Jun 03, 2008 - 04:07:33 CDT
Landowners whose property was inundated by Devils Lake's rising waters should be paid for their losses, because government drainage projects helped cause the flooding, an attorney told the North Dakota Supreme Court.Gary Leistico, who represents 99 affected property owners, contends the state Water Commission and local water boards helped take away his clients' land by draining water that otherwise would never have reached Devils Lake.
"If they wanted to move water from the upper basin, we're not arguing they didn't have the right to do so," Leistico said. "We're saying they have the obligation to pay just compensation."
Ron Fischer, an attorney for seven county water resource districts, said a sharp increase in rain and snow caused the lake's rapid rise during the 1990s, not water diverted by a handful of drainage projects north of Devils Lake.
For example, Channel A, a project that was completed in 1979 and changed the water flows into Devils Lake's west bay, did not cause the lake to rise for more than a decade after it began operating, Fischer said. The four-mile channel was built as part of an effort to alleviate spring flooding of farmland north of the lake.
The North Dakota Supreme Court has previously ruled that if a public works project functions as it was designed to do, only to contribute later to problems because of an "act of God," the project is not responsible for the problems, Fischer said.
"If a public works project is built, consistent with all applicable engineering standards, and it operates in that fashion, just as it was intended, and then an act of God event occurs that maybe combined with that project caused some incremental damage, there is no liability," Fisher said.
Leistico argued that Northeast District Judge Richard Geiger, who handled the case, used an incorrect legal standard in deciding whether the landowners had been harmed by Devils Lake flooding.
Geiger concluded that extra water put into Devils Lake by government drainage projects wasn't enough to cause substantial damage, Leistico said. Instead, he should have considered whether the water caused any damage at all, the attorney said.
"If there's a taking, there's not too small a taking that's compensable," Leistico said. "If there's a taking of property, the government must pay for that taking."
Geiger, in his ruling, agreed with one expert's conclusions that Channel A diverted 42,635 extra acre-feet of water into Devils Lake over more than 13 years. However, the amount was less than 1 percent of the runoff that went into the lake, the judge concluded.
The Supreme Court heard arguments in the case Monday. The justices will make their decision later.
The lawsuit was filed in May 1999 against the state water Commission and a group of regional and county water resource boards.
It contended that 15 government drainage projects, which were built at various times, diverted additional water into Devils Lake and damaged their property as a result.
Some of the landowners' claims were dismissed before the lawsuit went to trial in 2006, on the grounds they were filed too late. Geiger dismissed the remainder of the lawsuit in November 2007.
Devils Lake tripled in size during the 1990s, rising from 1,422.4 feet above sea level in October 1992 to 1,447.2 feet in the summer of 1999. In May 2006, the lake's level reached 1,449.2 feet; on Thursday, it was at 1,446.9 feet.
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