                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0782


                           Kenneth H. Zimmermann, et al.,
                                    Appellants,

                                Gary C. Berndt, et al.,
                                    Appellants,

                                          vs.

                           Sauk River Watershed District,
                                   Respondent.


                              Filed February 16, 2016
                              Reversed and Remanded
                                 Halbrooks, Judge


                            Stearns County District Court
                              File No. 73-CV-14-7957

William G. Peterson, Peterson Law Office, LLC, Bloomington, Minnesota; and

Anthony J. Weigel, Paul Jeddeloh, Jeddeloh & Snyder, P.A., St. Cloud, Minnesota (for
appellants)

John C. Kolb, Rinke Noonan, St. Cloud, Minnesota (for respondent)

      Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and

Reyes, Judge.
                       UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellants Kenneth H. Zimmerman, Julie A. Zimmerman, Gary C. Berndt, and

Mary Jo Berndt challenge the district court’s grant of summary judgment to respondent

Sauk River Watershed District (SRWD). Because we conclude that the district court

erred as a matter of law by granting summary judgment, we reverse and remand.

                                       FACTS

      In December 1988, the Stearns County Board of Commissioners established

Stearns County Ditch 51 (Ditch 51) after a petition was filed in accordance with Minn.

Stat. §§ 106A.005-.811 (1988).1    In 2001, the board of commissioners transferred

authority over Ditch 51 to SRWD in accordance with Minn. Stat. § 103D.625 (2014). At

that point, SRWD became the drainage authority for Ditch 51.

      In April 2012, two benefitted landowners approached SRWD, concerned that

portions of Ditch 51 were in need of repair. These landowners did not file a formal

petition. In May 2012, SRWD inspected Ditch 51 for damage and subsequently directed

staff to work with an engineer to determine the scope of work required to address any

necessary repairs. During regular informal meetings throughout the remainder of 2012,

SRWD received updates on the costs of repairs and authorized various other steps in

furtherance of the process to begin repair work on Ditch 51.       It also held special

informational meetings during which landowners assisted in identifying additional areas


1
 Chapter 106A was repealed and renumbered as chapter 103E in 1990. 1990 Minn.
Laws, ch. 391, art. 10, § 4, at 751-53.

                                          2
of Ditch 51 in need of repair.       SRWD directed the engineer to conduct a more

comprehensive investigation of the repair requirements with instructions to prepare an

updated cost analysis. This process continued through the early months of 2013, and

during the pendency of the repair proceedings, SRWD determined that there were no

grass buffer strips alongside portions of Ditch 51.       SRWD further determined that,

although the issue of grass buffer strips was considered in 1988 at the time of the original

petition for the construction of the drainage system, they had never been established. In

other words, the land for buffer strips had never been acquired and compensation had

never been paid to the landowners, including appellants. When Ditch 51 was established,

appellants were paid only for the “approximately 12 acres of land required for the open

ditch and not for the additional, approximately 16 acres required for grass buffer strips.”

       In Fall 2013, SRWD determined that “the establishment of one-rod grass buffer

strips was required by operation of statutes section 103E.021 in the original proceedings

to establish [Ditch 51].” It ordered the acquisition of grass buffer strips adjacent to all

open channel portions of Ditch 51 as part of the general repairs initiated in 2012. In

August 2014, SRWD issued a final order to acquire the one-rod grass buffer strips from

appellants in accordance with Minn. Stat. § 103E.021 (2014), adopting the appraiser’s

damages valuations obtained through a mass appraisal and directing payments of

damages to affected landowners.

       In September 2014, appellants filed an appeal with the Stearns County District

Court, claiming that (1) the amount of damages awarded was not adequate, (2) the

procedure of conducting a mass appraisal constituted a constitutional takings violation,


                                             3
(3) SRWD failed to follow acquisition procedures as mandated by Minn. Stat.

§§ 103D.001-.925 (2014) (chapter 103D), (4) the lands to be acquired were not properly

described as required, and (5) proper notice was not given to all affected landowners.

Appellants filed their appeal with the district court pursuant to Minn. Stat. § 103D.535,

which requires an appeal to be filed within 30 days of the final order. Appellants served

the SRWD attorneys with notice of the appeal but did not serve the county auditor.

       SRWD moved the district court for a dismissal based on a lack of subject-matter

jurisdiction and for attorney fees. SRWD argued that appellants appealed under the

incorrect statutory chapter.    SRWD asserted that acquisition of grass buffer strips

constituted a drainage project that falls under the auspices of Minn. Stat. §§ 103E.005-

.812 (2014) (chapter 103E), and as such, appellants’ failure to provide notice to the

county auditor as required by Minn. Stat. § 103E.091 divested the district court of

jurisdiction. The district court granted SRWD’s motion for summary judgment based on

lack of subject-matter jurisdiction but denied its request for attorney fees. This appeal

follows.

                                     DECISION

       Summary judgment shall be entered “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that either party is entitled to

judgment as a matter of law.” Minn. R. Civ. P. 56.03. “On appeal from summary

judgment, we must review the record to determine whether there is any genuine issue of

material fact and whether the district court erred in its application of the law.” Dahlin v.


                                             4
Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011).           “We review a district court’s

summary judgment decision de novo.” Riverview Muir Doran, LLC v. JADT Dev. Grp.,

LLC, 790 N.W.2d 167, 170 (Minn. 2010). Appellate courts view the evidence in the light

most favorable to the non-moving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.

1993).    “[T]he party resisting summary judgment must do more than rest on mere

averments.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

         Appellants maintain that the district court erred by analyzing SRWD’s actions

under chapter 103E, arguing that the absence of a formal petition to acquire grass buffer

strips in 2013 precludes the application of chapter 103E to this appeal. SRWD asserts

that chapter 103E is the appropriate governing chapter and that appellants’ failure to

provide notice to the county auditor as required by Minn. Stat. § 103E.091, subd. 2

divests the district court of jurisdiction.

         Chapters 103D and 103E are interrelated components of Minnesota water law and

should be construed together. Minch v. Buffalo-Red River Watershed Dist., 723 N.W.2d

483, 487 (Minn. App. 2006), review denied (Minn. Jan. 24, 2007).          Chapter 103D

“governs the [broad] administrative powers and operations of watershed districts” for

purposes of land-use planning, flood control, and other conservation projects. Id.; see

Minn. Stat. § 103D.201. Chapter 103E focuses more narrowly on drainage authorities

and “governs the proceedings by which new drainage systems are constructed and

existing ditches are maintained by drainage authorities such as county boards or

watershed districts.” Minch, 723 N.W.2d at 487.




                                              5
          When Stearns County transferred authority over Ditch 51 to SRWD in 2001,

SRWD gained statutory authority over all proceedings for repair and maintenance.

“After the transfer is ordered, all proceedings for repair and maintenance must conform to

chapter 103E, except for repairs and maintenance done pursuant to section 103D.621,

subd. 4.” Minn. Stat. § 103D.625, subd. 3. Section 103D.621 is a special section that

addresses the particular issues involved with drainage-system improvements or repairs

within the seven-county metropolitan area. Under this section, metropolitan counties are

defined as Anoka, Carver, Dakota, Hennepin, Ramsey, Scott, and Washington. Minn.

Stat. § 103D.621, subd. 2(d). Stearns County Ditch 51 does not fall wholly or partially

within the combined metropolitan area. Therefore, any actions taken on behalf of SRWD

as the drainage authority must comply with the provisions of chapter 103E as dictated by

Minn. Stat. § 103D.625, subds. 3-4.

          Appellants argue that even if chapter 103E governs, their failure to provide notice

to the county auditor did not divest the district court of jurisdiction because it was a non-

fatal technical defect. The relevant statute provides that

                 [t]he appellant must file a notice of appeal with the auditor
                 within 30 days after the order to be appealed is filed. The
                 notice must state the particular benefits or damages appealed
                 and the basis for the appeal. Within 30 days after the notice
                 is filed, the auditor must file the original notice with the court
                 administrator of the district court.

Minn. Stat. § 103E.091, subd. 2(b). We do not agree that this is merely a technical

defect.




                                                 6
       Appellants’ failure to serve the county auditor is a type of defect that would divest

the district court of jurisdiction. But this would only be true if the matter were properly

before the district court from the outset. Here, SRWD failed to establish jurisdiction over

the buffer-strip proceeding by failing to properly commence it. This renders appellants’

failure to serve the county auditor moot.

       SRWD concedes that the county never acquired the grass buffer strips in 1988, but

maintains that Minn. Stat. § 103E.021, subd. 6 allows the district to incrementally install

buffer strips, even when the land was not properly acquired during the establishment of

the ditch. We disagree. Minn. Stat. § 103E.021, subd. 6 was enacted in 2007 and

pertains to the incremental implementation of vegetative buffer strips along drainage

systems “where necessary to control erosion and sedimentation.”                  Minn. Stat.

§ 103E.021, subd. 6. SRWD argues that this statute provides it with a jurisdictional

mechanism to relate the establishment of a buffer strip back to any original proceeding.

SRWD clarified its position at oral argument by asserting that the establishment of these

ditch buffer zones is a “proceeding” that relates back to the original petition filed by

benefitted landowners in 1988, maintaining that because the ditch buffer strips were

never completed, they can now do so through the enactment of Minn. Stat. § 103E.021,

subd. 6. But this court has determined that

              [a] drainage authority does not retain perpetual jurisdiction to
              conduct drainage proceedings in its demesne but must instead
              follow the prescribed statutory procedures to establish
              jurisdiction over each individual proceeding. In order to
              successfully establish jurisdiction over a drainage proceeding,
              the drainage authority must strictly comply with statutory
              procedures for commencing the proceeding.


                                              7
In re Bd. of Managers of Bois de Sioux Watershed, 818 N.W.2d 583, 586-87 (Minn. App.

2012) (citations omitted).

       The statute mandates that “[d]rainage system rights-of-way for the acreage and

additional property required for the permanent strips must be acquired by the authority

having jurisdiction.” Minn. Stat. § 103E.021, subd. 6(a). We find nothing in the statute

to support a contention that SRWD retains perpetual jurisdiction over an original

proceeding that dates back more than 25 years.           SRWD was required to obtain

jurisdiction over appellants’ land when it authorized the acquisition of grass buffer strips

in conjunction with repairs to Ditch 51 in 2013. Its failure to do so rendered the

acquisition statutorily unlawful.

       The district court granted summary judgment to SRWD based on appellants’

failure to properly perfect their appeal by serving the county auditor as required under

Minn. Stat. § 103E.091. But SRWD never acquired jurisdiction over the “acreage and

additional property required for the permanent strips” as required under Minn. Stat.

§ 103E.021, subd. 6(a). Because we conclude that (1) SRWD did not retain perpetual

jurisdiction over the buffer strips based on the original 1988 proceeding and (2) SRWD

has not otherwise acquired jurisdiction to implement grass buffer strips on appellants’

land, we reverse and remand to the district court.

       Reversed and remanded.




                                             8
