§ 61-32-08 — Appeal of board decisions - Department of water resources review - Closing of noncomplying drains

of noncomplying drains.
1. The board shall make the decision required by section 61-32-07 within a reasonable
time, but not to exceed one hundred twenty days, after receiving the complaint. The
board shall notify all parties of its decision by certified mail. Any aggrieved party may
appeal the board's decision to the department of water resources. The appeal to the
department must be made within thirty days from the date notice of the board's
decision has been received. The appeal must be made by submitting a written notice
to the department, and the notice must specify the reason why the board's decision is
erroneous. The appealing party also shall submit copies of the written appeal notice to
the board and to all nonappealing parties. Upon receipt of this notice the board, if it
has ordered closure of a drain, lateral drain, or ditch, is relieved of its obligation to
procure the closing or filling of the drain, lateral drain, or ditch. The department shall
handle the appeal by conducting an independent investigation and making an
independent determination of the matter. The department may enter property affected
by the complaint to investigate the complaint.
2. If the board fails to investigate and make a determination concerning the complaint
within a reasonable time, but not to exceed one hundred twenty days, the person filing
the complaint may file the complaint with the department of water resources within one
hundred fifty days of the submittal date of the original complaint. The department,
without reference to chapter 28-32, shall cause the investigation and determination to
be made, either by action against the board or by conducting the investigation and
making the determination.
3. If the department of water resources determines a drain, lateral drain, or ditch has
been opened or established by a landowner or tenant contrary to title 61 or any rules
adopted by the board, the department shall take one of three actions:
a. Notify the landowner by certified mail at the landowner's post-office address of
record;

b. Return the matter to the jurisdiction of the board along with the investigation
report; or
c. Forward the drainage complaint and investigation report to the state's attorney.
4. If the department of water resources decides to notify the landowner, the notice must
specify the nature and extent of the noncompliance and state if the drain, lateral drain,
or ditch is not closed or filled within a reasonable time as determined by the
department, but not less than thirty days, the department shall procure the closing or
filling of the drain, lateral drain, or ditch and assess the cost, against the responsible
landowner's property. If, in the opinion of the department, more than one landowner or
tenant has been responsible, the costs may be assessed on a pro rata basis in
proportion to the responsibility of the landowners. Upon assessment of costs, the
department shall certify the assessment to the county auditor of the county where the
noncomplying drain, lateral drain, or ditch is located. The county auditor shall extend
the assessment against the property assessed. Each assessment must be collected
and paid as other property taxes are collected and paid. Assessments collected must
be deposited with the state treasurer and credited to the contract fund established by
section 61-02-64.1.
5. If the department of water resources, after completing the investigation required under
this section, decides to return the matter to the board, a complete copy of the
investigation report must be forwarded to the board and it must include the nature and
extent of the noncompliance. Upon having the matter returned to its jurisdiction, the
board shall carry out the department's decision under this section.
6. If the department of water resources, after completing the investigation required under
this section, decides to forward the drainage complaint to the state's attorney, a
complete copy of the investigation report must be forwarded and must include the
nature and extent of the noncompliance. The state's attorney shall prosecute the
complaint under the statutory responsibilities prescribed in chapter 11-16.
7. If the department of water resources dismisses the drainage complaint, the
department of water resources shall notify all parties of record to the appeal and
include in its notification the department of water resource's investigation report, if
applicable.
8. In addition to the penalty imposed by the court on conviction under this statute, the
court shall order the drain, lateral drain, or ditch closed or filled within a reasonable
time period as the court determines, but not less than thirty days. If the drain, lateral
drain, or ditch is not closed or filled within the time prescribed by the court, the court
shall procure the closing or filling of the drain, lateral drain, or ditch, and assess the
cost against the property of the landowner responsible, in the same manner as other
assessments under chapter 61-16.1 are levied. If, in the opinion of the court, more
than one landowner or tenant has been responsible, the costs may be assessed on a
pro rata basis in proportion to the responsibility of the landowners.
9. Any party aggrieved by a decision of the department of water resources under this
section may request a hearing under section 61-03-22 and appeal the decision to
district court under chapter 28-32. A hearing by the department of water resources
under this section is a prerequisite to an appeal.