Douville v. Pembina County Water Resource District
| Decision Date | 14 June 2000 |
| Docket Number | No. 990307.,990307. |
| Citation | 2000 ND 124,612 N.W.2d 270 |
| Parties | Thomas DOUVILLE, remainder interest, and Nettie Douville, life estate; Estate of Howard Hughes and Doreen Hughes, c/o H. Frank Hughes, P.R.; Jeffrey Hughes; Stanley Hughes and Lois Hughes; Albert D. Johnson and Vernon L. Johnson; Gordon E. Kollack and Roy Kollack; Kathleen Kollack; Roy Morris; William J. Newell and Donna C. Newell; Ralph Stegman and Jacqueline Stegman; Perry A. Svenson and Susan J. Svenson; William Symington and Lillian Symington, individually and as trustee of Garnet E. Symington Trust; Vernon Symington and Phyllis Symington; Walter Symington and Sharon Symington; Randall Wagner and Marion Wagner; Irene Weiss; and Larry R. Trenbeath, Trustee of the Allen Dale Trenbeath Trust, Petitioners and Appellants, v. PEMBINA COUNTY WATER RESOURCE DISTRICT, Respondent and Appellee, and Tim Wilwand, Richard Margerum, Larry Wilwant, Cameron Wilwand, and Bert Warner, Intervenors and Appellees. |
| Court | North Dakota Supreme Court |
Duane R. Breitling, Ohnstad Twichell, Fargo, for petitioners and appellants.
Neil W. Fleming, Fleming & DuBois, Cavalier, for respondent and appellee.
Kermit E. Bye (argued) and Tami L. Norgard (appearance), Vogel, Weir, Hunke & McCormick, Ltd., Fargo, for intervenors and appellees.
Julie A. Krenz (on brief), Attorney General's Office, Bismarck, for amicus curiae State of North Dakota.
[¶ 1] Thomas Douville and numerous other landowners ("the landowners") appealed from a judgment affirming the decision of the Pembina County Water Resource District ("the District") ordering removal of dikes on their land. We affirm.
[¶ 2] This case involves a long-standing dispute over dikes built along the Pembina River more than twenty-five years ago. Between 1969 and 1974, several landowners in the Neche area built dikes on their land to control flooding from the Pembina River. The landowners did not seek nor obtain permits or approval to construct the dikes. In years of high run-off, the Neche-area dikes have caused flooding of downstream land.
[¶ 3] In 1996, complaints were filed with the District alleging the landowners' dikes were illegal and should be removed. After lengthy hearings and presentation of extensive documentary evidence, the District determined the dikes were illegal and ordered them removed. The landowners appealed to the district court, which affirmed the decision of the District.
[¶ 4] In the appeal to this Court, the landowners raise two issues:
[¶ 5] We recently outlined our standard of review in appeals from a decision of a water resource district:
In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court's and is very limited. Our function is to independently determine the propriety of the decision, without according any special deference to the district court's decision, and unless the Board acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. A decision is not arbitrary, capricious or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.
Graber v. Logan County Water Resource Board, 1999 ND 168, ¶ 7, 598 N.W.2d 846 (citations omitted). Interpretation of a statute is a question of law, which is fully reviewable by this Court. Wanstrom v. North Dakota Workers Compensation Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860.
[¶ 6] The District has the authority under N.D.C.C. § 61-16.1-531 to order removal of unauthorized dikes:
Removal of a noncomplying dike or dam—Notice and hearing—Appeal—Injunction. Upon receipt of a complaint of unauthorized construction of a dike, dam, or other device for water conservation, flood control, regulation, watershed improvement, or storage of water, the water resource board shall promptly investigate and make a determination thereon. If the board determines that a dam or other device, capable of retaining, obstructing, or diverting more than twelve and one-half acre-feet [15418.52 cubic meters] of water, has been established or constructed by a landowner or tenant contrary to the provisions of this title or any rules promulgated by the board, the board shall notify the landowner by registered or certified mail at the landowner's post-office address of record.... The notice must specify the nature and extent of the noncompliance and must state that if the dike, dam, or other device is not removed within such period as the board shall determine, but not less than thirty days, the board shall cause the removal of the dike, dam, or other device and assess the cost thereof, or such portion as the board shall determine, against the property of the landowner responsible.
[¶ 7] The parties agree the relevant statutory provision governing the legality of these dikes is N.D.C.C. § 61-16-15 as it existed at the time the dikes were constructed. At all relevant times2 that statute provided, in part:
No dams or other devices for water conservation, flood control regulation, watershed improvement or storage of water which are capable of retaining more than twelve and one-half acre-feet of water shall be constructed within any water management district except in accordance with the provisions of this chapter.
The statute required application to, and approval by, the Water Resource Board and the State Water Commission before any such water control device could be built. N.D.C.C. § 61-16-15.
[¶ 8] The landowners concede they never sought a permit or other approval for the dikes in question. They argue, however, that dikes were not covered by N.D.C.C. § 61-16-15 and therefore no such authorization was required. Thus, they assert, the dikes were not illegal when constructed and cannot be ordered removed under N.D.C.C. § 61-16.1-53.
[¶ 9] The landowners specifically contend that, because N.D.C.C. § 61-16-15 mentions dams but not dikes, the legislature did not intend that dikes be covered by the statutory provision. Resolution of this issue requires interpretation of the statutory language. The primary purpose of statutory construction is to ascertain the intent of the legislature. Ash v. Traynor, 2000 ND 75, ¶ 6, 609 N.W.2d 96; Berg v. Berg, 2000 ND 36, ¶ 24, 606 N.W.2d 895. In ascertaining legislative intent, we look first to the words used in the statute, giving them their plain, ordinary, and commonly understood meaning. Ash, at ¶ 6; Berg, at ¶ 24. When a statute is clear and unambiguous on its face, we will not disregard the letter of the statute under the pretext of pursuing its spirit, because the legislative intent is presumed clear from the face of the statute. N.D.C.C. § 1-02-05; Lawrence v. North Dakota Workers Compensation Bureau, 2000 ND 60, ¶ 19, 608 N.W.2d 254.
[¶ 10] We believe N.D.C.C. § 61-16-15 is clear and unambiguous on its face and, giving the words of the statute their plain, ordinary, and commonly understood meaning, demonstrates the legislature's intent that dikes are included in the statute's provisions. The statute does not apply only to dams; it also applies to "other devices for ... flood control regulation." A "dike" is defined as "an embankment or dam made to prevent flooding by the sea or by a river," Webster's New World Dictionary 395 (2d Coll. ed.1982), or "a bank usu. of earth constructed to control or confine water." Webster's Third New International Dictionary 632 (1971). There is no dispute the dikes in this case were constructed for the express purpose of controlling flooding of the landowners' property by the Pembina River. A dike is clearly a "device for ... flood control regulation."
[¶ 11] The landowners argue the legislative history of a 1979 amendment to N.D.C.C. § 61-16-15 indicates that dikes were not included in the pre-1979 version of the statute. However, when the letter of the law is clear and free of ambiguity, we need look no further than the statutory language, Hill v. Weber, 1999 ND 74, ¶ 9, 592 N.W.2d 585, and "it is neither necessary nor appropriate to delve into legislative history to determine legislative intent." Born v. Mayers, 514 N.W.2d 687, 689 (N.D.1994).
[¶ 12] If we were to consider the history of the 1979 amendment, it clearly indicates that dikes were included in the pre-1979 version of the statute. The 1979 amendment specifically added the word "dike" to the types of devices regulated under the statute. See 1979 N.D. Sess. Laws ch. 642, § 1. The landowners argue that, because it is presumed the legislature does not perform idle acts, the addition of the word "dike" must mean dikes were not included prior to the amendment.
[¶ 13] Although generally it is presumed a legislative enactment is intended to change existing law, when analyzing an amendment we must consider whether the purpose was to clarify or alter the law. Scott v. North Dakota Workers Compensation Bureau, 1998 ND 221, ¶ 15, 587 N.W.2d 153; Effertz v. North Dakota Workers Compensation Bureau, 525 N.W.2d 691, 693 (N.D.1994). In this case, the legislative history demonstrates the word "dike" was added to merely clarify the law, and was not an indication dikes were not previously covered by the statute.
[¶ 14] The 1979 amendment was drafted by the State Water Commission. In a written summary of the bill presented by Michael Dwyer, counsel...
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