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Banderet v. Kurschet

Supreme Court of North Dakota

February 26, 2019

Robert & Laurie Banderet, Carol Beck, erald Bosse, Matthew Bosse, Duane & Valera Hayen, Beverley Kelley, Leon Mallberg, Paul Mathews, Nancy Mathews, Katheryn Nelson, R & I Memorial Trust, Kathaleen R. Rehborg as Trustee, Gerald & Judith Ringdahl, and John & Beth Wentworth, Plaintiffs and Appellants
v.
Sargent County Water Resource District, and Ransom County Water Resource District, Defendants and Appellees and William E. Kurschet, and Jan Vold & Melanie Jones as Trustees of the Evergreen Trust, Plaintiffs

          Appeal from the District Court of Sargent County, Southeast Judicial District, the Honorable Bradley A. Cruff, Judge.

          Derrick L. Braaten (argued), JJ W. England (appeared), and Kyra A. Hill (on brief), Bismarck, ND, for plaintiffs and appellants.

          Daniel L. Gaustad (argued) and Joseph E. Quinn (on brief), Grand Forks, ND, for defendant and appellee Sargent County Water Resource District.

          Jane L. Dynes (argued) and Kasey D. McNary (on brief), Fargo, ND, for defendant and appellee Ransom County Water Resource District.

          OPINION

          VANDEWALLE, CHIEF JUSTICE.

         [¶1] Robert and Laurie Banderet and other plaintiffs ("Landowners") appealed a judgment dismissing their complaint seeking declaratory and injunctive relief against the Sargent County Water Resource District and Ransom County Water Resource District relating to a drainage project. We affirm, concluding the Landowners are not entitled to equitable relief, and the district court properly dismissed the Landowners' complaint.

         I

         [¶2] Drain 11 is a legal assessment drain in Sargent County that drains into the Upper Wild Rice River. In February 2015, the Sargent County Water Resource District discussed a preliminary engineering report indicating water did not move efficiently through Drain 11 due to sediment buildup, a flat drainage area, and undersized culverts. In April 2016, the District authorized an engineer's report "for a project that would fit within a 5-6 year maintenance bond." At its June 2016 meeting, the District was presented with a $3, 900, 000 cost estimate for Drain 11 channel improvements. "The breakdown of possible cost share participation included: $1, 417, 967 from [the North Dakota State Water Commission]; $200, 547 from county road department for crossings and $2, 281, 486 from [the] local maintenance fund." "Further discussion followed on conducting a public meeting to inform the landowners of this project once it is determined if cost share will be provided."

         [¶3] At the District's October 20, 2016 meeting, it adopted a resolution of necessity for the Drain 11 improvement project. The resolution stated "the Drain 11 Project will not require the addition of any new properties to the existing Drain 11 assessment district." In the resolution, the District found and declared "the Drain 11 Project will provide more effective and efficient drainage through Drain 11; increased drainage depth and capacity through Drain 11; enhanced control over the Drain 11 watershed area; enhanced breakout protection for adjacent properties; improved drainage for the benefit of the Drain 11 assessment district; and more effective and efficient operation and maintenance of Drain 11." The resolution also stated "construction of the Drain 11 Project does not require an excess levy vote, an additional assessment district vote, or any other additional legal proceedings under North Dakota law." The meeting minutes indicate "[a] landowner meeting was scheduled to discuss [the project] on . . . November 15, 2016." None of the Landowners attended the October 20, 2016 meeting.

         [¶4] The District held an informational meeting on November 16, 2016, to discuss the project with some of the Landowners. The meeting minutes indicate the District explained funding for the project and stated "no [landowner] vote is necessary but the maintenance levy will be the maximum of $4/acre/year by ND law." At the District's regular meeting on November 17, 2016, the Landowners within the Drain 11 assessment district opposed to the project presented their concerns and requested the project be put to a landowner vote. The meeting minutes state the District informed the Landowners their vote on the project was not required:

[U]nder North Dakota law, a vote of the assessment district is not required as long as the project will not exceed the maximum maintenance levy the Board may assess per acre against the properties within the Drain 11 assessment district in any six-year period. In other words, a vote of the assessment district is only required if the cost will exceed the maximum $4 per acre annual maintenance levy levied over a six-year period.

         From the record, it appears at least four of the Landowners became aware of the resolution of necessity at the District's November 16, 2016 informational meeting or the District's November 17, 2016 regular meeting.

         [¶5] In May 2017, the Landowners within the Drain 11 assessment district opposed to the project sued the Sargent County and Ransom County Water Resource Districts seeking declaratory and injunctive relief. The Landowners sought a judgment declaring: (1) the Drain 11 project cannot be funded as maintenance within six years at $4 per acre being assessed to the Landowners; (2) the Landowners are entitled to a hearing and vote on the project; and (3) benefited properties in Ransom County must be included in the Drain 11 assessment district. The Landowners requested a permanent injunction restraining the Sargent County Water Resource District from proceeding with the Drain 11 project.

         [¶6] The Sargent County and Ransom County Water Resource Districts moved to dismiss the Landowners' complaint, arguing they failed to appeal the Sargent County Water Resource District's October 20, 2016 adoption of the resolution of necessity for the project within thirty days. After a hearing, the district court dismissed the complaint. The court concluded the Landowners were aggrieved by the District's adoption of the resolution of necessity, and their ...


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