Knudson v. Kyllo, 2012 ND 155

Miller and J.D. Miller Farming Association own land in Forest River Township with a dike system constructed in 1955 prior to permit requirements.
In 1996 Miller repaired/revised the dikes; a resident complained, prompting reviews by the State Water Commission and the Walsh County Water Resource District.
The District and State Water Commission investigated, noting no permit record for the dike construction in Section 21 and recommending engineering analysis and potential permits.
In 1996–1997 Miller altered the dikes (creating a dual “old” and “new” system) under District guidance but without a permit; a complainant withdrew, and no formal permit was issued.
In 2010 another landowner complained that Miller’s unpermitted dikes caused erosion; Miller had elevations verified as matching 1996 directives; the District determined the dikes were unpermitted and ordered removal by November 30, 2010, with final removal by 2011 if not complied.
The district court affirmed the District’s decision that the dikes were unpermitted and required removal under NDCC 61-16.1-53.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the District had jurisdiction to order removal of the dikes	Miller: legality tied to pre-permit construction in 1955	Walsh County: 1996 dikes fall within District's jurisdiction per later amendments and actions	Yes; the District had jurisdiction over the dikes constructed/revised in 1996.
Whether the dikes required a permit under NDCC 61-16.1-38 and 61-16.1-53	Miller: no permit required for pre-1990s dikes; capacity analysis not properly applied	District: dikes qualify as devices requiring permits when capable of retaining >50 acre-feet	Yes; the dikes were capable of retaining more than 50 acre-feet, triggering permit requirements.
Whether the District’s analysis of capacity was adequately supported by the record	Miller: insufficient reasoning to support capacity finding	District: substantial evidence and rational process support the finding	Sufficient evidence supports the finding that the dikes could retain >50 acre-feet.
Whether Miller is estopped or waived from challenging removal	Miller: equitable/ promissory estoppel and waiver preclude removal	District: no applicable estoppel/waiver based on the 1996 actions and conduct	Estoppel/waiver claims fail; the District may enforce removal.
Whether the open meeting laws were violated	Miller: executive session violated open meeting requirements	District: executive session justified for legal advice	No open-meeting violation established; district action stands.

Klindt v. Pembina Cnty. Water Res. Bd., 2005 ND 106 (ND 2005) (limited standard of review for district decisions)
Douville v. Pembina Cnty. Water Dist., 2000 ND 124 (ND 2000) (districts’ authority to enforce dike permits; rational use of discretion)
North Dakota State Eng’r v. Schirado, 373 N.W.2d 904 (ND 1985) (dikes and permit context; maintenance vs. repair distinction)
Erickson v. Brown, 2012 ND 43 (ND 2012) (promissory estoppel elements; reliance and injustice)
Dalan v. Paracelsus Healthcare Corp., 2002 ND 46 (ND 2002) (promissory estoppel elements; justifiable reliance)
First Int’l Bank & Trust v. Peterson, 2009 ND 207 (ND 2009) (waiver elements and effectiveness against government)
Blocker Drilling Canada, Ltd. v. Conrad, 354 N.W.2d 912 (ND 1984) (estoppel framework; government actions considered case by case)
Farmers Cooperative Association of Churchs Ferry v. Cole, 239 N.W.2d 808 (ND 1976) (estoppel elements and government accountability)
Welken v. Conley, 252 N.W.2d 311 (ND 1977) (context for nuisance, regulatory actions and evidence)