Peterson v. Sando
806 N.W.2d 172
| N.D. | 2011Background
- Peterson owns land in Walsh County with a slough in a closed basin; since 1973 he dug a ditch to drain the slough, later subject to wetland restoration requirements by USFWS at 1543.0 ft MSL.
- In 2009 a neighbor complained to the State Engineer that an unauthorized dam existed due to a raised ditch plug impounding water beyond natural overflow.
- State Engineer investigation found historic problems with the ditch plug and concluded natural overflow elevation was 1543.0 ft MSL while the raised plug reached 1543.9 ft MSL, impounding over fifty acre-feet of water.
- Administrative proceedings led the ALJ to recommend lowering the dam to 1543.5 ft MSL or digging a drainage ditch; the State Engineer adopted the 1543.5 ft MSL drainage option.
- District court affirmed the 1543.5 ft MSL ruling but reversed the requirement to dig a drainage ditch; it also awarded costs to the State Engineer without detailing them.
- The Supreme Court affirmed in part, reversed in part, and upheld the State Engineer’s order requiring action to drain to 1543.5 ft MSL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the natural elevation finding and water impoundment compelled permits | Peterson contends natural elevation is higher (1543.9) and no permit was required | State Engineer/ Ackerman show natural elevation 1543.0 with unlawful impoundment | Supported by preponderance; 1543.0 MSL natural elevation established; unauthorized dam exists |
| Authority to require drainage ditch or other modification | State Engineer lacks authority to mandate a ditch | Statutory authority to modify unauthorized dams authorizes a drainage solution | State Engineer authority to require drainage to 1543.5 MSL affirmed; district court reversed only insofar as to ditch specifics; affirmed order |
| Judicial estoppel applicability | Peterson inconsistently asserted positions in different proceedings | Peterson’s positions were not totally inconsistent when viewed in context | Judicial estoppel not applied; Peterson not barred from appealing on different grounds |
Key Cases Cited
- BTA Oil Producers v. MDU Res. Group, Inc., 2002 ND 55 (North Dakota) (judicial estoppel and consistency in litigation)
- Dunn v. North Dakota Dep’t of Transp., 2010 ND 41 (North Dakota) (judicial estoppel—consistency across proceedings)
- Rennich v. North Dakota Dep’t of Human Servs., 2008 ND 171 (North Dakota) (standard of review for agency findings; weight of evidence)
- Reinholdt v. North Dakota Dep’t of Human Servs., 2009 ND 17 (North Dakota) (limited review of agency decisions; statutory standards)
- Davis v. Killu, 2006 ND 32 (North Dakota) (evidentiary abuse-of-discretion standard; expert testimony)