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Nobles County Ditch 11 battle continues in court

Following a motion filed by the Penning brothers for summary judgement, landowners were back in court Wednesday to hear arguments related to the Nobles County Commissioners' action to not require system improvements to County Ditch 11.

WORTHINGTON — The issue regarding whether the Nobles County Commissioners, acting as the county ditch authority, acted appropriately and lawfully in their consideration and decision-making process on a petition for structural repairs to sections of County Ditch 11 resumed Wednesday afternoon in Nobles County District Court.

The purpose of Wednesday’s court hearing was for presiding Fifth Judicial District Judge Gordon Moore to hear arguments and take them into consideration before ruling on a motion for summary judgement, which was filed by appellants Tom, Richard and John Penning. The Pennings petitioned for ditch system improvements in 2013 based on the argument that improvements to the 100-year-old ditch system would result in an overall cost-savings. Other landowners voiced their disagreement throughout a public hearing and comment process, arguing that the repairs would result in costly and unnecessary assessments. Commissioners cast a 3-2 vote not to require structural improvements. In April 2018, the Pennings appealed.

Attorney John Kolb, representing the Pennings, called the commissioners' split decision an “arbitrary” and “capricious” act because it went against the opinion of its hired engineer.

“I don’t think they can disregard their own expert,” Kolb said, adding his understanding that Minnesota statute prohibits commissioners from being an inspector. Each of the five commissioners, Kolb said, at one time or another, visited the CD11 site to visually inspect it.

The commissioners “ignored” its engineer’s report and acted upon “layman’s terms,” Kolb added.

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Bruce Sellers, representing the commissioners, argued that getting the “lay of the land” was not unlawful, and that commissioners have the right to collect and weigh further evidence than that provided by its contracted engineer.

“They don’t have to adopt a rubber stamp of the engineer,” Sellers said.

He added that commissioners heard from at least five landowners during the public hearing process and received 12 written comments disputing the system’s need for repair. While landowners may not have technical skills comparable to an engineer, they do possess years and generations of experience living on the land and understand the system’s functionality, Sellers said.

“It’s one of (a county commissioner's) duties to get as much information as they could to make this decision,” Sellers said. “Commissioners take their job very seriously, and I think they did so here as well.”

In October 2018, neighboring landowners Tom Sieve, Donald Sieve and Mike Harberts — who all opposed improvements to the ditch system — filed a motion to intervene in the matter. That motion was later granted in part.

During Wednesday’s court hearing, intervenor's attorney Jeffrey Flynn said the drainage authority doesn’t have to accept “hook, line and sinker” the engineer’s opinion. He said the engineer made the determination it was in need of repair simply because of its old age.

The former district judge also argued that the court’s role is not to agree or disagree with a decision that’s already been made by an administrative agency, but to determine if the process it underwent to reach a decision was lawful. He contends it was.

“There is no requirement that says the only evidence that may be considered is that of the engineer or based only on technical evidence,” Flynn said.

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A decision was not required to be made immediately following Wednesday’s hearing. The motion for summary judgement was taken into consideration and a decision will be issued at a later date.

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