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Alvin Peterson v. Todd Sando

October 20, 2011

ALVIN PETERSON,
APPELLANT AND CROSS-APPELLEE
v.
TODD SANDO, STATE ENGINEER AND NORTH DAKOTA STATE WATER COMMISSION,
APPELLEES AND CROSS-APPELLANTS



Appeal from the District Court of Walsh County, Northeast Judicial District, the Honorable M. Richard Geiger, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme Court

Peterson v. Sando,

2011 ND 206

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Concurrence filed.

AFFIRMED IN PART AND REVERSED IN PART.

Opinion of the Court by VandeWalle, Chief Justice.

[¶1] Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed from a district court judgment affirming in part and reversing in part a State Engineer order determining there was an unauthorized dam on Peterson's property in Walsh County and requiring Peterson to construct a drainage ditch to maintain water impounded by the dam at a level of 1543.5 feet mean sea level. The primary issue in this case involves the determination of the natural elevation of land at the site of the dam for purposes of deciding if the land impounded sufficient water to necessitate a water or construction permit. We affirm the judgment in part, reverse in part, and we affirm the State Engineer's order.

I

[¶2] Peterson owns land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Peterson dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service ("USFWS"), the holder of wetland conservation easement for the slough, required Peterson to restore the drained wetland by constructing a ditch plug to maintain the slough at a minimum of 1543.0 feet mean sea level.

[¶3] In August 2009, Peterson's neighbor filed a complaint with the State Engineer under N.D.C.C. § 61-16.1-53.1, alleging an unauthorized dam existed on Peterson's land. The neighbor claimed Peterson had raised the height of the ditch plug above the slough's natural overflow elevation, which resulted in the impoundment of additional water in the slough without necessary water or construction permits under N.D.C.C. §§ 61-04-02 and 61-16.1-38.

[¶4] Laura Ackerman, a water resource engineer with the State Water Commission, investigated the ditch plug and the area impounding the slough. According to Ackerman's December 2009 interoffice report, there had been a history of problems with the ditch plug since 1973, including a 1996 complaint that the ditch plug was impounding additional water in two sections of land and damaging a township road between those sections. Ackerman's report stated a 1996 field inspection revealed two ditch plugs in the area, and one of the plugs was "obviously higher than what the topography would indicate to be the natural outlet elevation." Her report explained that the Walsh County Water Resource Board had obtained an injunction to lower that ditch plug one foot to save the township road and an agreement was entered to construct the top of the plug at 1543.0 feet mean sea level. Ackerman's report also described a 1998 complaint about the ditch plug and investigation, which determined that from one half to one foot of fill had been placed on top of the berm and resulted in an injunction to lower the plug to 1543.0 feet mean sea level. Ackerman's report further detailed complaints about the ditch plug from 2007 through 2009 and attempts to resolve those complaints. Ackerman's report identified a man-made rock ridge at the ditch plug which was higher than the surrounding topography. Based on her investigation and available information, Ackerman concluded the natural overflow elevation of Peterson's land was 1543.0 feet mean sea level and the overflow elevation of the raised ditch plug was 1543.9 feet mean sea level. Ackerman concluded Peterson's land impounded more than fifty acre-feet of water above its natural overflow elevation without water or construction permits required by N.D.C.C. §§ 61-04-02 and 61-16.1-38. She recommended that the State Engineer order Peterson to lower the ditch plug to 1543.0 feet mean sea level.

[¶5] The State Engineer thereafter ordered Peterson to lower the elevation of the dam on his land to no greater than 1543.06 feet mean sea level and no less than 1543.0 feet mean sea level. Peterson requested an administrative hearing. After an administrative hearing, an administrative law judge ("ALJ") effectively recommended to the State Engineer that Peterson lower the entire dam to 1543.5 feet mean sea level, or dig a ditch through the area to drain the slough to that level. The State Water Commission petitioned the State Engineer for review, asking the State Engineer to require the dam to be lowered to 1543.0 feet mean sea level. The State Engineer adopted the ALJ's recommended decision and ordered Peterson to construct and maintain a channel through or around the unauthorized dam to drain the slough to 1543.5 feet mean sea level.

[ΒΆ6] On appeal to the district court, the court affirmed the State Engineer's order requiring Peterson to maintain the dam at 1543.5 feet mean sea level, but reversed the part of the order requiring Peterson to dig a drainage ditch to maintain the slough at that level. The court also awarded the State Engineer "costs as allowed by law," and the State caused a judgment to be ...


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