Justia Environmental Law Opinion SummariesArticles Posted in North Dakota Supreme Court
Peterson v. Sando
Petitioner Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed a district court judgment affirming in part and reversing in part a State Engineer order that determined there was an unauthorized dam on Petitioner's property in Walsh County and required Petitioner 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 involved 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. Petitioner owned land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Petitioner dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service, the holder of wetland conservation easement for the slough, required Petitioner to restore the drained wetland. In 2009, Petitioner's neighbor filed a complaint with the State Engineer alleging an unauthorized dam existed on Petitioner's land. The neighbor claimed Petitioner 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. Upon review, the Supreme Court affirmed the district court's judgment in part, and reversed in part, and affirmed the State Engineer's order. Specifically, the Court found that the district court's decision pertaining to costs was "a boilerplate, conclusory statement awarding the State Engineer 'costs as allowed by law,' and the State thereafter caused entry of a judgment that awarded [the Engineer] costs" without any delineation of those costs, or discussion of whether costs are allowed. "Under our jurisprudence disfavoring piecemeal appeals, [the Supreme Court] conclude[d] the State Engineer's failure to include any further delineation for costs in the final judgment constitutes a waiver of any costs it may have been entitled to in a proceeding before a district court acting as an appellate court in an administrative proceeding." Accordingly, the Court reversed the district court's order pertaining to costs, and declined the State Engineer's request to remand for a determination of the costs, if any, to which it may be entitled in the Engineer's cross-appeal. The Court affirmed the district court's order in all other respects.