The Honorable Rich Wardner
AGO 2020-L-04
No. 2020-L-04
North Dakota Attorney General Opinion
September 1, 2020
The
Honorable Rich Wardner
State
Senator, District 37
1042
12th Ave W
Dickinson,
ND 58601-3654
Dear
Senator Wardner:
Thank
you for your letter asking for clarifications regarding how
N.D.C.C. chapters 61-16.1 and 61-21 interact with regard to
water resource districts’ authority and special
assessment projects.
I.
You
first asked whether a water board may convert an
“assessment drain” under N.D.C.C. ch. 61.21 to a
“project” under N.D.C.C. ch. 61-10.1 or vice
versa. It is my opinion that a water board may not convert an
“assessment drain” under N.D.C.C. ch. 61-21 to a
“project” under N.D.C.C. ch. 61-16.1 or vice
versa without following the statutory process required under
N.D.C.C. ch. 61-16.1 to start a new project.
II.
You
next ask whether the term “maintenance,” as
defined by N.D.C.C. § 61-16.1-45, includes deepening and
widening an existing drain and, if so, whether there is a
limit to how much the drain may be deepened and widened. It
is my opinion that maintenance under N.D.C.C. §
61-16.1-45 means “cleaning and repairing of [a]
drain,” which includes deepening and widening the
existing drain, and there is no statutory limit on how much
an existing drain can be deepened or widened under N.D.C.C.
§ 16-16.1-45. Whether there is a point at which
deepening and widening an existing drain goes beyond
“maintenance” is a factual determination. This
office does not make factual determinations in legal
opinions.
1
III.
You
then inquire whether a water resource district may construct
new flood control features adjacent to an “assessment
drain” established under N.D.C.C. ch. 61-21 that is
later converted to a “project” under N.D.C.C. ch.
61-16.1 by referring to it as “maintenance." It is
my opinion that new flood control features, such as vast
water retention sites on land adjacent to a drain, would not
typically constitute maintenance.
IV.
Next,
you ask a number of related questions concerning whether a
vote of the landowners is required before commencing a
project under N.D.C.C. ch. 61-16.1 referred to as maintenance
by a Resolution of Necessity when the project, as a whole,
will exceed the maximum six-year levy under N.D.C.C. §
61-16.1-45, and also whether the maximum accumulated
maintenance levy under N.D.C.C. §§ 61-16.1-45 and
61-21-46 are calculated on a project-by-project basis. It is
my opinion that maintenance projects may be completed in
phases without a vote as long as a phase does not obligate
the district for costs beyond the maximum maintenance levy
threshold and that the maximum accumulated maintenance levy
under N.D.C.C. §§ 61-16.1-45 and 61-21-46 is
calculated on a project-by-project basis.
V.
Next
you question who is responsible for ensuring that the maximum
six-year accumulated maintenance levy under N.D.C.C.
§§ 61-16.1-45 and 61-21-46 is not exceeded. It is
my opinion that the budget and levy process provides various
levels of review by several county officials and the public,
and ultimately, the board of county commissioners has
authority to direct that any accounts of the county be
audited and verified.
VI.
Finally,
you inquire whether landowner voting procedures for a new
assessment drain under N.D.C.C. ch. 61-21 and for a new
project under N.D.C.C. ch. 61-16.1 are subject to the voting
provisions of N.D.C.C. Title 16.1 (Elections), including the
right to a secret ballot. It is my opinion that N.D.C.C. chs.
61-21 and 61-16.1 have specific voting requirements that do
not adopt the provisions of N.D.C.C. Title 16.1 (Elections)
and do not authorize secret ballots.
BACKGROUND
The
majority of N.D.C.C. ch. 61-21 (previously entitled Drainage
Projects, now entitled Drainage Assessment Projects) was
created in 1955. Senate Bill 33 (1955) “completely
revise[d] in both form and substance chapter 61-21 of the
North Dakota Revised Code of 1943, as amended, which is the
chapter of the North Dakota Code governing the operation of
drainage districts.”
2 Because numerous bills were being
introduced each session regarding drainage, “laws
governing the operation of drainage districts ha[d] grown
obsolete, making it very difficult for the drainage districts
to function properly” and carry out their statutory
responsibilities.
3 “In addition, the large number of
amendments made to the chapter on drainage over the years has
resulted in many conflicts of law and ambiguities, and in
many instances has made the drainage law almost
unintelligible.”
4
In
1981, most of N.D.C.C. ch. 61-16.1 was created through H.B.
1077, 1981 N.D. Leg., in an attempt to re-organize how water
management functioned from the local level through water
resource districts. Over time, N.D.C.C. chs. 61-16.1 and
61-21 have been amended so that now there are overlapping and
sometimes contradictory provisions between the two chapters,
which creates confusion.
DEFINITIONS
Specifically,
relative to this opinion, the scope, applicability, and use
of certain definitions requires analysis and consideration to
address your concerns.
Section
1-01-09, N.D.C.C., states that “[w]henever the meaning
of a word or phrase is defined in any statute, such
definition is applicable to the same word or phrase wherever
it occurs in the same or subsequent statutes, except when a
contrary intention plainly appears.” The North Dakota
Supreme Court has also stated that definitions in one section
of the Century Code will ordinarily apply to other sections
of the Century Code.
5
But,
“[w]hen a statutory definition . . . is limited by
prefatory language such as ‘in this [chapter]’ .
. . the legislature has expressly evidenced its intent that
the definition have no application beyond that
act.”
6
As
noted in a concurrence by then Chief Justice VandeWalle, the
Legislature typically now limits definitions to a particular
code chapter, indicating its intent that definitions should
not be applied outside that chapter.
7 Thus, to give effect to
N.D.C.C. § 1-01-09, he advised “[w]here there is
doubt as to the sense in which a given word is used in a
statute, it is proper to refer to cognate or related
legislation to determine the sense in which the word was
employed in a particular statute.”
[8]
Assessment
Drain
Section
61-16.1-02(2), N.D.C.C., defines “assessment
drain” as:
any natural watercourse opened, or proposed to be opened, and
improved for the purpose of drainage, and any artificial
drain of any nature or description constructed for the
purpose of drainage, including dikes and appurtenant works,
which are financed in whole or in part by special assessment.
This definition may include more than one watercourse or
artificial channel constructed for the purpose of drainage
when the watercourses or channels drain land within a
practical drainage area.
“Assessment
drains” are a specific subcategory of
“projects” and “drains” (discussed
below) regulated under N.D.C.C. ch. 61-16.1. However,
N.D.C.C. ch. 61-21, which specifically addresses assessment
drains and their procedures and regulation, does not include
a definition of an assessment drain. Despite the limitation
in N.D.C.C. ch. 61-16.1 that limits its definitions to that
chapter, I conclude that N.D.C.C. chs. 61-16.1 and 61-21 are
so interrelated and the term is used in the same sense in
both chapters that there is no doubt the term
“assessment drain” for purposes of N.D.C.C. ch.
61-21 means the same as the definition provided at N.D.C.C.
§ 61-16.1-02(2).
Cleaning
Out and Repairing of Drain
Section
61-21-01(3), N.D.C.C., defines “cleaning out and
repairing of drain” as “deepening and widening of
drains as well as removing obstructions or sediment, and any
repair necessary to return the drain to a satisfactory and
useful condition.” Though found in the Drainage
Assessment Projects chapter of the Century Code, this
definition isn’t...
