Klindt v. Pembina Co. Water Resource Bd.

20040299 Henry D. Klindt, Carlton Heck,
Joseph E. Phillips, Dennis Berg,
Alfred Byron, Mary Ridley, Orville
Simundson, Bill Hardy, Terry Busse,
Shane Heck, Grace Busse, Allan Smith,
Laurel Brusseau, Laurel Smith,
Wade Klindt, Rosanna Carignan,
Ronald Carignan, Bonnie Carignan,
Randy Carignan, Richard Heck,
Eggert J. Einarson, Floyd Simundson,
Elden Syrup, Tim Smith, Arni Johnson,
Dick Simundson, Petitioners, Appellees
and Cross-Appellants
v.
Pembina County Water Resource
Board, Respondent, Appellant
and Cross-Appellee
and
Pembina Board of County Commissioners, Respondent

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge Donovan John Foughty
Nature of Action: Administrative Proceeding
Counsel:
Appellant: Fleming, DuBois & Fleming, PLLP
Appellee: Joseph J. Cichy, P.C.
Term: 02/2005   Argument: 02/28/2005  2:45pm
ND cite: 2005 ND 106
NW cite: 697 N.W.2d 339

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
I. Whether land is benefitted by a water project is not subject to determination by the District Court, as the aggrieved parties are required to appeal any determination regarding what land is benefitted to the State Engineer.
II. The decision of the Pembina County Water Resource Board regarding what land is benefitted, and the subsequent special assessment was not arbitrary, capricious, nor unreasonable, and is not subject to reversal by the District Court.
III. Even if the Pembina County Water Boards' actions were arbitrary capricious, and unreasonable, the District Court should have remanded the matter to the Pembina County Water Resource Board and the Pembina County Board of County Commissioners for further action, and reassessment of cost, rather than dissolving the Tongue River Snagging and Clearing Project No. 1.
IV. The Court was without legal authority to award attorneys fees against the Pembina County Water Resource District Board.

Appellee's Statement of the Issues:
II. The decision of the Pembina County Water Resource Board and the Pembina County Board of County Commissioners to exclude Cavalier County land in the Tongue River Watershed from the Tongue River Snagging and Clearing Project, No. 1 was arbitrary, capricious, and unreasonable
III. The Board determination that all lands in the watershed benefitted from the project was an arbitrary and unreasonable determination with no factual basis to support it
IV. The court's decision to order the dissolution of the Tongue River Snagging and Clearing Project No. 1 was proper
V. The court had the authority to award attorney's fees in this case
VI. The chairman of the Pembina County Water Resource Board and its attorney, personally benefit from the project and prejudged the Project's merits in violation of landowner's rights

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Docket entries:
110/28/2004 NOTICE OF APPEAL: 10/27/2004
211/24/2004 NOTICE OF CROSS APPEAL (filed in district court on 11/5/04)
311/24/2004 Record on Appeal, Record from Water Resource District, and Record from Pembina Co. Auditor (Not
411/24/2004 Rec'd: #19--Box full of assessments, etc.) (NOTE: #19 was rec'd & filed 2-9-05)
512/06/2004 APPELLANT BRIEF
612/06/2004 APPELLANT APPENDIX
712/10/2004 Letter dated December 9, 2004 from Neil Fleming regarding appealability
812/13/2004 Letter dated December 13, 2004, from Joseph J. Cichy regarding appealability
912/27/2004 DISK - atb (e-mailed)
1001/05/2005 Faxed letter from Joseph J. Cichy RE: cross-appeal matters.
1101/10/2005 APPELLEE BRIEF
1201/10/2005 APPELLEE APPENDIX
1301/10/2005 DISK (e-mailed) AEB
1401/20/2005 Request for Radio/TV Coverage - AP (e-mail dated 1-20-05 from Dale Wetzel) AUTHORIZED
1501/27/2005 Reply Brief of Appellant/Cross-Appellee (WITHDRAWN -- see replacement RYB filed 2-9-05)
1602/09/2005 Entry No. 19 of ROA (Box full of Assessments, etc.)
1702/09/2005 REPLY BRIEF of Appellant/Cross-Appellee (replaces RYB filed on 1-27-05)
1802/09/2005 DISK (ryb of Appellant/Cross-Appellee)
1902/14/2005 Affidavit of Service by Mail of Replacement RYB
2002/14/2005 REPLY BRIEF of Petitioners, Appellees and Cross-Appellants
2102/15/2005 DISK - RYB of AE&Cross-AT
2202/16/2005 Add'l copy of RYB of AE & Cross-AT
2302/28/2005 APPEARANCES: Neil W. Fleming; Joseph J. Cichy
2402/28/2005 ARGUED: Fleming; Cichy (Vol. Z; Page 91)
2502/28/2005 ORAL ARGUMENT WEBCAST
2606/02/2005 DISPOSITION (Vacated in Part and Remanded): AFFIRMED/PT, REVERSED/PT
2706/02/2005 UNANIMOUS OPINION: Sandstrom, Dale V.
2806/02/2005 At the direction of the Court, no costs are assessed
2906/07/2005 Judgment Mailed to Parties
3006/16/2005 PETITION FOR REHEARING. RspDue: 07/08/2005
3106/16/2005 ADDENDUM TO PETITION FOR REHEARING
3206/16/2005 DISK - PER
3307/05/2005 Reply to Petition for Rehearing Filed
3407/06/2005 DISK - Response to Petition for Rehearing
3507/13/2005 ACTION BY SUPREME COURT (Pet/Rehearing). Denied
3607/28/2005 MANDATE
3708/01/2005 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3811/30/2011 EXPUNGED - Nonpermanent record items destroyed

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