Limiting Water Resource District Cost Assessments to Landowners: Commentary on Fairville Township v. Wells County Water Resource District, 2025 ND 209

I. Introduction

The North Dakota Supreme Court’s decision in Fairville Township v. Wells County Water Resource District, 2025 ND 209, clarifies and significantly constrains the authority of water resource districts to recoup costs for removing “obstructions to drains” under N.D.C.C. § 61‑16.1‑51.

At the core of the dispute is whether a water resource district may use § 61‑16.1‑51 to assess its obstruction-removal costs directly against a local governmental body (here, a township) acting in its governmental capacity, rather than against “the property of the responsible landowner” identified in the statute. The Court holds that, on the record and findings made, the Wells County Water Resource District (the “Water District”) acted outside its statutory authority and therefore arbitrarily, capriciously, and unreasonably when it directed the county to assess its costs “against Fairville Township” as a governing body.

This decision is highly significant for North Dakota water law, local governance, and administrative law. It underscores that:

Section 61‑16.1‑51 is a targeted cost-shifting tool directed at landowners and their property, not a general reimbursement mechanism against any actor (public or private) whose conduct impedes a drain.
Water resource boards must make specific findings tying their assessments to identified property belonging to a landowner, and must remain within the confines of their enabling statute.
Misinterpretation or misapplication of the governing statute renders a board’s decision “arbitrary, capricious, or unreasonable” on judicial review.

II. Summary of the Opinion

The Court (Bahr, J.) affirms a district court order reversing the Water District’s assessment orders. The Water District had incurred costs in reinstalling two culvert crossings (Crossings 2 and 3) that Fairville Township had removed from 55th Avenue NE, a township road intersecting the Oak Creek Drain, and sought to assess those costs to the Township under N.D.C.C. § 61‑16.1‑51.

Key points of the holding:

The only issue properly before the Court is whether the Water District lawfully assessed its costs against Fairville Township under § 61‑16.1‑51 (¶16).
Section 61‑16.1‑51 addresses obstructions to drains caused by a landowner or tenant and authorizes assessment of costs “against the property of the responsible landowner” (¶18–¶19).
The Water District’s assessment orders:
- Did not determine or find that the Township is a “landowner” within the meaning of § 61‑16.1‑51 (¶22),
- Did not identify any property owned by the Township benefitting from the Oak Creek Drain (¶22), and
- Improperly directed Wells County to assess costs directly against the Township as a governing body, rather than “against the property” of a landowner (¶22).
Because these orders did not comply with the statutory framework, they were not authorized by § 61‑16.1‑51 and were therefore arbitrary, capricious, or unreasonable (¶23).

Importantly, the Court expressly does not decide:

Which entity (the Water District or the Township) had jurisdiction or authority over Crossings 2 and 3, or
Whether the culverts should or should not have been removed, or what the proper remedy for that removal should otherwise be (¶16).

The decision is narrow: it addresses only the legality of the Water District’s cost assessment mechanism under § 61‑16.1‑51.

III. Factual and Procedural Background

A. The Oak Creek Drain and the Culvert Crossings

In the late 1980s, the Water District constructed the Oak Creek Drain to relieve flood waters from agricultural lands and protect infrastructure in western Eddy County and eastern Wells County (¶2). Before that project, three pre-existing culverts crossed 55th Avenue NE in Fairville Township, later labeled Crossings 2, 3, and 4. In designing the Oak Creek Drain, the Water District left Crossings 2 and 3 in place and integrated them into the drain system (¶2).

B. The Township’s Removal of Crossings 2 and 3

On March 19, 2024, at its annual meeting, Fairville Township voted to remove Crossings 2 and 3 (¶3). At a special Water District meeting on March 28, 2024, a township supervisor asserted that the culverts belonged to the Township, not the Water District, because they predated the Oak Creek Drain (¶3).

The Water District responded by letter on May 3, 2024, insisting it had jurisdiction over the crossings and demanding that the Township acknowledge it had no authority over them, under threat of legal action if the Township did not “cede any claim of authority” (¶4).

Despite this, the Township proceeded in or around May 2024 to remove Crossings 2 and 3 and reconstruct the township roadway without the culverts (¶5).

C. The Water District’s Obstruction Investigation and Obstruction Order

On July 9, 2024, the Water District engaged Apex Engineering to:

Investigate the Township’s removal of Crossings 2 and 3,
Determine whether the removal amounted to an “obstruction to a drain” under § 61‑16.1‑51, and
Prepare written findings (¶6).

Apex Engineering concluded (¶7):

The removal adversely affected over 25 acres of productive agricultural land, potentially increasing sedimentation and crop loss.
The condition rendered the Oak Creek Drain non-compliant with stream crossing standards in N.D. Admin. Code art. 89‑14.
The removal would increase maintenance costs and the risk of roadway overtopping.
The recommended remedy was to replace the culverts with same size, type, and elevation, with waterman gates controlled by the Water District.

On August 30, 2024, the Water District adopted formal Findings of Fact, Conclusions of Law, and Order (the “Obstruction Order”) (¶8–¶9). It:

Found that an obstruction to the Oak Creek Drain had been caused by the “negligent act or omission of the Fairville Township Board of Supervisors” (¶9).
Ordered the Township to reconstruct Crossings 2 and 3 by September 15, 2024, at the same size, location, and elevation as before removal (¶9).
Provided that, if the Township did not comply, the Water District would reconstruct the crossings and then assess its costs “against Fairville Township” under § 61‑16.1‑51(1) & (3) (¶9).
Notified aggrieved parties of their right to appeal under §§ 61‑16.1‑51(1) and 28‑34‑01 (¶9).

Critical procedural point: the Township did not appeal the Obstruction Order (¶9). Thus, that order—and the underlying determination that the Township’s removal created an “obstruction”—was left in place and is not directly reviewed in this appeal.

D. The Assessment Orders and Appeal

The Township did not reconstruct the crossings. The Water District hired a contractor and reinstalled Crossings 2 and 3 in September 2024 (¶10).

On October 8, 2024, the District issued its first Assessment Order, concluding that:

It had a right and obligation to remove the obstruction because of the Township’s noncompliance (¶10).
It incurred substantial costs, totaling $57,658.11 as of September 30 (¶10).
Under § 61‑16.1‑51, it was entitled to assess those costs against Fairville Township as the responsible party (¶10).
It directed Wells County to assess that amount “against Fairville Township” (¶10).

The Township appealed that Assessment Order to the district court on November 7, 2024, under § 61‑16.1‑54 (¶11). After two subsequent modifications (Second Assessment Order and Amended Order) correcting amounts and clerical errors, the total assessment stood at $66,457.31, all directed to be assessed against Fairville Township (¶12–¶13). The parties agreed no new appeal was needed from the Amended Order because it related back to the orders already under appeal (¶13).

The district court reversed the District’s assessment orders, holding that:

Section 61‑16.1‑51 applies to private landowners or tenants, not to governing bodies acting in a governmental capacity (¶14).
The record did not show that the Township owned the land surrounding the culverts, and the Township’s actions were taken as a governing body, not as a private landowner (¶14).
The District’s orders assessed costs against the Township as a governing entity, rather than against “the property of the responsible landowner,” contrary to § 61‑16.1‑51 (¶14).
Given this misinterpretation, the orders were arbitrary, capricious, and unreasonable (¶14).

The Water District appealed to the North Dakota Supreme Court, which now affirms.

IV. Legal Framework

A. Standard of Review: Local Governing Bodies and Administrative Appeals

Appeals from decisions of a water resource district proceed under N.D.C.C. § 28‑34‑01, which governs review of decisions of local governing bodies. The Court reiterates the standard from Douville v. Pembina County Water Resource District, 2000 ND 124, ¶ 5, 612 N.W.2d 270 (¶15):

The Supreme Court’s scope of review is the same as the district court’s and is “very limited.”
The Court independently reviews the governing body’s decision without deference to the district court’s decision.
Unless the board acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence to support its decision, the decision must be affirmed.
A decision is not arbitrary, capricious, or unreasonable if it reflects “a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.” (quoting Graber v. Logan County Water Resource Board, 1999 ND 168, ¶ 7, 598 N.W.2d 846).

Statutory interpretation is treated separately: it is a question of law, fully reviewable by the Court (Wanstrom v. N.D. Workers Comp. Bureau, 2000 ND 17, ¶ 5, 604 N.W.2d 860) (¶15).

B. The Obstruction-to-Drain Statute: N.D.C.C. § 61‑16.1‑51

Section 61‑16.1‑51 is central to this case. In pertinent part (emphasis added by the Court) (¶18):

If a water resource board determines that an obstruction to a drain has been caused by the negligent act or omission of a landowner or tenant, it must notify the landowner by registered mail.
The notice must:
- Specify the nature and extent of the obstruction and the board’s opinion as to its cause, and
- State that if the obstruction is not removed within a set period (at least 15 days), the board will remove it and assess the cost of the removal, or a portion thereof, against the property of the landowner responsible (¶18).
Landowners may demand a hearing and have a right of appeal (¶18).
In emergencies, the board may seek an injunction to prevent a landowner or tenant from maintaining an obstruction (¶18).
Subsection 3 allows: “Following removal of an obstruction to a drain, either by a water resource board or by a party complying with an order of a water resource board, the board may assess its costs against the property of the responsible landowner.” (¶18).

Two statutory elements are crucial:

The responsible actor must be a “landowner or tenant”, and
The board’s costs must be assessed “against the property of the responsible landowner.”

C. Related Definitions in Chapter 61‑16.1

Chapter 61‑16.1 (water resource districts) does not define “property” or “landowner” directly, but provides related terms:

“Benefited property” is “property that has accrued a benefit from a project” (N.D.C.C. § 61‑16.1‑02(3)) (¶20).
“Project” includes drainage, flood control, water supply, erosion control, sewage management, and related undertakings (N.D.C.C. § 61‑16.1‑02(14)) (¶20).
“Affected landowners” are “landowners whose land is subject to special assessment or condemnation for a project” (N.D.C.C. § 61‑16.1‑02(1)) (¶21).

These definitions emphasize that cost assessment mechanisms under Chapter 61‑16.1 are typically tied to specific tracts of land that benefit from or are affected by water projects.

V. The Court’s Reasoning

A. Narrowing the Issue on Appeal

The Court carefully cabins its review. Because:

The Water District did not appeal the Township’s March 19, 2024 decision to remove the culverts (¶3, ¶16), and
The Township did not appeal the August 30, 2024 Obstruction Order (¶9, ¶16),

those decisions are not before the Supreme Court. The Court explicitly declines to decide:

Which entity had authority or jurisdiction over Crossings 2 and 3, or
What the appropriate remedy should be for the Township’s removal of the culverts (¶16).

The only question is whether, given the statutory framework, the Water District could lawfully assess its obstruction-removal costs against the Township as it did (¶16–¶17).

B. Did § 61‑16.1‑51 Authorize Assessment Against the Township?

The Water District argued that:

It had authority under § 61‑16.1‑51 to investigate and order removal of the obstruction created by the Township (¶17).
It properly notified the Township of its determination that the Township’s negligent acts caused the obstruction (¶17).
When the Township did not comply, § 61‑16.1‑51(3) allowed it to remove the obstruction and assess its costs against the Township (¶17).

The Court’s analysis proceeds in two main steps:

Clarification of who may be charged under the statute (landowner/tenant vs. governing body), and
Examination of where costs must be directed (against the landowner’s property vs. against the entity itself).

1. Focus on “landowner” and “property of the landowner”

The Court emphasizes that § 61‑16.1‑51 “addresses a water resource board's removal of an obstruction to a drain caused by a landowner or tenant” and permits assessment of costs “against the property of the responsible landowner” (¶19).

While the statute does not explicitly state “private landowner,” it clearly structures liability around:

Identifying an obstruction caused by a landowner or tenant, and
Assessing costs as a charge against specific property (in practice, through special assessment mechanisms) (¶19–¶23).

2. The Water District’s critical omissions

The Court points out several key omissions in the Water District’s assessment orders:

The orders do not determine that the Township is a “landowner” within the meaning of § 61‑16.1‑51 (¶22).
The Water District does not identify any evidence in the record showing that:
- The Township owns property surrounding Crossings 2 and 3 (¶22), or
- The Township owns land that accrues a benefit from the Oak Creek Drain (i.e., “benefited property”) (¶22).
The assessment orders do not assess costs “against the property” of the Township (¶22).

Instead, the orders simply instruct Wells County to assess the total costs “against Fairville Township” (¶22)—that is, against the governmental entity itself, without tying the charge to any specific tract of Township-owned land.

This is the core defect. The statutory scheme is property-based; the Water District’s orders are entity-based.

C. Consequence: The Orders Exceeded Statutory Authority

Because § 61‑16.1‑51 applies to landowners/tenants and allows assessments only against the property of the responsible landowner, the Court concludes:

The statute does not authorize the Water District to assess costs against a township acting purely in its governmental capacity and not as an identified landowner (¶23).
The Water District’s orders, which did not make the necessary “landowner” and “property-based” findings and did not structure the assessment as required, are not authorized by § 61‑16.1‑51 (¶22–¶23).

The Court therefore holds that the Water District “acted arbitrarily, capriciously, or unreasonably in issuing assessment orders that do not comply with section 61‑16.1‑51” (¶23).

To support this, the Court cites two prior decisions where misinterpretation of legal provisions rendered local decisions unreasonable:

Hentz v. Elma Township Board of Supervisors, 2007 ND 19, ¶¶ 10–11, 727 N.W.2d 276 (a township’s zoning decision was unreasonable where it misinterpreted its zoning ordinances) (¶23).
Dakota Resource Council v. Stark County Board of County Commissioners, 2012 ND 114, ¶ 22, 817 N.W.2d 373 (a board’s decision was upheld where it did not misinterpret the controlling zoning ordinance) (¶23).

Collectively, these cases illustrate that correct legal interpretation is a core component of reasonableness in administrative decision-making. A board that acts outside its statutory powers necessarily acts arbitrarily or unreasonably.

VI. Precedents and Authorities in Context

A. Douville and Graber: Scope of Review of Water Resource Districts

In Douville v. Pembina County Water Resource District, 2000 ND 124, ¶ 5, the Court articulated the standard for reviewing decisions of water resource districts under § 28‑34‑01 (¶15). It relied on Graber v. Logan County Water Resource Board, 1999 ND 168, ¶ 7, for the definition of an “arbitrary, capricious, or unreasonable” decision: a decision is valid if it results from a rational mental process that reasonably integrates facts and law.

In Fairville Township, this framework is central. The Court is not disagreeing with the Water District’s factual conclusions about the physical impact of the culvert removal (those are largely uncontested and, in any event, embedded in an unappealed Obstruction Order). Instead, it concludes the District’s legal interpretation of § 61‑16.1‑51—and its departure from statutory procedures—falls outside a rational application of law to facts.

B. Wanstrom: Statutory Interpretation as a Question of Law

Wanstrom v. N.D. Workers Comp. Bureau, 2000 ND 17, ¶ 5, is cited (¶15) to reiterate that interpreting statutes is a pure question of law, fully reviewable by the Court. This allows the Supreme Court to independently determine whether § 61‑16.1‑51 can be stretched to cover assessments against a township as a governing entity. The Court’s answer is no—at least not on the record and findings presented.

C. Hentz and Dakota Resource Council: Misapplication of Law as Unreasonableness

The Court’s reliance on Hentz and Dakota Resource Council (¶23) underscores a key administrative-law theme:

In Hentz, a township’s incorrect application of its own zoning ordinance made its decision unreasonable.
In Dakota Resource Council, a county board’s correct application of a zoning ordinance supported affirmance of its decision.

Transposed here, the Water District’s misinterpretation of § 61‑16.1‑51—treating it as a general reimbursement authority against a township rather than as a property-based assessment provision limited to landowners—renders the District’s decision arbitrary and unreasonable. This is true regardless of whether the District’s engineering conclusions or public-policy motivations were sound; legal authority, not policy preference, is decisive.

VII. Clarifying Complex Concepts and Legal Terminology

A. “Arbitrary, Capricious, or Unreasonable”

This phrase is a standard of judicial review for administrative and local decisions in North Dakota. In practice:

Arbitrary suggests a decision made without regard to the facts or the applicable law, or based on personal whim rather than reason.
Capricious connotes an unpredictable or inconsistent decision, not grounded in steady principles.
Unreasonable indicates that a decision fails to logically flow from the facts and law; even if the board believes it is acting justly, if it misapplies the law or ignores statutory limits, its decision is unreasonable.

The Court uses this standard not to second-guess engineering or policy judgments, but to ensure that statutory boundaries are respected.

B. “Landowner,” “Benefited Property,” and Property-Based Assessments

Although “landowner” is not defined in § 61‑16.1‑51, chapter 61‑16.1’s structure shows that:

Water projects often confer benefits on specific parcels of land (e.g., land protected from flooding, improved drainage, or enhanced irrigation capacity).
Cost-recovery for these projects, including removal of obstructions, is accomplished through special assessments on “benefited property.”
A “landowner” for these purposes is the legal owner of such property, whether public or private, whose land is directly affected or benefitted.

In other words, § 61‑16.1‑51 does not create a free-standing ability to “send a bill” to any party allegedly at fault. It is embedded in a system where land is the unit of assessment, and liability is imposed on the property, not the general funds of a governmental entity.

C. Assessments vs. Ordinary Judgments or Invoices

An “assessment” in this context is not merely an invoice. It is a legally-authorized charge attached to real property, typically collected with property taxes. Because assessments run with the land and affect property owners, statutes authorizing them are strictly construed.

By telling the county to assess costs “against Fairville Township” generically, the Water District blurred the distinction between:

A statutory assessment against identified benefited property, and
A monetary claim against a governmental actor.

The Court’s decision makes clear that § 61‑16.1‑51 only authorizes the former, not the latter.

D. Relationship Between Townships and Water Resource Districts

Townships and water resource districts are both local governmental entities, but have distinct roles:

Townships typically manage township roads and local infrastructure.
Water resource districts manage drainage, flood control, and water resource projects under chapter 61‑16.1.

Conflicts arise when township infrastructure (roads, culverts) intersects with drainage projects. This case illustrates such a conflict but resolves only the cost-assessment aspect. It does not settle which entity has ultimate control over culverts that intersect assessment drains, nor does it allocate responsibility for future modifications. Those questions remain open for future litigation or legislative clarification.

VIII. Impact and Future Implications

A. Limits on Cost-Recovery Against Governmental Entities

The key practical effect of the decision is to limit water resource districts’ ability to use § 61‑16.1‑51 as a cost-recovery tool against governmental actors—at least in the absence of:

Clear findings that the governmental body is a landowner, and
An assessment structured against specific property owned by that entity.

If a township or other governmental unit owns land that benefits from a water project and that land is properly identified, then, in principle, that land could be subject to assessments, including obstruction-removal costs. The Court does not foreclose this. What it rejects is a generalized, entity-wide financial assessment untethered to particular property.

B. Incentive for Alternative Legal Theories and Procedures

Water resource districts seeking to recover costs from townships or other public actors may need to:

Use other statutory tools (e.g., intergovernmental agreements, cost-sharing arrangements, or tort claims where appropriate).
More carefully document ownership and benefit of any government-owned land affected by a project if they wish to pursue assessments.
Consider injunctive relief under § 61‑16.1‑51 for emergencies, rather than relying on post-hoc cost assessments when another public entity acts unilaterally.

The case also emphasizes procedural discipline: parties dissatisfied with an obstruction determination or with an order to reconstruct infrastructure should appeal those orders directly, rather than waiting to challenge downstream cost assessments.

C. Legislative Response and Policy Considerations

From a policy perspective, the case exposes a gap: what happens when a local government, not a private landowner, interferes with a water resource project?

The Legislature might respond by:

Amending § 61‑16.1‑51 to explicitly include governmental entities,
Creating a separate cost-recovery mechanism for disputes among political subdivisions, or
Clarifying jurisdictional boundaries between townships and water resource districts over shared infrastructure (e.g., culverts within assessment drains).

Unless and until such changes occur, boards must operate within the current statutory text as interpreted in this case.

D. Practical Guidance for Water Resource Districts and Townships

For water resource districts:

Before issuing assessment orders under § 61‑16.1‑51, ensure:
- The responsible party is indeed a landowner or tenant, and
- The costs are assessed against identified property, with findings that the property is benefitted or otherwise properly chargeable.
Document property ownership and project benefit in the record.
If another governmental body appears to be at fault but is not a landowner, consult other legal avenues (contracts, intergovernmental agreements, civil actions, or different statutes).

For townships:

Recognize that unilateral changes to infrastructure integrated into water projects (such as culverts) can trigger:
- Obstruction proceedings,
- Potential injunctive relief, and
- Other forms of legal liability—even if this particular assessment mechanism is limited.
Act promptly to appeal obstruction orders or jurisdictional determinations if they disagree with a water district’s assertion of authority.
Engage in advance coordination and written agreements with water districts regarding shared structures.

IX. Conclusion and Key Takeaways

Fairville Township v. Wells County Water Resource District, 2025 ND 209, establishes a clear and important principle in North Dakota water law and administrative law:

A water resource district’s authority under N.D.C.C. § 61‑16.1‑51 to recoup obstruction-removal costs is confined to assessments made against the property of a responsible landowner or tenant. The statute does not authorize entity-wide financial assessments against a political subdivision that is not identified and treated as a landowner of specific benefited property.

The decision:

Affirms that administrative bodies must operate strictly within the powers conferred by statute;
Clarifies that misinterpreting an enabling statute renders a board’s decision arbitrary, capricious, and unreasonable; and
Signals to both water resource districts and townships that disputes over shared infrastructure must be addressed within carefully observed statutory and procedural frameworks.

While the Court does not decide who controls culverts integrated into assessment drains or what ultimate remedies are appropriate when local governments alter such structures, it decisively rejects the Water District’s attempt to turn § 61‑16.1‑51 into a general reimbursement device against a township’s treasury. Going forward, cost-recovery efforts must hew to the property-based, landowner-focused model that the statute, and now this precedent, require.