Burl Peckman Individually and as Trustee of Burl W. Peckman Living Trust, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-1496

Burl Peckman Individually and as Trustee of Burl W. Peckman Living Trust,
Appellant,

vs.

Roseau River Watershed District,
Respondent.

Filed July 18, 2022
Affirmed
Smith, Tracy M., Judge

Roseau County District Court
File No. 68-CV-21-284

Alan B. Fish, Alan B. Fish, P.A., Roseau, Minnesota (for appellant)

Michelle E. Moren, Law Offices of Patrick D. Moren, Roseau, Minnesota; and

Louis N. Smith, Charles B. Holtman, Smith Partners PLLP, Minneapolis, Minnesota (for
respondent)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
In this drainage proceeding to establish an improvement to Roseau County Ditch 16,
appellant Burl Peckman, individually and as trustee of The Burl W. Peckman Living Trust,
challenges the district court’s dismissal, for lack of jurisdiction, of his appeal to district
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court under Minn. Stat. §§ 103E.091, .095 (2020). Peckman argues that the district court
erred by (1) dismissing the appeal as untimely and (2) determining that respondent Roseau
River Watershed District had jurisdiction to establish an improvement. Because Peckman’s
appeal to the district court was untimely, we affirm.
FACTS
Peckman is a landowner affected by the improvement of Ditch 16. On March 6,
2019, the watershed district received a petition for improvement of Ditch 16. The
watershed district held a public hearing for review of the preliminary survey report on the
Ditch 16 improvement project on July 3, 2019. On June 3, 2020 , and July 16, 2020, the
watershed district held a two-part final public hearing on the project. Peckman attended the
July 16 meeting.
At its next regularly scheduled board meeting on August 5, the watershed district
adopted findings and issued an order for improvement of Ditch 16. That order included the
watershed district secretary’s signed statement, dated August 5, stating, “The above order
was filed with me, Roseau River Watershed District Secretary.” On August 24, the
watershed district emailed the findings and order to the Roseau County auditor.
Peckman served notice of judicial appeal of the August 5 order on the watershed
district and the county auditor on May 14, 2021. Peckman challenged the establishment of
the improvement plan as well as the watershed district’s determination of benefits and
damages. Additionally, he argued that the watershed district did not have jurisdiction to
establish the project.
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The matter came before the district court. The watershed district moved to dismiss
the appeal as untimely, as serting that the district court therefore lacked jurisdiction. The
district court granted the watershed district’s motion.
Peckman appeals.
DECISION
Peckman advances two arguments, both involving jurisdiction. First, he argues that,
contrary to the district court’s ruling, the district court had jurisdiction over his appeal of
the August 5 order and therefore should not have dismissed his appeal. Second, Peckman
argues that the watershed district did not have jurisdiction to issue the August 5 order in
the first place and that the district court therefore erred by dismissing his challenge. We
begin with the district court’s jurisdiction.
I. The district court did not have jurisdiction over Peckman’s appeal because the
appeal was untimely.

A district court properly dismisses an action when the district court lacks
jurisdiction over the subject matter. Minn. R. Civ. P. 12.08(c). The subject matter
jurisdiction of the district court is a question of law that we review de novo. See In re
Comm’r of Pub. Safety, 735 N.W.2d 706, 710 (Minn. 2007). “Time limits on appeals are
jurisdictional and untimely appeals must be dismissed.” In re Establishment of Cnty. Ditch
No. 11 (Bevens Creek), 511 N.W.2d 54, 57 (Minn. App. 1994), rev. denied (Minn. Mar. 31,
1994); see also In re Skyline Materials, Ltd., 835 N.W.2d 472, 477 (Minn. 2013) (holding
that the district court lacked jurisdiction over an appeal to the district court regarding a
county’s variance decision that was not initiated within the 30-day statutory period).
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Ditch proceedings are governed by Minn. Stat. §§ 103E.005 to .812 (2020), which
is titled “Drainage” and is part of a broader statutory scheme related to water. A “drainage
system” is “a system of ditch or tile, or both, to drain property, including laterals,
improvements, and improvements of outlets, established and constructed by a drainage
authority.” Minn. Stat. § 103E.005, subd. 12. A “drainage authority” is “the board or joint
county drainage authority having jurisdiction over a drainage system or project.” Id., subd.
9. A watershed district can be a drainage authority, as is the case here. See Minn. Stat.
§§ 103D.201, .225, 10 3E.005, subds. 4, 9, 28a, 29 (2020). A drainage authority can
establish drainage systems and improvements. Minn. Stat. §§ 103E.212, .215.
A party may appeal to the district court a drainage authority’s order establishing an
improvement. Minn. Stat. §§ 103E.005, subd. 11 (defining “drainage project” to include
improvements), .095 (providing for appeal of establishment of drainage project). A party
may also appeal a drainage authority’s order determining the benefits and damages
affecting property owners as a result of the improvement. Minn. Stat. § 103E.091. Under
section 103E.095, a party is entitled to a court trial, without a jury, to determine whether
an order dismissing, establishing, or refusing to establish a drainage project is lawful and
reasonable. Under section 103E.091, a party is entitled to a jury trial to challenge the
determination of benefits and damages. If an appeal involves both the establishment of an
improvement and the benefits and damages relating to the improvement, a district court
first decides the establishment appeal; if the establishment order is affirmed, the benefits-
and-damages appeal follows. Minn. Stat. § 103E.095. In his appeal, Peckman challenged
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both the establishment of the improvement and the benefits and damages, though his claims
were largely focused on the establishment order.
Although the two types of appeal differ, the relevant appeal period, which is at issue
here, is the same for both. Both types of appeal require action within 30 days after the
drainage authority’s order is filed. See Minn. Stat. §§ 103E.091, subd. 2 (providing that,
for a benefits-and-damages appeal, “[t]he appellant must file a notice of appeal with the
auditor within 30 days after the order to be appealed is filed”), .095, subd. 1 (providing
that, for an establishment appeal, “[t]he appellant must serve notice of the appeal to the
auditor within 30 days after the order is filed”).
The deadline for taking the required action to appeal the watershed district’s order
thus would normally have been 30 days after the August 5 order was filed. But, due to the
COVID-19 pandemic, the legislature had taken action to extend statutory deadlines. Under
legislation passed in 2021, “[d]eadlines imposed by statutes . . . shall not expire from the
beginning of the peacetime emergency declared on March 13, 2020 . . . through April 15,
2021.”
1 2021 Minn. Laws ch. 3, § 1.
Peckman served the county auditor on May 14, 2021. In the district court, Peckman
argued that the statutory deadline extension meant that the 30- day appeal period did not
start running until after April 15, 2021, making the deadline for taking the required action
to appeal the watershed district’s order May 15, 2021, and thus making his May 14, 2021

1 This legislation amended a 2020 session law suspending statutory deadlines, which had
said that “[t]he running of deadlines . . . is suspended.” 2020 Minn. Laws ch. 74, § 16.

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service on the county auditor a timely appeal. But Peckman did not make this argument in
his appellate brief to this court. Issues that are not argued in briefs are forfeited. Melina v.
Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). 2 Therefore, we do not address Peckman’s
argument that the appeal deadline was May 15, 2021, and we apply the deadline of
April 15, 2021.
Peckman did not serve the county auditor with his notice of appeal by April 15,
2021. Thus, his appeal was untimely, and the district court lacked jurisdiction to hear the
appeal. See Establishment of Cnty. Ditch No. 11, 511 N.W.2d at 57.
Peckman, though, argues that the 30-day appeal period was not triggered because
the watershed district did not file its August 5, 2020, order with the county auditor—filing
it instead with the secretary of the watershed district—and his May 14, 2021, appeal was
therefore timely. Peckman reasons that, though section 103E.095 does not explicitly say
that the watershed district must file its order with the county auditor, because the county
auditor has certain responsibilities under Minn. Stat. § 103E.325, section 103E.095 must
require the watershed district to file its order with the county auditor. We are not persuaded.
Section 103E.325 merely details the county auditor’s role in providing notice for the final
public hearing and does not mention where or how a watershed district must file an order.
Moreover, neither section 103E.095 nor section 103E.091 specifies where or how a
watershed district must file its order. Section 103E.095 requires the party appealing a
drainage authority’s establishment order to serve notice of the appeal to the county auditor

2 Though he did not brief it, Peckman reasserted the argument in oral argument to this
court. The argument is nevertheless forfeited for failure to brief.
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“within 30 days after the [drainage authority’s] order is filed.” Minn. Stat. § 103E.095,
subd. 1 (emphasis added). Section 103E.091 requires the party to file notice of appeal from
a benefits-and-damages order with the county auditor “within 30 days after the order to be
appealed is filed.” Minn. Stat. § 103E.091, subd. 2(b) (emphasis added). The plain
language of the statute s does not require a watershed district’s order to be filed with the
county auditor. See State v. Pakhnyuk, 926 N.W.2d 914, 920 (Minn. 2019) (holding that if
the meaning of a statute is unambiguous, then the plain language of the statute controls). If
the legislature intended to require that the order be filed with the county auditor, it could
have so provided, but it did not. Therefore, Peckman’s argument that the filing of the order
with the secretary of the watershed district was insufficient to trigger the appeal period
fails.
Peckman also argues that, by filing the order with the watershed district’s secretary
rather than with the county auditor, the watershed district did not give proper notice to the
affected landowners. But sections 103E.091 and .095 do not require the watershed district
to give notice of the order to the affected landowners. Again, if the legislature intended that
the watershed district had to give notice of the order to affected landowners, it could have
so provided, but it did not. Thus, Peckman’s notice argument also fails.
In sum, Peckman failed to timely appeal, and the district court did not err by
dismissing the appeal for lack of jurisdiction.
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II. We do not reach the issue of whether the watershed district had jurisdiction to
establish the Ditch 16 improvement.

Peckman additionally argues that, because the watershed district failed to follow
statutory requirements, it did not have jurisdiction to establish the Ditch 16 improvement,
so the August 5 order is void. If the August 5 order is void, Peckman asserts, then the
appeals period has not yet begun to run. But Peckman confuses the jurisdiction of the
watershed district with the jurisdiction of the district court. And because the district court
lacked jurisdiction over this appeal, it did not have jurisdiction to address Peckman’s
challenge to the watershed district’s jurisdiction.
In general, “a drainage authority does not retain perpetual jurisdiction to conduct
drainage proceedings . . . but must instead follow the prescribed statutory procedures to
establish jurisdiction over each individual proceeding.” In re Bd. of Managers of Bois de
Sioux Watershed Dist., 818 N.W.2d 583, 586 (Minn. App. 2012). A drainage authority
must “strictly comply with statutory procedures for commencing the proceeding” in order
to establish jurisdiction over a drainage proceeding. Id. at 587.
The way to challenge a drainage authority’s jurisdiction to issue an order is to appeal
the order to the district court. But if the district court lacks jurisdiction to hear the appeal,
it cannot rule on the jurisdiction of the drainage authority. “Until the service of a proper
notice of appeal, the district court has no jurisdiction for any purpose .” In re Mikkelson’s
Estate, 228 N.W. 174, 175 (Minn. 1929) (emphasis added) (quotation omitted). “The right
to an appeal [to the district court] cannot be granted after the expiration of the statutory
period.” Id. (emphasis added). Peckman’s appeal to the district court was untimely.
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Therefore, the district court did not have jurisdiction to hear Peckman’s challenge to the
watershed district’s jurisdiction. Peckman suggests in his briefing that the district court in
fact determined that the watershed district had jurisdiction to issue its establishment order.
We disagree. The district court rightly did not address the jurisdiction of the watershed
district in its order dismissing the appeal for lack of subject matter jurisdiction.
Affirmed.