Lead Opinion
[¶ 1] Dоnald Cossette and the Angela R. Cossette Revocable Living Trust appeal a district court order dismissing their complaint against the Cass County Joint Water Resource District. The Cossettes requested declaratory relief and appealed from the District’s resolution of necessity relating to the District’s intent to acquire an interest in the Cossettes’ real property through eminent domain. We affirm that part of the district court order dismissing the Cossettes’ request for declaratory relief. We reverse that part of the district court order concluding the Cossettes were not entitled to appeal the District’s resolution of necessity, and remand.
I
[¶ 2] Red River Valley governmental authorities, including the District, designed a flood control and protection project referred to as the Diversion Project. The District is responsible fоr obtaining property rights in North Dakota necessary for the Diversion Project. The Cossettes own approximately eighty acres of farmland in the Red River Valley. Representatives acting on behalf of the District notified the Cossettes in January 2016 that their property may be affected by the Diversion Project and “that some type of easement rights may be necessary.” The Cossettes also were notified thеir property would be inspected by an appraisal company. In March 2016 the District notified the Cos-settes it would “be acquiring your property ... for the proposed construction of the [Diversion Project],” and offered to purchase the property for $476,040. The Cos-settes rejected the District’s offer.
[¶ 3] In May 2016 the District passed a resolution of necessity determining the Cossettes’ property was necessary for the Diversion Project and the District intended “to acquire a Permanent Right of Way Easement over, across, and through the [Cossettes’] Property.” The resolution also indicated the District “will proceed with the requisite legal proceedings as necessary ... to acquire a Permanent Right of Way Easement over, across, and through the Property.”
[¶ 4] After the District passed the resolution of necessity the Cossettes sued the
[¶ 5] The District moved to dismiss the Cossettes’ complaint, arguing their request for declaratory relief was improper because it cannot be combined with an appeal from the District’s resolution of necessity. The District also' argued the resolution of necessity was not appealable because the Cossettes were not aggrieved by the resolution. The district court agreed and issued an order dismissing the Cossettes’ complaint.
• II
[¶ 6] The district court dismissed the Cossettes’ complaint under N.D.R.Civ.P. 12(b)(6). “A motion to dismiss a complaint under N.D.R.Civ.P. 12(b)(vi) tests the legal sufficiency of the claim presented in the complaint.” Brandvold v. Lewis & Clark Pub. Sch. Dist.,
Ill
[¶ 7] The Cossettes argue the district court erred in dismissing its complaint requesting a declaratory judgment against the District. The Cossettes sought declaratory relief and to appeal from the District’s resolution of necessity. The court dismissed the Cossettes’ request for declaratory relief, concluding their “attempt to assert an equitable remedy with their administrative appeal is inappropriate.” We agree.
[¶ 8] In Anderson v. Richland Cty. Water Res. Bd.,
[¶ 9] Here, similar to Anderson, the Cos-settes’ lawsuit sought declaratory relief and to appeal from the District’s resolution of necessity. The district court correctly decided the Cossettes’ attempt to seek declaratory relief was inappropriate. We affirm that part of the court’s order dismissing the Cossettes’ complaint relating to their request for declaratory relief.
IV
[¶ 10] The Cossettes аrgue the district court erred in dismissing their appeal from the District’s resolution of necessity.
[¶ 12] The district court concluded that, under N.D.C.C. § 61-16.1-54, the Cos-settes were not aggrieved by the resolution of necessity and could not appeal. The court stated the resolution “is only one of the steps taken toward eminent domain” and the Cossettes were only potentially aggrieved by the resolution. The court indicatеd the District subsequently began an eminent domain action against the Cos-settes, and “[i]f the [Cossettes] are aggrieved by a taking, the issues that they raise here may be raised in that proceeding.”
[¶ 13] The plain language of N.D.C.C. § 61-16.1-54 allows an aggrieved party to appeal from any order or decision of a water resource board; however, the statute does not define how one becomes “aggrieved.” This Court hаs defined an aggrieved party in the context of appealing a judgment or order of the district court to the Supreme Court. Treiber v. Citizens State Bank,
[¶ 14] The district court dismissed the Cossettes’ appeal from the resolution of necessity in part because the resolution “is only one of the steps taken toward eminent domain.” Although a rеsolution of necessity is one part of the entire eminent domain process, N.D.C.C. § 61-16.1-54 allows an appeal from any water resource board order or decision relating to eminent domain.
[¶ 15] Here, the resolution of necessity provides the legal description of the Cos-settes’ property and states the property “is necessary for the construction, operation, and maintenance оf the ... Diversion Project.” The resolution further states that “the [District] will proceed with the requisite legal proceedings as necessary under Section 61-16.1-09(2) and Chapter 32-15 of the North Dakota Century Code to acquire a Permanent Right of Way Easement over, across, and through the Property.” The resolution of necessity adversely affected the Cossettes’ property rights by describing the Cossettes’ property and stating the District will proceed with eminent domain to acquire an interest in the property. The Cossettes became aggrieved under N.D.C.C. § 61-16.1-54 upon the District’s passage of the resolution of necessity indicating the District will acquire an interest in the Cossettes’ property through eminent domain. We reverse that part of the district court’s order dismissing the Cossettes’ complaint appealing from the District’s resolution of necessity. We remand for the court to address the issues raised in the Cossettes’ appeal from the District’s resolution of necessity.
[¶ 16] We have considered the Cossettes’ remaining arguments and conclude they are either unnecessary to our decision or without merit. We affirm that part of the district court order dismissing the Cos-settes’ request for declaratory relief. We reverse that part of the district court order cоncluding the Cossettes were not entitled to appeal the District’s resolution of necessity, and remand.
Notes
. The Cossettes indicate the District failed to file the record relating to the resolution of necessity after the Cossettes appealed to the district court. On remand, the District must
Concurrence Opinion
concurring in part and dissenting in part.
[¶ 18] I concur with the portion of the majority opinion dismissing the Cossettes’ requеst for declaratory relief. I respectfully dissent from that part reversing the district court on the issue of whether the Cossettes are “aggrieved” and thus entitled to appeal.
[¶ 19] Section 61-16.1-54, N.D.C.C., permits an appeal “to the district court from any order or decision of the water resource board by any person aggrieved.” Because “aggrieved” is not a defined term, we interpret it in its ordinary sense. N.D.C.C. § 1-02-02. A dictionary frequently provides us with a reliable starting point in determining the ordinary meaning of a word we have not previously defined. To guard against linguistic drift, dictionaries close in time to the date of enactment are most helpful in determining the substantive meaning. See Douville v. Pembina Cty. Water Res. Dist.,
[¶20] The broader statutory scheme of Chapter 61-16.1 supports this reading that the approval of a resolution of necessity is not sufficient to make an affected landowner “aggrieved.” Section 61-16.1-54,
[IT 21] Chapter 61-16.1 provides somewhat different requirements for predominately local projects and for projects having majority funding from state or federal agencies. Each provides context for the meaning of “aggrieved.” For local projects, after a resolution of necessity is adopted, a notice containing the resolution must be published and mailed to affected landowners. N.D.C.C. § 61-16.1-18. The notice must set a date and location for a public hearing and contain a place and time where affected landowners may file votes for and against the project. Id. Once the deadline for voting has passed, the board must determine whether the project is approved and make an order establishing or denying establishment of a project. N.D.C.C. § 61-16.1-19. Notice of that ordеr must be published in the official county newspaper. Id. “Any right of appeal begins to run on the date of publication of the notice.” Id.
[¶ 22] If a project proceeds under an agreement in which at least fifty percent of the costs are paid by a state or federal agency, the water resource board “may dispense with all other requirements of this chapter, other than those stated in this sectiоn.” N.D.C.C. § 61-16.1-12.1. The Cossettes argue that section 12.1 does not apply because no federal or state agreement regarding payment of project costs exists or at least none has been provided to them. They do not deny that the U.S. Army Corps of Engineers has a critical role in the project. If such an agreement does exist, section 12.1 does not require publication of notice of an order establishing or denying establishment of the project, which is the beginning of the right to appeal for local projects under section 19. Section 12.1 simply provides for a public meeting at which the board determines whether the project is approved according to the votes of the affected landowners. Thus for projects proceeding under a federal cost sharing agreement, the date on which thе right of appeal begins to run cannot start on publication of notice, since no publication is required. I would conclude that the point at which an affected landowner is “aggrieved” is when the votes are counted and the “board determine[s] the project is approved.” N.D.C.C. § 61-16.1-12.1. In the event a project is not approved, it would seem unlikely any landowner would be “aggrieved” or eligible to apрeal, thus avoiding unnecessary appeals of board decisions that do not end up leading to a project or condemnation action. My conclusion that one is not “aggrieved” by a resolution of necessity but only after the board has approved the project provides a consistent right of appeal regardless of whether a project is locally or federally funded and also avoids piecemeal appeals long disfavored by this Court. See Horsley v. N.D. Workers Compensation Bureau,
[¶ 23] Our cases interpreting other statutes employing the term “aggrieved” in similar contexts are in accord. “Any person, or persons, jointly or severally, aggrieved by a decision of the board of county commissioners under this chapter, may appeal to the district court.... ” N.D.C.C. § 11-33-12. Applying this statute, we have
[¶ 24] In the context of reviewing administrative agency decisions, we have said that the “potential to be aggrieved is not the equivalent of being aggrievеd in fact.” Vickery v. N.D. Workers Comp. Bureau,
[¶ 25] Our decision in Treiber v. Citizens State Bank,
[¶ 26] “An aggrieved party is one who has some legal interest that may be enlarged or diminished by the appealed decision.” Id. at ¶ 5 (emphasis added). Reading this sentence in isolation, the use of “may be” suggests potential future harm may be sufficient for a party to be aggrieved. The cases сited in Treiber do not support this proposition, and Treiber did not rely on this in its result. Treiber further goes on to say a “party’s interest must be immediately, directly, and adversely affected, and an effect that is contingent or indirect, or that results merely in some possible, remote consequence, is insufficient.” Id. Our standing cases reinforce the notion that “to be entitled to an appeal as an aggrieved person .:. a party must be injuriously affected by the decision.” Bernhardt v. Rummel,
[¶27] The Cossettes assert they were “aggrieved” immediately upon passage of the resolution of nеcessity by the District. The appeal at issue here was filed only two days after the resolution of necessity was approved. At oral argument, the only injury the Cossettes pointed to was that they felt their property was sufficiently threatened that they had to hire a lawyer and expend attorney fees. An individual’s decision to hire an attorney based on a personal feeling that property rights are threatеned is too subjective a standard to determine whether the person is aggrieved within the meaning of this statute. The Cossettes asserted no harm other than being aggravated, annoyed, or threatened at the increased likelihood of having their property subject to condemnation. At the point of passage of the resolution of necessity, it may have seemed a near certainty that the Cossettes’ lаnd would be subject to a condemnation action. But at the time the resolution was appealed, no such action had been commenced and the District remained free to alter the project or otherwise change its mind. No votes of affected landowners had been submitted or counted. Whether a predominately local project under section 19 or a project under agreement with a federal agency under section 12.1, the process had not yet proceeded to the point where the Cos-settes were “aggrieved” and entitled to appeal.
[¶28] For these reasons, I would hold that a resolution of necessity identifying a property, even one that declares a condemnation action will commence, is not sufficient to. make a party “aggrieved” and entitled to appeal. I respectfully dissent.