A Dam Dilemma: Schaefer goes to court to save Rosefield Dam

Details of a five-year ordeal were laid out in court on Tuesday, Dec. 18, when Monty Schaefer, a Barlow area farmer, sought an administrative appeal of a decision reached by the Eddy County Water Resource District (ECWRD) earlier this year to remove the Rosefield Dam and spillway.

Schaefer purchased the land that the Rosefield Dam and spillway sits upon in 1995. He says the county wasn't aware they had jurisdiction over the dam until recently and therefore did not perform any maintenance on the dam as long as he owned the land. Schaefer has a copy of the Sept. 24, 1936 easement for the dam, which was constructed by the Works Progress Administration (WPA) and the State of North Dakota. In the easement the agency proposes to build a 7-foot-high dam encompassing 2 acres across the Rosefield Slough. Further, the easement covers 10.2 acres of adjacent land for the impoundment of water from the dam.

The water in the Rosefield Slough is 3 ft. deep, one fact Schaefer says all parties agree. The height of the dam and the acre-feet of water impounded, however, are where the Office of the State Engineer (OSE), ECWRD and Schaefer are at odds. Schaefer asserts that he has merely performed maintenance on the dam, with the goal to retain the dam's original height of 7 feet.  

His neighbor, Doug Skadberg, disagrees. Skadberg filed a complaint with the ECWRD and the OSE in December 2013, alleging that work performed on the dam by Schaefer has raised the height of the dam and caused water to back up onto adjacent land. That set in motion five years of investigative work, action and appeals regarding this issue.

Acting on Skadberg's original complaint, the ECWRD sent a letter to Schaefer in August 2014 stating, "After much consideration, the Eddy County Water Board proposes that if you want the dam and spillway located in the NW 1/4 of Section 28 to remain, then it is necessary that you satisfy the permit requirements of NDCC 61-16.1-38 and the following further conditions: 1) Any and all culverts installed shall be at an elevation, quantity and size approved by the water board; 2) Any and all costs associated with the project shall be your obligation (including but not limited to construction, engineering, equipment, labor, and materials); and 3) you must enter into a maintenance agreement that requires that you and your assigns/successors will assume all future costs of and responsibility for maintenance and repairs."

Schaefer appeared before the ECWRD on Sept. 2, 2014, where he presented evidence, including a Certificate of Survey from Interthe work was classified as maintenance, and therefore did not require a permit as per N.D. Century Code. The minutes stated, "Based on: 1) prior on-site visits and the information resulting therefrom; 2) the Interstate Engineering Certificate of Survey dated August 27, 2014; 3) the sketch of Monty Schaefer depicting various elevations of the dam, spillway and RCP; 4) the Easements and Dedications of September 24, 1936; and 5) the lack of evidence presented by Doug Skadberg, Mike Tweed moved to determine that the Rosefield Slough Dam located in Section 28, Township 148, Range 67 was not altered or modified such that a construction permit was required under N.D.C.C. 61-16.1-38. Larson seconded. Motion carried."

Skadberg filed an appeal with the OSE on Oct. 22, 2014, stating that "this dam was abandoned for roughly 40 years before {Schaefer} acquired the land and decided to rebuild the WPA dam. While the dam was abandoned, the 37,000 acre drainage called Oak Creek Drain was approved and finished in 1990" that runs through the area, making the dam impractical. Skadberg also claimed that the dam was over 10 feet high based on a topographical map showing the elevations of the stream bed and the dam and cited that the dam was unauthorized because it now impounded more than 50 acre-feet of water due to modifications made by Schaefer.

Over the next two years, Schaefer attended numerous ECWRD meetings, and he says there was no information shared about the issue at many of them. Then on Nov. 1, 2016, the OSE issued a letter to the ECWRD regarding Skadberg's appeal. In the enclosed investigative report, the OSE appeared to dismiss Skadberg's claim that the installation of Oak Creek Drain made Rosefield Dam impractical, stating "While not specifically addressed, a letter from the OSE staff Rosellen Sand dated March 25, 1985, noted that, 'Permanent water storage in the project area is beneficial in the following locations: ... W 1/2 Section 28, Rosefield Township.' This note indicates that the drain was likely conceived and constructed with knowledge of the existence of the Dam."

However, the OSE did dispute the surveys presented by Schaefer, and further alleged that Schaefer verbally admitted during a 2014 site visit that he had raised the height of the dam to kill cattails. They referenced a 1955 dam information sheet as evidence that the dam held back fewer than 50 acre-feet of water at that time. Therefore, Aaron Carranza, a Professional Engineer and Chief of the Engineering and Permitting Section recommended that "the State Engineer find that a construction permit was required, but not obtained, for the work performed on the Dam by Mr. Shaefer (sic)." Carranza further recommended that, in accordance with N.D.C.C. § 61-16.1-53.1(3)(b), the State Engineer return the matter to the District and require the District to reevaluate the original complaint from Skadberg.

On Nov. 13, 2016, the ECWRD requested clarity from the OSE regarding the issue. That was followed up with another year and a half of correspondence.

The OSE agreed to conduct a bathymetric study in 2017, through which they determined that the dam impounds 137 acre-feet of water, much more than the 50 acre-feet of water that triggers a permit, according to the OSE. However, Schaefer said that based on the 1936 easement the dam was originally built to hold back more than 50 acre-feet of water. He calculated that by taking the 12.8 acres under the easement multiplied by the 7 ft. proposed height, the dam was designed to impound at least 90 acre-feet. Further, no bathymetric study had been done prior to benchmark the results against and determine if Schaefer's maintenance had in fact caused the dam to impound more water than originally intended.

Schaefer wrote on Jan. 12, 2018, "Mr. Skadberg's original complaint was that work performed on the dam has caused water to back up onto his land. The ECWRD has determined that Mr. Skadberg's claim is unsubstantiated. There is no language in the response from the OSE that indicates the claim was investigated by the OSE."

Schaefer's attorney, Bennett Johnson, sent a letter to the ECWRD on April 2, 2018, stating "Based on the recent revelations, our client is asking that the ECWRD disregard any OSE findings and orders to take action on the Rosefield Dam as it relates to Mr. Skadberg's complaint. We think it is proper to pursue repairing the spillway without the need for a construction permit; such work would be considered maintenance and fall under the jurisdiction of the ECWRD.

On May 1, 2018, the ECWRD passed a motion to remove the Rosefield Dam and spillway. In a letter to Schaefer from ECWRD, Secretary/Treasurer Travis Peterson wrote, "As the ECWRD understands it, the OSE requires implementation of one of the following: 1) breach the dam, 2) cause the dam to impound less than 50 acre-feet of water, or 3) obtain from the OSE a construction permit." He contended that since Schaefer did not wish to seek a permit, that the ECWRD deemed removal the more appropriate of the two remaining options.

Schaefer then filed an appeal of the ECWRD's decision, with the goal of being granted an evidentiary hearing where all parties, including the OSE, ECWRD, Schaefer and Skadberg, can all present their case, something he said he was denied by the OSE.

"The water board is trying to work through it," said Schaefer after the hearing. "Our biggest beef is with the state." He added that neither he nor his attorney have found any potential recourse against the OSE regarding what they believe is inaccurate information in its investigative report.

Schaefer contends that the dam has always impounded more than 50 acre-feet of water, and that there exists no previous bathymetric survey data to benchmark the 2017 survey against, making the finding that he must have a permit to impound more than 50 acre-feet of water arbitrary.

Schaefer says he fundamentally disagrees with the OSE's determination that he modified the dam. In court his attorney sought the opportunity for Schaefer to present his case regarding false information referenced by the OSE in its report in an evidentiary hearing. He maintains that the ECWRD reached an appropriate decision in September 2014 when it deemed his work "maintenance" and did not require a permit. He said the OSE has overtly controlled the results and forced the ECWRD's hand.

Schaefer asserts that there's no reason to remove the dam and subsequently drain the Rosefield Slough, as the dam has existed for over 80 years and no evidence exists to support Skadberg's claim that the dam causes impounded water to negatively affect adjacent land. Schaefer further contends that he has additional evidence to present at a formal hearing, evidence he said he did share with the ECWRD and the OSE during in-person meetings after the determination letter was issued in November 2016. However, that information is not on record because the OSE said it was "too late" for him to present, as they had already completed their investigation.

Daniel Gaustad, the attorney representing ECWRD in the proceedings, argued that Schaefer should have filed an appeal immediately after the November 2016 letter was issued by OSE, as there is a clause that allows for such an appeal within 30 days. However, Schaefer says he was given the run around by the OSE, as he was told that the issue was returned to the ECWRD and therefore he was not able to appeal the OSE.

Gaustad also referenced the multiple ECWRD meetings Schaefer attended, the year and a half of correspondence among the parties and the in-person meetings Schaefer had with OSE staff since the Nov. 1, 2016 letter as evidence that Schaefer had ample time to present his case to the OSE and the ECWRD. The standard is the opportunity to be heard, he said, and that standard has been met, Gaustad contends.

Why hasn't Schaefer just applied for a permit? He said he doesn't believe a permit is needed for the work he has done. According to N.D.C.C. 61-16.1-38, a construction permit is required from the OSE if a water control structure is constructed or modified (emphasis ours) and is capable of retaining, diverting, or obstructing more than 50 acre-feet for dikes, other devices and low-hazard dams. Schaefer said the dam already exists, and that he has done nothing to constitute "modification," therefore a permit is not needed. Normal maintenance of existing dams is allowed under N.D.C.C. without a permit under the direction of the local water resource district. Schaefer said that by applying for a permit he would be admitting that he modified the dam, which he didn't.

Now all parties await an opinion from Judge Cherie Clark. At the close of the Dec. 18 hearing, she indicated that no further hearings would be held and that she would issue an opinion at a later date. Johnson, Schaefer's attorney, anticipates that it will be filed sometime after the new year. Read the Transcript for updates.

Update 05/02/2020: Amy Wobbema followed this story throughout the first half of 2019, and she earned a first place award in the Reporting Series category. Read the following articles for the rest of the story on the Rosefield Dam case:

Judge affirms local decision- https://www.newrockfordtranscript.com/story/2019/01/14/news/judge-affirms-local-decision-to-remove-rosefield-dam/2129.html

Schaefer appeals to N.D. Supreme Court- https://www.newrockfordtranscript.com/story/2019/04/01/news/schaefer-appeals-to-nd-supreme-court/2559.html

New developments emerge in Rosefield Dam case- https://www.newrockfordtranscript.com/story/2019/05/13/news/new-developments-emerge-in-rosefield-dam-case/2809.html

Rosefield Dam Reversal- https://www.newrockfordtranscript.com/story/2019/06/10/news/rosefield-dam-reversal/2962.html