specially concurring.
[¶ 27] I agree with the rationale and result reached in this case. I write separately to note what could mistakenly be read as my endorsement of a sweeping grant of authority to the State Engineer.
[¶ 28]' Paragraph 21 of the Majority Opinion concludes, “[T]he State Engineer, as part of its authority to order a person to modify an unauthorized dam, had authority to require Peterson to construct a ditch to drain the slough to 1543.5 feet mean sea level at the site of the unauthorized dam.” Under the circumstances present here, I agree with this conclusion. However, had the State Engineer adopted the ALJ’s recommended order, I would have affirmed the district court’s order reversing the State Engineer’s order requiring Peterson to construct and maintain a channel in a specific location.
[¶ 29] The pertinent administrative history of this case includes the State Engineer’s Administrative Order 10-1 requiring Peterson to lower the water impoundment “to an elevation no greater than 1543.06 feet msl and no less than 1543.0 feet msl.” Peterson requested an administrative hearing, and the ALJ recommended that the State Engineer order lowering of the entire dam to 1543.5 feet msl or digging a drainage ditch. The ALJ’s recommended order stated:
“The ALJ recommends that the State Engineer order that the unauthorized ditch plug or dam located at the dam site, identified in Conclusions of Law # 6, be lowered to 1543.0. He further recommends the State Engineer order that Peterson has the option of lowering the entire dirt berm and rock ridge immediately adjacent to the wetland or slough at the dam site to 1543.0 or digging a drainage ditch or channel at a level no lower than 1543.0 at the dam site through the dirt berm and rock ridge immediately adjacent to the wetland or slough. If Peterson chooses to dig a drainage ditch or channel at 1543.0 *182through the dirt berm and rock ridge, the drainage ditch or channel need only extend to the vicinity of contour elevation points immediately to the northwest of the dirt berm and rock ridge (points 1543.9, 1533.9[SIC], 1543.7, 1543.8, and 1543.9, extending from points A to B on Plan View Site ‘A’ of exhibit 8).”
Notwithstanding what appears to be limiting language in the ALJ’s proposed order, the cited portion of Exhibit 8 contains a detailed route and location of the drainage ditch.
[¶ 30] The State Engineer subsequently issued Administrative Order 10-4 stating, “[T]he recommended order of the administrative law judge is not adopted as the State Engineer’s final order in this matter.” The Order instead “requires Peterson to construct and maintain a channel through or around the unauthorized dam, such that the water will overflow once the water level exceeds 1543.5 feet msl.”
[¶ 31] Peterson appealed Administrative Order 10-4 to the district court, which reversed in part and stated:
“On the other hand, absent legal authority to do so, that part of the State Engineer’s order of June 25, 2010, requiring Alvin Peterson to establish a drainage ditch is vacated. Rather, he only is required to lower the level of the unauthorized dam at the location of the berm and rock ridge so that the slough and wetland behind it retains water at a level no greater than 1543.5 feet MSL. If and when it exceeds that level, it must be allowed to naturally flow. Presumably after it fills the area between the berm and the contour line of 1543.5, it will again continue to flow into the natural drainage pathway.”
[¶ 32] The State Engineer cross-appealed reversal of the ditching portion of the order. I agree with reversal of the district court’s order, which in turn reversed the drainage ditch portion of Administrative Order 10-4. I agree with our reversal because the State Engineer imposed only the general requirement that Peterson create a drainage outlet regulating the water pool between specified levels. By contrast, the ALJ’s proposed order apparently would have required a very specific “Drainage Outlet,” to be constructed as a “Drainage Thread” laid out in a particular location on the 1" to 60' scale contour map depicted in Plan View Site “A” on Exhibit 8.
[¶ 33] The general direction in Administrative Order 10-4 reasonably falls within the State Engineer’s authority under N.D.C.C. § 61-03-21.2 to require modification or removal of unauthorized “dams, dikes, wells, or other devices for water conservation, flood control, regulation, storage, diversion, or carriage of water.” On the other hand, the specific construction that would have been required by the ALJ’s proposed order appears beyond the State Engineer’s statutory authority and, to me, would raise questions about com-pensable taking of private property for public use. See N.D. Const, art. 1, § 16. I therefore believe it is important for the decision in this case to be clear that we are affirming the general dictate in Administrative Order 10-4 that Peterson lower the pool level with a drainage ditch (rather than elimination of the entire dam structure), and that we are not holding the State Engineer’s sweeping authority to issue a more exacting order requiring removal of the water impounded by an unlawful dam through construction of a specifically designed or specifically located drainage ditch on property down stream from the dam.
[¶ 34] GARY H. LEE, District Judge, concurs.