Douville v. Pembina Co. Water Resource District

990307 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 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

Appeal from: District Court, Northeast Judicial District, Pembina County
Judge M. Richard Geiger
Nature of Action: Real Property
Counsel:
Appellant: #Ohnstad Twichell, P.C.
Appellee: Fleming, DuBois & Fleming, PLLP
Appellee: Vogel Law Firm
Unknown: Julie Ann Krenz , Att. General Office
Term: 03/2000   Argument: 03/27/2000  10:45am
ND cite: 2000 ND 124
NW cite: 612 N.W.2d 270


Issues: Appellant's 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?

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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Docket entries:
110/12/1999 NOTICE OF APPEAL: 10/08/1999
210/12/1999 ORDER FOR TRANSCRIPT (Ruth Ann Johnson): 10/08/1999
311/03/1999 RECORD ON APPEAL (4 vols), Exhibits, & Transcripts (4)
411/16/1999 TRANSCRIPTS DATED 10-29-97, 10-30-97, 10-31-97, & 1-13-99 (4 vols.) (NOTE: copies; orig. w/ ROA)
511/17/1999 DISKS (2) - 10-29-97 thru 10-31-97 & 1-13-99
611/26/1999 Certificate of Service of TRA
712/22/1999 APPELLANT BRIEF
812/22/1999 APPELLANT APPENDIX
912/23/1999 DISK - ATB
1012/29/1999 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
1101/21/2000 APPELLEE BRIEF (Intervenors) (needs red cover)
1201/24/2000 DISK - AEB (Intervenors)
1301/24/2000 MOTION to File Amicus Brief (State Engineer)
1401/25/2000 ACTION BY CHIEF JUSTICE (Mot/File/Amicus Brief - State Engineer). Granted
1501/25/2000 DISK - Amicus Brief
1601/25/2000 AMICUS CURIAE BRIEF w/attached Addendum (State Engineer)
1701/25/2000 APPELLEE BRIEF (Pembina Co.)
1801/25/2000 APPELLEE APPENDIX (Pembina Co.)
1901/26/2000 DISK - AEB (Pembina Co.)
2002/01/2000 Copies of corrected TOA and Pages for Brief of Appellees (Fleming)
2102/01/2000 Red covers for Brief of Intervener Appellees (Bye)
2202/07/2000 REPLY BRIEF
2302/07/2000 DISK - RYB
2402/25/2000 SITTING WITH THE COURT: Jorgensen, Donald L.
2503/27/2000 APPEARANCES: Duane R. Breitling for the Appellants; Neil W. Fleming for Pembina County Water
2603/27/2000 District; Kermit E. Bye & Tami L. Norgard for remaining Appellees (Intervenors)
2703/27/2000 ARGUED: Breitling; Fleming; & Bye (Vol. X; page 7)
2806/14/2000 DISPOSITION: AFFIRMED
2906/14/2000 UNANIMOUS OPINION: VandeWalle, Gerald W.
3006/14/2000 Costs on appeal in favor of the Appellees
3106/14/2000 Order/Judgment Mailed to Parties
3207/10/2000 MANDATE
3307/12/2000 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3402/12/2007 EXPUNGED - Nonpermanent record items destroyed

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