New developments emerge in Rosefield Dam case

In January, Southeast District Judge Cherie Clark affirmed a 2018 decision by Eddy County Water Resource District (ECWRD) to remove the Rosefield dam from Monty Schaefer’s property. Schaefer has since filed a Supreme Court appeal pro se (without legal counsel) solely based on procedural errors he believes were made.

However, new evidence obtained by Schaefer appears to establish a consistent record showing that the height of and acres inundated by Rosefield Dam have not “increased” over time, but rather held steady around 16.5 acres until 1988, when he dredged the slough with approval from the U.S. Army Corp of Engineers. Since the dredging widened the channel, the slough has consisted of approximately 20 acres.

Schaefer did some additional research after losing the district appeal, and found a hand drawn 1950 topographic map of the “Barlow Quadrangle” from the U.S. Geological Survey and a handwritten dam information worksheet that both add context to the 1955 Dam Information Sheet used by the Office of the State Engineer in their Nov. 1, 2016 letter. Further, a series of publicly available aerial images, according to Schaefer, substantiates existing conditions at the dam and slough throughout time, namely from 1944 to 2017.

Even in the midst of this incredible discovery, Schaefer met frustration. You see, none of this new evidence is admissible in the Supreme Court. Appellees must only use facts and evidence already on the record with the courts in their appeal briefs.

Therefore, with his new information at hand, Schaefer appeared before the ECWRD again in March and had this new evidence placed “on the record” with the local board in an effort to make his discovery available to all interested parties. Then he sought out District 23 Senator Joan Heckaman and Devils Lake Rep. Dennis Johnson, and he asked them for help so he could have an opportunity to show officials the new information. He said he is grateful to the legislators and Michael Anderson, a member of the State Water Commission, for their assistance in securing a March 22 meeting with Aaron Carranza at the Office of the State Engineer.

“I did not have all this information available within a thirty-day appeal window. It has taken years to discover it– yet it has been sitting around in different places all of this time,” Schaefer wrote in a March 20 email to Carranza. In that same email he outlined the scope of the new evidence he has uncovered.

As a result, the OSE conducted an internal review of the information presented by Schaefer. Then, on April 26, Secretary and State Engineer Garland Erbele, P.E., issued correspondence to Schaefer, the ECWRD, and Skadberg that effectively retracted the OSE’s Nov. 1, 2016 determination.

“Dear Chairman Reis,

“In December 2013, Mr. Doug Skadberg filed a complaint against Mr. Monty Schaefer with the Eddy County Water Resource District alleging modification to an existing dam located in the SW ¼ of Section 28, Township 148 North, Range 67 West, Rosefield Township, Eddy County. The District concluded that the dam was ‘not altered or modified such that a construction permit was required under NDCC 61-16.1-38.’ The District’s decision was appealed by Mr. Skadberg to the Office of the State Engineer (OSE) on Oct. 22,2014. Based on the information available during the appeal, the OSE reversed the District’s decision on Nov. 1,2016. Under N.D.C.C. 61-16.1-53.1(3Xb), the OSE returned the matter to the District’s jurisdiction for enforcement, and the District has since ordered the Dam removed.

“On March 22, 2019, Mr. Schaefer met with OSE staff to present additional information and context that was not available during the OSE’s 2016 appeal review.

“Based on the newly provided information, the OSE has now determined that the work performed by Mr. Schaefer in 2013 was dam maintenance. Because a construction permit is not required for maintenance activities, Mr. Schaefer’s work did not require a construction permit.

“The OSE does not consider the Rosefield Slough Dam, as it exists today, to be in violation of N.D.C.C. 61-16.1-38. The OSE retracts its November 2016 decision.

“Under N.D.C.C. 61-03-22, any person aggrieved by this state engineer decision has a right to a hearing on the matter. The state engineer must receive any request for a hearing within 30 days of the receipt of this correspondence.

“GARLAND ERBELE, P.E., SECRETARY AND STATE ENGINEER”

“I am grateful to the OSE for their willingness to take another look at this evidence,” Schaefer said in a May 3 email to the Transcript.

Kale Van Bruggen, Doug Skadberg’s attorney, listened in on the public comment period for the topic at the ECWRD’s meeting on Tuesday, May 7. There, after Secretary/Treasurer Travis Peterson read the April 26 letter and corresponding six-page Technical Memorandum issued by the OSE, Van Bruggen noted his dissatisfaction. He said it was “incredibly frustrating” for the State Engineer to review the information without notifying his client. Van Bruggen asked that the ECWRD give direction on the matter to all parties involved. “Does the {Eddy County Water Resource District} want to ensure that the dam is maintained in the future?” he asked.

No action was taken by the ECWRD at the May 7 meeting. They instead scheduled a special meeting, for which the only agenda item is to hold an Executive Session for consultation with their attorney, Daniel Gaustad. That meeting has been set for Monday, May 13 at 8 a.m. at Peterson Law Offices, P.C.