If someone removed culverts from abandoned railroad property and now my land is flooding, can I make the water resource district investigate?
Plain-English summary
A landowner complained to the Pembina County Water Resource District that a neighbor had walked onto abandoned railroad property and removed culverts that used to pass under the rail line. The result was an open ditch on the railroad property and, the landowner said, more water flowing onto his fields. The District wasn't sure whether N.D.C.C. § 61-32-07 required it to investigate, since the person who removed the culverts wasn't the landowner of the property where the ditch was located.
The AG concluded the statute is mandatory and unambiguous. "Upon receipt of a complaint of unauthorized drainage, the water resource board shall promptly investigate." There's no carve-out for cases where the alleged unauthorized drainage happened on someone else's property, was caused by a non-owner, or otherwise complicates the ownership picture. The District has to investigate.
Whether the District then has authority to order the landowner to replace the culverts or partially fill in the ditch is the District's call, not the AG's. The AG's job in that procedural posture is statutory interpretation, not fact-finding on the merits.
What this means for you
If you're a landowner whose property is being flooded
You have a clear path. Submit a written complaint to your county water resource district describing what changed (a culvert was removed, a ditch was opened, etc.), where it happened, and how it affects your land. The district has to investigate; the statute uses "shall." If the district refuses or stalls, this AG opinion is your authority that investigation is mandatory, not discretionary.
If you serve on a water resource board
The investigate-and-determine duty kicks in the moment a complaint of unauthorized drainage comes in, regardless of who did the cutting or who owns the affected ground. Build that into your intake procedures. The substantive question (does the landowner of the affected property actually have to fix it, given they didn't cause the change?) is yours to decide based on the facts and N.D.C.C. § 61-32-07's standards. The AG won't decide that for you, but you do have to make the call and explain it.
If you're a neighbor accused of unauthorized drainage
Don't ignore a notice from the water resource district. The statute provides for certified-mail notice, a 15-day window to demand a hearing, and the possibility of the district doing the closure or fill itself and assessing the cost against the responsible landowner. Your defenses (it wasn't unauthorized, you weren't the one who did it, the drainage doesn't actually affect the complaining neighbor) are most usefully made during the investigation, not after the assessment.
Common questions
Q: Does it matter that the property where the culverts were removed is now railroad-abandoned land, not the alleged offender's property?
A: For the duty to investigate, no. Section 61-32-07 doesn't condition the duty on property ownership. The board investigates and then decides whether the facts fit the statutory standard.
Q: Can the AG just decide whether the neighbor has to fix the ditch?
A: No. The AG's role in this letter opinion is statutory interpretation. Whether the specific facts meet the standard is a determination only the water resource district can make, because the legislature placed that authority with them.
Q: What's the timeline once a complaint comes in?
A: The board has to "promptly" investigate. If the board concludes there's a violation, it sends certified-mail notice to the landowner specifying the noncompliance and giving "a reasonable time as the board determines, but not less than fifteen days" to close or fill the drain. The affected landowner has 15 days from the notice mailing date to demand a written hearing.
Q: What if the board investigates and decides the facts don't show unauthorized drainage?
A: Then there's no enforcement action. The complainant's remedy may be in civil court (private nuisance, trespass, drainage tort), not before the water resource district.
Background and statutory framework
North Dakota's water resource districts are creatures of N.D.C.C. ch. 61-16.1. Their authority over drainage and unauthorized drains comes from ch. 61-32. Section 61-32-07 is the unauthorized-drainage complaint procedure: it requires investigation, lets the board determine whether a drain has been opened "by a landowner or tenant contrary to this title or any rules adopted by the board," and provides notice, hearing, and assessment mechanisms.
The AG's interpretive method here follows the standard North Dakota approach: identify legislative intent from the plain language, give each word its ordinary meaning, and decline to ignore unambiguous text "under the pretext of pursuing its spirit." That doctrine is from Workforce Safety & Ins. v. Avila, 2020 ND 90, and Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85.
Citations and references
Statutes:
- N.D.C.C. § 61-32-07 (unauthorized drainage)
Cases:
- Workforce Safety & Ins. v. Avila, 2020 ND 90, 942 N.W.2d 811
- Shiek v. N.D. Workers Comp. Bureau, 2002 ND 85, 643 N.W.2d 721
- State ex rel. Johnson v. Baker, 21 N.W.2d 355 (N.D. 1946)
Source
- Landing page: https://attorneygeneral.nd.gov/water-resource-districts-are-required-to-investigate-complaints-regardless-of-property-ownership/
- Original PDF: https://attorneygeneral.nd.gov/wp-content/uploads/2024/10/2024-L-03.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF NORTH DAKOTA
OFFICE OF ATTORNEY GENERAL
www.attorneygeneral.nd.gov
(701) 328-2210
Drew H. Wrigley
ATTORNEY GENERAL
LETTER OPINION
2024-L-03
Pembina County Water Resource District
C/O Robert C. Fleming, Attorney at Law
PO Box 633
Cavalier, ND 58220-0633
Dear Pembina County Water Resource District:
Thank you for your letter requesting my opinion regarding the interpretation of North Dakota Century Code (N.D.C.C.) § 61-32-07 and the authority of a Water Resource District to close a noncomplying drain. Specifically, you asked (1) whether N.D.C.C. § 61-32-07 is applicable where an individual has removed culverts from abandoned railroad property, resulting in an open ditch and potentially increasing the flow of water onto a neighboring landowner's property; and (2) whether a Water Resource District has the jurisdiction to order the owner of the abandoned property to remedy the problem.
For the reasons outlined below, it is my opinion that N.D.C.C. § 61-32-07 would apply to the situation described in your request, but the Water Resource District retains the discretion on applying N.D.C.C. § 61-32-07, rather than this office.
BACKGROUND FACTS
A local landowner complained to the Pembina County Water Resource District, alleging a neighbor had trespassed onto railroad property and removed culverts that had historically passed under the railroad tracks at a location since abandoned by the railroad. The complaint alleges the removal of these culverts resulted in an open ditch on the railroad property, and the complainant believes that this has increased the flow of water onto his property.
ANALYSIS
North Dakota Century Code § 61-32-07 provides a water resource district specific authority when addressing a complaint of unauthorized drainage.
Upon receipt of a complaint of unauthorized drainage, the water resource board shall promptly investigate and make a determination of the facts with respect to the complaint. If the board determines that a drain, lateral drain, or ditch has been opened or established by a landowner or tenant contrary to this title or any rules adopted by the board, the board shall notify the landowner by certified mail at the landowner's post-office address of record. A copy of the notice must also be sent to the tenant, if known. The notice must specify the nature and extent of the noncompliance and must state that if the drain, lateral drain, or ditch is not closed or filled within a reasonable time as the board determines, but not less than fifteen days, the board shall procure the closing or filling of the drain, lateral drain, or ditch and assess the cost of the closing or filling, or the portion the board determines, against the property of the landowner responsible. The notice must also state that the affected landowner, within fifteen days of the date the notice is mailed, may demand, in writing, a hearing on the matter.
Your first inquiry was whether N.D.C.C. § 61-32-07 applies in the situation described above. General rules of statutory construction assist with the answer to your inquiry.
Our primary goal in statutory construction is to ascertain the intent of the Legislature. In ascertaining the Legislature's intent, we first look to the plain language of the statute and give each word of the statute its ordinary meaning. We construe the statute as a whole and give effect to each of its provisions, if possible. If the language of the statute is clear and unambiguous when read as a whole, we cannot ignore that language under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute.
The language of N.D.C.C. § 61-32-07 is clear and unambiguous: "[U]pon receipt of a complaint of unauthorized drainage, the water resource board shall promptly investigate and make a determination of the facts with respect to the complaint." Section 61-32-07 is triggered when a complaint is filed. There is no language limiting or qualifying the type of complaint other than it must be for "unauthorized drainage". In the factual scenario set forth in your letter, a complaint of unauthorized drainage was received by the Pembina County Water Resource District. The ownership of the property in question has no bearing on the applicability of Section 61-32-07. The Board shall promptly investigate and make a determination per the language of Section 61-32-07.
Your second inquiry centers on that determination. You ask whether a water resource district has jurisdiction to order the landowner to replace the culverts or partially fill the ditch, when it was not the landowner who removed the culverts. That determination is not for this office to make. It is for the water resource district to determine whether the facts of the complaint meet the standards set forth in N.D.C.C. § 61-32-07. The Pembina County Water Resource District, and not this office, must identify the relevant facts and determine whether they indicate "that a drain, lateral drain, or ditch has been opened or established by a landowner or tenant contrary to this title or any rules adopted by the [Pembina County Water Resource District]." Whether the facts you describe meet this standard is a question solely for the water resource district.
CONCLUSION
When a complaint of unauthorized drainage is received by a water resource district, N.D.C.C. § 61-32-07 requires the water resource district to promptly investigate and make a determination of the facts and conclusions with respect to the complaint. That determination is to be made only by the Water Resource District.
Drew H. Wrigley
Attorney General
This opinion is issued pursuant to N.D.C.C. § 54-12-01. It governs the actions of public officials until such time as the question presented is decided by the courts.