North Dakota AG Opinions, 1989

N.D.A.G. Letter to Sinner (April 26, 1989) April 26, 1989 Honorable George A. Sinner Governor Office of the Governor State Capitol Bismarck, ND 58505 Dear Governor Sinner: Thank you for your inquiry concerning your authority to overrule the decisions of appointed executive officers. I understand that the state Game and Fish Commissioner Dale Henegar intends to introduce into North Dakota waters a European breed of fish called the zander and that you believe that this introduction could have disastrous effects on the state's ecosystem. You have asked me whether

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 89-5 Date issued: April 21, 1989 Requested by: Doug Eiken, Director Parks and Recreation Department - QUESTION PRESENTED - Whether the Little Missouri Scenic River Commission may regulate activities affecting the Little Missouri River. - ATTORNEY GENERAL'S OPINION - It is my opinion that the Little Missouri Scenic River Commission may not regulate activities affecting the Little Missouri River. - ANALYSIS - All governmental power

N.D.A.G. Letter to Naaden (April 19, 1989) April 19, 1989 Honorable Pete Naaden District 30 P.O. Box 53 Braddock, ND 58524-0053 Dear Senator Naaden: Thank you for your April 10, 1989, letter regarding the ability of a board of county commissioners to use county road equipment for private road projects. A political subdivision, including a county, may only exercise those powers provided by law. N.D. Const. art. XII, § 2. Thus, a county must have specific statutory authority before it may perform non-county roadwork using county equipment. N.D.C.C. § 11-11-55 provides that a county may

N.D.A.G. Letter to Peterson (April 17, 1989) April 17, 1989 Mr. Jack Peterson Pesticide/Noxious Weed Director Department of Agriculture State Capitol Bismarck, ND 58505 Dear Mr. Peterson: Thank you for your April 5, 1989, letter inquiring whether a county weed board may contribute money to the United States Department of Interior for certain weed control purposes on land owned by the Department of Interior. Your request really asks two separate questions; therefore, I will respond to each part separately. First of all, there is no statute preventing a county weed board from contributi

N.D.A.G. Letter to Olson (April 11, 1989) April 11, 1989 Honorable Alice Olson House of Representatives State Capitol Bismarck, ND 58505 Honorable Orville Schindler House of Representatives State Capitol Bismarck, ND 58505 Dear Representative Olson and Representative Schindler: Thank you for your March 31, 1989, letter inquiring whether House Bill No. 1449 and N.D.C.C. § 20.1-03-12.1 conflict with one another concerning the deposit and expenditure of funds generated by the habitat restoration stamp program. In responding to your inquiry, I have examined the proposed second engrossme

N.D.A.G. Letter to Vogel (April 10, 1989) April 10, 1989 Hon. Sarah Vogel Commissioner of Agriculture Department of Agriculture State Capitol Bismarck, ND 58505 Dear Commissioner Vogel: Thank you for your March 28, 1989, letter concerning the authority of the Commissioner of Agriculture in regard to issuance, renewal, and revocation of livestock dealers' licenses. Generally speaking, public officials have only such authority as is expressly granted to them by the constitution and statutes, together with that authority which is necessarily implied from express grants of authority. Se

N.D.A.G. Letter to Olson (April 7, 1989) April 7, 1989 Hon. John M. Olson Senate Minority Leader Senate Chambers State Capitol Bismarck, ND 58505 Dear Senator Olson: Thank you for your March 27, 1989, letter inquiring whether any state laws might apply to a supervisory conversion of a federal savings institution operating in North Dakota from a mutual to a stock association or to a merger of such an institution. A federal savings and loan association is subject to supervision by the Federal Home Loan Bank Board and is not supervised by the North Dakota Commissioner of Banking. (N.D.C.

N.D.A.G. Letter to Marion (April 7, 1989) April 7, 1989 Mr. James L. Marion Chief Parole Office North Dakota Department of Parole and Probation P.O. Box 5521 Bismarck, ND 58502 Dear Mr. Marion: Thank you for your March 22, 1989, letter concerning application of N.D.C.C. §§ 12-54.1-01 and 12-59-05 to persons received at the Penitentiary or State Farm by order of a district court when the incarceration was imposed pursuant to a deferred imposition of sentence. You state that these persons have received a three-year deferred imposition of sentence with a condition

N.D.A.G. Letter to Hanson (April 7, 1989) April 7, 1989 Honorable Robert E. Hanson State Treasurer State Capitol Bismarck, ND 58505 Dear Mr. Hanson: Thank you for your April 4, 1989, letter inquiring whether the interest earned from the nongame wildlife fund created by N.D.C.C. § 20.1-02-16.2 should be deposited in that fund or in the game and fish fund of N.D.C.C. § 20.1-02-16.1. This office received similar inquiries from Representatives Brent Winkelman and Orville Schindler in 1986 concerning the disposition of interest earned by the habitat restoration stamp fund established by N.D

N.D.A.G. Letter to Witham (April 5, 1989) April 5, 1989 Mr. Lyle Witham McHenry County State's Attorney P.O. Box 390 Towner, ND 58788 Dear Mr. Witham: Thank you for your March 15, 1989, letter inquiring whether the asbestos abatement levy authorized by N.D.C.C. § 57-15-17.1 may be used for costs relating to the "encapsulation" of asbestos. N.D.C.C. § 57-15-17.1 authorizes a levy for the "removal" of asbestos. You indicate that, in your opinion, the levy may be used only for "removal," not "encapsulation," of the asbestos. Both the language and the legislative

N.D.A.G. Letter to Helphrey (March 27, 1989) March 27, 1989 Ms. Juanita Helphrey Executive Director North Dakota Indian Affairs Commission State Capitol Bismarck, ND 58505 Dear Ms. Helphrey: Thank you for your March 16, 1989, letter concerning the Native American Alcohol and Drug Abuse Education Fund ("Fund"). You ask which of the recent statutory enactments concerning the Fund should be followed in its implementation. This Fund was first established in 1981 through the enactment of House Bill No. 1605. 1981 N.D. Sess. Laws ch. 45. That statutory enactment created the Fund, establishe

N.D.A.G. Letter to Schmidt (March 23, 1989) March 23, 1989 Hon. Raymond Schmidt State Representative House Chambers State Capitol Bismarck, ND 58505 Hon. Erwin Hanson State Senator Senate Chambers State Capitol Bismarck, ND 58505 Dear Representative Schmidt and Senator Hanson: Thank you for your March 20, 1989, letter requesting an opinion concerning the applicability of N.D.C.C. § 15-35-01.1 to a proposed new school to be built by the New Public School District 8. N.D.C.C. § 15-35-01.1 provides that the construction, purchase, repair, improvement, renovat

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 89-4 Date issued: March 22, 1989 Requested by: Representative Alice Olson, Chairperson Natural Resources Committee North Dakota House of Representatives - QUESTION PRESENTED - Whether an annual property tax of a fixed amount per acre on severed mineral interests would violate the requirement of class uniformity under N.D. Const. art. X, ' 5. - ATTORNEY GENERAL'S OPINION - It is my opinion that an annual property tax of

N.D.A.G. Letter to Wogsland (March 21, 1989) March 21, 1989 Honorable Dan Wogsland North Dakota State Senate State Capitol Bismarck. ND 58505 Dear Senator Wogsland: Thank you for your March 17, 1989, letter concerning the status of cemetery tax levies following the enactment of House Bill No. 1251. This bill was successfully enacted during the 1989 Legislative Session and was filed with the Secretary of State's office on March 15, 1989. House Bill No. 1251 will, therefore, take effect on July 1, 1989. House Bill No. 1251 adds one sentence to N.D.C.C. § 57-15-27.1. T

N.D.A.G. Letter to Enget (March 21, 1989) March 21, 1989 Mr. Wade G. Enget Mountrail County State's Attorney P.O. Box 369 Stanley, ND 58784 Dear Mr. Enget: Thank you for your March 9, 1989, letter concerning the effect of alleged procedural deficiencies in the making of a county commission's recommendations for property acquisition pursuant to N.D.C.C. § 20.1-02-18.1. You have inquired whether the Mountrail County Commissioners failure to give public notice as required by N.D.C.C § 20.1-02-18.1 will void the county commissioners' recommendations regarding a proposed property acquisitior

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 89-3 Date issued: March 21, 1989 Requested by: Keith Reisenauer Cass County Assistant State's Attorney - QUESTIONS PRESENTED - I. Whether a single division of a parcel of land upon which a single family residence will be built falls within the definition of "subdivision" set forth in N.D.C.C. ' 11-33.2-01. II. Whether N.D.C.C. ' 40-05.1-01 requires land to be surveyed and platted when there is a single division of a p

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 89-2 Date issued: March 21, 1989 Requested by: Owen K. Mehrer, Stark County State's Attorney - QUESTIONS PRESENTED - I. Whether a sheriff is authorized to enter locked gates on posted property forcibly to take possession of personal property on which the sheriff has levied. II. Whether a sheriff is entitled to immunity for acts done in the course of levying on property. - ATTORNEY GENERAL'S OPINION - I. It is my opini

N.D.A.G. Letter to Ulmer (March 17, 1989) March 17, 1989 Rep. Dan Ulmer North Dakota House of Representatives State Capitol Bismarck, ND 58505 Dear Representative Ulmer: Thank you for your recent letter regarding the application of North Dakota's open meetings law to a school board meeting. My staff has learned that your inquiry more specifically concerns a committee or "task force" appointed by the Mandan School Board. The North Dakota Supreme Court has not discussed the applicability of the open meetings law to committees of public bodi

N.D.A.G. Letter to Wold (March 16, 1989) March 16, 1989 Mr. James W. Wold Griggs County State's Attorney P.O. Box 541 Cooperstown, ND 58425 Dear Mr. Wold: Thank you for your December 27, 1988, letter to me. I apologize for the delay in responding to you. You have asked for clarification of the statutory provisions regarding the acquisition and ownership of farmland by a nonprofit corporation. Corporate ownership of farmland is governed by the provisions of N.D.C.C. ch. 10-06. That chapter generally prohibits the ownership of farm or ranch land by corporations. N.D.C.C. § 10-06-04.1 co

N.D.A.G. Letter to Tornes (March 7, 1989) March 7, 1989 Mr. Gary Tornes Director Central Personnel Division Office of Management and Budget State Capitol Bismarck, ND 58505 Dear Mr. Tornes: Thank you for your October 14, 1988, letter in which you requested an Attorney General's opinion. I apologize for the delay in responding to your letter. In your letter you ask for an Attorney General's opinion as to whether cash payments offered to an employee in lieu of health insurance benefits are part of the employee's salary. You indicate that a county social service board offered its employ

N.D.A.G. Letter to Payne (Feb. 27, 1989) February 27, 1989 Honorable Douglas Payne State Representative House Chamber State Capitol Bismarck, ND 58505 Dear Representative Payne: Thank you for your letter of December 30, 1988, discussing the ability of a city to restrict games of chance occurring within its jurisdiction. Although your letter was addressed to a member of my staff, I concluded that the matters discussed in your letter were appropriate for my review and response. Additionally, please accept my apologies for the delay in responding to you. Your specific questions address a

N.D.A.G. Letter to Hoy (Feb. 22, 1989) February 22, 1989 Mr. Robert G. Hoy Cass County State's Attorney P.O. Box 2806 Fargo, ND 58108 Dear Mr. Hoy: Thank you for your February 15, 1989, letter concerning a dissolution of two school districts. As part of those dissolutions, a question has arisen as to the appropriate recipient of the dissolved school districts' cash assets. Your letter states that the dissolution of the school districts involved occurred pursuant to N.D.C.C. ch. 15-27.4. These statutes do not specifically mention the distribution of assets of a dissolved district upon i

N.D.A.G. Letter to Riha (Feb. 20, 1989) February 20, 1989 Mr. Richard J. Riha Assistant Burleigh County State's Attorney Burleigh County Courthouse 514 East Thayer Avenue Bismarck, ND 58501 Dear Mr. Riha: Thank you for your January 31, 1989, letter concerning whether a person arrested and incarcerated on a warrant issued by a court for an alleged probation violation should be considered a pre-trial or sentenced prisoner. N.D.C.C. § 12-44.1-09(3) provides that In grade one and grade two jails and, where practicable, in grade three jails, the following groups of inmates must be housed

N.D.A.G. Letter to Vogelpohl (Feb. 8, 1989) February 8, 1989 Mr. Steven Vogelpohl Lincoln City Attorney P.O. Box 2575 Bismarck, ND 58502 Dear Mr. Vogelpohl: Thank you for your January 4, 1989, letter in which you request a clarification of N.D.C.C. § 57-15-55.1 as it applies to the situation in which the city council did not budget or request a levy for the transportation of Public school students for a one-year period. You specifically ask whether, as a result of not levying a tax which was authorized to be levied, the city council loses its ability to tax. If the city council does no

N.D.A.G. Letter to Renner (Feb. 3, 1989) February 3, 1989 Mr. Jerry Renner Kidder County State's Attorney P.O. Box 229 Steele. ND 58482 Dear Mr. Renner: Thank you for your letter of January 24, 1989, in which you inquire whether a city police officer can go outside of his geographic jurisdiction to investigate criminal offenses which occurred within his jurisdiction. N.D.C.C. § 40-20-05 sets forth the territorial jurisdiction of a city police officer. Unless that officer is in "hot pursuit," the city police officer has the authority to exercise powers as a peace officer within the city

N.D.A.G. Letter to Mathern (Feb. 3, 1989) February 3, 1989 Honorable Tim Mathern State Senator Senate Chambers State Capitol Bismarck, ND 58505 Dear Senator Mathern: Thank you for your letter to me dated January 24, 1989, concerning the application of the corporate farming law to the Church of the Transfiguration. The ownership of farmland by churches and other nonprofit organizations is governed by the provisions of N.D.C.C. ch. 10-06. That chapter generally prohibits the ownership of farmland by corporations. N.D.C.C. § 10-06-04.1 contains an exception to that prohibition for cert

N.D.A.G. Letter to Person (Feb. 2, 1989) February 2, 1989 Mr. Alan Person Executive Director North Dakota Public Employees Retirement System P.O. Box 1214 Bismarck, ND 58502 Dear Mr. Person: Thank you for your November 28, 1988, letter requesting my opinion on several issues regarding participation of district health units in the North Dakota Public Employees Retirement System (PERS) and the North Dakota Uniform Group Insurance Program (Group Insurance Program). I apologize for the delay in responding to you. I will answer your questions in the order Presented . Your first questi

N.D.A.G. Letter to Slorby (Jan. 26, 1989) January 26, 1989 Mr. Tom P. Slorby Ward County State's Attorney Minot County Courthouse Minot, ND 58701 Dear Mr. Slorby: Thank you for your September 30, 1988, letter. Your question concerns a tract of land Ward County acquired from the state by condemnation. The 1946 order of condemnation says the land was condemned for park and recreational purposes. The county is considering selling the land to a private person. Should it do so, the land would no longer be used for park and recreational purposes or for any other public

N.D.A.G. Letter to Slorby (Jan. 23 , 1989) January 23, 1989 Mr. Tom P. Slorby Ward County State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Slorby: Thank you for your letter of January 17, 1989, concerning the legality of a proposed county donation to the Minot Railroad Museum Association. N.D. Const. art. X, § 18 prohibits a political subdivision from making a donation, not for the benefit of the poor, to any association or individual unless the Legislature has authorized the donation to be made by the political subdivision. Gripentrog v. City of Wahpeton , 126 N.W.

N.D.A.G. Letter to Kinsbury (Jan. 17, 1989) January 17, 1989 Rep. Harley Kingsbury State Representative House Chambers State Capitol Bismarck, ND 58505 Dear Rep. Kingsbury: Recently, Speaker of the House William Kretschmar forwarded your request for an Attorney General's opinion regarding any constitutional or statutorial limitations placed on members of the North Dakota Legislature from doing business with the state of North Dakota. For your general information, there existed at one time a statute (N.D.C.C. § 54-03-21) which banned legislators (and their spouses) who ow

STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 89-1 Date issued: January 17, 1989 Requested by: Representative Francis J. Wald - QUESTION PRESENTED - Whether state law prohibits the serving of alcoholic beverages on state college or university property. - ATTORNEY GENERAL'S OPINION - It is my opinion that state law does not prohibit the serving of alcoholic beverages on state college or university property. However, this activity can be prohibited or regulated by the

N.D.A.G. Letter to Enget (Jan. 5, 1989) January 5, 1989 Mr. Wade Enget Mountrail County State's Attorney P.O. Box 369 Stanley, ND 58784 Dear Mr. Enget: Thank you for your letter of December 27, 1988, in which you requested an Attorney General's opinion as to whether it is necessary to hire an architect prior to the replacement and cleanup of materials containing asbestos in an existing school structure. You also asked whether the school district could hire a local contractor to remove the asbestos rather than going through the sealed bid process. The require