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ND high court rules against landowners on Sargent Co. drain

BISMARCK, N.D.—The North Dakota Supreme Court on Feb. 25 ruled against a group of landowners who had sued the Sargent County Water Resource District over a drainage project.

The landowners, many of whom are Sargent County farmers, brought the case over the construction of a drain improvement. The first phase cost $3.9 million. The project was designed by Moore Engineering and split into maintenance pieces that plaintiffs alleged was designed to avoid public votes. The plaintiffs were represented by Braaten Law Firm of Bismarck. The oral argument was in November 2018.

Dan Gaustad, Grand Forks, N.D., represented the district, but was not immediately available for comment.

In developing the project, the plaintiffs argued that the Sargent County Water Resource District, often referred to as the water board, had attempted in numerous unlawful ways to avoid putting the project to a landowner vote. They argued the water board intentionally gave the public no notice that it would be voting on the project, and on Oct. 20, 2016, voted a meeting when none of the landowners directly affected aware of the vote and present. They added the appeal was late in part because minutes weren't published online until after the appeal period had ended.

The Supreme Court ruled that because the landowners did not appeal within 30 days as required by statute, that the courts were powerless to consider the case. Attorney J.J. England, in a written statement, explained, "The Court's decision should concern all North Dakotans because the facts in this case are about the Water Board's intentional lack of public notice, and its attempts to evade public oversight were extreme. Even faced with those extreme facts, the Court ruled that the public must appeal any and all Water Board decisions within 30 days, even if the public has no idea what the Water Board has done."

Attorney Kyra Hill, who also represented the landowners, in a written statement said the decision is very concerning because it interprets the law in a way that places an 'impossible burden" on the public to be present for "decisive moments."

"Taken to its logical conclusion, the Supreme Court's decision requires concerned members of the public to attend every Water Board meeting, review every document at those meetings, understand all of the proceedings at those meetings, and appeal any unlawful decision, all very likely before having the opportunity to consult an attorney," she said. "The decision requires members of the public to appeal any decision of the Water Board within thirty days, otherwise the public loses any right to judicial review — even if the Water Board's decision is plainly illegal."

A district judge ruled against the landowners on the 30-day appeal deadline, but called the water board actions "morally deficient."

"The courts have cut us off at the knees for a technicality, not democracy," says Leon Mallberg, a Dickinson, N.D., retired real estate and manufacturing businessman who owns land in Sargent County. Only the water board was present when the motion was made to proceed with the project without a public vote, Mallberg said. The minutes of that meeting weren't prepared and distributed in a timely manner, taking up much of the appeal period, he said.

The Supreme Court appeared to recognize that the current law is troublesome because they suggested a legislative fix might be in order. The Sargent County landowners and their attorneys will be reviewing potential legislative fixes and intend to bring their concerns to the Legislature. Hill said that likely will wait until the 2021 Legislature, as the 2019 session has passed critical dates.