Lawyers filed post-hearing briefs Friday in the ongoing dispute over whether the North Dakota State Fair Association can evict Ward County Historical Society's Pioneer Village Museum from the North Dakota State Fairgrounds.
North Central District Court Judge William McLees had set Feb. 21 as the deadline for the briefs to be submitted and said he would not issue a ruling until sometime after that date. As of Monday afternoon, he had not yet issued a ruling.
A hearing on the matter was held Feb. 4. The dispute over the museum has been brewing for more than a year. The State Fair Association wants the museum moved off the grounds so it can use the property for expansion and for its current needs, while the historical society argues that it has a right to remain under the terms of a 1966 contract and will suffer substantial damages if forced to relocate.
In her brief, Debra Hoffarth, the attorney for the Ward County Historical Society, argues that the State Fair hasn't met any of the required elements for an eviction under state law. For instance, there is no landlord-tenant relationship because there is no written lease, the historical society doesn't pay rent to the State Fair and there is no end date to the agreement, she wrote. She also wrote that the historical society has not interfered with State Fair operations and has kept within its fenced-in area on the fairgrounds and hasn't tried to expand beyond that.
Hoffarth also writes that state law regarding contracts supports the historical society's interpretation of a 1966 agreement between the Northwest Agriculture Livestock and Fair Association and the North Dakota State Fair Association, which said "that the North Dakota State Fair Association will allow the Northwest North Dakota Historical Society to maintain and operate its building located on the fairgrounds." The historical society interprets "building" as referring to more than one building and Hoffarth writes that the language in the contract might be a simple typo, since another typo was elsewhere in the document, or the word "building" could be read as a verb rather than as a noun. At the time the agreement was signed, there were two historical society buildings present on the fairgrounds, historical society president Bruce Brooks testified during the hearing. "The State Fair's proposed interpretation of the agreement in question does not find any support in the other rules of contract interpretation," wrote Hoffarth. "The assertion that only one building is allowed under the agreement falls flat when the State Fair cannot even identify the buildings existing at the time of the execution of the agreement."
State contract law, according to Hoffarth, requires courts to take into account the mutual intention of the two parties at the time the contract was signed. When the terms of a contract are ambiguous, she wrote, state law allows outward evidence of the parties' intent to be considered, such as the way the two parties deal with each other and their usage of the land. During the Feb. 4 hearing, Brooks also testified that 13 buildings were moved or built on the Pioneer Village between 1952 and 1994, all with the knowledge and apparent agreement of the State Fair Association, wrote Hoffarth. She also wrote that the historical society has maintained the property, repaired the driveway and moves snow so there is access to the museum. Hoffarth also argues that the historical society invested more than $400,000 into repairing museum buildings following the Souris River flood of 2011, money received from the Federal Emergency Management Agency and from local donations. Brooks testified at the hearing that the historical society would not have spent that money if it had reason to believe the State Fair would try to evict the museum two years later.
"In this case, the subsequent conduct of the parties is helpful in resolving the ambiguity in the 1966 agreement, and the agreement should be interpreted as it has been clearly interpreted by the Historical Society a right to occupy, operate and maintain its buildings on the property," wrote Hoffarth. "Bruce Brooks testified that each and every building placed in Pioneer Village was done with the consent of the State Fair. These agreements were usually by handshake. We know in 1994, the State Fair agreed that a building could be moved onto the property. (State Fair manager) Renae Korslien testified that the State Fair did not object to the placement of the buildings or demand their removal until the commencement of this eviction action. Bruce Brooks and Renae Korslien both testified that the State Fair promoted the Pioneer Village and included it as one of its attractions until 2011. Bruce Brooks testified that the Historical Society has always interpreted the agreement to be that it could develop the Pioneer Village with historical buildings and artifacts."
Hoffarth also argues that the historical society has something called "an easement by estoppel," an easement that is created when the conduct of the owner of land leads another to reasonably believe that he or she has an interest in the land so that he or she acts or does not act in reliance on that belief. Alternately Hoffarth wrote, the historical society has a "right-of-way to conduct a business" or a "common law dedication," both established in the 1966 agreement, according to Hoffarth. She said the "right-of-way to conduct business" can be found in the language in the agreement that establishes the right of the historical society "to operate and maintain its building on the property." The historical society could be seen as having a common law dedication because the historical society receives taxpayer dollars and provides its services to the public.
Hoffarth also argues that the State Fair waited too long under state law to attempt to evict the Ward County Historical Society.
"The State Fair allowed the Historical Society to build the Pioneer Village," wrote Hoffarth. "Only after extensive additions, renovations, and repairs ($400,000 in flood recovery) by the Historical Society over 48 years, does the State Fair seek to evict the Historical Society. The State Fair wants to turn a blind eye to its roots and evict the Historical Society, which has occupied the property for 14 years longer than the State Fair has owned the property. Waiting nearly 50 years to demand the removal of buildings, is too long. The State Fair, if (it) wanted to remove the buildings, should have acted long ago. The State Fair must pursue its rights in respect to real property within forty years. N.D. CENT Code 28-01-01. It has not done so. The time allowed to evict the Historical Society has passed."
However, in his post-hearing brief, North Dakota State Fair Association attorney Peter Hankla continues to argue that the State Fair is within its rights to evict the historical society and that the historical society should be required to pay all costs for removing the buildings and the State Fair Association's attorney fees.
"Based upon the testimony presented in the eviction hearing, it is clear that the factual issues are no more complex than in traditional eviction actions," wrote Hankla. "The Historical Society's numerous affirmative defenses are frivolous and are only intended to deceptively make this matter look complex. After filtering out those spurious defenses and ignoring the publicity this matter has generated, the legal issues are simple and an eviction is appropriate in this instance."
Hankla wrote that the North Dakota State Fair is the owner of the property and generally the owner of property has the right to exclude others from its property. State law requires that a property owner give one month's notice prior to evicting a tenant, which the State Fair Association did, wrote Hankla. Although there is no written lease, Hankla wrote that a written lease is not necessary where there is an implied agreement, which he wrote is the case between the North Dakota State Fair Association and the Ward County Historical Society. A tenancy at will can be terminated by giving one month's notice.
Hankla further wrote that the Historical Society does not have an easement under state law because it has had total possession and use of the property. State law also does not allow an easement claim to be made for public lands, Hankla wrote, and the fairgrounds are state property. Hankla wrote that Hoffarth's other arguments don't apply to the facts of this particular case and are simply "red herrings."
"The NDSF has determined that it is now in its interest and is the best use of the property to remove the historic village," wrote Hankla. "It is the landlord that gets to decide how to best use the property, not the tenant. As there is no agreement or other limitation of NDSF removing the Historical Society from its property, NDSF is entitled to reclaim its property after proper notice terminating the Historical Society's tenancy at will."