Lawsuit takes Davison County drainage board to court

Davison courthouse 2.JPG
In this Daily Republic file photo, the Davison County Courthouse in Mitchell is pictured. (Daily Republic file photo)
Mitchell Republic file photo

A Mount Vernon man has taken legal action against the Davison County Drainage Commission and a Mitchell man whose permits the commission approved March 17.

Kenneth Hostler has filed both an administrative appeal of the decision and a complaint requesting a court declare that the commission overstepped its authority by granting John Millan a permit for a drainage project, arguing Millan hadn't included all necessary information in his application.

According to Hostler's complaint for declaratory judgment, filed April 2, Millan's 315,000-foot drain tile project would divert surface water onto Hostler's property, which he asserts will impact his ability to farm on that land.

Under a Davison County drainage ordinance, the complaint states, the drainage commission is required to consider eight factors before approving a permit, including considerations of downstream landowners. According to Hostler, those factors weren't addressed by Millan's application or discussed at the commission's March 17 hearing.

"The Commission's approval of a permit under these circumstances indicates a failure of due diligence in analyzing the tile drainage application and highlights the incomplete and inadequate application submitted to and approved by the Commission," wrote Hostler's attorney, David Ganje, in the complaint.


Two permits were approved March 17 at the request of Millan Farms Partnership, and Hostler verbally opposed one of them during the meeting, which would have water flow northward through small outlets and culverts, under Interstate 90 and Old Highway 16 and eventually into Dry Run Creek. The land and the drainage proposal in question is located in the southwest corner of Beulah Township.

According to the Drainage Commission's meeting minutes, Hostler was concerned about the elevation of the project, the amount and the duration of the water he will have on his property, a nearby culvert and the condition of the creek downstream. The permit that Hostler spoke against was approved by a 5-2 margin.

On Tuesday, the Davison County Commission appointed Jim Davies, of Alexandria, as the county’s independent counsel in the case.

Auditor Susan Kiepke said the county board had to choose between Davies or allowing its insurance company to defend Davison County in the matter. The county would have had to pay the first $5,000 in legal fees, the insurance company would pay the next $20,000, and the county would have to pay any other additional fees. The commission decided that Davies was the better option because he was likely more cost-effective and has experience litigating drainage matters.

A number of area attorneys had conflicts related to the case, including Davison County State’s Attorney Jim Miskimins and Deputy State’s Attorney Jim Taylor, which led to Tuesday's commission action. Miskimins and Taylor recommended finding independent counsel for the case.

Other county business from Tuesday’s county commission meeting included:

  • The county commission approved licenses for malt beverage and wine licenses for Bathke Properties, which intends to build a “sports entertainment” business off Dean Drive east of Mitchell. The request was before the Davison County Commission last week, but the board tabled it, because the applicant Jeff Bathke — who also serves as the county’s planning and drainage administrator — had not yet submitted a design plan for the property. With the design plan submitted ahead of Tuesday’s meeting, approval of Bathke’s licenses was unanimous. Speaking to The Daily Republic Tuesday afternoon, Bathke declined to detail the nature of planned business.

  • Kiepke said a dropbox will be installed along Fourth Avenue in front of the county courthouse this week for absentee ballots to be submitted for the June 2 primary election. It will be set up so that voters don’t have to leave their cars to hand in their ballots, and she said that method will best protect voters and election workers. “I hope everybody votes, but I hope they do it by mail,” she said.

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