Anderson v. Richland County Water Resource Bd., s. 920357

• Decision Date: 08 September 1993
• Docket Number: 920358,Nos. 920357,s. 920357
• Citation: 506 N.W.2d 362
• Parties: Arnie ANDERSON, Harley Anderson, Perry Anderson, Richard V. Anderson, Gregory Bauer, Alfred Braun, Francis Birchem, James Birchem, George Gabbert, Howard Gabbert, Mary M. Gray, Carl Hansen, Eugene Hamling, Henry Herding, Philip Herding, Eugene Klein, George Knudsen, Jr., Delmar Pohl, Albin Pribbernow, Norman Pribbernow, Alvin Prochnow, Ronald Prochnow, Bruce Sturgess, John Sturgess, Clarence Swanson and William G. Wurl, Plaintiffs and Appellants, v. RICHLAND COUNTY WATER RESOURCE BOARD, a political subdivision of the State of North Dakota, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 362

506 N.W.2d 362

Arnie ANDERSON, Harley Anderson, Perry Anderson, Richard V Anderson, Gregory Bauer, Alfred Braun, Francis Birchem James Birchem, George Gabbert, Howard Gabbert, Mary M. Gray Carl Hansen, Eugene Hamling, Henry Herding, Philip Herding Eugene Klein, George Knudsen, Jr., Delmar Pohl, Albin Pribbernow, Norman Pribbernow, Alvin Prochnow, Ronald Prochnow, Bruce Sturgess, John Sturgess, Clarence Swanson and William G. Wurl, Plaintiffs and Appellants, v. RICHLAND COUNTY WATER RESOURCE BOARD, a political subdivision of the State of North Dakota, Defendant and Appellee.

Civ. Nos. 920357, 920358.

Supreme Court of North Dakota.

Sept. 8, 1993.

Glenn M. Fenske of Kropp Law Office, Jamestown, for plaintiffs and appellants.

Duane R. Breitling of Ohnstad Twichell, West Fargo, for defendant and appellee.

SANDSTROM, Justice.

The plaintiff landowners in Richland County appeal from a judgment granted to the Richland County Water Resource Board, and from the district court's order denying the landowners' motion for post-judgment relief. We affirm.

I

Richland County Drain No. 3 was established in 1961 to help control flooding in southern Richland County. The drain is located in the West Tributary Bois-de-Sioux River Watershed, which includes land in Fairmount, Devillo, Lamars, and Greendale Townships of Richland County as well as land in Roberts County, South Dakota. Greendale Township is upstream from the other Richland County townships in the watershed.

The drain was established after a vote of affected landowners in accordance with N.D.C.C. Ch. 61-16. As that chapter existed in 1961, ¹ landowners assessed for a proposed water project's construction cost had a statutory right to vote for or against the project. Land was assessed only if it was to benefit from a proposed project. In estimating benefits for Drain No. 3, the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners assessed land in Fairmount, Devillo, and Lamars Townships. The Board of Commissioners did not assess land in Greendale Township. Consequently, Greendale Township landowners did not vote on whether or not to construct Drain No. 3.

In 1991, the Richland County Water Resource Board, the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners' successor, reapportioned benefits and assessments for Drain No. 3 under N.D.C.C. Sec. 61-21-62. ² The Water Resource Board determined that Greendale Township benefited from the drain and assessed the landowners for 23.5 percent of the drain's future maintenance costs. At the same time, the Water Resource Board reapportioned assessments for land in Fairmount, Devillo, and Lamars Townships.

The Water Resource Board notified the affected landowners of their right to protest the reassessments and, at a hearing in March, 1991, several Greendale Township landowners objected to the Board's action.

Greendale Township landowners claimed that the Board lacked authority to change the 1961 assessments because of the 30-year time lapse, and that the Water Resource Board could not reassess without the affected landowners' voting approval. The landowners complained they were being assessed through a "backdoor" for a project they never wanted. They contend the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners knew that Greendale Township was benefited by the drain in 1961, but did not assess the land for fear the landowners would vote against the project. After investigating the concerns expressed by the landowners, the Water Resource Board, in July 1991, issued an order confirming the reassessments.

The Greendale Township landowners appealed the Water Resource Board's administrative order. The landowners also began a separate action in district court seeking declaratory relief and an adjudication of their rights.

The district court consolidated the cases and granted judgment to the Water Resource Board in August, 1992. The district court concluded there was no time limit for the Water Resource Board reapportioning benefits and assessments under N.D.C.C. Sec. 61-21-62, and the landowners had no voting rights under Sec. 61-21-62. The court also concluded no reasonable person could conclude that the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners, or the Water Resource Board, had inequitably deprived the landowners of the right to vote against the project. The district court determined that the landowners were not assessed in 1961 because their land was not benefited by the drain at that time. The district court concluded the land was presently benefited by the drain because modern farming practices had altered drainage patterns.

The landowners moved for a new trial under Rule 59, N.D.R.Civ.P., and for relief from the judgment under Rule 60(b), N.D.R.Civ.P. They argued the district court erred by finding the land had changed since 1961 and submitted affidavits that they had not altered the natural drainage of their land. Before the district court ruled on the motions, the landowners appealed the judgment to this Court. Shortly thereafter, the district court issued an order denying the landowners' motions. We remanded the case to the district court so that it could reissue its order. ³ The landowners now appeal from the judgment and from the district court's order denying their motions for post-judgment relief.

On appeal, the landowners argue: (1) they have a statutory right to vote on the reassessments, (2) the Water Resource Board's authority to modify the 1961 assessment lapsed long ago because the Water Resource Board, and its predecessor, the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners, are administrative agencies that have a limited time in which to correct orders, (3) N.D.C.C. Sec. 61-21-62 does not authorize the reassessments because the Water Resource Board has not discovered or ascertained that Greendale Township land is benefited by the drain, (4) the Water Resource Board's determination that Greendale Township is presently benefited by the drain is arbitrary and capricious, and, (5) the Water Resource Board, and its predecessor, violated the landowners' due process rights.

We note that the Greendale Township landowners' declaratory judgment action was inappropriate because N.D.C.C. Sec. 28-34-01 "governs any appeal ... from the decision of a local governing body." ⁴ Therefore, we review only the appeal from the decision of the political subdivision. See Olson v. Cass County, 253 N.W.2d 179 (N.D.1977); Chester v. Einarson, 76 N.D. 205, 34 N.W.2d 418 (1948).

II

The landowners claim a statutory right to vote on the reassessments. N.D.C.C. Sec. 61-21-62 provides that a Water Resource Board may assess land that it discovers or ascertains is being benefited by an established drain. The statute provides that "[t]he provisions of this chapter governing the original determination of benefits and assessment of costs shall apply to the reassessment and assessment of benefits carried out under the provisions of this section."

According to the landowners, the phrase "[t]he provisions of this chapter governing the original determination of benefits and assessment of costs," refers to the voting provisions of N.D.C.C. Sec. 61-21-16. ⁵ Consequently, they argue the Board must give affected landowners the right to vote for or against the reassessments.

The voting process in N.D.C.C. Sec. 61-21-16 is to approve or disapprove the establishment of a proposed drain. In contrast, Sec. 61-21-62 relates to reassessments for an existing drain. A vote on whether to build a proposed drain, under Sec. 61-21-16, by its terms, does not apply to reassessments for an existing drain. Accordingly, N.D.C.C. Sec. 61-21-62 does not provide for an owner vote.

III

The landowners contend the Water Resource Board lacks authority to modify the 1961 assessments because the Water Resource Board, and its predecessor, the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners, are administrative agencies with a limited time to correct orders. For support, the landowners cite Stearns-Hotzfield v. Farmers Ins. Exchange, 360 N.W.2d 384 (Minn.App.1985). In that case, the Minnesota Court of Appeals held that "the right [of an administrative agency] to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by appeal or until a reasonable time has run, which would at least be co-extensive with the time required by statute for review." Stearns-Hotzfield at 389. According to the landowners, 30 years is not a reasonable time.

The landowners' argument is misplaced. The Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners, and its successor, the Richland County Water Resource Board, are political subdivisions of the State of North Dakota, not administrative agencies. Moreover, N.D.C.C. Sec. 61-21-62 clearly states that the Water Resource Board may reapportion benefits and assessments "whenever" the Board discovers or ascertains that land is benefited by an existing drain. The statute does not impose a time limit upon the Water Resource Board.

IV

The landowners argue N.D.C.C. Sec. 61-21-62 does not apply because the Water Resource Board has not "discovered or ascertained" that the land is presently benefited by the drain. According to the landowners, the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners knew the land was benefited by the drain in 1961, but did not assess the land for fear the landowners would have voted against the project. Therefore, the Water Resource Board cannot now claim it has discovered or ascertained the land is benefited by the drain.

As proof that the Richland County Water Conservation and Flood Control District No. 1 Board of Commissioners knew the land was benefited by...