Peterson v. Sando

• Decision Date: 17 November 2011
• Docket Number: No. 20110083.,20110083.
• Citation: 2011 ND 206,806 N.W.2d 172
• Parties: Alvin PETERSON, Appellant and Cross–Appellee, v. Todd SANDO, State Engineer and North Dakota State Water Commission, Appellees and Cross–Appellants.
• Court: North Dakota Supreme Court

2011 ND 206

806 N.W.2d 172

Alvin PETERSON, Appellant and Cross–Appellee,

v.Todd SANDO, State Engineer and North Dakota State Water Commission, Appellees and Cross–Appellants.

No. 20110083.

Supreme Court of North Dakota.

Oct. 20, 2011.Rehearing Denied Nov. 17, 2011.

Tami Lyn Norgard (argued), Fargo, N.D., and Jade Marie Rosenfeldt (appeared), Moorhead, MN, for appellant and cross-appellee.

Jennifer Leigh Verleger, Assistant Attorney General, Attorney General's Office, Bismarck, N.D., for appellees and cross-appellants.

VANDE WALLE, Chief Justice.

[¶ 1] Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed from a district court judgment affirming in part and reversing in part a State Engineer order determining there was an unauthorized dam on Peterson's property in Walsh County and requiring Peterson to construct a drainage ditch to maintain water impounded by the dam at a level of 1543.5 feet mean sea level. The primary issue in this case involves the determination of the natural elevation of land at the site of the dam for purposes of deciding if the land impounded sufficient water to necessitate a water or construction permit. We affirm the judgment in part, reverse in part, and we affirm the State Engineer's order.

I

[¶ 2] Peterson owns land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Peterson dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service (“USFWS”), the holder of wetland conservation easement for the slough, required Peterson to restore the drained wetland by constructing a ditch plug to maintain the slough at a minimum of 1543.0 feet mean sea level.

[¶ 3] In August 2009, Peterson's neighbor filed a complaint with the State Engineer under N.D.C.C. § 61–16.1–53.1, alleging an unauthorized dam existed on Peterson's land. The neighbor claimed Peterson had raised the height of the ditch plug above the slough's natural overflow elevation, which resulted in the impoundment of additional water in the slough without necessary water or construction permits under N.D.C.C. §§ 61–04–02 and 61–16.1–38.

[¶ 4] Laura Ackerman, a water resource engineer with the State Water Commission, investigated the ditch plug and the area impounding the slough. According to Ackerman's December 2009 interoffice report, there had been a history of problems with the ditch plug since 1973, including a 1996 complaint that the ditch plug was impounding additional water in two sections of land and damaging a township road between those sections. Ackerman's report stated a 1996 field inspection revealed two ditch plugs in the area, and one of the plugs was “obviously higher than what the topography would indicate to be the natural outlet elevation.” Her report explained that the Walsh County Water Resource Board had obtained an injunction to lower that ditch plug one foot to save the township road and an agreement was entered to construct the top of the plug at 1543.0 feet mean sea level. Ackerman's report also described a 1998 complaint about the ditch plug and investigation, which determined that from one half to one foot of fill had been placed on top of the berm and resulted in an injunction to lower the plug to 1543.0 feet mean sea level. Ackerman's report further detailed complaints about the ditch plug from 2007 through 2009 and attempts to resolve those complaints. Ackerman's report identified a man-made rock ridge at the ditch plug which was higher than the surrounding topography. Based on her investigation and available information, Ackerman concluded the natural overflow elevation of Peterson's land was 1543.0 feet mean sea level and the overflow elevation of the raised ditch plug was 1543.9 feet mean sea level. Ackerman concluded Peterson's land impounded more than fifty acre-feet of water above its natural overflow elevation without water or construction permits required by N.D.C.C. §§ 61–04–02 and 61–16.1–38. She recommended that the State Engineer order Peterson to lower the ditch plug to 1543.0 feet mean sea level.

[¶ 5] The State Engineer thereafter ordered Peterson to lower the elevation of the dam on his land to no greater than 1543.06 feet mean sea level and no less than 1543.0 feet mean sea level. Peterson requested an administrative hearing. After an administrative hearing, an administrative law judge (“ALJ”) effectively recommended to the State Engineer that Peterson lower the entire dam to 1543.5 feet mean sea level, or dig a ditch through the area to drain the slough to that level. The State Water Commission petitioned the State Engineer for review, asking the State Engineer to require the dam to be lowered to 1543.0 feet mean sea level. The State Engineer adopted the ALJ's recommended decision and ordered Peterson to construct and maintain a channel through or around the unauthorized dam to drain the slough to 1543.5 feet mean sea level.

[¶ 6] On appeal to the district court, the court affirmed the State Engineer's order requiring Peterson to maintain the dam at 1543.5 feet mean sea level, but reversed the part of the order requiring Peterson to dig a drainage ditch to maintain the slough at that level. The court also awarded the State Engineer “costs as allowed by law,” and the State caused a judgment to be entered which “awarded [the State Engineer] costs as allowed by law” without any delineation of costs.

II

[¶ 7] When a decision of an administrative agency is appealed from the district court to this Court, we review the agency's decision and the record compiled before the agency. Reinholdt v. North Dakota Dep't of Human Servs., 2009 ND 17, ¶ 10, 760 N.W.2d 101; Rennich v. North Dakota Dep't of Human Servs., 2008 ND 171, ¶ 10, 756 N.W.2d 182. Courts exercise a limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28–32. Rennich, at ¶ 10. Under N.D.C.C. § 28–32–49, our standard of review of an agency's decision is the same as the standard applied by the district court under N.D.C.C. § 28–32–46. Rennich, at ¶ 10. We will not reverse an agency's decision unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the appellant a fair hearing.

5. The findings of fact made by the agency are not supported by a preponderance of the evidence.

6. The conclusions of law and order of the agency are not supported by its findings of fact.

7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.

8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

N.D.C.C. § 28–32–46.

[¶ 8] In determining whether an agency's findings of fact are supported by a preponderance of the evidence, we do not make independent findings of fact or substitute our judgment for that of the agency; rather, we determine only whether a reasoning mind reasonably could have determined the agency's factual conclusions were proved by the weight of the evidence from the entire record. Rennich, 2008 ND 171, ¶ 11, 756 N.W.2d 182; Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979). Questions of law are fully reviewable on appeal from an agency's decision. Reinholdt, 2009 ND 17, ¶ 10, 760 N.W.2d 101; Rennich, at ¶ 11.

III

[¶ 9] In its cross-appeal, the State Engineer argues the district court erred in not affirming the State Engineer's order on the ground of judicial estoppel. The State Engineer argues Peterson has taken inconsistent positions in the State Water Commission's petition to the State Engineer to review the ALJ's recommendation and in his appeal to the district court. The State Engineer claims Peterson supported the ALJ's recommendation to maintain the slough at 1543.5 feet mean sea level in the State Water Commission's petition to the State Engineer to review the ALJ's recommendation and argues Peterson received exactly the outcome he requested in that proceeding. The State Engineer claims Peterson is judicially estopped from seeking different relief in his appeal to the district court, or this Court.

[¶ 10] “Judicial estoppel prohibits a party from assuming inconsistent or contradictory positions during the course of litigation.” BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55, ¶ 14, 642 N.W.2d 873. In BTA, at ¶ 14 (quoting 28 Am.Jur.2d Estoppel and Waiver § 74 (2000) (footnotes omitted)), we explained the underlying rationale for judicial estoppel:

The fundamental concept of judicial estoppel is that a party in a judicial proceeding is barred from denying or contradicting sworn statements made therein. Judicial estoppel is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent, conflicts with, or is contrary to one that she has previously asserted in the same or in a previous proceeding; it is designed to prevent litigants and their counsel from playing fast and loose with the courts, and to protect the integrity of the judicial process. Judicial estoppel doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. The purpose of the doctrine of judicial estoppel is to reduce fraud in the legal process by forcing a modicum of consistency on the repeating litigant.

The doctrine applies only where a party's subsequent position is totally inconsistent with its original position, and does not apply where distinct or different issues or facts are involved.

[¶ 11] In Dunn v. North Dakota Dep't of Transp., 2010 ND 41, ¶ 10, 779 N.W.2d...