Official Newspaper of Eddy County since 1883
Official Newspaper of Eddy County since 1883
Southeast District Judge Cherie Clark issued her decision regarding the Rosefield Dam case, Schaefer vs. Eddy County Water Resource District, on Thursday, Jan. 3. In her 17-page opinion she outlined the facts in the case as she understood them and determined that the ECWRD’s decision to remove the dam should be affirmed.
The decision that formed the basis of the appeal was made by the ECWRD, a local governing body, on May 1, 2018. Therefore, the court’s standard of review, per Clark, was governed by N.D.C.C. § 28-34-01, which generally affirms a local government body’s decision “unless the [District] acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, [the decision of the District] must be affirmed.” She based her decision off of that statute and case law from three other N.D. proceedings: Douville v. Pembina County Water Resource District, 2000; Dockter v. Burleigh County Board of Commissioners, 2015; American Crystal Sugar Co. v. Traill County Board of Commissioners, 2006.
Judge Clark concluded, “The May 1, 2018, decision by the ECWRD to remove the Rosefield Dam in its entirety was not arbitrary, capricious, or unreasonable, and there was substantial evidence to support the decision. Once the matter became the jurisdiction of the OSE, ECWRD had only three options to choose from in carrying out the OSE’s decision that the Dam had been modified and action was required to bring it into compliance with the law. ECWRD attempted to work with Schaefer to permit the Dam in order to preserve it; and after he vehemently disagreed with that option, ECWRD was left with the two remaining options, remove the Dam or bring the elevation down. ECWRD, having limited resources, considered a multitude of factors such as the cost to keep the Dam, maintain it, its public purpose, and safety risks, ultimately deciding that removing the Dam was the most appropriate option. This exercise of discretion [was] the product of a rational mental process,” Clark deemed “The Court must affirm.”
She also noted that Schaefer’s other claim, that his due process rights were violated, was also unsubstantiated. Clark stated, “[Schaefer] waived any defect in the notice of appeal, he had an opportunity to be heard throughout this process, and ECWRD, the entity subject to review in this appeal, was not biased.”
I reached out to Monty Schaefer’s attorney Bennett Johnson on Thursday, Jan. 10 to inquire about their next steps, but did not receive a response as of press time.
Eddy County Water Resource District Secretary/Treasurer Travis Peterson responded with a copy of the minutes from the Eddy County Resource Board on Jan. 8, 2019.
The minutes stated that in regard to the Doug Skadberg/Monty Schaefer/Rosefield Dam Matter, “Peterson informed the Board that the District Court affirmed the Water Board’s decision to remove the Rosefield Dam. The Court’s Order was discussed. Schaefer’s 60 day right to appeal was discussed. The Board also discussed pursuing State Water Commission cost share opportunities.”
Schaefer submitted a statement to the Transcript after the hearing, where he made a plea to save this wetland. He wrote, “It makes me sick how we have come to this point. There have been so many mistakes made in this long ongoing matter. My biggest mistake was not getting permission from the ECWRD to maintain the dam, which I could legally do with their permission. As has been mentioned, the ECWRD was unaware of their authority over the dam. I cannot recall anytime in the past thirty years where any official has visited the dam.” He continued, “I was guided by the thought that as I use the dam, I would maintain it, without causing adverse effect to other property. The wildlife has no one to stand up for them in this matter. By removing the dam and spillway, the water in the pond that was three feet deep will turn into a shallow marsh, inches in depth.”
Schaefer contrasted his wishes to retain the Rosefield Dam and Slough with some of the more common practices by area landowners today, careful not to criticize others for the way they choose to manager their own land. “Wetlands do matter; we are losing more and more of them every year. Here we have a case where I do not want to drain this wetland to simply farm or graze the land. It is more proper for the land to be used for wildlife and natural aesthetics. This pond has been a local landmark for generations. When it is gone, it will be gone forever, as will the ducks, birds and other wildlife that use that water for their own survival. Maybe that does not matter to some folks, but it does matter to me! I have spent an incredible amount of time, money and energy fighting for this. I will not rest knowing I did not do all I could to save this beautiful pond!
