Douville v. Pembina Co. Water Resource District
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 trustee 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, Petitioners and Appellants
v.
Pembina County Water Resource
District, Respondent and Appellee
and
Tim Wilwand, Richard Margerum,
Larry Wilwant, Cameron Wilwand,
and Bert Warner, Intervenors and Appellees
Judge M. Richard Geiger
| Appellant: | #Ohnstad Twichell, P.C. | |
| Appellee: | Fleming, DuBois & Fleming, PLLP | |
| Appellee: | Vogel Law Firm | |
| Unknown: | Julie Ann Krenz , Att. General Office |
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?
Appellee's Statement of the Issues:
I. In the 1960s and 1970s, North Dakota statutes gave local water management districts the power to regulate the construction, maintenance and repair of "dams and water conservation devices of every nature." Appellants constructed 17 dikes during this period, without ever obtaining requisite approvals and permits from the Pembina County Water Resource District (PCWRD) or State Water Commission (SWC). Are the Appellants' dikes "water conservation dikes of every nature" such that their unauthorized dikes are subject to regulation by the PCWRD?
II. Well established North Dakota law allows estoppel against a government body only in rare and unusual circumstances, and it cannot work to obviate the application of state law. Should Appellee PCWRD be estopped from regulating Appellants' dikes just because the Pembina County Commissioners, an entirely separate local governmental body with no authority for water regulation, knew of the diking in the 1960s and 1970s and allowed the use of some public equipment in the construction?
Appellee's Statement of the Issues:
IA.What is the proper Standard of Review in the case at bar?
IB.Were the dikes erected by the Appellants subject to the permitting requirements under N.D. Cent. Code 61-16-15 (Allen Smith 1967), the statute in effect when the dikes were constructed?
1B1. Are the Appellants dikes covered under the "other devices" statutory language?
1B2. Are the Appellant's dikes capable of retaining twelve and one-half acre feet of water which is required to bring the dikes under the regulation of the 1967 statute?
2. Can the PCWRD a local governing board, determine whether the Appellants have acquired the prescriptive right to flood downstream owners property?
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