author: MINGE, Judge.

text:
    EAGLE LAKE OF BECKER COUNTY LAKE ASSOCIATION, Relator, v. BECKER COUNTY BOARD OF COMMISSIONERS, et al., Respondents, Bruce Jacobs, et al., Respondents.
    No. A07-112.
    Court of Appeals of Minnesota.
    Sept. 18, 2007.

      James P. Peters, Kama M. Peters, Peters & Peters, PLC, Glenwood, MN, for relator.
    Scott T. Anderson, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondents Becker County and its Board of Commissioners.
    Tami L. Norgard, Vogel Law Firm, Fargo, ND, for respondents Bruce and Barbara Jacobs.
    Considered and decided by WRIGHT, Presiding Judge; MINGE, Judge; and WORKE, Judge.
   OPINION

MINGE, Judge.

In this certiorari appeal, relator Eagle Lake of Becker County Lake Association (ELA) challenges the decision by respondent Becker County and its board of commissioners (the county) to approve a conditional use permit (CUP) that would allow respondents Bruce and Barb Jacobs (the Jacobs) to create a recreational-vehicle (RV) campground. Because we conclude that the county has the authority to consider CUP applications pursuant to the zoning ordinance existing at the time of the application and did not abuse its discretion in making its determination under that ordinance, we affirm that exercise of the county’s authority. But because the county did not have a specific site plan for the actual CUP being considered, as required by the ordinance, we reverse and remand.

FACTS

ELA is dedicated to advancing and promoting the interests of property owners on Eagle Lake in Becker County. The Jacobs own land that includes substantial shoreline on Eagle Lake, where they pasture cattle. In May 2004, the Jacobs submitted an application for a CUP to Becker County to convert a portion of an existing pasture, which includes shoreline of Eagle Lake, into a seasonal RV campground known as Blue’s Valley Campground (the project). The zoning ordinance that was in effect on May 2004, allowed such a conditional use with 46 sites on the property-

County consideration of the Jacobs’s CUP application began in the summer of 2004. Opposition to the application, the requirement of an environmental assessment worksheet (EAW), and various proceedings delayed action. Meanwhile, in September 2004, the county began a public review of its land-use ordinances, and placed a moratorium on certain types of shoreland development. In late 2004, the Jacobs asked the county whether the ordinance existing when they made their application or a more restrictive proposed ordinance under consideration would apply to their project. In January 2005, Becker County, consistent with what a county board member said was the county’s usual policy, informed the Jacobs by letter that because “the [CUP] application was submitted for review and accepted by Becker County on May 21, 2004, the application will be reviewed in accordance with the zoning ordinance in effect on that date.” File notes made by a county employee indicated that the Jacobs were also advised that if they modified the project ■ they would need to submit a new application for evaluation.

In March 2005, the county amended its zoning ordinance and created a new section that controls multi-unit-residential developments in shoreland areas. Becker County, Minn., Zoning Ordinance § 7A (2005). The new section 7A would limit the RV sites on the project parcel to about 29.

In May 2005, the county board ordered an environmental impact statement (EIS) on the project. In response to that order, the Jacobs adjusted their project and submitted a second EAW. The changes included the following: (1) additional open space, (2) new locations for septic systems, (3) relocation of many RV sites away from the shoreline, and (4) 54 RV sites. The county considered. the changes, along with the new EAW, and issued notice of its intent to withdraw its order requiring an EIS.

In October 2006, the county’s planning commission considered Jacobs’s CUP application. The commission tabled the application to first determine which version of the zoning ordinance applied. The Becker County attorney issued a letter indicating that the application should be considered pursuant to the newly amended ordinance, unless the Jacobs had a “vested right” or some form of estoppel applied. The planning commission held a public hearing on November 21, 2006. The planning commission decided to apply the earlier 2002 version of the ordinance because, as one member stated, “[T]he Board has usually used the ordinance that was in effect at the time of the application.” Then, under the version of the ordinance that was in effect at the time of the CUP application, the planning commission determined that the modified 54-site project was not acceptable and recommended that the county board “approve a conditional use permit for 46 RV sites, 18 boat slips, [and] a conservation easement buffer....” No site plan for the recommended 46-unit development was filed. On November 28, 2006, the board adopted the commission’s recommendation and, on the basis of the ordinance in effect when the application was filed, granted the CUP for a 46-unit project. ELA then filed this certiorari appeal.

ISSUES

I. Did Becker County have the authority to consider the Jacobs’s application for a conditional use permit pursuant to its zoning ordinance as it existed at the time of the application?

II. Did Becker County abuse its discretion in granting the conditional use under the former ordinance?

III. Did Becker County err in granting a conditional use permit without a site plan for the project on file?

ANALYSIS

I.

The first issue is whether the county has the authority to grant the CUP under the zoning ordinance as it existed at the time the Jacobs filed their application instead of the amended version of the ordinance that was in effect when the county approved the permit. The interpretation of an ordinance is a question of law for the court, which we review de novo. Billy Graham Evangelistic Ass’n v. City of Minneapolis, 667 N.W.2d 117, 122 (Minn.2003); Frank’s Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 608 (Minn.1980). “Ordinances are construed according to the recognized principles of statutory construction.” Chanhassen Estates Residents Ass’n v. City of Chanhassen, 342 N.W.2d 335, 339 n. 3 (Minn.1984). “When interpreting a statute, we first look to see whether the statute’s language, on its face, is clear or ambiguous. A statute is only ambiguous when the language therein is subject to more than one reasonable interpretation.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000) (citations omitted). At the same time, appellate courts’ “authority to interfere in the management of municipal affairs is, and should be, limited and sparingly invoked.” White Bear Docking & Storage, Inc. v. City of White Bear Lake, 324 N.W.2d 174, 175 (Minn.1982).

Minnesota counties are empowered to engage in land-use planning and zoning. Minn.Stat. § 394.21, subd. 1 (2006). Generally, counties’ official land-use controls, including designating certain land-development activities as conditional uses for which a CUP is required, are to be established by ordinance. Minn.Stat. §§ 394.24, subd. 1, 394.301, subd. 1 (2006). It is undisputed that the development of an RV park may be designated as a conditional use for which a CUP is required.

Counties may amend their ordinances and change the status of conditional uses. Minn.Stat. §§ 394.25, subd. 10, 394.301, subd. 3 (2006). The record presented to this court does not specifically address the effective date of the 2005 amendment of the zoning ordinance. Generally, as long as the provisions of a zoning ordinance are not incompatible with the state law and are supported by a rational basis related to promoting the public health, safety, morals or general welfare; counties have broad legislative discretion regarding the content of the ordinances. See Honn v. City of Coon Rapids, 313 N.W.2d 409, 414-15 (Minn.1981).

At all times relevant to this controversy, Becker County has had a comprehensive zoning ordinance. The ordinance in effect when the Jacobs filed their application for a CUP was enacted in 2002. This ordinance was reenacted without substantial alterations in November 2004. See Becker County, Minn., Zoning Ordiance § 26 (2004). Becker County amended section 7 of its zoning ordinance in March 2005, and section 7A now governs shoreland-multi-unit developments, including RV sites such as the Jacobs’s, that can be leased for more than 28 days. Becker County, Minn., Zoning Ordinance § 7A, subd. 1 (2005). The ordinance, as amended in 2005, establishes more restrictive requirements for unit density and open space. Id., subds. 4, 5 (2005). Ño reported Minnesota appellate decision or statute addresses whether a local unit of government, in considering an application for a conditional use permit, has discretion to apply the zoning ordinance that was in effect when that application was filed, even though the ordinance was changed before action was taken. Here, the 2005 amendment that added section 7A to the county’s zoning ordinance does not state whether it is applicable to pending permit requests.

Several questions have been raised and bear on the propriety of using the 2002 zoning ordinance, in effect in 2004 when Jacobs applied for the CUP, as contrasted to the ordinance in effect in 2006 when the county took final action on that CUP request. We consider those issues in turn.

A. Retroactivity Generally Under the Zoning Ordinance

ELA asserts that the Becker County zoning ordinance required the county to apply the 2005 amendment, which added section 7A, immediately to all pending land-use questions. ELA points to section, 3, subdivision 2, of the ordinance, which states that “[a]fter the effective date of this Ordinance the use of all property and every structure ... erected, altered, added to or relocated in Becker County shall conform with this Ordinance.” Becker County, Minn., Zoning Ordinance § 3, subd. 2 (2004). The record shows that this general provision existed at the time of the 2002 and 2004 reenactments of the zoning ordinance.

Here, the Jacobs began their CUP application process in May 2004. County officials accepted the application and began public consideration of the application in June 2004. In September 2004, the county publicly began reviewing its land-use con-' trols and imposed a moratorium on certain types of development. In 2005, the amendment to the zoning ordinance took effect. In November 2006, the county finally acted on the Jacobs’s CUP application. Although the Becker County zoning ordinance applies to all land-use decisions, none of the language of the 2002, 2004, or 2005 versions of the ordinance clearly requires the county to apply the new, currently effective version of the ordinance in considering CUP applications that were submitted, accepted, and being considered under the previous version of the ordinance.

We conclude that the language relied on by ELA in section 3, subdivision 2 of the zoning ordinance is best read as a boilerplate requirement that Becker County zoning controls generally apply to all land-use questions, not as limiting the discretion of the county board regarding the question before us.

B. Use of the Adjudicatory Process

The parties disagree (1) whether the county’s decision to apply its then-existing 2002 zoning ordinance to pending applications was properly made in a judicial-type proceeding; and (2) whether this court reviews that decision as an adjudicatory decision by the county or whether we use the narrower, more deferential standard applicable to review of a legislative-type determination. The decision to make policy, including rules or regulations, -is generally a part of the agency’s quasi-legislative power. Kmart Corp. v. County of Stearns, 710 N.W.2d 761, 770 (Minn.2006). When reviewing legislative and zoning determinations, we consider whether the local unit of government has acted within the constitution and consistent with the statutory mandate and whether there is a reasonable basis for the decision. See In re Appeal of Brine, 460 N.W.2d 53, 54 (Minn.1990); Honn, 313 N.W.2d at 417.

Although no reported Minnesota cases have directly addressed the discretion of administrative agencies or local units of government to formulate policy rules in the adjudicatory process, federal law provides some guidance. As the Supreme Court has indicated, the line between the legislative and judicial functions of an agency “is not always a clear one and in fact the two functions merge at many points.” N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, 770, 89 S.Ct. 1426, 1432, 22 L.Ed.2d 709 (1969). For example, when “exercising its quasi-judicial function an agency must frequently decide controversies on the basis of new doctrines, not theretofore applied to a specific problem, though drawn to be sure from broader principles reflecting the purposes of the statutes involved and from the rules invoked in dealing with related problems.” Id. at 770-71, 89 S.Ct. at 1432. An administrative agency’s exercise of the adjudicative function to evolve a policy on a case-by-case basis, even if it is not yet embodied in a legislative rule, is well recognized. See Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995 (1947). “[Adjudicated cases may and do serve as vehicles for the formulation of agency policies, which are applied and announced therein, and ... such cases generally provide a guide to action that the agency may be expected to take in future cases.” N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294, 94 S.Ct. 1757, 1771, 40 L.Ed.2d 134 (1974) (quotation omitted). And regardless of whether policies or standards are specifically spelled out in rules or regulations, agencies must have the discretion to carry out their judicial function and decide issues at hand. Id. at 292, 94 S.Ct. at 1771 (citing Chenery, 332 U.S. at 201, 67 S.Ct. at 1580).

Based on the foregoing analysis, we conclude that even if it were a legislative-type decision, Becker County had the discretion, in an adjudicatory proceeding, to consider a pending CUP application under the ordinance in effect when that application was properly filed, rather than an amended version of the ordinance becoming effective after the application was filed. We further conclude that the deferential standard of review applicable to legislative-type determinations should be used.

C. Vested Rights and Estoppel Rights

ELA claims that the county is required to apply the new 2005 section 7A of the zoning ordinance in considering the Jacobs’ CUP application unless the Jacobs had acquired vested rights or estoppel rights under the 2002 version of the ordinance that was in effect at the time of their application. This argument is based on court decisions that have considered challenges to a municipality’s application of a new, more restrictive land-use regulation to deny pending permits. Courts have developed a general rule that, in limited circumstances, landowners can invoke the legal principles of vested rights and estoppel to preclude application of the new, more stringent rules. See, e.g., Yeh v. County of Cass, 696 N.W.2d 115, 131 (Minn.App.2005) (analyzing the vested-rights and estoppel doctrines), review denied (Minn. Aug. 16, 2005). ELA’s claim is that vested rights and estoppel represent the outer limits on the county’s discretion to apply the earlier 2002 ordinance.

1. Vested Rights

In a vested-rights analysis, courts ask whether a developer has progressed sufficiently with construction or otherwise to acquire a vested right in completing the project under the prior land-use regulations. Yeh, 696 N.W.2d at 131-32. The vested-rights doctrine exists to protect landowners from unfair changes in zoning laws targeted at stopping partially completed development. Id.; see also Naegele Outdoor Adver. Co. of Minneapolis v. City of Lakeville, 532 N.W.2d 249, 254 (Minn.App.1995) (holding that, when appellant did not submit permit application until four years after the ordinance in question was amended, appellant had no vested rights), review denied (Minn. July 20, 1995).

Here, the vested-rights doctrine would be applicable if the Jacobs had made substantial improvements based on a provisional CUP under the zoning ordinance prior to the amendment and the county had then denied the Jacobs’s final application under the newly amended ordinance. Because the county applied the 2002 ordinance and granted the CUP, the vested-rights analysis is not directly applicable in this case. We decline to accept ELA’s assertion that the vested-rights principle has an inverse quality: that by implication it requires application of the new ordinance unless there are vested rights. Nothing in the vested-rights principle gives it such a limiting affect on the county’s discretion.

2. Estoppel

The estoppel doctrine may be applied “where justice demands” in order to prevent a local government from inappropriately “exercising its zoning powers.” Yeh, 696 N.W.2d at 131. Thus, “estoppel is available as a defense against the government if the government’s wrongful conduct threatens to work a serious injustice and if the public’s interest would not be unduly damaged by the imposition of es-toppel.” Id. (quotation omitted). “But if there is no wrongful conduct by the government, this court’s inquiry should stop.” Id. Because the county applied the 2002 ordinance and granted the CUP, it is not necessary for the Jacobs to defend their interests against government action, and the right of estoppel is inapplicable here. If anything, the Jacobs may have had a claim that because of representations by county officials that the former ordinance would apply, the county was estopped from applying the provisions of the new 2005 section 7A to their application.

D. Conclusion

Based on the foregoing analysis, we conclude that neither the terms of the Becker County zoning ordinance, nor any limits on adjudicatory decision-making, nor the absence of vested rights, nor the inapplicability of estoppel precludes the county from granting the Jacobs a CUP based on the 2002 ordinance. We also observe that other governmental entities make deferred-effective-date determinations for substantive changes in the law. The legislature adopts laws with a future effective date. See, e.g., 2005 Minn. Laws ch. 164, § 32 (making 2005 amendments to child support statutes effective January 1, 2007); 2006 Minn. Laws ch. 280, § 44 (clarifying effective date provision of 2005 Minn. Laws ch. 164, § 32). Similarly, the courts, even when addressing constitutional issues, occasionally rule on a question and state that the new principle only applies to matters arising after a certain date. See Holmberg v. Holmberg, 588 N.W.2d 720, 727 (Minn.1999) (ruling that a portion of the then-existing administrative child support system was unconstitutional but delaying, for five months, the effect of the judgment with respect to other parties and cases). We are deferential to the county’s authority to act prospectively. We conclude that Becker County has, as part of its quasi-judicial power, the authority to apply its then-existing zoning ordinance to CUP applications that were properly filed and pending when the ordinance was amended.

II.

Having determined that a county has the authority to apply amendments to its zoning ordinance prospectively, we address the second issue: whether Becker County abused its discretion in doing so in this proceeding and granting the CUP to the Jacobs under the 2002 ordinance. A county’s decision to grant or deny a CUP “will be upheld unless it was unreasonable, arbitrary, or capricious.” Sunrise Lake Ass’n, Inc. v. Chisago County Bd. of Comm’rs, 633 N.W.2d 59, 61 (Minn.App.2001). We typically afford more deference to a decision granting a CUP than to a decision denying one. Schwardt v. County of Watonwan, 656 N.W.2d 383, 389 n. 4 (Minn.2003) (citing Interstate Power Co. v. Nobles County Bd. of Comm’rs, 617 N.W.2d 566, 579 (Minn.2000)).

ELA argues that the county acted arbitrarily or capriciously when it applied the 2002 version of the ordinance and granted the CUP. The record shows that, in its quasi-judicial proceedings, the county carefully considered which version of the ordinance to apply. The planning commission held a hearing on the issue, heard arguments from both sides, and debated the question. Ultimately, the commission determined that the then-existing version of the ordinance should apply because, as one member stated, “[T]he Board has usually used the ordinance that was in effect at the time of the application.” The county board adopted this position.

Although it may have been preferable for the county to record this policy in the county’s zoning ordinance, we have already concluded that the decision to follow the board’s common practice was reasonably within the county’s quasi-judicial function. Here, there is nothing in the record to indicate that this policy was applied inconsistently in other similar cases. Rather, the record indicates that the policy followed was consistent with the county’s prevailing practices. Furthermore, as indicated above, the 2005 amendment of the ordinance contained no provision regarding its applicability to applications that were already under consideration.

ELA argues that the project could not have been governed by the 2002 ordinance because the project had been modified during the application process. Although the project had been changed from its original plan, these changes were apparently made in response to the county’s environmental requirements. County representatives worked with the Jacobs as they changed their project to reduce the environmental impact. The changes provided for additional open space and new locations for septic systems, and they relocated many RV sites away from the shoreline.

The county could have chosen to apply the amended 2005 version of the ordinance, but it was not required to do so. ELA concedes that the version of the ordinance that was in effect at the time of the application allowed as a conditional use the density for 46 sites, and perhaps up to about 70 sites, on the property owned by the Jacobs on Eagle Lake. Furthermore, in arguing that the Jacobs would have only been able to build a 29-site project under the amended ordinance, ELA implicitly concedes that even if the county had applied the amended 2005 version of the ordinance, it was still likely to grant the CUP and allow the project to go forward, albeit with fewer RV sites.

The record shows that the county was very familiar with the project. It conducted a lengthy public review of the Jacobs’s project, and during its quasi-judicial hearings, gave careful consideration to whether the Jacobs’s project complied with the 2002 version of the ordinance that was in effect at the time of the application. The county indicated that it had accepted the application and represented that the then-existing ordinance would apply, not the new ordinance that was under consideration. Becker County evaluated the project and the resulting impact it would have on the county and Eagle Lake. There is no indication in the record that this was a land-use proposal that the Jacobs rushed to file to avoid anticipated, protective environmental action. On this record, we conclude that Becker County did not abuse its discretion in granting the CUP according to the standards in the zoning ordinance in effect at the time that the Jacobs filed their application.

III.

The third issue is whether the county erred in granting the CUP without requiring a site plan. ELA argues that the ordinance required the submission of a detailed site plan before the grant of any CUP. The 2002 ordinance that was in effect at the time of the Jacobs’s application, required a “site plan and plat for the project showing,” among other things, “existing and proposed structures and other facilities, land alterations, sewage treatment and water supply systems.” Becker County, Minn., Zoning Ordinance § 7, subd. 3 (2002).

In reaching its final decision, the county had been reviewing a plan that provided for 54 RV sites. The county was familiar with the project and the modifications that had been made, including a more environmentally-sound layout. Although the Jacobs had initially proposed a 46-site project, several RV-site locations in the original plan were moved further from the lake as the number was increased to 54. When the project was scaled back to 46, the implication is that they were not at the same location as the original 46-site plan. When the county finally approved the project for 46 sites, the record did not include a determination of the specific layout for the final 46-site project. Because the final CUP does not contain a site plan for this final project, as required by the ordinance, we conclude that the county erred. We reverse the decision to grant the CUP and we remand to the county for consideration and action based on an actual site plan for the 46-site project.

DECISION

Becker County had the authority to grant the CUP to the Jacobs pursuant to the 2002 county zoning ordinance which was in effect when the permit was submitted. But the county erred in acting without an actual site plan for a 46-site RV campground. Accordingly, we reverse the grant of the CUP and remand for the submission of a site plan for a 46-site project and for county consideration and action on that plan.

Affirmed in part, reversed in part, and remanded.

      . The Becker County Zoning Ordinance in effect when the Jacobs submitted their CUP application was adopted in 2002. The ordinance was reenacted, but apparently not sub-stanlively altered, in November 2004. See Becker County, Minn., Zoning Ordinance § 26 (2004).

      . During the county's inquiry into the proper version of the ordinance to apply, the county attorney took a similar position.

      . We note that both estoppel and vested rights are designed to protect the landowner from unreasonable action by local government. It is not clear that ELA has standing to raise those principles except in arguing by analogy to them.

      .We acknowledge that there is a question regarding how changes in Jacobs’s application for a CUP affect that earlier commitment. See Section II.


source: Caselaw Access Project

author: MUEHLBERG, Judge.

license: Public Domain

text:
    In the Matter of the Petition of Michael C. ROLLINS for the Establishment of a Cartway.
    No. A06-2107.
    Court of Appeals of Minnesota.
    Sept. 25, 2007.
    Wilbert Hendricks, Hendricks Law Firm, Pine River, MN; and Katherine MacKinnon, St. Louis Park, MN, for appellant Michael C. Rollins.
    Timothy J. Grande, Frederick W. Vogt, Maekall, Crounse & Moore, PLC, Minneapolis, MN, for respondents Ivan and Lois Krueger.
    Stephen G. Andersen, Ratwik, Roszak & Maloney, P.A., Minneapolis, MN, for respondent Cass County Board of Commissioners.
    Considered and decided by LANSING, Presiding Judge; KLAPHAKE, Judge; and MUEHLBERG, Judge.
   OPINION

MUEHLBERG, Judge.

Appellant Michael Rollins, who owns land on the west shore of Bear Island on Leech Lake, petitioned respondent Cass County for a cartway to provide access to his land from the east side of the island over land owned by respondents Ivan and Lois Krueger. When the county denied Rollins’s petition, he appealed the denial to the district court. By summary judgment, the district court affirmed the county’s decision, denied Rollins’s motion for sanctions, and awarded the Kruegers attorney fees and costs from Rollins. Rollins appeals. The proposed cartway would not connect Rollins’s land to a public road. Therefore, Rollins is not entitled to a cart-way, and the district court properly affirmed the county’s denial of the cartway petition. But because the district court failed to cite any authority to support its award of attorney fees and costs to the Kruegers, and because the relevant portions of the record do not clarify the question, we, on this record, reverse the award of fees and costs against Rollins.

FACTS

Bear Island on Leech Lake is not connected, by bridge or otherwise, to the mainland. Rollins owns 3.3 acres of lakefront land on the western shore of Bear Island. A platted trail starts at the eastern shore of Bear Island and runs west to Lot 1 on the western shore of the island. Lots 2-14 are on the western shore of the island and run, in numerical order, south from Lot 1. "Where the platted trail reaches Lot 1, it turns south and continues to Lot 14. Rollins owns lots 8, 12,13, and 14. "Where the platted trail starts on the eastern shore of Bear Island, there is a hill, and topography makes it more convenient to access the island over the Kruegers’ land just south of the platted trail. Just before the platted trail reaches Lot 1 on the west side of the island, topography makes it easier to cut across another portion of the Kruegers’ land to get to the portion of the platted trail that runs south. The Kruegers’ predecessor in interest used a bulldozer to clear a trail that approximates the platted trail, except for the eastern-shore access point and the LoU-l point. At those two places, the cleared trail followed the island’s topography. The western shore of Bear Island is steeper than the eastern shore, and when the weather is bad, the western shore of the island lacks the shelter available on the eastern shore of the island.

In 1999, Rollins started proceedings to gain an access to his land by a route partially over the platted trail and partially over the Kruegers’ land. Rollins’s legal proceedings culminated in a May 2005 judgment and a September 2005 order in which the district court rejected Rollins’s claims that a road following the cleared trail existed by statutory dedication, that a road existed following the cleared trail by common-law dedication, that he had an easement by implication or necessity following the cleared trail, and that he had an easement by prescription following the cleared trail. Other issues regarding “damages” were apparently not resolved at that time.

Two weeks after the district court’s September order, Rollins petitioned the county to establish a cartway across the Krueg-ers’ land following the cleared trail.

Before the district court tried the remaining damages issues, Rollins petitioned this court for a “writ of prohibition/mandamus” to remove the district court judge then presiding over the matter. This court denied the petition.

In December 2005, the county denied Rollins’s cartway petition, and in January 2006, he started a new district court proceeding when he appealed the county’s denial of his cartway petition to district court. In February 2006, the district court’s determinations in the first (dedication and easement) action were challenged in this court when Rollins appealed, and the Kruegers filed a notice of review.

After an August 9 district court hearing on the parties’ summary-judgment motions in Rollins’s appeal of the denial of his cartway petition, the district court granted the Kruegers summary judgment affirming the county’s denial of Rollins’s cartway petition, denying Rollins’s motion for sanctions against the Kruegers, finding Rollins’s motion for sanctions to be in bad faith, and awarding the Kruegers $4,732 in attorney fees and costs they incurred in defending against Rollins’s motion for sanctions. On September 19, this court affirmed the district court’s rulings in the appeal then pending in this court. Rollins v. Krueger, No. A06-248, 2006 WL 2677833, at *1 (MinmApp. Sept.19, 2006). In November, Rollins filed this appeal from the district court’s summary judgment affirming the county’s denial of Rollins’s cartway petition and the award to the Kruegers of fees and costs.

ISSUES

1. Did the district court err by granting summary judgment affirming the county’s denial of Rollins’s cartway petition?

2. Does the record support the award to the Kruegers of attorney fees and costs they incurred in defending against Rollins’s motion for sanctions?

ANALYSIS

I.

“A town board[] shall establish a cartway upon a petition of an owner of a tract of land ... [who] has no access thereto except over a navigable waterway or over the lands of others.” Minn.Stat. § 164.08, subd. 2(a) (2006); see also Minn. Stat. § 645.44, subd. 16 (2006) (stating “ ‘[s]hall’ is mandatory”). Here, the district court’s summary judgment affirmed the county’s denial of Rollins’s cartway petition by ruling that Rollins already had direct access to his property across Leech Lake and that Rollins’s reading of the statute to allow him “a right to access his property over land belonging to the Kruegers when weather prohibits travel to the west side of the island, but provides a safe journey from the east side of the island ... would wreak havoc upon nearly every island upon every body of water in Minnesota[.]” Citing the portion of the cartway statute stating that a cartway “shall” be established where a landowner has no access to his property “except over a navigable waterway or over the land of others[,]” Rollins argues that the district court erred by using what it determined was his direct access to his property from the lake as a basis for affirming the county’s denial of the cartway petition.

On appeal from summary judgment, appellate courts address two questions “(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” In re Daniel, 656 N.W.2d 543, 545 (Minn.2003) (quotation omitted). In doing so, an appellate court views the record in the light most favorable to the party against whom summary judgment was granted. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). And where, as here, the relevant facts are undisputed, a district court’s application of the law to the facts results in a conclusion of law which is reviewed de novo, and “the sole issue is whether the district court correctly interpreted Minn.Stat. § 164.08, subd. 2.” Daniel, 656 N.W.2d at 545. Statutes are interpreted to effectuate the intent of the legislature. Minn.Stat. § 645.16 (2006).

The purpose of a cartway is to “connect[ ] a petitioner’s land with a public road.” Daniel, 656 N.W.2d at 546. Rollins, however, seeks a cartway to connect his property with the lake. “Public road” for cartway purposes is not explicitly defined by statute or by caselaw. For the reasons stated below, however, we conclude that the lake is not a public road for cartway purposes.

Cartways are addressed in chapter 164 of the Minnesota Statutes. The definitions in Minn.Stat. § 160.02 (2006) apply to chapter 164, but those definitions lack a definition of “public road.” Minn.Stat. §§ 164.01, .02 (2006). Also, the types of roads and highways defined in Minn.Stat. § 160.02 do not include waterways. Further, with the exception of some city streets,

[fjor the purposes of chapters 160 to 165 the roads of this state shall be designated and referred to as trunk highways, county state-aid highways, municipal state-aid streets, county highways, and town roads. They shall be established, located, constructed, reconstructed, improved, and maintained as provided in chapters 160 to 165 and acts amendatory thereto.

Minn.Stat. § 160.01, subd. 1; see Minn. Stat. § 160.01, subd. 2 (excluding some city streets from the categories of roads listed in Minn.Stat. § 160.01, subd. 1). Because the non-city-street “roads of this state” are, at least for purposes of chapters 160 to 165, divided into the categories listed, and because the categories listed do not include waterways, we decline to read the relevant statutes to include Leech Lake as a public road for cartway purposes. See, e.g., Martinco v. Hastings, 265 Minn. 490, 497, 122 N.W.2d 631, 638 (1963) (stating that “[i]f there is to be a change in the statute, it must come from the legislature, for the courts cannot supply that which the legislature purposefully omits or inadvertently overlooks”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987) (stating that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).

Rollins argues that the lake can be deemed a public road because it is a navigable water and caselaw treats navigable waters as “public highways.” To support his argument that navigable waters are treated as “public highways,” Rollins cites two cases.

The first case Rollins cites is Page v. Mille Lacs Lumber Co., 53 Minn. 492, 55 N.W. 608 (1893). For two reasons, however, it is not helpful here. First, the supreme court vacated Page shortly after it issued that opinion. 53 Minn. 501, 55 N.W. 1119 (1893). Second, to the extent Rollins makes an argument including an analysis similar to that presented in the vacated Page opinion, we reject that argument because Page is not analogous to the current case. See Viebahn v. Bd. of Comm’rs of Crow Wing County, 96 Minn. 276, 283, 104 N.W. 1089, 1092 (1905) (stating “[wjhile the order granting a new trial in the Page case was subsequently set aside for some defect in the return to this court, the decision on the merits has been accepted as, and is now understood to be, the law of this state”). Page involved a district court’s dismissal of a nuisance suit brought by a lumber company owning a mill downstream from a blockage of the stream created by another lumber company. 53 Minn. at 497-98, 55 N.W. at 608. The supreme court acknowledged that the dismissal of the suit was consistent with one of its prior opinions, but it also stated that it was “convinced” that the prior opinion involved an error in the application of the general rule that an individual can maintain a private action for a public nuisance “only when he sustains special injury differing in kind, not merely in degree or extent, from that sustained by the general public, that he may recover damages in a private action!.]” Id. at 498-99, 55 N.W. at 609. The supreme court then noted that it had “recently” expressed “doubts of the correctness of the [prior] decision!,]” that “[i]t is obvious that there has been a very marked conflict of opinion in the application of the rules pertaining to the rights of private parties to have redress in private actions when injuries have grown out of public nuisances!,]” and that “[t]his conflict, and that the adjudicated cases are irreconcilable!.]” Id. at 499, 55 N.W. at 609.

In reevaluating its prior holding regarding the circumstances under which a private action may be maintained for a public nuisance, Page incidentally states that “[t]he general doctrine in reference to the use of navigable streams as public highways is that each person has an equal right to their reasonable use [of the stream]” and that “in most respects streams used for highway purposes are governed by the same general rules of law as are highways upon land.” Id. at 500, 55 N.W. at 609. Opinions must be read in light of the issue presented for decision. Shelly Oil Co. v. Comm’r of Taxation, 269 Minn. 351, 371, 131 N.W.2d 632, 645 (1964). And assumptions underlying an opinion that are not the subject of a court’s analysis are not precedential on the point that is assumed. See Chapman v. Dorsey, 230 Minn. 279, 288, 41 N.W.2d 438, 443 (1950) (stating that an opinion deciding an appeal based on the assumption that appellate jurisdiction existed is not precedential regarding the existence of appellate jurisdiction where the existence of appellate jurisdiction was not addressed by the court). Here, because the crux of Page is the supreme court’s reevaluation of its prior ruling regarding the circumstances under which a private action may be maintained for a public nuisance, and because Page’s statements analogizing navigable streams to public highways was not the focus of the supreme court’s analysis, we decline to read Page to require that Leech Lake be treated as a public road for cartway purposes, especially where the definitional statutes relevant to cartways apparently exclude waterways from being public roads.

The second case Rollins cites involved a challenge to the issuance of public bonds to finance the alteration of bridges over the Mississippi River to ensure a minimum clearance above the river. Bybee v. City of Minneapolis, 208 Minn. 55, 55-56, 292 N.W. 617, 617 (1940). In doing so, it takes judicial notice “that the Mississippi River is a navigable stream within the requirements specified in Lamprey v. State, 52 Minn. 181, 53 N.W. 1139 [(1893)]. As such, it is an actual or potential artery for river traffic. In this sense it is a public highway.” Bybee, 208 Minn. at 56-57, 292 N.W. at 618. For three reasons, we conclude that Bybee does not require Leech Lake to be deemed a public road for cart-way purposes. First, Bybee does not state that navigable streams are public highways, it says that, in the “sense” that the river is an artery for river traffic, it will be treated as a public highway. Id. Thus, Bybee held that, for purposes of addressing the public’s right to use the river, it would analogize the river to the public’s right to use a public highway. Id. Rollins cites no precedent allowing him to parley Bybee’s analogy regarding use of an already existing waterway into authority for requiring owners of private property to surrender their property rights for the creation of a previously nonexistent cart-way. Second, as noted above, the relevant statutes appear to exclude waterways from being public roads for cartway purposes. Third, Bybee’s statement that the Mississippi River was deemed a public highway in the “sense” that the public had a right to its use was based on Lamprey. And Lamprey was unambiguous that the rule recited therein defining navigable waterways is a common-law rule. Lamprey, 52 Minn. at 198-200, 53 N.W. at 1143-44. We decline to apply a common-law rule to the statutory cartway process, especially when the requested application of the common-law rule is contrary to the relevant statutory definitions that seem to exclude waterways from the definition of public roads.

II.

Rollins moved the district court, under Minn.Stat. § 549.211 (2006) and Minn. R. Civ. P. 11, for sanctions against the Kruegers and the county. The day before the hearing, the Kruegers submitted a memorandum and supporting affidavit opposing Rollins’s motion. The memorandum cited Minn.Stat. § 549.211, subd. 4(a), and rule 11 to argue that Rollins’s motion for sanctions was unsupported, made in bad faith, and that they should be awarded $4,732 in expenses and fees for defending against Rollins’s motion. The affidavit averred that the Kruegers had incurred $2,532 in fees and expenses defending against Rollins’s motion for sanctions and that they expected to incur an additional $2,200 by the conclusion of the hearing. The district court denied Rollins’s motions, found that Rollins’s “motion for sanctions [was] made in bad faith and warrants sanctions!,]” and awarded the Kruegers $4,732 “for attorney’s fees and reasonable costs incurred in defending [against Rollins’s] motion for sanctions.” Rollins challenges this award.

Fee awards under Minn.Stat. § 549.211 and rule 11 are discretionary with the district court and will not be altered on appeal absent an abuse of discretion, but appellate courts review de novo a district court’s construction of statutes and rules, including Minn.Stat. § 549.211 and rule 11. Johnson ex rel. Johnson v. Johnson, 726 N.W.2d 516, 518 (Minn.App.2007). Also, attorney fees are generally recoverable only if there is a statutory authorization or a contractual agreement allowing their recovery. Garrick v. Northland Ins. Co., 469 N.W.2d 709, 713 (Minn.1991). Here, there is no question of a contractual authorization for an award of attorney fees, and the district court awarded fees and costs against Rollins because it found his motion for sanctions to be in bad faith, but it cited no statutory authority for its award. Under Minn.Stat. § 549.211, subd. 4(b), a district court may, on its own initiative, issue an order that describes conduct that is apparently sanctionable under Minn.Stat. § 549.211, subd. 2, and direct the alleged offender to show cause why it has not violated the statute. The finding that Rollins’s motion under Minn.Stat. § 549.211 was in bad faith could be read to suggest an application of Minn.Stat. § 549.211, subd. 4(b), but because the district court did not invoke the show-cause procedure described in that statute, it cannot be used to support the award of fees and costs against Rollins. See Minn. R. Civ. P. 11.03(a)(2) (creating, under rule 11, a similar show-cause procedure for apparently sanctionable conduct).

Alternatively, a party prevailing in a sanctions dispute under Minn.Stat. § 549.211 “may” be awarded “the reasonable expenses and attorney fees incurred in presenting or opposing the motion.” Minn.Stat. § 549.211, subd. 4(a). The Kruegers’ memorandum seeking to recover fees and costs incurred in defending against Rollins’s motion for sanctions invoked this provision but, as noted, the district court did not cite any authority for its award. Thus, the district court’s failure to rely on the explicitly cited Minn. Stat. § 549.211, subd. 4(a), renders that provision conspicuous by its absence from the district court’s order. Also, as described above, there is at least some indication that the district court may have been thinking of Minn.Stat. § 549.211, subd. 4(b), when it made its award. On this confused record, and given both the lack of authority cited by the district court and the fact that the Kruegers’ request was made the day before the hearing, we decline to affirm the award of attorney fees and costs against Rollins based on an invocation of Minn.Stat. § 549.211, subd. 4(a), the authority that the district court apparently implicitly rejected. Therefore, we reverse the award of attorney fees and costs against Rollins.

DECISION

Because Leech Lake is not a public road for cartway purposes, there is no public road to which Rollins’s proposed cartway can connect, and we affirm the district court’s grant of summary judgment affirming the county’s denial of Rollins’s petition for a cartway. But given the unclear record and the lack of clearly dispositive authority, we reverse the award of attorney fees and costs against Rollins.

Affirmed in part and reversed in part.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

      . "In an unorganized territory, the board of county commissioners of the county in which the tract is located shall act as the town board.” Minn.Stat. § 164.08, subd, 2(b) (2006). Here, because Bear Island is part of an "unorganized territory” in Cass County, Rollins’s cartway petition was presented to the Cass County Board.

      . The county argues that under In re Daniel, 644 N.W.2d 495 (Minn.App.2002), whatever a “public road” is defined to be, it requires a legally enforceable right to access over a road controlled by a public authority. The cited Daniel opinion, however, was reversed by the supreme court. Daniel, 656 N.W.2d at 546.


author: CROTHERS, Justice.

text:
    2007 ND 148
    STATE of North Dakota, Plaintiff and Appellee, v. Benjamin NEWMAN, Defendant and Appellant.
    No. 20060294.
    Supreme Court of North Dakota.
    Sept. 5, 2007.

      Cynthia Mae Feland (argued), Assistant State’s Attorney, and Richard James Riha (appeared), State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Robert Wade Martin, North Dakota Public Defenders’ Office, Minot, N.D., for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Benjamin Newman appealed from a criminal judgment entered upon a jury verdict finding him guilty of class AA felony murder, class A felony attempted murder, class B felony endangering by fire, and class C felony violation of a domestic violence protection order. The court sentenced Newman to incarceration for life without parole on the murder conviction, 20 years incarceration on the attempted murder conviction, 10 years incarceration on the endangering by fire conviction, and five years on the conviction for violation of a domestic violence protection order. We hold Newman was not denied his right to a fair and impartial jury. We further hold Newman waived his objection that he was denied his right to be present at each critical stage of the trial proceedings, and we affirm the criminal judgment.

I

[¶ 2] Gail Delorme obtained a domestic violence protection order prohibiting Newman from coming within 200 yards of her residence. In violation of that order, Newman attempted to cause Delorme’s death by intentionally starting a fire at the apartment building where she resided in Bismarck. That fire resulted in the death of a tenant who was in the building at the time of the fire.

[¶ 3] Newman’s issues on appeal relate to alleged misconduct by a juror using her cell phone during breaks on the second day of trial and possibly sending text messages during the trial itself. This was brought to the attention of the trial judge, who held a lengthy in-chambers conference, with Newman, his trial counsel and the prosecuting attorneys present, to address the juror misconduct. The in-chambers meeting included the following discussion:

MR. RIHA: Your Honor, we heard yesterday after the trial that one of the jurors was using a cell phone during breaks and may be text messaging during the breaks and during the — possibly, during the testimony. And that’s a concern to all of us.
MR. BALABAN: More than the undivided attention aspect, as well, Your Honor, I’m concerned with outside influences. I mean, the Jury is supposed to be admonished not to read newspapers, magazines, and television reports. And as the Court is aware, and as everybody in the room is aware, this has been on the news quite a bit and, I don’t know. I guess, what I would reiterate what concerns me is not so much the outgoing information from the juror, but more the incoming information of what this juror may be receiving from outside source that may change the way they are viewing the evidence, or if they’re getting some outside information that is going to add to their knowledge of the case that they wouldn’t have gotten from the evidence presented.
THE COURT: ... I will call her in and excuse her, ask her about — tell her about the concerns and excuse her, and then we’ll seat the alternate....
MR. BALABAN: ... I agree, she should be dismissed. She’s not an appropriate juror in this case. But as far as any other record we need to make or if she has said anything to the other jurors back in the break room is a big source of concern for me as far as contamination of the other jurors, as people do talk.
And, I guess, one way, you know, and I don’t know if it’s the appropriate way or not appropriate way or not for the Court to approach the Jury and ask, you know, after this juror is dismissed and say, has there been any conversation about any outside influences and have these other jurors say, yeah, she was trying to talk to us about stuff or, no, she wasn’t trying to talk to us about stuff, just to be sure that we’ve got a clean Jury still.
THE COURT: All right. I suppose what I could I do is bring in Ms. Quinn by herself to talk to her and dismiss her. And then bring the other jurors in groups of, I could fit six around the table, six into my chambers. I don’t want to have that conversation in open Court. I could bring them in in groups of six and just ask them as a group. And I expect that exchange might be very short. I ask the question, they give me the answer, and I’ll have the bailiffs bring in the other six.
Would there be any objections to that method? Mr. Balaban or Mr. Glass?
MR. BALABAN: I won’t have an objection. I’m not sure where the presumption lies. The presumption is that they’re tainted or that they’re not?
MR. RIHA: I think there is a presumption that they follow the Court’s admonishment.
MR. GLASS: Yeah.
MR. BALABAN: I’m talking about—
THE COURT: That would be the presumption.
MR. BALABAN: I agree with that. But I think if there was information, you know, from this conversation that came up as far as what Ms. Quinn was doing on her cell phone, does that — I don’t know where the presumption — what does that do to that presumption?
THE COURT: If the information involved this case, particularly?
MR. BALABAN: Yes.
THE COURT: If it doesn’t involve this case, I think there is no presumption.
MR. BALABAN: I would agree.

Following the in-chambers meeting with the parties, the court called the offending juror into chambers to dismiss that juror:

THE COURT: Let the record reflect we’re in chambers with Juror Ms. Quinn. And just Juror Ms. Quinn and I are present in the chambers.
Ms. Quinn, it’s come to my attention that the use of your cell phone has been of concern to the parties, to the counsel. They have been concerned that they— that you have been text-messaging during the trial or during the breaks.
JUROR QUINN: No, not at all.
THE COURT: And that perhaps you have received information regarding this case or conveyed information regarding this case.
JUROR QUINN: I talked to my friend, Allie, yesterday. But we talked about her friend, Joshua, from Fargo. That’s all we talked about, was that. And that was on the lunch break.
THE COURT: All right. There was also text-messaging going on during the afternoon break, as I understand it?
JUROR QUINN: Yep, my friend, Jana, text-messaged me. I just texted her back. And my friend, Kelsie, I had to call her really quick.
THE COURT: All right. There is a concern, and we have to protect the jury system in order to make sure that all of the evidence that is and all of the information brought into the jury room comes from the Court, from the witnesses and the evidence that’s brought in. There is a concern expressed among the attorneys and the Court about your use of the cell phone, and we have decided that we’re going to excuse you from your Jury duty.
JUROR QUINN: Okay.

[¶ 4] The Court then called the first group of six jurors into chambers and had the following discussion:

THE COURT: All right. I wanted to just take a moment to visit with you. I have just decided to release Juror Quinn from her services as a Juror, and I wanted to inquire of you whether anyone has discussed this case in front of you so that you have heard any other— any other information other than what you have heard in the courtroom. No?
(All members shake their heads negatively.)
THE COURT: I’m seeing that all of you have said “no”.
That’s all I needed to ask you.

The court then summoned the remaining jurors into chambers and had a similar discussion:

THE COURT: All right. Thank you for meeting with me. I have — I wanted to inform you that I have decided to release Juror Quinn from her duties as a Juror. I wanted to just advise you of that, and then ask whether anyone has discussed this case or any elements of the case in front of you. You know, I have admonished you not to discuss it, yourself. I’m wondering whether you overheard any conversations regarding this case outside of the courtroom.
(All members shake their heads negatively.)
THE COURT: Everybody has indicated no. All right. That’s all I needed to ask you. Thank you. You can return to the Jury room, and we will start Court in a few minutes.

Thereafter, the trial proceeded with no further incidents involving the jury.

II

[¶ 5] On appeal, Newman argues, “[t]he lower court failed to excise the taint of the jury impaneled in the case below, caused by a juror’s use of her cell phone and text messaging during the course of the trial, and did not preserve [Newman’s] constitutional right to a fair and impartial jury on his trial for homicide and related criminal charges.”

[¶ 6] “Persons accused of crimes have a right ... to a trial by an impartial jury.” State v. Smaage, 547 N.W.2d 916, 919 (N.D.1996). We explained the genesis of that right in State v. Fredericks, 507 N.W.2d 61, 64-65 (N.D.1993):

A criminal defendant’s right to an impartial jury trial under the Sixth Amendment requires the selection of the jury from a representative cross section of the community. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The Fourteenth Amendment makes the provisions of the Sixth Amendment binding upon the states. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Although the North Dakota Constitution’s guarantee of the right to a jury trial does not explicitly require an impartial jury, see N.D. Const. art. I, 13, we would read the Sixth Amendment’s impartiality and fair-cross-section requirements into our state constitution.

[¶ 7] During the trial, jurors are prohibited from communicating among themselves or others “on any subject connected with the trial.” N.D.C.C. § 29-21-27. Under N.D.C.C. § 29-21-28, the court has a duty, upon each adjournment of the court, to admonish the jury “that it is then-duty not to converse among themselves [or] with anyone else on any subject connected with the trial ... until the case is finally submitted to them.” See State v. Myers, 2006 ND 242, ¶ 15, 724 N.W.2d 168.

[¶ 8] At the beginning of the trial, in open court, the trial court informed the jurors that they must “refrain from discussing this case with anyone until it’s been finally turned over to you.” In its opening instructions, the court further admonished the jury:

From time to time during the trial we may take a recess. Do not discuss the case among yourselves or permit anyone to discuss it with you or in your presence. Do not form or express an opinion on the case until it is finally submitted to you.

[¶ 9] Newman asserts the trial judge’s examination of the juror who was using her cell phone “did not go far enough, or in depth enough, to effectively excise the taint to the jury that [she] engendered through her unauthorized communication with other persons outside the confines of the jury room and/or trial” because “the record before the court does not establish that the unauthorized communication was unrelated to ‘... any subject connected with the trial.’ ” During the in-chambers discussion between the court and the offending juror, that juror said her discussion on the cell phone was about a friend of the person to whom she was talking and “[t]hat’s all we talked about.” She said she sent a text message response to one friend and made a “really quick” call to another friend. While the court could have further probed this juror about the content of her communications, there is no indication that there was any discussion about the trial during the cell phone usage. This juror was excluded, and the remaining jurors were questioned by the court. All of those jurors indicated they had not heard or received any information about the case other than what was presented to them in the courtroom.

[¶ 10] Although the law with regard to jury conduct must be strictly followed, an appellate court will not set aside a verdict merely on a “whimsey or fanciful notion” that prejudicial misconduct occurred. Fischer v. Knapp, 332 N.W.2d 76, 79 (N.D.1983). There is no evidence that any juror sitting on the panel which decided this case heard or received any information about the case outside the courtroom. There is no evidence this was not an impartial jury. We conclude, under these circumstances, Newman was not denied his right to a fair and impartial jury.

III

[¶ 11] Newman asserts he had a constitutional right to be present when the court questioned the offending juror and the other members of the jury panel. Newman claims his exclusion from the examination of the juror and the remaining panel violated his constitutional due process rights to be present at each and every critical stage of the proceeding, and is thus an obvious error of the trial court.

[¶ 12] A defendant has a constitutional right to be present in the courtroom at every stage of the trial. State v. Klose, 2003 ND 39, ¶ 32, 657 N.W.2d 276; Hill v. State, 2000 ND 143, ¶ 16, 615 N.W.2d 135. However, that “right is not absolute, and may be affirmatively waived by the defendant.” City of Mandan v. Baer, 1998 ND 101, ¶ 9, 578 N.W.2d 559 (footnote omitted); see also N.D.R.Crim.P. 43(c). Both Newman and his counsel were present during the in-chambers discussion to determine how the court should deal with the juror who had been observed using her cell phone during the trial proceedings. The court stated the juror would be dismissed and the remaining jurors would be questioned by the judge. Newman’s counsel, with Newman present, affirmatively stated he had no objection to that procedure. Therefore, both Newman and his attorney acquiesced in and fully approved, without objection, having the trial judge exclude that juror after talking with her and then having the court, without others present, inquire of the remaining jurors whether they had received any information about the case outside the trial court proceedings.

[¶ 13] Assuming Newman had a right to be present during the court’s in-chambers questioning of the jurors, Newman knowingly and affirmatively waived that right when he agreed to the procedure utilized by the court. A party cannot challenge as error a ruling or other trial proceeding invited by that party. State v. Grager, 2006 ND 102, ¶ 7, 713 N.W.2d 531 (no reversible error where a litigant opens the door and invites error).

IV

[¶ 14] We hold Newman was not denied his right to a fair and impartial jury. We further hold Newman waived his right to be present during the court’s questioning of the jury panel. We, therefore, affirm the criminal judgment.

[¶ 15] GERALD W. VANDE WALLE, C.J., STEVEN L. MARQUART, D.J., DANIEL J. CROTHERS, MARY MUEHLEN MARING, and DALE V. SANDSTROM, JJ, concur.

[¶ 16] The Honorable STEVEN L. MARQUART, D.J., sitting in place of KAPSNER, J„ disqualified.


author: VANDE WALLE, Chief Justice. SANDSTROM, Justice,

text:
    2007 ND 149
    Timothy R. SWENSON, Claimant and Appellant, v. WORKFORCE SAFETY & INSURANCE FUND, Appellee, and Nabors Drilling, USA, Inc., Respondent.
    No. 20070049.
    Supreme Court of North Dakota.
    Sept. 5, 2007.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, ND, for claimant and appellant.
    Leo F.J. Wilking, Special Assistant Attorney General, Fargo, ND, for appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Timothy R. Swenson appealed from a district court judgment affirming an order of Workforce Safety & Insurance (“WSI”) denying him benefits for the treatment of his cervical and thoracic spine. Because the administrative law judge (“ALJ”) did not apply the correct standard when evaluating the medical opinions in this case, we reverse and remand for further proceedings.

I

[¶ 2] On May 15, 1997, Swenson injured his lower back while employed as a motorman for Nabors Drilling. Swenson was thirty-seven years old at the time of the incident. WSI accepted his claim for a work-related injury to his lower back and began paying benefits, including reasonable and necessary medical expenses for treatment directly related to that injury.

[¶ 3] Since his work-related injury in 1997, Swenson has undergone extensive treatment on his back and spine, including multiple surgeries and visits with many different doctors. Dr. Darryl Espeland examined Swenson in Baker, Montana, on the date of his injury in 1997 and diagnosed him with acute muscular strain in the right lower back with possible tearing. About two months later, Swenson was still feeling pain in the area and was referred to Dr. Thomas Jacobsen in Bowman, North Dakota, for a second opinion. Dr. Jacobsen determined that Swenson’s lower back pain was possibly related to a protruding lumbar disc. WSI then requested that Swenson consult with Dr. Gregory Peterson at Medcenter One in Bismarck. An MRI revealed that Swenson had a herniated disc at L3-L4 on the right and at L4-L5 on the left. In August 1997, Swen-son had a partial hemilaminectomy on these two levels of his lumbar spine to remove the extruded discs.

[¶ 4] As a result of this surgery, Swen-son’s condition temporarily improved. But about June 1998, he began to experience increasing pain in his lower back which radiated into both of his legs. In 1999, he consulted several times with Dr. Peterson about this pain. Dr. Peterson concluded he had “failed spine surgery syndrome.” Dr. Peterson also noted there was some miscommunication about the levels of the lumbar spine involved in the previous operation because Swenson had an extra sixth lumbar vertebrae. Therefore, his surgery was actually at L4-L5 on the right and at L5-L6 on the left. In August 1999, Dr. Peterson referred Swenson to a specialist to consider the risks and benefits of a lumbar spine fusion.

[¶ 5] In October 1999, Swenson began treating with Dr. Timothy Garvey at the Twin Cities Spine Center in Minneapolis. On his initial visit patient questionnaire, Swenson indicated he was concerned about pain or numbness in his lower back, neck, legs, feet, and hands. Like Dr. Peterson, Dr. Garvey also noted the presence of an extra lumbar vertebrae, and he used the terminology L4-L5 and L5-S1 to describe the location of Swenson’s prior operation. Dr. Garvey recommended Swenson undergo surgery on his lumbar spine to relieve some of the pain. In February 2000, Swenson had a revision decompression and an anterior posterior fusion from L4-L5 and L5-S 1. As a result of the second surgery, Swenson’s condition improved for some time. About six months after this operation, in September 2000, Swenson reported to Dr. Garvey that he had also been having problems with his cervical spine. Eventually Swenson’s lumbar pain began to increase again, and in March 2001 he had a third operation, this time a lumbosa-cral decompression and fusion for unilateral spondylolysis at S1-S2, just below his previous two-level fusion. By June 2001, Swenson reported an increase in pain in his back, neck, and legs, and numbness in his left hand.

[¶ 6] In July 2001, Dr. Garvey ordered an MRI on Swenson’s cervical spine in order to diagnose his neck pain. On August 31, 2001, WSI denied payment on this bill, stating Swenson had not proved that his cervical problems were the direct result of his 1997 work injury. On October 25, 2001, WSI denied liability for Swen-son’s cervical spine problems.

[¶ 7] Swenson continued to treat with Dr. Garvey. In October and December of 2001, Dr. Garvey noted in follow-up visits that Swenson was not making good progress after his last surgery. Dr. Garvey concluded Swenson appeared to have pseu-doarthrosis at S 1-S2. In April 2002, Swen-son had a fourth operation on his back, a revision lumbar decompression and fusion at S1-S2. After this surgery, Swenson had a three-level lumbar fusion, from L4-L5, L5-S1, and S 1-S2. In his appointments following the 2002 surgery, Swenson continued to report cervical pain to Dr. Garvey, and he also began reporting thoracic pain.

[¶ 8] In early 2003, Dr. Garvey referred Swenson to Dr. Shelley Killen, a specialist in physical medicine and rehabilitation at St. Alexius in Bismarck, for nonsurgical treatment of his spine. Swenson’s first appointment with Dr. Killen was on May 30, 2003. He reported pain in all three areas of his spine, including constant pain in his thoracic spine and tightness and limited range of motion in his cervical spine. Dr. Killen diagnosed him with failed back syndrome from the multiple lower back surgeries with continued neuro-pathic pain, myofascial pain of the entire spine secondary to the lumbar problems and the thoracic problems as a result of extensive fusion below that, and urinary difficulties secondary to lumbar surgery. In December 2003, Swenson’s counsel sent a letter to Dr. Killen inquiring whether his cervical and thoracic conditions were causally related to his approximately fifteen years of work as an oil field laborer. Dr. Killen replied that in her opinion, both conditions were more likely than not related to his fifteen years of heavy oil field work.

[¶ 9] On February 5, 2004, Swenson filed a new claim for a progressive injury to his entire spinal column as a result of his years of work as a rig hand and motorman on oil field drilling rigs. He listed the date of injury as “1978-2004.”

[¶ 10] Swenson continued to seek nonsurgical treatment from Dr. Killen. He reported upper back and thoracic pain, in addition to his ongoing lumbar problems. Swenson also requested a referral back to Dr. Garvey at the Twin Cities Spine Center to discuss further possible surgical options. In September 2004, Dr. Garvey ordered MRIs of Swenson’s entire spine. The MRI of the cervical spine showed moderate to advanced spondylosis at C5-C6, and spondylosis at C6-C7. The MRI of his thoracic spine showed symptoms consistent with thoracic spondylosis, including areas of mild disc bulging. Swen-son also had three-level degeneration in his lumbar spine above his previous fusion. In January 2005, Swenson had yet another operation on his back, for upper lumbar decompression and removal of segmental fixation. At a follow-up visit with Dr. Garvey in March 2005, Swenson reported that he felt somewhat better, but that he still had symptoms in his cervical and thoracic spine. Swenson reported the same problems to Dr. Killen at his multiple appointments with her in 2005.

[¶ 11] On April 20, 2005, WSI issued an order denying any liability for Swenson’s cervical or thoracic spine, although it continued to accept his claim for a lumbar spine injury. In the order, WSI concluded that his cervical and thoracic problems were not related to the 1997 work injury. WSI did not address Swenson’s claim of a progressive work-related injury to his entire spine. Swenson requested a rehearing before an ALJ on the order denying him benefits. The ALJ specified the issue to be resolved at the hearing as “whether Timothy R. Swenson has sustained a com-pensable injury of his cervical and thoracic spine.”

[¶ 12] On February 2, 2006, WSI took an oral deposition of Dr. Killen in preparation for the administrative hearing • on Swenson’s claim of a progressive injury to his entire spinal column. Dr. Killen testified that Swenson’s lumbar fusion was at least partially a cause of his cervical and thoracic problems. She stated, “When you lose all of that range of motion due to a fusion, you’ve got to pick up the motion someplace else. There’s no place — it can’t go down any further so then it translates up to the thoracic spine.” When WSI’s counsel asked if that could occur all the way up the neck, Dr. Killen responded:

Yes. Probably one of the most common things I see is a complaint of neck pain and the problem isn’t their neck. They’ve done something to a shoulder, they’ve done something to an arm and they’ve held that arm in a position of comfort for so long that everything tightened up and they’re having neck problems. It’s similar. The lower part hurts, you hold it, you hold it literally so you don’t let it move, and that just translates up, so with time your entire spine becomes involved rather than just the segment that was originally the problem. If it’s for one segment, you’re probably not going to see the entire spine, but when you take out the whole, entire lumbar portion, I think you can develop myofascial problems all the way up.

Throughout her testimony, Dr. Killen mistakenly thought that Swenson’s entire lumbar spine was fused, while he actually had a three-level lumbar fusion. She stressed the importance of the entire lumbar spine being fused several times.

[¶ 13] When questioned by WSI’s counsel about a 2004 MRI of Swenson’s thoracic spine, Dr. Killen stated that she does not see those type of thoracic degenerative changes until a person is very old, unless they do manual labor. As to the cervical spine MRI, Dr. Killen testified that she would be surprised to see the-same type of degeneration in a person at age forty-five who has had a sedentary life. She characterized Swenson’s degenerative changes in the cervical and thoracic spine as “[m]ild to moderate,” with the cervical spine being more moderate.' Dr. Killen stated that there are pain generators in the spine other than nerve roots or discs, such as the facet joints, and that Swenson’s MRIs showed neural foraminal narrowing and degenerative bony changes. Dr. Killen attributed Swenson’s degenerative spinal changes to a cumulative work injury of fifteen years in the oil field. WSI’s counsel and Dr. Killen had the following exchange about her conclusion on this issue:

Q.- Wouldn’t it be true, though, Dr. Kil-len, that a significant majority of men and probably women, too, who work as roughnecks do not develop any significant cervical or thoracic pain?
A. I would disagree with that.
Q. You would say the majority do?
A. I think if they’re in the oilfield long enough, I think they do.
Q. Can you cite any — is this just based on your personal ad hoc experience? Can you cite any studies of the oilfield industry or the oil derrick or oil rigger industry?
A. Personal experience.
Q. Personal experience in treating patients?
A. Correct.
Q. How many — -how many oilfield workers do you think you’ve treated?
A. I probably currently treat someplace between 10 and 20 — currently.
Q. Currently. I understand. And you have been at St. Alexius for five, six years?
A. I have been here six years.
Q. Right.
A. Trained in Texas.
Q. Right. Did you see any oil derrick people down there? A. Mm-hmm.
Q. But, I mean, you’ve maybe seen what, 20, 30, 40 in your lifetime?
A. Probably more than that, because even though — that might not be the reason I’m seeing them. I may be seeing them for some other complaints.

Dr. Killen testified that it is not just the oil field, but any of the heavy-labor industries, and that throughout her career she has seen these complaints in people who are performing heavy-labor jobs.

[¶ 14] On February 28, 2006, the ALJ held a hearing to determine whether Swenson had suffered a compensable injury to his cervical and thoracic spine during his many years of work as an oil field laborer. Timothy Swenson and Dr. William Simonet testified at the hearing. Swenson testified that he worked in the oil field for nineteen years, from 1978 to 1997, and that he has not worked since his injury in 1997. At the time of the hearing, Swenson was forty-six years old. On cross-examination, Swenson stated that he got in shape and bulked up by about forty pounds after he started working in the oil field, and that he was a heavy smoker prior to 1997.

[¶ 15] Dr. William Simonet, an orthopedic surgeon, testified on behalf of WSI. Dr. Simonet conducted a records review of Swenson’s medical history in order to offer his opinion on the cause of Swenson’s spinal injuries. Dr. Simonet testified that Swenson’s cervical and thoracic conditions were not the result of working in the oil field, and that Swenson’s weight and history as a heavy smoker were major factors in his degenerative disc disease. He stated that according to the body mass index, Swenson was obese during his time in the oil field, and that “[e]xcess weight places excess load on the discs and therefore leads to early degenerative disc disease,” regardless of whether the weight is fat or muscle. Dr. Simonet also explained that smoking is a scientifically proven risk factor for causation and acceleration of degenerative disc disease.

[¶ 16] Like Dr. Killen, Dr. Simonet was mistaken in his testimony about the extent of Swenson’s lumbar fusion. However, while Dr. Killen thought his entire lumbar spine was fused, Dr. Simonet understated the extent of the fusion as two levels rather than three. Dr. Simonet disagreed with Dr. Killen’s assertion that a fusion can cause problems all the way up the spine. He stated:

Adjacent level degeneration is the adjacent vertebrae or adjacent discs, shall we say, and it occurs because of the lever-arm effect. If you fuse one or two levels, you create a lever arm that transfers force to the next mobile disc. Fusing one or two levels does not change the force patterns to discs far above.

Dr. Simonet testified that he had never seen anything “in the world spine literature” to suggest there is any risk of degeneration in the thoracic or cervical spine from a lumbar spine fusion. He also disagreed with Dr. Killen’s claim that doing manual labor is a particular risk factor for accelerating degenerative disc disease. Dr. Simonet concluded the degenerative disc disease in Swenson’s cervical and thoracic spine was “normal” and “age-appropriate.”

[¶ 17] After considering the extensive record in this case, including the testimony of Dr. Killen and Dr. Simonet, the ALJ recommended affirming WSI’s order denying Swenson benefits for the treatment of his cervical and thoracic spine. WSI adopted the ALJ’s findings of fact and conclusions of law in their entirety and issued a final order denying benefits. The ALJ was not persuaded by either Dr. Kil-len or Dr. Simonet and explained at length the problems with each expert’s testimony.

[¶ 18] As to Dr. Killen’s opinion, the ALJ found it problematic for two reasons. First, the ALJ noted that Dr. Killen was mistaken in her understanding that Swen-son’s entire lumbar spine was fused, and concluded that this was a “significant, if not essential, factor for her advice and opinion concerning stress transferred to the thoracic and cervical portions of Swen-son’s spine and the resulting pain and functional impairment.” Second, the ALJ was not satisfied with the basis for Dr. Killen’s opinion that Swenson’s spinal problems were causally related to his many years of work in the oil field. The ALJ stated:

[W]hile I assume, of course, that Dr. Killen’s advice concerning the nature and effect of the bony degenerative changes she identified in the cervical and thoracic portions of Swenson’s spine and the effect of 15-years’ work as a laborer in the oil fields upon the human spine are based upon her education, training, and experience, particularly her experience treating persons who have spent their working lives in the oil fields, and recognize her specialized training, education, and experience for the practice of physical medicine and rehabilitation and her more comprehensive knowledge as Swenson’s treating physician, considered together her advice and opinion is substantially anecdotal as based upon her experience treating patients. Experts should have experience. Generally, as a matter of experience and consistent with the advice of the supreme court, the advice and opinion of a practicing physician, especially a treating physician, is to be preferred to, for example, a medical school instructor or a consulting physician who does not treat patients for the injuries or diseases for which he or she offers advice and opinions. But anecdotal evidence, even from a treating physician, is nonetheless unscientific and untested. Moreover, its interpretation and application cannot be evaluated for a particular case without some supporting evidence which comes with a hallmark of scientific authority such as, for example, a treatise or a published report of a study.

(Emphasis added.)

[¶ 19] Turning to Dr. Simonet’s opinion, the ALJ found it was “little better” than Dr. Killen’s opinion. The ALJ noted that Dr. Simonet was also mistaken about the extent of Swenson’s lumbar fusion, but concluded it was not a significant factor in his testimony about adjacent-level degeneration. The ALJ observed that Dr. Simo-net had more limited experience than Dr. Killen, and his experience was “equally anecdotal.” Furthermore, the ALJ found Dr. Simonet’s references to the world’s spinal literature during his testimony were puffery and did not provide support for his opinion.

[¶ 20] Weighing these medical opinions, the ALJ concluded Swenson had not proved by a preponderance of the evidence that the medical conditions in his cervical and thoracic spine were causally related to his nineteen years of work in the oil field. The ALJ noted that Swenson had the burden of proof, which it characterized as “a particularly heavy burden for the medical opinion he offers.” The ALJ explained why it found Swenson had not met his burden:

Considering together Dr. Killen’s mistaken understanding that Swenson’s entire lumbar spine was fused, the lack of supporting scientific evidence for the anecdotal evidence of her experience, and the countervailing evidence of Dr. Simo-net’s advice and opinion, such as it is, it cannot reasonably be concluded by a preponderance of the evidence of record that it is more likely than not that the pain and resulting functional impairment which Swenson experiences is caused by a combination of the fusion of his lumbar vertebrae and bony degenerative changes of the thoracic and cervical portions of his spine resulting from 19-years’ work in the oil fields as an oil rig hand and seismographer.

Swenson appealed WSI’s final order denying him benefits to the district court. The district court affirmed.

II

[¶ 21] On appeal from the district court, we review the decision of the administrative agency in the same manner the district court reviewed the decision of the agency, Ziesch v. Workforce Safety & Ins., 2006 ND 99, ¶ 8, 713 N.W.2d 525, giving respect to the analysis of the review by the district court. Genter v. Workforce Safety & Ins., 2006 ND 237, ¶ 12, 724 N.W.2d 132. Therefore, we must affirm the order of an administrative agency unless any of the following are present:

1.The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

Id. (citing N.D.C.C. § 28-32-46).

[¶ 22] We exercise restraint in deciding whether WSI’s findings of fact are supported by a preponderance of the evidence, and we do not make independent findings or substitute our judgment for that of WSI. Fettig v. Workforce Safety & Ins., 2007 ND 23, ¶ 10, 728 N.W.2d 301. Rather, we determine only whether a reasoning mind reasonably could have decided that WSI’s findings were proven by the weight of the evidence from the entire record. Genter, 2006 ND 237, ¶ 12, 724 N.W.2d 132. However, questions of law are fully reviewable on appeal from an administrative decision. Fettig, at ¶ 10, 728 N.W.2d 301.

[¶ 23] Swenson argues that he proved a compensable injury to his cervical and thoracic spine by a preponderance of the evidence, and therefore the ALJ erroneously concluded he was not entitled to benefits. In particular, Swenson contends the ALJ incorrectly evaluated Dr. Killen’s medical opinion by requiring her to support her opinion with a treatise or other study.

[¶ 24] A claimant has the burden of proving by a preponderance of the evidence that he suffered a compensable injury and is entitled to workers compensation benefits. See N.D.C.C. § 65-01-11; Barnes v. Workforce Safety & Ins., 2003 ND 141, ¶ 20, 668 N.W.2d 290. In order to carry this burden, a claimant must prove by a preponderance of the evidence that the medical condition for which he seeks benefits is causally related to a work injury. Elshaug v. Workforce Safely & Ins., 2003 ND 177, ¶ 11, 671 N.W.2d 784. To establish a causal connection, a claimant must demonstrate that his employment was a substantial contributing factor to the injury, not that employment was the sole cause of the injury. Myhre v. N.D. Workers Comp. Bureau, 2002 ND 186, ¶ 10, 653 N.W.2d 705.

[¶ 25] A “compensable injury” is defined as “an injury by accident arising out of and in the course of hazardous employment which must be established by medical evidence supported by objective medical findings.” N.D.C.C. § 65-01-02(10). Thus, a claimant must prove by objective medical evidence that he suffered a compensable injury. We have held that objective medical evidence may include a physician’s medical opinion based on an examination, a patient’s medical history, and the physician’s education and experience. Myhre, 2002 ND 186, ¶ 15, 653 N.W.2d 705.

[¶ 26] WSI has the responsibility to weigh the credibility of medical evidence and resolve conflicting medical opinions. Thompson v. Workforce Safety & Ins., 2006 ND 69, ¶ 11, 712 N.W.2d 309; Negaard-Cooley v. N.D. Workers Comp. Bureau, 2000 ND 122, ¶ 18, 611 N.W.2d 898. Confronted with a classic “battle of the experts,” a factfinder may rely upon either party’s expert witness. Elshaug, 2003 ND 177, ¶ 11, 671 N.W.2d 784. However, although WSI may resolve conflicts between medical opinions, the authority to reject medical evidence selectively does not permit WSI to pick and choose in an unreasoned manner. Id. WSI must consider the entire record, sufficiently address the evidence, and adequately explain its reasons for disregarding the evidence presented to it by the appellant. N.D.C.C. § 28-32-46(7); Barnes, 2003 ND 141, ¶ 20, 668 N.W.2d 290. Thus, particularly in cases where expert medical testimony is desirable if not essential to a determination of causation, WSI may not reject competent medical testimony without sufficiently addressing in its findings of fact its reasons for doing so which are adequately supported by the record. Geck v. N.D. Workers Comp. Bureau, 1998 ND 158, ¶ 13, 583 N.W.2d 621 (quotation omitted). Adequate reasons for rejecting appellant’s evidence set forth in the agency’s findings and supported by the record are necessary for us to determine whether or not the decision of the agency is to be affirmed under N.D.C.C. § 28-32-46(5), (6) and (7).

[¶27] We have declined to establish a presumption entitling a treating doctor’s opinion to “great weight.” Myhre, 2002 ND 186, ¶ 24, 653 N.W.2d 705. However, we do recognize that a long-term physician-patient relationship may provide the treating doctor with a more comprehensive view of the claimant’s medical history and condition. Id. at ¶ 25, 653 N.W.2d 705.

[¶ 28] In this case, the ALJ was faced with conflicting medical opinions from Dr. Killen and Dr. Simonet about the cause of Swenson’s injuries in his cervical and thoracic spine. WSI correctly points out that the ALJ did not simply ignore the medical testimony of Dr. Killen, which was favorable to Swenson. Rather, the ALJ extensively analyzed the medical opinions offered by both doctors and concluded that neither was very persuasive. However, under our standard for evaluating medical opinions, it is insufficient for the ALJ to merely provide any reason for disregarding competent medical testimony about causation. The ALJ must sufficiently address the reason for doing so which is supported by the record and complies with the prevailing law.

[¶ 29] The ALJ’s rationale for discounting the opinion of Dr. Killen relied upon the importance of supporting a medical opinion with another scientific authority, such as a treatise or a published report of a study. Neither the statutes governing Workforce Safety & Insurance nor our case law has imposed such a requirement on those offering medical opinions as evidence in a workers compensation case. On the contrary, this Court has clearly stated that a physician’s medical opinion may be based on an examination, a patient’s medical history, and the physician’s education and experience. Here, Dr. Killen offered a medical opinion about the cause of Swen-son’s cervical and thoracic injuries based on her personal experience in treating patients, her education, and her examination of Swenson. The ALJ characterized her opinion as merely “anecdotal evidence” and “unscientific and untested.” However, Dr. Killen’s opinion clearly qualified as objective medical evidence under our standard set forth in Myhre.

[¶ 30] We recognize that a medical opinion supported by a treatise or other scientific authority may be more persuasive, and in that sense WSI may consider whether a medical expert has presented such authority. But in this case, we conclude the manner in which the ALJ discounted Dr. Killen’s opinion because it was not supported by other scientific authority crossed that line. An expert may present a competent, objective medical opinion based upon her experience, education, and examination of the patient, without corresponding support from a treatise or study. Such support may be persuasive, but it is not required. Because the ALJ applied an inappropriate standard when evaluating the medical opinions in this case, we reverse and remand to WSI for another hearing.

[¶ 31] Furthermore, there are factual errors underlying the opinions of both Dr. Killen and Dr. Simonet. Dr. Killen gave an opinion based upon the mistaken belief that Swenson’s entire lumbar spine was fused, and Dr. Simonet mistakenly thought he had only a two-level fusion rather than a three-level fusion. The ALJ noted these errors and speculated about their effect on the testimony of each expert. The ALJ concluded that Dr. Killen’s error was significant to her testimony, but that Dr. Simonet’s error was less important to his explanation of adjacent-level degeneration. Although there may understandably be some confusion about the exact location of Swenson’s lumbar fusion based on the different numbering systems used by various experts to label his extra sixth lumbar vertebrae, it is clear that Swenson has a three-level lumbar fusion. We are uncertain about the effect these errors may have had on each expert’s opinion and unpersuaded by the ALJ’s speculation on the matter. We recognize Swenson submitted additional evidence in the district court purporting to explain the effect of Dr. Killen’s mistake on her testimony, but we do not consider that evidence here because it was not presented to the ALJ. On remand, these factual errors should be corrected.

[¶ 32] On remand, Swenson has the burden of proving by a preponderance of the evidence that his cervical and thoracic spinal injuries are causally related to his nineteen years of employment in the oil field. The ALJ correctly stated this standard in a conclusion of law, but later in its analysis observed that “Swenson has the burden of proof, a particularly heavy burden for the medical opinion he offers.” We are also uncertain about the exact meaning of the ALJ’s reference to a “particularly heavy burden.” Swenson need only prove it is more likely than not that his injuries were caused by his employment.

Ill

[¶ 33] We reverse the district court’s judgment affirming WSI’s order and remand for further hearing.

[¶ 34] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DONOVAN FOUGHTY, D.J., concurs.

[¶ 35] The Honorable Donovan Foughty, D.J., sitting in place of Crothers, J., disqualified.

SANDSTROM, Justice,

dissenting.

[¶ 36] I respectfully dissent.

I

[¶ 37] Under N.D.C.C. § 28-32-46, we must affirm the order of an administrative agency unless any of the following are present:

1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the appellant.
3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency’s rationale for not adopting any contrary recommendations by a hearing officer or an administrative law judge.

[¶ 38] In 1977, the legislature amended the statute to add subsection 5, adding the factor that the “findings of fact made by the agency are not supported by a preponderance of the evidence.” In Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220-21 (N.D.1979), this Court held that to avoid constitutional infirmity in applying the subsection, either by violating the doctrine of separation of powers or by exercising a nonjudicial function, “we do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record.”

[¶ 39] In 2001, the legislature amended the statute by adding subsection 7, that the “findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.” The rationale of Power Fuels applies equally to this subsection: we do not reweigh the evidence or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the agency had sufficiently addressed the evidence presented by the appellant. See id. at 220.

[¶ 40] I understand the majority adheres to these principles.

II

[¶41] The crux of my disagreement with the majority here is the meaning of the ALJ’s words adopted by the department:

[W]hile I assume, of course, that Dr. Killen’s advice concerning the nature and effect of the bony degenerative changes she identified in the cervical and thoracic portions of Swenson’s spine and the effect of 15-years’ work as a laborer in the oil fields upon the human spine are based upon her education, training, and experience, particularly her experience treating persons who have spent their working lives in the oil fields, and recognize her specialized training, education, and experience for the practice of physical medicine and rehabilitation and her more comprehensive knowledge as Swenson’s treating physician, considered together her advice and opinion is substantially anecdotal as based upon her experience treating patients. Experts should have experience. Generally, as a matter of experience and consistent with the advice of the supreme court, the advice and opinion of a practicing physician, especially a treating physician, is to be preferred to, for example, a medical school instructor or a consulting physician who does not treat patients for the injuries or diseases for which he or she offers advice and opinions. But anecdotal evidence, even from a treating physician, is nonetheless unscientific and untested. Moreover, its interpretation and application cannot be evaluated for a particular case without some supporting evidence which comes with a hallmark of scientific authority such as, for example, a treatise or a published report of a study.

(Emphasis added by the majority.) If these words reflect that as a matter of law the department concluded it cannot accept as competent evidence the testimony of a medical witness that is not supported by treatise, published report of a study, or other scientific authority, then the department erred as a matter of law. If, on the other hand, the department used the lack of treatise or other scientific authority supporting the testimony of one witness and the existence of such support for the testimony of the other witness as the basis for choosing to accept one over the other, then it is the legitimate and appropriate function of the fact-finder. I believe the fair reading of the words is that the fact-finder did not reject the unsupported testimony as a matter of law, but used the lack of support as a reasonable factor in deciding which testimony to accept.

Ill

[¶ 42] I would, therefore, affirm.

[¶ 43] Dale V. Sandstrom

      . What is now codified as N.D.C.C. § 28-32-46 was previously codified as N.D.C.C. § 28-32-19.