January 15, 2019
This is Part One of a Three-Part Series about how local farmers are using their drainage project to shift from the drainage confusion to drainage collaboration.This series describes how state drainage policy is not the root of confusion, but local drainage governance is.Their quest is to collaborate with farmers, conservationists, citizens, and local governments across the state to change this.
NICOLLET COUNTY (MN) –
A dozen Nicollet County farmers and landowners are using their confusion-ridden Ditch 86A Project to become the “poster child” of drainage collaboration as they appeal their case to the Fifth District Court and to the public at-large.
Ditch 86A is set in some of the richest farmland in the world, and feeds into Swan Lake, the nation’s largest freshwater prairie marsh.The issue for the farmers is how the initially-discussed $660,000 repair project morphed into a project with a 20-year construction and operating budget of more than $3.5 million in a watershed of less than 4,000 acres.
To shed light on this state-wide issue, the appellants initiated a collaboration, Farmers for Responsible and Equitable Ag Drainage (FREAD) to address why confusion is a major part of Ditch 86A project and other drainage projects in the state.
Part One of this series will discuss two of the appeal issues; unlawful exclusion of components costs, and negligently ignored damages due to flow restrictions.Part Two will discuss how the Ditch Board wrongfully including farmed lake meander land, and their failure to investigate external funding sources that would have provided more than $13 million dollars in conservation-related funds.
State of Confusion
“They dug a ditch, everybody got confused, now it’s in court” Doug ‘Doc’ Snyder, a former state conservationist summarizing the history of Minnesota drainage.
Tim Gieseke, a landowner in the watershed and an appellant, said the source and extent of the confusion did not hit the group until after a November 13, 2018 Ditch Board ruling.At that ruling, the cost of the project was increased by $251,313, keeping it just $61,543 below the project benefits’ threshold.According to state ditch law, if the project cost exceeds benefits, then the project fails on its own.
The engineer then proposed to add an automated debris cleaner to prevent damage to the pumps, with an estimated cost of more than $60,000.With this addition, it was apparent that the project costs would exceed the benefits, until the engineer stated that the debris cleaner was a repair and hence not part of the project costs.
Confusion ensued.Ditch board member Jim Stenson asked, “How can something be called a repaired when it does not yet exist?”Landowners then testified that the debris cleaner is an essential part of the project to prevent damage and should be included upfront and in the project costs.Board Chair Kolar recommended that a landowner submit a petition for debris cleaner improvement project the next day.The County Attorney Fischer stated that that recommendation would start an entire petition process over.The board chair Kolar changed his recommendation and suggested someone submit a petition to install the debris cleaner as a repair the next day after the ditch project is approved.
The repair-improvement shell game antics were apparent to landowners and county staff alike. During the hearing a county public works staff told a landowner that the [debris cleaner] costs could not be adding into the project costs because then the project would not go through.This statement was also echoed by county public services staff the following day when they said the debris cleaner could not be added because the costs would go over the benefits and “everybody wants this project to go through”.
If anything about ditch law is universally understood, it is that project benefits must exceed project costs for a drainage system to be approved by the local ditch board.
Deciphering a Viewers’ Report
The viewers’ report is a spreadsheet document that identifies which farmland the drainage project benefits, and to what degree.The Association of Minnesota Counties (AMC) says the viewers’ report, “may be the single most important document in drainage system procedures.” It determines the upper limit of the cost of the project and what ratio farmers pay into the project.
Following the November 13, 2018 ruling, the landowners asked county public services staff what their new ditch assessments would be, based on the new project costs.County staff stated that it is not the county’s obligation to provide that information to the landowners until the project construction is completed.
To figure out these costs, one would have to incorporate the engineer’s cost estimates into the viewers’ report, but the landowners could not locate any county staff or landowners that could explain the viewers’ report spreadsheet.An accredited member of the Minnesota Drainage Viewers Association that was involved in the Ditch 86A viewing was contacted.He was not able to explain the Ditch 86A viewers’ report as he said there no standard format that viewers must follow, and he relies on the cover sheet provided with the viewers’ reports.But no such cover sheet or explanation document was provided to Ditch 86A landowners.The viewers’ report did not even provide the sum of each landowners’ acres that benefited from the drainage project.
No Choice, But to Appeal?
Eventually the viewers’ report was deciphered by the landowners and the full cost of the project was identified.Estimated construction costs of $1,754,375 were added to the operation and maintenance costs over the 20-year period estimated at $1,470,880.
It should be noted that an additional dispute is related to adding the operation and maintenance costs into the project costs.The engineer decided to leave those costs out despite a 1992 Ditch 86A ruling that determined that due to the unique nature of this ditch-pump system, that maintenance costs needed to be included in the project costs, thereby lowering net benefits.Essentially $1.4M was excluded from project costs.
If the debris cleaner at $75,000 was also included it would create a total 20-year cost liability of $3,846,967.
To put these costs in the perspective of a farm business, costs were calculated as a 20-year total, per acre per year, and costs per bushel of grain harvested.Costs were calculated assuming a 55 bushel/acre yield for soybeans and a 185 bushel/acre yield for corn.It was determined that for many farmers the assessment would equal more than $1.00/bushel of soybeans with the highest cost of $2.02/bushel of soybeans for every bushel harvested for the next 20 years. For corn, for many farmers the assessment would equal more than $0.30/bushel with the highest at $0.60/bushel - for every bushel of corn for the next 20 years.
These extreme assessments do not just apply to the lands at, near or below lake level, but on lands that are 6-30 feet above lake level.Essentially the viewer discounted any natural gravity flow to the lake and imposed the costs of the pumps on all lands.
As landowners reviewed these new cost spreadsheets, many felt they had no option but to appeal.Twenty-year assessments of $150,000 for farms that were between 100-200 acres were common.They also realized that after the 20-year period is over, the pumps would need to be replaced and the assessments start all over.
The cost to appeal a ditch project can run be greater than $50,000 with an additional $20,000 to obtain expert witnesses.Attorneys contacted regarding the appeal indicated that there are a limited number of ditch appeal cases, so case law on any particular issue is rare, and that often results in District Courts siding with the government, which in this case is the Nicollet County Ditch Board.
If the appeal addresses the findings of the ditch viewers, (which this appeal does) one needs to find another viewer to dispute their findings. According to attorneys contacted for this case, an inherent problem with the system is that the Minnesota Viewers Association is a small group of individuals and finding a viewer willing to dispute a fellow association members’ report is difficult.
Another challenge is that relatively few attorneys and firms take on ditch cases, and it is difficult to find a local attorney that does not, even by some coincidence, have some direct or indirect conflict of interest.
Other challenges are the known and unknown actions that happen behind the scenes.The appellants where made aware of at least one documented incident where, according to an attorney firm they had discussed the case with, the firm received a call in December from the Nicollet County’s Attorneys Office to tell them that, “a Final Order on this improvement [Ditch 86A] actually was entered sometime back in October 2018”.The firm’s attorney continued, “if a Final Order actually was entered back in October 2018, the appeal deadline could have passed by now.”
While this was an obvious a source of concern and confusion, to date, the Ditch 86A appellants have not been notified by the Nicollet County Attorney’s Office or the Fifth Judicial District Court that the appeal they submitted on December 11, 2018 for the November 13, 2018 Final Order did not meet the appeal deadline.
A Public Appeal
The FREAD-Ditch 86A farmers are making an appeal to the public to ask for moral and financial support in their drainage project appeal process.FREAD farmers have set up a to raise funds for the appeal and to share the knowledge, tools and documents they developed. If the fund grows beyond the appeal costs, the monies will be used to provide varying degrees of support to landowners and farmers that want to join the FREAD group to address their own drainage project issue.
Part Two discusses the two other two appeal issues in more detail and investigates whether the source of confusion in Ditch 86A and in other projects originates in state drainage policy or local drainage governance issues.
Part Three discusses the bigger challenge of how can the objectives of economical farmland drainage, and the water quality goals for cleaner rivers and lakes can be simultaneously achieved.Part Three will be used to develop a collaborative Google Docs site where FREAD supports will have access to read, edit and submit comments related to resolving local drainage governance issues.
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