Barnes County v. Garrison Diversion Conservancy Dist.

• Decision Date: 30 October 1981
• Docket Number: No. 9926,9926
• Citation: 312 N.W.2d 20
• Parties: BARNES COUNTY, North Dakota, a municipal corporation, Plaintiff and Appellee, v. GARRISON DIVERSION CONSERVANCY DISTRICT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 20

312 N.W.2d 20

BARNES COUNTY, North Dakota, a municipal corporation Plaintiff and Appellee, v. GARRISON DIVERSION CONSERVANCY DISTRICT, Defendant and Appellant.

Civ. No. 9926.

Supreme Court of North Dakota.

Oct. 30, 1981.

Mikal Simonson, State's Atty., Valley City, for plaintiff and appellee.

Zuger & Bucklin, Bismarck, and Michael Dwyer, Asst. Atty. Gen., State Water Commission, Bismarck, for defendant and appellant; argued by Murray G. Sagsveen, Bismarck.

PEDERSON, Justice.

The ultimate question presented in this case involves the extent to which administrative decisions made by administrative agencies established for that purpose may be transferred through an appeal procedure to the judiciary. We conclude that the principle of separation of powers requires that statutes authorizing judicial review of administrative determinations be so construed that the judiciary's role will be limited always to a review, judicial in scope, as defined by statute and case law, which avoids a substitution of the judgment of the judge for that of the administrator. The judgment of the district court permitting withdrawal of Barnes County from the Garrison Diversion Conservancy District is reversed. The case is remanded for the entry of a judgment affirming the determination by the Garrison Diversion Conservancy District denying the application by Barnes County to withdraw from the District.

The Garrison Diversion Conservancy District was created by Chapter 348, Session Laws 1955 (Ch. 61-24, NDCC), in order to facilitate the establishment, construction and maintenance of the "Garrison Diversion Unit of the Missouri River Basin Project as authorized by Act of Congress approved December 22, 1944 (58 Stat. 887), and Acts amendatory thereof and suplementary thereto." (See Section 1, Chapter 348, Session Laws 1955; Section 61-24-01, NDCC.) The statute contains no complete definition of "Garrison Diversion Unit." The Act of Congress approved December 22, 1944, known as the Flood Control Act of 1944, contained a definition of "Missouri-Souris Diversion Unit," but not "Garrison Diversion Unit." Since the early 1920's diversion of Missouri River waters into central and eastern North Dakota has involved two schemes: one proposed a diversion in eastern Montana to supply a canal leading into western North Dakota, and the other proposed a diversion at Garrison through canals into central and eastern North Dakota and the Souris and Red Rivers flowing ultimately north into Canada, as well as to the James River, flowing ultimately south back into the Missouri River.

The Conservancy District was declared to be a "governmental agency, body politic and corporate" and consisting "of that part of the state which is included within the boundaries of the following (22) counties, to wit: Barnes, Benson, Bottineau, Cass, Dickey, Eddy, Foster, Grand Forks, Griggs, LaMoure, McHenry, McLean, Nelson, Pierce, Ramsey, Ransom, Renville, Sargent, Sheridan, Stutsman, Ward, and Wells." Subsequently, by following the procedure set forth in § 61-24-02, NDCC, Traill County became a member on April 17, 1956; Richland County became a member on October 10, 1956; and Steele County became a member on March 27, 1957.

Section 61-24-16, NDCC, presently and at the time this matter was presented to the Conservancy District, permits exclusion from the Conservancy District of any county "not benefited or not to be benefited, in whole or in part, by the establishment of the Garrison Diversion Unit." ¹ The original Act permitted exclusion of any county "not directly benefited by the establishment of the Garrison Diversion Unit." We do not address the question of the validity of this amendment changing the rule under which a county may be excluded, as it was not raised until oral argument before this court and was neither researched nor briefed by the parties. We assume the present law applies as was assumed during all proceedings heretofor.

In a proceeding entitled In re Garrison Diversion Conservancy District, 144 N.W.2d 82 (N.D.1966), this court approved the creation of the Conservancy District, upheld the constitutionality of the statute, and, in effect at the behest of the United States, approved the January 26, 1966, master contract between the United States and the Conservancy District relating to the construction of the Garrison Diversion Unit. There is no explicit definition of "Garrison Diversion Unit" in the master contract. It is referred to in the words: "generally in accordance with the Garrison Diversion Unit report of January 1957, as approved by the Secretary of the Interior on June 21, 1958, and pursuant to the Act of August 5, 1965 (79 Stat. 433)."

Urged by a petition from some of its citizens, Barnes County, claiming it was not benefited by the Garrison Diversion Unit, followed the procedure of § 61-24-16, and petitioned the Conservancy District for exclusion. After a hearing at which oral and written evidence was received, the Conservancy District determined that Barnes County will be benefited by the Garrison Diversion Unit and denied the exclusion. ²

The resolution denying the petition of Barnes County to be excluded from the Garrison Diversion Conservancy District, which was introduced at the proceedings in district court as an annex to Exhibit 36, states in material part:

"WHEREAS ... testimony was presented indicating that Barnes County, North Dakota, would be benefited through the development of the Garrison Diversion Unit as follows:

"1) Approximately 32,000 acres of land for irrigation has been identified in Barnes County as part of the ultimate plan of the Missouri River Basin Project as authorized December 22, 1944.

"2) Future municipal and industrial water from the project for Valley City.

"3) Flood control from Lonetree Reservoir.

"4) Increased trade and business benefits resulting from irrigation development in the Oakes-LaMoure area as part of the reauthorized Garrison Diversion Unit which has a potential of $32 million in new gross business volume for the Greater Valley City Trade area.

"5) Barnes County will share, along with all counties in the Conservancy District, the benefits of an increase in overall gross business volume and personal income from the Garrison Diversion Unit.

"NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of the Garrison Diversion Conservancy District at a meeting duly assembled at Carrington, North Dakota, this 24th day of October, 1979, that this Board after having considered all evidence in support of and in opposition to the petition submitted to it by the County Commissioners of Barnes County, North Dakota, requesting that said county be excluded from the Garrison Diversion Conservancy District does hereby determine that because Barnes County will be benefited in part through the development of the Garrison Diversion Unit, there is no basis under law for the exclusion of said county from the Garrison Diversion Conservancy District and, therefore, does hereby deny the petition of the Board of County Commissioners of Barnes County for the exclusion from the Garrison Diversion Conservancy District ...."

As authorized by § 61-24-17, NDCC, ³ Barnes County appealed to the district court where the matter was treated as an "original" suit and tried "de novo without a jury," pursuant to that part of § 61-24-17 which provides:

"The appeal shall be docketed as any cause pending in district court is docketed and thereupon the court shall have and exercise original jurisdiction and shall hear and determine the cause de novo without a jury."

Witnesses not heard by the Conservancy District at the administrative hearing testified at the trial in district court and issues not raised at the administrative hearing were raised in the district court trial.

The trial court prepared 111 findings of fact and 20 conclusions of law based upon the evidence and the issues before it. Many of the findings of fact and some of the conclusions of law relate to the wisdom of the North Dakota State Legislature in including Barnes County in the Conservancy District, and the wisdom of the Congress of the United States in approving a program for the diversion of Missouri River waters in North Dakota. Others were independent determinations by the trial court that Barnes County will receive no direct or indirect benefits from the establishment of the Garrison Diversion Unit.

We are basically only concerned with the trial court conclusion of law number 18 which indicates that, as a matter of law, the decision of the Conservancy District was arbitrary and capricious and unsupported by substantial evidence. The same principle applies here as when our review is pursuant to the Administrative Agencies Practice Act (Ch. 28-32, NDCC). As we said in the case of North Dakota Real Estate Commission v. Allen, 271 N.W.2d 593, 595 (N.D.1978):

"... in making our decision, we must look to the record compiled before the Commission itself, rather than to the findings of the district court."

We must first consider the appropriate scope of review for both the district court and for this court when there is an appeal under the provisions of § 61-24-17, NDCC, first to the district court and then to this court. The language of § 61-24-17, NDCC, in describing the scope of the judicial review authorized, is similar in all significant respects to the language of § 11-11-43, NDCC. ⁴ There is a directive in each that a de novo hearing be held and a de novo determination be made. Section 11-11-43 does not direct the trial court to "exercise original jurisdiction."

Recently we said that:

"In considering the scope or nature of appellate review in a case of this type, we must keep in mind the fact that we are examining the act of a coordinate branch of the government in a field in which it has paramount authority." Shaw v. Burleigh County, 286 N.W.2d 792, 795 (N.D.1979).

In discussing the evolution of de novo review by trial courts...