Aasmundstad v. State

Decision Date19 November 2008
Docket NumberNo. 20080018.,20080018.
Citation763 N.W.2d 748,2008 ND 206
PartiesBlake AASMUNDSTAD; Duane J. Armstrong; Gary Armstrong; Helen Armstrong; Pamela J. Armstrong; Jason Bednarz; Karen (Brenda) Bednarz; Ruddy Binfet; Edward Brown; George A. Brown, Jr.; Rodney J. Brown; Ronald J. Capp; R.A. Charlton; Barry D. Cox; Judy M. Cox; Margaret R. Cox; Jean K. Davis; Mary E. Dion; Lyle G. Dykhoff; Julie Englerth; Larry Englerth; Mary Englerth; Donna Estenson; Larry Estenson; Genevieve Foss; David Gorham; Constance Haugen; Rodger E. Haugen; Elaine F. Heisler; Ronald D. Heisler; Edval Helle, Jr.; Randy Helle; Merle Henke; Nicole Henke; Ardon L. Herman; Audrey Herman; Eileen Herman; Reginal K. Herman; Duane Howard; Floyd Howard; Orpha Howard; Lyle Huffman; Mavis Huffman; Joe E. Jager; Rose Ann Jager; Edna Kenner; Lloyd Kenner; Douglas Ketterling; Anna E. Knudson; Bjarne J. Knudson; John Knudson; Penelope Knudson; Donald Konzak; Gregory Konzak; Karin Konzak; Kathleen E. a/k/a Kathleen E. Lerick; Mary Konzak; Mavis Konzak; Peter Konzak; Leo Konzak Trust; Julian Kostecki; Boyd LaFleur; Richard LaFleur; Gregory Maddock; Marvin Logan Ranch, LLC-Elizabeth Gjellstad and Gary Hegland; Carole Mattern; Donald Mattern; Dennis L. Melland; Gail Melland; Jacqueline Melland; Rodney Melland; Donald Mertens d/b/a Lake Region Bait Ranch; Mertens Farm Partnership (Robert Mertens, Dennis Mertens, Henry Mertens, Jr., Thomas Mertens, Timothy Mertens); Mary Nicholson; North Shore, Inc.; Alice Rassier; Jacob Roemmich; Carol Rohr; Arthur Rohr; Gerald Schmidt; Linda Schmidt; Rick A. Schwab; Gordon Shafer; Helen Shafer; Lillian Shafer; Richard Shafer; Jan Shelver; Clark A. Steinhaus; Lois Steinhaus; Stromme Brothers (Lloyd Stromme and Floyd Stromme); TBH Farms (Allan Thompson, Yvonne Thompson, Richard LaFleur, Shirley LaFleur, Boyd LaFleur and Susan LaFleur); Allan Thompson; Karen Tollefson; Kenneth D. Tollefson; James P. Wang; Daniel M. Webster; Doreen Webster; Carol Weed; Monte Weed; Raymond Weed; Darlene Wold; Myron Wold; and Marjorie Wood, Plaintiffs and Appellants v. STATE of North Dakota, North Dakota State Water Commission, North Dakota State Engineer, Ramsey County Water Resources District, Benson County Water Resources District, Towner County Water Resources District, Cavalier County Water Resources District, Rolette County Water Resources District, Pierce County Water Resources District, Nelson County Water Resources District, Walsh County Water Resources District, and Devils Lake Joint Water Resources District, and the officers, members, employees and agents of each in their official capacities, Defendants and Appellees.
CourtNorth Dakota Supreme Court

Howard D. Swanson (appeared), of Letnes, Marshall, Swanson & Warcup, Ltd., Grand Forks, for defendants and appellees Ramsey County Water Resources District and Devils Lake Joint Water Resources District.

Ronald F. Fischer (argued) and Daniel L. Gaustad (appeared), of Pearson, Christensen & Clapp, PLLP, Grafton, for defendants and appellees Benson County Water Resources District, Towner County Water Resources District, Cavalier County Water Resources District, Rolette County Water Resources District, Pierce County Water Resources District, Nelson County Water Resources District, and Walsh County Water Resources District.

SANDSTROM, Justice.

[¶ 1] Approximately 100 owners of land near Devils Lake ("landowners") appeal from a district court judgment dismissing their inverse condemnation claims against nine water resource districts in the upper Devils Lake drainage basin and against the State, the State Engineer, and the State Water Commission ("defendants"). The landowners claim 15 government drainage projects in the Devils Lake drainage basin proximately caused flooding of their property above the ordinary high watermark of Devils Lake, which constituted the taking or damaging of their property without just compensation under N.D. Const. art. I, § 16. The landowners argue the district court erred in finding the drainage projects were not the proximate cause of their damages, the court erred in finding the defendants established an act of God was the sole proximate cause of the landowners' damages, the court erred in deciding some of the landowners' claims were barred by the statute of limitations, and the court erred in otherwise dismissing five landowners' claims. We hold the error, if any, by the district court in its proximate cause analysis was not determinative of the outcome and the court did not clearly err in finding the drainage projects were not the proximate cause of the landowners' damages and an act of God was the sole proximate cause of their damages. We need not decide whether the court erred in deciding some of the landowners' inverse condemnation claims were barred by the statute of limitations, because those landowners have not demonstrated they were prejudiced by the dismissal of those claims. We affirm.

I

[¶ 2] Devils Lake is a natural body of water located within the Devils Lake drainage basin in the southern part of Ramsey County and the northeastern part of Benson County in northeastern North Dakota. The Devils Lake drainage basin consists of about 3,810 square miles, with 3,320 square miles draining parts of eight counties into Devils Lake and the remaining acreage draining into Stump Lake, which is east of Devils Lake. Devils Lake flows into Stump Lake at an elevation of about 1,446.5 feet above mean sea level. The Devils Lake drainage basin is closed, with no natural outlet for Devils Lake until it reaches an elevation of 1,457 feet above mean sea level and both Devils Lake and Stump Lake flow into the Sheyenne River.

[¶ 3] The Devils Lake drainage basin consists of a number of sub-basins, including the Stump Lake drainage basin, which drains directly into Stump Lake, and eight other sub-basins that ultimately drain into Devils Lake—the Edmore Coulee sub-basin located in Nelson, Ramsey, and Cavalier Counties; the Starkweather Coulee sub-basin located in Cavalier and Ramsey Counties; the Calio Coulee sub-basin located in Cavalier, Ramsey, and Towner Counties; the Mauvais Coulee sub-basin located primarily in Towner, Benson, and Ramsey Counties; the Little Coulee sub-basin located in Benson, Pierce, and Rolette Counties; the Comstock Coulee sub-basin located in Benson County; the Devils Lake North Slope sub-basin located in Ramsey County; and the Devils Lake South Slope sub-basin located in Benson County.

[¶ 4] Before 1979, water in the upper basin from the Edmore Coulee, Starkweather Coulee, Calico Coulee, Mauvais Coulee, and Little Coulee sub-basins drained into several lakes north of Devils Lake, called the chain of lakes, before entering the Big Coulee and ultimately draining into the West Bay of Devils Lake. The natural drainage path for the chain of lakes flows from east to west and follows Sweetwater Lake, Morrison Lake, Cavanaugh Lake, Dry Lake, Mikes Lake, Chain Lake, Lake Alice, and Lake Irvine through the Big Coulee before eventually discharging into the West Bay of Devils Lake. In 1979, Channel A, a channel about 4 miles long with a 50 foot wide bottom and depths of 15 to 35 feet, was constructed to bypass the natural and circuitous drainage path through the chain of lakes into the West Bay of Devils Lake and to connect the south end of Dry Lake directly with Six Mile Bay on Devils Lake. As a result of Channel A, water from the Edmore Coulee and the Starkweather Coulee sub-basins, which are both located in the northeastern part of the Devils Lake drainage basin, drained through Dry Lake and Channel A directly to Six Mile Bay on Devils Lake without following the natural drainage path through the chain of lakes into Devils Lake.

[¶ 5] The landowners own property adjacent to Devils Lake and above the lake's ordinary high watermark of 1,426 feet above mean sea level. See Matter of Ownership of Bed of Devils Lake, 423 N.W.2d 141, 145 (N.D.1988) (affirming district court decision that ordinary high watermark of Devils Lake was 1,426 feet above mean sea level). In their initial complaint dated May 25, 1999, the landowners claimed the defendants' construction and participation in 15 government drainage projects caused additional water to enter Devils Lake and raised the elevation of the lake by an additional amount of water that would not have entered the lake but for those projects. The landowners claimed the defendants participated in the 15 drainage projects, which were generally designed to alleviate farmland flooding in the upper basin and consisted of cleaning and improving existing channels and constructing new channels and lake outlet projects in the drainage basin. The landowners' complaint identified these projects as: the Hurricane Lake outlet channel and control structure; the Iverson Dam removal; the Lake Ibsen control structure; the Mauvais Coulee improvements above Lake Alice; the Mauvais Coulee improvements below Lake Irvine; the Lake Irvine control structure; the channel improvements between Mikes Lake and Chain Lake; the Calio Coulee channel improvements above Chain Lake; the Grand Harbor drain and pump station; the Starkweather channel improvements; the channel improvements between Morrison Lake and Cavanaugh Lake; the channel improvements between Cavanaugh Lake and Dry Lake; the ring channel on the north and east sides of Devils Lake; the Creel Bay Dike; and Channel A.

[¶ 6] The landowners asserted those projects caused their property to be flooded above the ordinary high watermark of Devils Lake and alleged claims for: (1) damages for...

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