Schaefer appeals to N.D. Supreme Court

The Rosefield Dam case is headed for the N.D. Supreme Court. Monty Schaefer, a Barlow area farmer, filed an appeal on March 8 after Southeast District Judge Cherie Clark affirmed the Eddy County Water Resource District’s (ECWRD) decision to remove the Rosefield Dam and spillway, which is located on Schaefer’s property, on Jan. 3.

 Schaefer has spent over five years fighting for the right to retain the Rosefield Dam and spillway and to conduct necessary repairs to keep the structure functional. The trouble started when his neighbor, Doug Skadberg, filed a complaint with the ECWRD claiming that Schafer had modified the dam, causing water to build up on adjacent land. Schaefer responded with surveys, original 1936 easement documents and other evidence to prove that he hadn’t modified the dam. When the ECWRD decided in 2014 that the repairs Schaefer made were merely maintenance, Skadberg appealed and got the Office of the State Engineer (OSE) involved. The OSE issued a response in 2016, stating that the dam had been modified and that the ECWRD had three options: 1) remove the dam; 2) apply for a permit; 3) cause the dam to impound less water, particularly fewer than 50 acre feet of water.

 As Schaefer stated after the district court hearing, he has concerns with the Office of the State Engineer (OSE), who conducted a review of the case and delivered directives to the ECWRD on how they should respond. According to his Notice of Appeal, Schaefer has three main issues:

 1) The OSE mandated that the Eddy County Water Resource District (“ECWRD”) carry out its directives concerning the Rosefield Dam. Schaefer argues that the OSE did not have jurisdiction to intervene because a proper appeal was not in place.

 2) “Many procedural errors and violations of statute occurred” by both the ECWRD and the OSE, which deprived Schaefer of due process rights.

 3) “The ECWRD did not independently rule on the fate of the Rosefield Dam after consideration of the facts and evidence.” Therefore, Schaefer concludes that the ECWRD decision to remove the dam was unreasonable.

 Schaefer submitted a written statement to the Transcript prior to the first article published about this matter on Dec. 31, 2018. He wrote, “Because of the pressure from OSE, the ECWRD has now reversed their prior motion and have now ordered the complete removal of the Rosefield Dam and spillway (emphasis Schaefer’s). From September of 2014 until May of 2018, a period of over three and one half years, the ECWRD’s stance on record was that the work performed on the dam was maintenance and did not require a permit. This is a long time to hold to one position. Then all of a sudden, in May of 2018 they reversed their longstanding position and ordered the complete removal of the dam and spillway. What had caused them to suddenly change their view?”

 The North Dakota Supreme Court is the state’s highest court, and it is composed of five Justices. Now that Schaefer’s appeal has been filed, there are a few procedural steps to be completed before the Supreme Court will review the case.

 According to the “Guide to an Appeal to the North Dakota Supreme Court” on the N.D. Courts website, https://www.ndcourts.gov/supreme-court/filing, the ECWRD (the Appellee) has an opportunity to file a brief. The Appellee’s brief will contain the ECWRD’s response to Schaefer’s issues and an explanation to the Supreme Court of why Judge Clark’s decision was correct. The ECWRD has 30 days from receipt of Schaefer’s brief to file its response.

After the Appellee’s brief is received, Schaefer may file a reply brief in response. The purpose of the reply brief is to respond to any points raised in the ECWRD’s filing that Schaefer did not address in his opening brief. Schaefer must file this reply brief, if he deems it necessary, within 14 days after receiving notice of the ECWRD’s brief.

Once all the briefs are filed, the case will be placed on the Supreme Court’s schedule. However, not all cases are scheduled for oral argument. Please refer to Rule 34. The Court may decide oral argument is unnecessary, even if the parties request argument.

The Supreme Court will normally issue a final written decision between 60 to 90 days after the scheduled argument date.

There is one other key procedural requirement to note. Parties may not offer any new evidence that was not presented to the district court. The N.D. Supreme Court makes its decision solely based on the record of the district court’s proceedings, the written briefs and argument of those briefs. Therefore, it is Schaefer’s responsibility to make sure that the record contains all of the important material necessary for the Supreme Court to make a decision.

The Transcript reached out to Schaefer for comment regarding this appeal, and as of press time he not returned a comment. More to come as the case advances through the appeal process.