to cause the downstream landowners to complain prior to the 1990s, is insufficient to prevent the doctrine of prescriptive easement in this case. Nagel, 474 N.W.2d at 49-50. In Nagel, this Court made abundantly clear that flows which did not offend the servient landowner every year did not alter the period of prescription. Id. Rather, so long as the servient land was burdened with flow each year since completion of the improvements, the prescriptive easement is established. Id. at 50. That is the situation in the case at bar. The rights of the parties have been altered as a result of the prescriptive easement. The PCWRD misapplied the law in ordering removal of the dikes. Its order must be reversed.(12)
CONCLUSION
Based upon the above and foregoing, appellant landowners respectfully request that the orders of the Pembina County Water Resource District be REVERSED and VACATED.
Dated: December 22, 1999.
| Duane R. Breitling | ||||||
| Attorney for Appellants | ||||||
| ND ID #02749 | ||||||
| OHNSTAD TWICHELL, P.C. | ||||||
| 15 Broadway, STE 206 | ||||||
| Fargo, ND 58102-4907 | ||||||
| TEL (701) 280-5801 | ||||||
| FAX (701) 280-5803 | ||||||
c:\myfiles\990307.ATB
Thomas Douville, et al. v. Pembina District Court Civ. No. 98-C-36
County Water Resource District, et al. Supreme Court No. 990307
STATE OF NORTH DAKOTA )
) ss. AFFIDAVIT OF SERVICE BY MAIL
COUNTY OF CASS
)
Dawn M. Schaefer, being first duly sworn and being of legal age, deposes and says that on the 22nd day of December, 1999, she served the following:
1. Brief of Appellants; and2. Appellants' Appendix;
upon the following, by placing true and correct copies thereof in envelopes addressed as follows:
| Mr. Neil W. Fleming | Mr. Kermit E. Bye | |||||
| Attorney at Law | Attorney at Law | |||||
| P.O. Box 633 | P.O. Box 1389 | |||||
| Cavalier, ND 58220-0633 | Fargo, ND 58107-1389 | |||||
| Ms. Julie Krenz | ||||||
| Assistant Attorney General | ||||||
| Office of Attorney General | ||||||
| 900 East Boulevard Avenue | ||||||
| Bismarck, ND 58505-0041 | ||||||
and deposited the same, with postage prepaid, in the United States mail at West Fargo, North Dakota.
| ____________________________________ | ||||||
| Dawn M. Schaefer | ||||||
Subscribed and sworn to before me this 22nd day of December, 1999.
____________________________________
| Notary Public, Cass County, ND | ||||||
| My Commission Expires: | ||||||
(SEAL)
1. Two evidentiary hearings were held before the PCWRD Board of Managers, one on October 29-31, 1997, before the remand from the District Court and the other on January 13, 1998, after the remand from the District Court. For ease of reference, the transcript from the October 1997 hearing (which was paginated sequentially) will be referred to as "Transcript I." The transcript from the January 1998 hearing (which was paginated separately) will be referred to as "Transcript II."
2. This language was included in the orders for both the Svensons and Larry Trenbeath. The transcript does not support this finding in regard to the Svensons. Transcript I at pp. 106-123.
3. Actually, findings #13 are clearly conclusions of law and not factual findings. This Court has long held that it will not be bound by the labels placed on findings and conclusions for purposes of appellate review. E.g., Lapp v. Lapp, 293 N.W.2d 121, 125 (N.D. 1980).
4. There can be no doubt but that the PCWRD Board committed error in this regard. All of the orders indicate that if the present landowners do not remove the dikes, the dikes will be removed and the costs assessed against the property. None of the orders have a finding, however, that the present landowners are the persons responsible for the initial dike building. This may be, in large part, due to the fact that such findings would not be supported by the record. The best example of this is the Walter Symington property. Mr. Symington has only owned the property since 1981. Transcript I at pp. 285-386. The dikes were built prior to his purchase of the property. Id. at p. 387. He cannot be a "responsible landowner." Because there was no finding of "responsible landowner," the PCWRD Board cannot assess costs of removal. Under the present record, the very best scenario for the PCWRD is that it may remove the dikes, at its own expense.
5. To try to apply the present version of these statutes to the construction of the dikes would clearly result in an ex post facto application of the current version. This would be unconstitutional under the North Dakota Constitution. N.D. Const. art. I, § 18. Thus, the issue is clearly and singly whether under the then-existing version of the statute the dikes were legally constructed.
6. As noted above, only the dike of Larry Trenbeath was raised outside this temporal window, and then only by 6 inches for a 40-foot section. See supra, note 2 and accompanying text. There was no testimony that this small alteration would retain, divert, or obstruct more than 12½ acre-feet of water, nor any finding by the PCWRD Board to that effect. Therefore, the 1967 version of the statute should still control.
7. These documents are really meaningless. They are, in effect, legal arguments of the attorney for the State. The Attorney General's office is not the agency administering these statutes. The State Engineer is. The memos from the Attorney General's office are not formal opinions, which might be persuasive. They are of no help to the PCWRD Board in this appeal.
8. If anything the record supports, the proposition that the contemporaneous agency construction was that a permit was not needed. The record is undisputed that the local water board knew about the construction of the dikes when they were being constructed, and even that the State Water Commission knew about these dikes. Neither, however, contemporaneously construed the statute to require permits.
9. In regard to the fact that the same time periods are involved, the dikes in this case were built primarily between 1974 and 1969. The drain in Persons was built in 1969. The administrative regulation in Persons was promulgated in 1976. The absolute earliest that any evidence in this case pointed to an administrative practice was also 1976. See Docket #36; Amicus Brief of the State of North Dakota by Its State Engineer, Attachment 2 (entitled Affidavit of Cary Backstrand, dated December 18, 1997), which document was never presented to the PCWRD Board for its review.
10. But see note 8, supra (indicating promulgation of the administrative regulation in 1976).
11. In effect, once the prescriptive rights have been obtained, the dikes cease to be structures which divert the natural flow of water. Because of the changed status, they become the natural features of the land and dictate the natural flow (just as any other naturally occurring rises in elevation). As such, after the period of prescription, the downstream landowners lose the right to complain of the existence of dikes.
12. At the very minimum, if appellants have acquired rights by prescription, the PCWRD cannot take away those rights without violating the constitutional prohibition against taking or damaging private property without just compensation. See N.D. Const. art. I, § 16.