Tarnavsky v. McKenzie Co. Grazing Association
Ed Tarnavsky, Plaintiff and Appellant
McKenzie County Grazing
Association, Keith Winter,
Jim Kuykendall, Dale
Greenwood, Kelly Indergard,
Frederick K. James, Ron
Whited, Alvin Nelson,
Monty Carson, Lynn Dewhirst,
Jason Leiseth, Jim
Gudmunson, Bob Cross, Paul
Wisness, Doug Rolfsrud,
David Nelson, and Merle Jost, Defendants and Appellees
Northwest Judicial District,
Judge Gerald H. Rustad
|Nature of Action:||Contracts|
|Term:||06/2003  Argument: 06/18/2003 2:45pm|
|ND cite:||2003 ND 117|
665 N.W.2d 18
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. If the MCGA Board of Directors acted beyond its legal power, in allowing a separation of grazing rights from base property to continue, can a court review the grazing association's actions?
2. Under North Dakota law, are grazing rights appurtenant to base property, so that any attempt to separate the grazing rights from the base property is void, and without effect?
3. Was the action of the MCGA Board of Directors, in allowing a separation of grazing rights from base property, in 1946, ultra vires, and void, so that Edward Tarnavsky, as the successor in interest to the base property, could later bring an action in 1998 to challenge the claimed release?
4. Does the statute of limitations bar Ed's claim, where the MCGA, starting in 1991, and continuing in 1994, was taking official action to identify grazing rights with parcels of base property, where the MCGA range committee first made reference to "phantom rights" in 1993, and where Ed commenced his action in 1998?
5. Does the MCGA owe a fiduciary duty Ed Tarnavsky, who is the owner of base property, where the MCGA leases federal grazing land for the benefit of members, who own identified base property, recognized prior to the establishment of the MCGA? If so, did the MCGA, and its Board of Directors, breach a fiduciary duty to Edward Tarnavsky, when grazing rights on federal land were allocated to members who do not hold original base property, as set forth in North Dakota law?
6. Is there an issue of fact, precluding summary judgment, where the members of Ed Tarnavsky's pasture, i.e., Pasture 8, were denied financial support for an appeal of a 1994 Forest Service ruling, although the MCGA funded an appeal for Pasture 12 members, who Ed Tarnavsky claims are part of the MCGA's "inner circle?"
Appellee's Statement of the Issues:
1. Are there material facts in dispute such that the District Court erred in granting summary judgment in favor of McKenzie County Grazing Association?
2. Does the Court have limited authority to review the actions of McKenzie County Grazing Association of which Appellant Tarnavsky complains?
a) Are there material facts in dispute that show the release of grazing preferences in 1946 and 1948 by Tarnavsky's father was not permanent?
b) Was there a legal obligation for McKenzie County Grazing Association to appeal a Forest Service Pasture Assessment?
c) Was there a legal requirement that the District Court hold a trial to "explore" the status of McKenzie County Grazing Association rules?
3. Did McKenzie County Grazing Association properly follow North Dakota law and requirements of its own charter in accepting the release of and assignment of grazing rights?
a) Are grazing rights appurtenant to base property; and does it matter in the resolution of this case?
b) Was the release of grazing rights by Tarnavsky's father and apportionment by McKenzie County Grazing Association of those grazing rights ultra vires?
4. Does the Statute of Limitations bar Tarnavsky from bringing these claims against McKenzie County Grazing Association?
5. Does McKenzie County Grazing Association owe a fiduciary duty to Tarnavsky personally?
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|1||11/01/2002||NOTICE OF APPEAL: 10/30/2002|
|2||11/01/2002||ORDER FOR TRANSCRIPT: 10/30/2002|
|3||11/06/2002||RETENTION OF RECORD ON APPEAL: 01/18/2003|
|4||12/31/2002||MOT. EXT/TIME TRANSCRIPT (e-mailed)|
|5||12/31/2002||ACTION BY CLERK (MTR). Granted: 01/18/2003|
|6||01/28/2003||TRANSCRIPT DATED September 24, 2001|
|7||01/30/2003||DISK - TRA (9-24-01)|
|8||02/03/2003||RECORD ON APPEAL|
|11||03/10/2003||DISK - ATB|
|12||03/26/2003||MOT. EXT/TIME APPELLEE BRIEF & Aff/Support (e-faxed)|
|13||03/26/2003||E-FILED MOTION (Ext/AEB & Aff/Support)|
|14||03/26/2003||ACTION BY CLERK, w/understanding case will be heard on June Term. Granted: 05/10/2003|
|17||05/13/2003||Corrected TOA for AEB|
|18||05/15/2003||Corrected pages 4,5,12, & 25 for AEB|
|19||05/15/2003||DISK - AEB (e-mailed)|
|21||05/27/2003||DISK - RYB|
|22||06/17/2003||Request for Radio/TV Coverage (AP) (e-mail from Dale Wetzel) (APPROVED)|
|23||06/18/2003||APPEARANCES: Charles L. "Casey" Chapman, Ed Tarnavsky; Dennis E. Johnson, Keith Winter|
|24||06/18/2003||ARGUED: Chapman; Johnson (Vol. Y; Page 122)|
|25||06/18/2003||ORAL ARGUMENT WEBCAST|
|27||07/16/2003||UNANIMOUS OPINION: Kapsner, Carol Ronning|
|28||07/16/2003||Costs on appeal taxed in favor of appellees|
|29||07/17/2003||Order/Judgment Mailed to Parties|
|30||07/30/2003||PETITION FOR REHEARING|
|31||07/31/2003||DISK - PER (e-mailed)|
|32||08/20/2003||ACTION BY SUPREME COURT (PER). Denied|
|34||09/04/2003||RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|35||09/04/2008||EXPUNGED - Nonpermanent record items destroyed|