Tarnavsky v. McKenzie Co. Grazing Association

20020311 Ed Tarnavsky, Plaintiff and Appellant
v.
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

Appeal from: District Court, Northwest Judicial District, McKenzie County
Judge Gerald H. Rustad
Nature of Action: Contracts
Counsel:
Appellant: Chapman and Chapman, P.C.
Appellee: Johnson & Sundeen
Term: 06/2003   Argument: 06/18/2003  2:45pm
ND cite: 2003 ND 117
NW cite: 665 N.W.2d 18

Listen to recording of oral argument in MP3 format

Issues: 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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Docket entries:
111/01/2002 NOTICE OF APPEAL: 10/30/2002
211/01/2002 ORDER FOR TRANSCRIPT: 10/30/2002
311/06/2002 RETENTION OF RECORD ON APPEAL: 01/18/2003
412/31/2002 MOT. EXT/TIME TRANSCRIPT (e-mailed)
512/31/2002 ACTION BY CLERK (MTR). Granted: 01/18/2003
601/28/2003 TRANSCRIPT DATED September 24, 2001
701/30/2003 DISK - TRA (9-24-01)
802/03/2003 RECORD ON APPEAL
903/10/2003 APPELLANT BRIEF
1003/10/2003 APPELLANT APPENDIX
1103/10/2003 DISK - ATB
1203/26/2003 MOT. EXT/TIME APPELLEE BRIEF & Aff/Support (e-faxed)
1303/26/2003 E-FILED MOTION (Ext/AEB & Aff/Support)
1403/26/2003 ACTION BY CLERK, w/understanding case will be heard on June Term. Granted: 05/10/2003
1505/07/2003 APPELLEE BRIEF
1605/07/2003 APPELLEE APPENDIX
1705/13/2003 Corrected TOA for AEB
1805/15/2003 Corrected pages 4,5,12, & 25 for AEB
1905/15/2003 DISK - AEB (e-mailed)
2005/27/2003 REPLY BRIEF
2105/27/2003 DISK - RYB
2206/17/2003 Request for Radio/TV Coverage (AP) (e-mail from Dale Wetzel) (APPROVED)
2306/18/2003 APPEARANCES: Charles L. "Casey" Chapman, Ed Tarnavsky; Dennis E. Johnson, Keith Winter
2406/18/2003 ARGUED: Chapman; Johnson (Vol. Y; Page 122)
2506/18/2003 ORAL ARGUMENT WEBCAST
2607/16/2003 DISPOSITION: AFFIRMED
2707/16/2003 UNANIMOUS OPINION: Kapsner, Carol Ronning
2807/16/2003 Costs on appeal taxed in favor of appellees
2907/17/2003 Order/Judgment Mailed to Parties
3007/30/2003 PETITION FOR REHEARING
3107/31/2003 DISK - PER (e-mailed)
3208/20/2003 ACTION BY SUPREME COURT (PER). Denied
3308/28/2003 MANDATE
3409/04/2003 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3509/04/2008 EXPUNGED - Nonpermanent record items destroyed

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