North Dakota State Engineer v. Schirado, 10931

• Decision Date: 04 September 1985
• Docket Number: No. 10931,10931
• Citation: 373 N.W.2d 904
• Parties: NORTH DAKOTA STATE ENGINEER, Plaintiff and Appellee, v. Lester J. SCHIRADO, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 904

373 N.W.2d 904

NORTH DAKOTA STATE ENGINEER, Plaintiff and Appellee, v. Lester J. SCHIRADO, Defendant and Appellant.

Civ. No. 10931.

Supreme Court of North Dakota.

Sept. 4, 1985.

Joseph J. Cichy and Rosellen M. Sand, Asst. Attys. Gen., State Water Commission, Bismarck, for plaintiff and appellee; argued by Joseph J. Cichy, Bismarck, appearance by Rosellen M. Sand, Bismarck.

Vinje Law Firm, Bismarck, for defendant and appellant; argued by Richard G. Carver, Bismarck.

MESCHKE, Justice.

We consider the statutory authority of the North Dakota State Engineer to regulate the size and safety of a dam. We affirm a summary judgment that the reconstructed dam is capable of retaining more than 12 1/2 acre-feet of water and is unsafe, and thus is subject to the regulatory authority of the State Engineer. Because it has not been shown that removal of the dam is required, we vacate the judgment which ordered removal. We remand for formulation of a proper judgment to enforce the State Engineer's statutory authority.

On December 22, 1982, the State Engineer sued Schirado for removal of his dam. The State Engineer claimed the dam was unsafe and "capable of retaining more than twelve and one-half acre-feet of water." Since it had been constructed or modified without a permit as required by N.D.C.C., Sec. 61-04-02, the State Engineer claimed authority to act. The complaint alleged that Schirado had refused to comply with written requests "to remove the fill which was added to the previously existing dam ... despite the notice given to him of the potential danger to downstream areas."

Schirado's pro se ¹ Answer was a general denial and a "crossclaim" ² to enjoin the State Engineer "from demanding a water permit" for the dam. Schirado claimed that he "had not modified such dam as alleged, but rather had restored the same to what it was at the time of its original construction in the year 1936," and stated "that annual restorative work had been done on the spillway and dam over the past 46 years with an impoundment of water of less that [sic] 12.5 feet." He disputed the State Engineer's authority "if less than 12.5 acre-feet of water is impounded and the dam was constructed and in place prior to July 1, 1965."

The State Engineer moved for summary judgment on February 16, 1984, supported by affidavits of two of his qualified representatives showing that they had inspected the dam and had determined that it was "classified as an unsafe dam by current engineering criteria" and that it was "capable of retaining more than twelve and one-half acre feet of water," specifically "at least 36.0 acre-feet." An affidavit of the State Engineer showed that "no water permit has been obtained for the water appropriated by the existence of the dam," that Schirado's application to the State Engineer for a permit to enlarge the dam dated December 2, 1982, had been denied "because the proposed modifications would result in an unsafe structure," but that Schirado had nevertheless "repaired and reconstructed portions of the dam without obtaining the necessary permits."

On March 13, 1984, Schirado sought summary judgment in his favor and resisted the State Engineer's motion for summary judgment because (1) the dam was not "capable of storing or retaining 12.5 acre feet of water," and (2) the State Engineer had failed to "file a timely responsive pleading to the defendant's crossclaim." ³ Schirado's affidavit asserted ownership of the dam, that it had been constructed in 1936, and that he "had done annual repair work to such dam since the summer of 1968 and every year thereafter." He described some changes to the dam during 1982 and 1983 and asserted that "affiant during the months of September and October 1983 with the assistance of his son, Mark Schirado, with the aid of a tripod, rod, hand level and measuring tape measured the dimensions of such dam and that the computed maximum acre feet of water in such dam was 11.7 acre feet." The affidavit claimed "that such dam was in existence with like storage capacity of less than 12.5 acre feet for almost 48 years, thus, no permit is required to appropriate water as the same is grandfathered in."

On May 3, 1984, the State Engineer obtained an ex parte temporary restraining order and an order to show cause why a preliminary injunction should not issue, based upon an engineer's affidavit that the dam had "failed," "gave way," "forming a V-shaped opening," and that, "as a result of the dam's failure there have been damaging downstream impacts including an increase in the sediment deposited in the reservoir behind Crown Butte Dam." Schirado was ordered to "refrain from repairing, modifying, constructing, maintaining or performing any remedial work whatsoever on his dam pending the hearing on the motion for a preliminary injunction." ⁴

On May 10, 1984, counsel appeared for Schirado, filed a return to the order to show cause, and resisted the State Engineer's motion for summary judgment, arguing that the statutes relied upon by the State Engineer did not apply and that there were genuine issues of material fact.

On June 18, 1984, the district court denied both the State Engineer's and Schirado's motions for summary judgment because "there remain certain disputed questions of fact for trial herein, including whether the dam is capable of retaining, obstructing or diverting more than twelve and one-half acre feet of water."

Schirado then moved for judgment on the pleadings, arguing that "the capacity of that dam is totally irrelevant" and that the only legal effect of lack of a permit was to lose priority to water rights. He also argued that the dam was for "domestic, livestock, fish, wildlife or other recreational uses," so that no permit was required. The State Engineer resisted with a brief on evolution of the statutes.

Further discovery disclosed that Rolf Herbst, a licensed professional surveyor and engineer, had surveyed the reconstructed dam on July 28, 1984, for Schirado. Herbst concluded that the reconstructed dam had a "possible storage volume at present overflow elevation" of 42.5 acre-feet and that the volume of water behind the dam on that date was 12.51 acre-feet. ⁵

The State Engineer renewed his motion for summary judgment, with additional affidavits of his representatives, who had also resurveyed the dam on September 4-6, 1984, as rebuilt "in May of 1984." They concluded that the reconstructed dam "would retain approximately 42.3 acre-feet of water at the emergency spillway" and that it was unsafe, "subject to failure due to spring runoff and/or a large rainfall event." The State Engineer urged that, as a result of these recent determinations by his experts and by Schirado's expert, both concluding that the reconstructed dam capacity exceeded 42 acre-feet, "the question of fact with regard to the capacity of the dam is resolved."

Schirado's counsel argued that the State Engineer's motion for summary judgment "should again be denied ... for all of those reasons set forth in the motion for judgment on the pleadings and other documents supporting that position." He also argued laches and stressed that the dam had been in existence since 1936, asserting:

"It has been and continues to be the position of this party that the capacity of the dam in question here is not material."

No affidavits or other evidence was offered on behalf of Schirado to dispute the size or safety of the dam as reconstructed in May, 1984.

The district court's memorandum decision denied Schirado's motion for judgment on the pleadings. The district court concluded that Schirado "is conceding that the capacity of the dam is in excess of twelve and one-half acre-feet," because of his "lack of response, resisting affidavits or other evidence disputing the affidavits submitted by the State Engineer" with the renewed motion for summary judgment. The district court rejected the argument of laches, as an affirmative defense not plead and as not supported by any evidence as to the reconstructed dam.

The district court analyzed the authority of the State Engineer to control dams, concluding that, under Sec. 61-04-02 and its predecessors, the State Engineer had long-standing authority to control construction of dams over 12.5 acre-feet in capacity. Schirado's argument that the only purpose of requiring a permit was to establish priority for appropriation of water was rejected as incorrect. Under chapter 61-16.1, the district court held that the State Engineer also had authority to control both construction and modification of such dams for safety reasons, concluding that "the undisputed facts show a major breach in the dam requiring substantial construction" which could not be "equated with ordinary maintenance or repairs."

The district court held that "Schirado's dam is capable of retaining more than twelve and one-half acre-feet of water and the dam is unsafe." Since admittedly Schirado did not have a permit for appropriation of water under Sec. 61-04-02, or for construction or restoration of the dam under Secs. 61-16.1-38 and 61-16.1-39, the district court concluded the State Engineer was entitled to judgment as a matter of law.

Judgment was entered against Schirado compelling him to "at his own expense, remove the dam within sixty days" and permanently enjoining him "from reconstructing the dam without first obtaining permits for construction and for water appropriation." After denial of stay by the district court, the judgment was stayed by this Court pending disposition of the appeal upon approval of a supersedeas bond of $5,000.

Schirado, represented by new counsel on this appeal, argues that the record shows genuine issues of material fact about the capacity and safety of the dam, as well as laches. He urges that the relief granted, removal of the dam with an unqualified injunction against rebuilding it, exceeded relief authorized by law.

I. REGULATORY AUTHORITY

The State of North Dakota has...