author: KAPSNER, Justice. CROTHERS, Justice,

text:
    2008 ND 27
    STATE of North Dakota, Plaintiff and Appellee v. Steven R. SCHMALZ, Defendant and Appellant.
    Nos. 20070127, 20070128.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Lloyd C. Suhr (argued), Burleigh County Assistant State’s Attorney, and Matthew Ramage-White (on brief), appearing under the Rule on the Limited Practice of Law by Law Students, Bismarck, ND, and Allen M. Koppy (appeared), Morton County State’s Attorney, Mandan, ND, for plaintiff and appellee.
    Jodi L. Colling (argued), Dickson Law Office, Bismarck, ND, for defendant and appellant
   KAPSNER, Justice.

[¶ 1] Steven Schmalz appeals from two criminal judgments following his conditional guilty pleas for possession of marijuana in both Burleigh and Morton counties, arguing the trial court erred in denying his motion to suppress evidence. We affirm the criminal judgments.

I

[¶ 2] Burleigh County Sheriffs Deputy Simon Scheett received “intel,” allegedly indicating Schmalz “had involvement with narcotics.” Based on this information, Deputy Scheett began an investigation of Schmalz. As part of the investigation, Deputy Scheett, along with another officer, searched trash that had been placed on the sidewalk in front of Schmalz’s home. During their search of the trash, the officers found a paper towel with dark residue, which Deputy Scheett believed to be burnt marijuana residue, packaging tape, which Deputy Scheett said smelled of marijuana, and cellophane packaging, which Deputy Scheett said smelled of marijuana also. Along with these items, the trash contained mail addressed to Schmalz.

[¶ 3] The day after the trash can search, Deputy Scheett and an Assistant Burleigh County State’s Attorney requested a warrant to search Schmalz’s home from a Burleigh County district court judge. At the hearing on the application for a search warrant, Deputy Scheett testified about the “intel” he received, allegedly providing Schmalz was involved with drugs. He did not disclose the names of the informants or the sources of the information, nor did he attempt to deliver any detailed information regarding what had been communicated to the police in the intelligence.

[¶ 4] In the application for the search warrant, Deputy Scheett testified this intelligence prompted him to conduct further investigation of Schmalz. He testified he and another officer went to the sidewalk in front of Schmalz’s home, where trash was regularly placed for pick-up and disposal, to conduct a search. He testified the search of the trash in front of Schmalz’s residence uncovered a paper towel with what appeared to be burnt marijuana residue, packaging tape that carried the scent of marijuana, and a cellophane wrapper that also smelled of marijuana. Along with this trash, the officers found mail addressed to Schmalz. Deputy Scheett did not, however, testify how many trash cans were placed on the sidewalk for disposal, whether this trash disposal drop-off point was typically used as the disposal point for the entire trailer park, nor did his testimony explicitly provide whether the mail addressed to Schmalz was found in the same trash container as the material containing marijuana or smelling of marijuana. Based on Officer Scheett’s testimony, the judge issued a warrant to search Schmalz’s home.

[¶ 5] A few days later, Deputy Scheett contacted Schmalz, telling Schmalz he had a warrant to search his home and requested he and Schmalz meet in Mandan so that Schmalz could accompany the police to his home for the search. Schmalz met with Deputy Scheett and another officer in a parking lot in Mandan, where he left his car and then rode to his home with the officers. During the search of Schmalz’s home in Bismarck, the police found marijuana.

[¶ 6] After finding the drugs in Schmalz’s home, the officers asked Schmalz if he had any marijuana in his vehicle, which was parked in Mandan. Schmalz stated he did not. The officers asked Schmalz to consent to a search of his vehicle, and after some hesitation, Schmalz consented. During the search of Schmalz’s vehicle, the police found a small quantity of marijuana.

[¶ 7] Schmalz was charged with possession of marijuana in both Burleigh and Morton counties. Before the date set for trial, he moved to suppress evidence gathered in both searches. He argued there was insufficient evidence to support the issuance of the warrant, and the officers should not have searched his trash based only on the information received from an informant. For these reasons, Schmalz argued the evidence derived from the search of his home should be suppressed. He further argued the search of his vehicle was unconstitutional, because the search of the vehicle was a product of the allegedly unconstitutional search of his home, and therefore the evidence acquired as a result of the vehicle search should have been suppressed under the fruit-of-the-poisonous-tree doctrine. The district court denied Schmalz’s motion to suppress. Schmalz entered conditional guilty pleas to both possession charges.

[¶ 8] Schmalz appeals, arguing his convictions should be overturned and he should be allowed to withdraw his conditional guilty pleas because his Fourth Amendment right against unreasonable searches and seizures was violated.

II

A. Sufficiency of the Warrant

[¶ 9] When reviewing a district court’s decision to grant or deny a motion to suppress, this Court gives deference to the district court’s findings of fact, and conflicts in testimony are resolved in favor of affirmance. State v. Albaugh, 2007 ND 86, ¶ 8, 732 N.W.2d 712 (citing State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578); State v. Graf, 2006 ND 196, ¶7, 721 N.W.2d 381. While the district court’s factual determinations are given great deference, questions of law are fully reviewable on appeal. Albaugh, at ¶ 8 (citing Goebel, at ¶ 11).

[¶ 10] The Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, State v. Ressler, 2005 ND 140, ¶10, 701 N.W.2d 915 (citation omitted), protects “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV; see also N.D. Const, art. I, § 8. To protect against unreasonable searches and seizures, “[p]robable cause is required for a search warrant under the Fourth Amendment to the United States Constitution and Article I, Section 8 of our state constitution.” State v. Thieling, 2000 ND 106, ¶ 7, 611 N.W.2d 861 (citing State v. Wamre, 1999 ND 164, ¶ 6, 599 N.W.2d 268).

[¶ 11] Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched. Thieling, at ¶ 7 (citing State v. Johnson, 531 N.W.2d 275, 278 (N.D.1995)). “Although each piece of information may not alone be sufficient to establish probable cause and some of the information may have an innocent explanation, ‘probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.’ ” Thieling, at ¶ 7 (quoting State v. Damron, 1998 ND 71, ¶ 7, 575 N.W.2d 912). “We also recognize ‘courts must take into account inferences and deductions that a trained and experienced officer makes.’ ” Thieling, at ¶ 8 (quoting State v. Mische, 448 N.W.2d 415, 419 (N.D.1989)). However, when information presented to the judge who issues the warrant causes only suspicion and warrants further investigation, probable cause does not exist. Thieling, at ¶ 8 (citations omitted). “Bare-bones” information is not sufficient to satisfy the probable cause requirement for a warrant. Damron, at ¶ 7 (citing State v. Woehlhoff, 540 N.W.2d 162, 166 (N.D.1995)).

[¶ 12] The determination of whether probable cause exists to issue a search warrant is a question of law. Thieling, at ¶ 8 (citing Damron, at ¶ 5). Deference is given to the magistrate judge’s findings if there is a substantial basis to determine probable cause exists. Thieling, at ¶ 8 (citations omitted). “ ‘We resolve doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search.’ ” Id. (quoting Wamre, at ¶ 7); see also State v. Roth, 2004 ND 23, ¶ 6, 674 N.W.2d 495 (citing State v. Ballweg, 2003 ND 153, ¶ 12, 670 N.W.2d 490) (“We generally defer to a magistrate’s determination of probable cause if a substantial basis for the conclusion exists, and doubtful or marginal cases should be resolved in favor of the magistrate’s determination.”).

[¶ 13] This Court’s review of the validity of a search warrant is independent of the trial court’s determination. State v. Hage, 1997 ND 175, ¶ 11, 568 N.W.2d 741. In making this independent determination as to the existence of probable cause, the reviewing court may not look beyond the four corners of the affidavit or application for issuance of the warrant. Roth, at ¶ 25 (citations omitted).

[¶ 14] Deputy Seheett testified during the warrant application hearing that he had received “intel,” allegedly providing Schmalz was involved with drugs. Deputy Seheett did not disclose the names of the informants or the sources of the information, nor did he attempt to deliver any detailed information regarding what exactly had been communicated to the police in the “intel.” Schmalz properly notes this information does not sustain a finding of probable cause. See, e.g., Roth, at ¶ 12 (quoting Rage, at ¶ 17) (“An anonymous informant is one unknown to both the investigating officer and the magistrate. We have stated within the context of anonymous informants that an ‘informant must supply information from which one may conclude that the informant is honest and his information is reliable, or from which the informant’s basis of knowledge can be assessed.’ ”); Franks v. Delaware, 438 U.S. 154, 165, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (providing that, in order to rely exclusively on anonymous informant tips for the purposes of obtaining a warrant, the warrant application must contain more detailed underlying evidence upon which one could determine the informant was credible and reliable). But at the warrant hearing, the State did not exclusively rely on the “intel” in requesting the warrant. The insufficiency of this piece or layer of evidence does not, in and of itself, defeat the possibility of finding probable cause; simply because the warrant application presents information received from an informant, does not mean the credibility and reliability of that informant must be proven, when other evidence supporting probable cause exists. See, e.g., Damron, at ¶ 7 (citations omitted) (explaining “probable cause is the sum total of layers of information” and all of the evidence must be viewed cumulatively to determine whether the standard has been met).

[¶ 15] At the warrant hearing, Deputy Seheett testified the information from the unnamed source prompted him to conduct further investigation of Schmalz. He testified he and another officer searched trash in front of Schmalz’s home, which was regularly placed at that location for pickup and disposal. During the search of the trash, the officers discovered the paper towel with marijuana residue, packaging tape that carried the scent of marijuana, and cellophane packaging that also smelled of the drug. The officers found mail addressed to Schmalz in the trash. Deputy Seheett did not testify during the hearing as to how many trash cans were placed on the sidewalk for disposal, nor did he testify as to whether the mail addressed to Schmalz was found in the same trash bag as the material containing marijuana or smelling of marijuana. Further, there was ambiguity as to whether this trash disposal drop-off point was typically used as the disposal point for the entire trailer park, or whether this spot was used for Schmalz’s residence exclusively. With regard to these factual issues, the transcript for the hearing for application for warrant provided:

Q: And explain why you’re requesting to search the area 312 Oxford [D]rive [Schmalz’s residence].
A: I received intel regarding 312 Oxford Drive and a Steve Schmalz that Steve Schmalz had involvement with narcotics. I conducted ... a trash pull on May 22nd, 2006, at approximately 23 — or 11:45 p.m. In the trash we discovered a packing tape bundled up with an odor of marijuana, cigarette cellophane with an odor of marijuana, and a paper towel that appeared to be used for cleaning marijuana paraphernalia. It had a dirty blackish residue, and it— there was an odor of burnt marijuana on it. Also there was mail addressed to Steve Schmalz, 312 Oxford Drive, Bismarck, North Dakota.
Q: Where was the garbage located when you actually searched it?
A: It was on the west side, the front of the residence on the sidewalk by the driveway of 312 Oxford Drive where the garbage cans in that area are set out for trash pickup.

[¶ 16] The facts surrounding the trash can search are thin. There was minimal information provided at the hearing to show the nexus between the drug residue, the other drug-scented trash, and the mail connecting those items to Schmalz’s residence. It is not explicitly clear whether the drug evidence and mail were found together or separately in a single bag or can and, as a result, the nexus between the drug evidence and the mail tying that evidence to Schmalz’s residence is questionable. However, it can be inferred the judge understood the testimony to mean the items were all in the same can or bag from the first answer above.

[¶ 17] Because this case presents a questionable nexus tying Schmalz to a substance officers believed to be marijuana, based on their experience and training, but without confirmation from a lab or field test of the substance, this warrant hearing provides a “marginal” or “doubtful” case. However, the doubtful and marginal cases require this Court to affirm the magistrate’s determination that probable cause existed, so long as there is a substantial basis for the conclusion. Roth, 2004 ND 23, ¶ 6, 674 N.W.2d 495. While there is minimal connection of the contraband to Schmalz, the mail and drug evidence, as interpreted by the magistrate, amount to a substantial basis for his opinion.

[¶ 18] Schmalz points out that the dark colored residue the officers believed to be burnt marijuana was never tested to confirm it was marijuana. The cellophane wrapping and tape smelled of marijuana; on these two pieces of evidence, there was no apparent marijuana or marijuana residue. Thus, there is a question as to whether the determination, by a trained and experienced narcotics officer, that residue and other objects that smell like marijuana constituted a factual basis upon which probable cause established Schmalz’s garbage contained marijuana and that Schmalz had been or was committing a crime.

[¶ 19] In State v. Woinarowicz, this Court discussed the standard upon which probable cause may be established. 2006 ND 179, ¶¶ 30, 31, 720 N.W.2d 635. In Woinarowicz, the defendant claimed officers did not have probable cause to arrest her because the officers did not conduct tests on plastic wrap they believed was used to hold methamphetamine. Id. at ¶ 30. This Court explained that “whether the plastic wrap actually contained methamphetamine is not necessary to establish probable cause.” Id. Instead, “ ‘[t]o establish probable cause, the officer does not have to possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred.’ ” Id. (quoting State v. Spidahl, 2004 ND 168, ¶ 10, 686 N.W.2d 115); see also State v. Overby, 1999 ND 47, ¶ 13, 590 N.W.2d 703 (“In assessing whether there is probable cause to arrest, police officers need not have knowledge or facts sufficient to establish guilt, only knowledge that would give a prudent person reasonable grounds to believe an offense has been or is being committed.”). “ ‘Probable cause does not require that commission of the offense be established with absolute certainty, or proved beyond a reasonable doubt.’ ” Woinarowicz, at ¶ 30 (quoting Spidahl, at ¶ 11). Facts giving rise to probable cause need not rise to the level of facts necessary to sustain a conviction for the criminal activities in question. Id.

[¶ 20] The mere smell of marijuana, as detected by a trained and experienced officer, has been held by this Court to create a sufficient factual basis upon which to establish probable cause. See, e.g., Overby, at ¶ 13 (“[T]he officer was well-trained in identifying the odor of marijuana. Under Binns and the particular facts of this case, we conclude Officer Nagel had probable cause to arrest Overby....”); State v. Binns, 194 N.W.2d 756, 758 (N.D.1972) (“We believe, in this case, that the circumstances justified a warrantless search of the automobile, since the odor of burning marijuana which the officer recognized, and which he knew was coming from the automobile, gave him probable cause to believe that a felony was being committed.”).

[¶ 21] Based upon Officer Scheett’s testimony regarding his training and experience as a police officer, the smell of marijuana on all three pieces of evidence, and the existence of residue that looked like burnt marijuana, there was a sufficient factual basis to issue a warrant. We acknowledge the facts surrounding this search warrant constitute a “marginal case”; however, as we stated in Roth, 2004 ND 23, ¶ 6, 674 N.W.2d 495 “doubtful or marginal cases should be resolved in favor of the magistrate’s determination.”

B. Constitutionality of the Trash Can Search

[¶ 22] Schmalz next argues the trash can search should be deemed unconstitutional and the evidence derived therefrom should have been suppressed. Schmalz urges this Court to depart from its current rule regarding searches of trash. The rules governing the constitutionality of this issue in North Dakota and in federal courts provide “a warrantless garbage search would violate the Fourth Amendment only if the defendants had ‘a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.’ ” State v. Rydberg, 519 N.W.2d 306, 309 (N.D.1994) (quoting California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)). In Rydberg, this Court explained North Dakota’s constitutional prohibitions against unreasonable searches and seizures were nearly identical to those in the federal constitution. Rydberg, at 310. While our state constitution may provide greater individual rights than those afforded under the federal constitution, this Court explained, “like the Fourth Amendment, ‘Art. I, § 8 of the North Dakota 'Constitution is not implicated unless a reasonable expectation of privacy is invaded.’ ” Id. (quoting State v. Rode, 456 N.W.2d 769, 771 (N.D.1990)). Relying on the reasoning provided in California v. Greenwood, 486 U.S. at 41, 108 S.Ct. 1625, this Court explained:

Based on the public location of Rydberg’s garbage, we conclude the garbage searches, in this case, did not violate Article I, § 8 of the North Dakota Constitution. By placing her garbage on or against the public alley, where it was exposed to the general public, and with the express purpose of abandoning it to the trash collector, Rydberg waived any privacy interest she may have had in the garbage.

Rydberg, at 310. The Court further explained individuals who abandon their trash to collection have

“exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents’ trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage ‘in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,’ respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.”

Id. at 309-10 (quoting Greenwood, 486 U.S. at 40-41, 108 S.Ct. 1625) (internal citations omitted). Under the current rule in North Dakota and federal courts, Schmalz lost his expectation of privacy when he placed the trash for collection, and therefore the garbage search falls outside the protections of Article 1, section 8 of the state constitution and the Fourth Amendment to the federal constitution.

[¶ 23] Schmalz urges this Court to recognize, as a minority of other jurisdictions have, that “the public would not be entirely comfortable with the image of police officers overtly foraging through curbside garbage.” Schmalz cites State v. A Blue in Color, 1993 Chevrolet Pickup, 2-Door, MT 14T-D899 VIN/2GCEC19KOP1153371, 328 Mont. 10, 116 P.3d 800, 805 (2005), for the proposition that there should be greater protection in trash can searches. A Blue in Color, 1993 Chevrolet Pickup provided that if citizens comply with refuse ordinances, which often require a public placement for the pick-up of trash, in exchange for such compliance, law enforcement wishing to search trash should comply with certain constraints, greater than those provided for in the federal constitution. Id. Schmalz urges this Court to limit the “nature and extent of permissible government intrusions into” trash searches, in exchange for compliance with refuse ordinances. Schmalz cites no city ordinance or state statute with which he was required to comply in placing his trash at a public point. Id. A Blue in Color, 1993 Chevrolet Pickup based the additional search protections largely upon the premise that citizens were required by law to place trash in a more public place for disposal; Schmalz has not asserted his reasonable expectations of privacy were lessened because a statute required such conduct. A Blue in Color, 1993 Chevrolet Pickup is not applicable to the present case.

[¶ 24] Finally, Schmalz cites Litchfield v. State, 824 N.E.2d 356, 363-64 (Ind.2005), for the proposition that warrantless trash searches may be upheld as constitutional because the property has been abandoned, but that these searches should require greater constraints on the officers who search to prevent indignity and embarrassment to garbage owners and to prevent completely random or wholesale searches of a private citizen’s trash. Litchfield provides that a warrantless search of trash may be held constitutional if (1) officers conduct the search or remove the trash in a manner similar to the trash collector and (2) the officers must have an articulable individualized suspicion of criminal activity to justify the garbage search and seizure. Id.

[¶25] When evaluating the constitutionality of a search and seizure under the Constitution of North Dakota, this Court employs the same test used by the United States Supreme Court. See, e.g., Rydberg, 519 N.W.2d at 310 (quoting Rode, 456 N.W.2d at 771) (explaining that “like the Fourth Amendment, ‘Art. I, § 8 of the North Dakota Constitution is not implicated unless a reasonable expectation of privacy is invaded.’ ”). Litchfield explains Indiana does not use the same Fourth Amendment analysis in interpreting its own state prohibition against unreasonable searches and seizures: “Although [Indiana’s constitutional] language tracks the Fourth Amendment verbatim, Indiana has explicitly rejected the expectation of privacy as a test of the reasonableness of a search or seizure.” Litchfield, at 360. The extra limitations placed on warrant-less garbage searches in Indiana can be attributed to its unique analysis of searches and seizures under its state constitution. We decline to adopt Indiana’s analysis of searches and seizures.

[¶ 26] Schmalz did not have a reasonable expectation of privacy in his trash once he placed it out in public for disposal. Therefore, the evidence gathered in the trash was admissible for the purposes of the warrant application.

III

[¶ 27] Because we find probable cause did exist to issue the warrant for Schmalz’s residence, we need not address the applicability of the good-faith exception in this case.

IV

[¶ 28] Schmalz raises the fruit-of-the-poisonous-tree doctrine, arguing that because the search of his trash and home were unconstitutional, the subsequent search of his vehicle was tainted, and the evidence found in his vehicle should be excluded. We need not address this issue because we sustain the probable cause finding of the magistrate and find the trash search to be constitutional.

V

[¶ 29] We affirm the criminal judgments.

[¶ 30] GERALD W. VANDE WALLE, C.J., DALE V. SANDSTROM, and MARY MUEHLEN MARING, JJ., concur.

CROTHERS, Justice,

concurring in the result.

[¶31] I agree with the majority that this case provides a “close call” whether evidence supporting the warrant was sufficient. However, the lack of evidence about the location of the garbage, about how the contraband was found within the garbage, and about the location of mail within the garbage failed to provide a nexus to the defendant and to provide probable cause to search his home. However, under the good-faith exception, suppression of evidence is not the appropriate remedy if law enforcement relies on an objectively reasonable search warrant. State v. Dodson, 2003 ND 187, ¶ 20, 671 N.W.2d 825. Here, law enforcement sought and obtained an objectively reasonable search warrant. The remaining disqualifying factors are not present. See Roth v. State, 2007 ND 112, ¶32, 735 N.W.2d 882. The officer’s good-faith reliance on the warrant is evident, and I would not suppress the seized evidence.

[¶ 32] DANIEL J. CROTHERS


source: Caselaw Access Project

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

license: Public Domain

text:
    2008 ND 25
    In the Matter of David Raymond BARRERA. Jacqueline Ann Gaddie, Grand Forks County Assistant State’s Attorney, Petitioner and Appellee v. David Raymond Barrera, Respondent and Appellant.
    No. 20070125.
    Supreme Court of North Dakota.
    Feb. 21, 2008.

      Dale R. Rivard, Assistant State’s Attorney, Grand Forks, ND, for petitioner and appellee.
    Troy R. Morley, Reichert Armstrong Law Office, Grand Forks, ND, for respondent and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] David Barrera appealed a district court order committing him to the custody of the Department of Human Services as a sexually dangerous individual. We affirm.

I.

[¶ 2] In 1995, Barrera was convicted of gross sexual imposition for an incident involving a seven-year-old female. He was sentenced to ten years imprisonment and released in 2004. While incarcerated, Barrera refused to complete sex offender treatment, drug and alcohol treatment and an anger management program. In August 2005, he pled guilty to failing to register as a sex offender and was sentenced to six months imprisonment. In January 2006, the State petitioned to commit Barrera as a sexually dangerous person.

[¶ 3] Three psychologists testified as experts at Barrera’s January 2007 hearing: Dr. Joseph Belanger and Dr. Lynne Sullivan on behalf of the State and Dr. Gregory Volk at Barrera’s request. Each interviewed Barrera and reviewed his prison record and criminal history. Each diagnosed him with an antisocial personality disorder. Dr. Belanger and Dr. Sullivan both concluded to a reasonable degree of scientific certainty that Barrera is likely to engage in further acts of sexually predatory conduct because of his antisocial personality disorder. Dr. Volk stated Barrera met the definition of a “sexually dangerous individual” and recommended completion of a sex offender treatment program prior to releasing Barrera into the community.

[¶ 4] The district court found the State met its burden and granted the petition for civil commitment. Barrera argues the district court decision was clearly erroneous.

II.

[¶ 5] We apply a “modified clearly erroneous” standard of review for appeals from civil commitments of sexually dangerous individuals under N.D.C.C. ch. 25-03.3. Matter of Anderson, 2007 ND 50, ¶ 21, 730 N.W.2d 570. “We will affirm a district court’s commitment order unless the order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.” Id. (quoting In re G.R.H., 2006 ND 56, ¶8, 711 N.W.2d 587). Involuntary civil commitment of a person is authorized under N.D.C.C. ch. 25-03.3 if the person is found to be a “sexually dangerous individual.” A “sexually dangerous individual” is defined by a three-part test:

(1) the individual has engaged in sexually predatory conduct;
(2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction; and
(3) the disorder makes the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.

Anderson, at ¶22 (citation omitted). See also N.D.C.C. § 25-03.3-01(8).

A.

[¶ 6] The first element, “sexually predatory conduct,” includes engaging or attempting to engage in a sexual act or sexual contact with another individual, or causing or attempting to cause another individual to engage in a sexual act or sexual contact, if this victim is a minor and the actor is an adult. N.D.C.C. § 25-03.3-01(9)(a)(7). The victim in Barrera’s gross sexual imposition conviction was a seven-year-old female. This element is met.

B.

[¶ 7] Barrera argues he was not diagnosed with a sexual disorder and therefore should not meet the test for civil commitment of a sex offender. Diagnosis of a sexual disorder, however, is not required under N.D.C.C. § 25-03.3-01(8). Rather, an individual satisfies the requirements of this section if diagnosed with “a personality disorder, or other mental disorder or dysfunction.... ” N.D.C.C. § 25-03.3-01(8). See also Anderson, at ¶ 38. All three experts diagnosed Barrera as having an antisocial personality disorder, based on numerous factors outlined in each expert’s individual report. This element is met.

C.

[¶ 8] The third element required for commitment is that the disorder “makes the individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.” N.D.C.C. § 25-03.3-01(8). “[PJroof of a nexus between the requisite disorder and dangerousness encompasses proof that the disorder involves serious difficulty in controlling behavior and suffices to distinguish a dangerous sexual offender whose disorder subjects him to civil commitment from the dangerous but typical recidivist in the ordinary criminal case.” Anderson, at ¶ 33 (citation omitted).

1.

[¶ 9] Dr. Belanger testified the combination of an antisocial personality disorder and a predecessory act of sexually predatory conduct establishes the initial opinion that Barrera is likely to reoffend. On the MnSost-R, Dr. Belanger scored Barrera at + 13, representing a seventy-eight percent re-arrest rate for a specific physical contact sexual offense within six years. Dr. Belanger said this score, combined with Barrera’s failure to complete sex offender treatment and the absence of factors that might lower Barrera’s risk of recidivism, contributed to his final opinion that Barrera’s personality disorder renders him likely to engage in recidivist sexually predatory conduct. The trial court found that Barrera’s score on the PCL-R placed him in the 99th percentile ranking for psychopathy and that while the PCL-R score “does not necessarily apply to sex offender recidivism,” it “does indicate that a person has serious difficulties in controlling his proclivities or has diminished volitional control.”

2.

[¶ 10] Dr. Sullivan also found a score of + 13 on the MnSost-R. Additionally, she scored Barrera at 2 on the Rrasor, indicating a twenty-one percent recidivism rate over ten years and a 5 on the Static-99, which is medium to high risk with a recidivism rate of forty percent over fifteen years. She also found a high risk level using the PCL-R2. Dr. Sullivan stated antisocial personality disorders predispose an individual to disregard and violate the rights of others to his own ends. She was concerned that Barrera viewed himself as posing “no risk whatsoever,” as that is a dynamic risk factor for re-offending. Dr. Sullivan stated Barrera did not complete sex offender and alcohol treatment, even though treatment lessens the risk of alcohol contributing to future sexually violent offenses. She also noted Barrera had no plans to prevent himself from engaging in sexually offensive conduct in the future. Dr. Sullivan testified that Barrera possessed a number of psychopathic traits but did not possess any traits which would mitigate his high risk. She concluded to a reasonable degree of scientific certainty that Barrera is likely to engage in further acts of sexually predatory conduct by virtue of his personality disorder.

3.

[¶ 11] Using MnSost-R, Dr. Yolk found a moderate level of risk with a forty-five percent recidivism rate, a moderate to high risk level using the Static-99 and a moderate level of risk on the Rrasor. He scored Barrera as 28 on the Hare PCLR test, indicating a strong propensity for psychopathic personality or behavior. Dr. Volk testified that Barrera’s failure to complete sex offender treatment would increase these risk levels overall.

[¶ 12] In Dr. Volk’s opinion, there is a risk that Barrera’s mental disorder makes him likely to engage in further acts of sexually predatory conduct. Dr. Volk listed several high risk characteristics possessed by Barrera, including limited remorse for the victim, attempts to conceal facts from the examiner, limited awareness on how to prevent future assaults, resistance to treatment, and a history of physical aggression, substance abuse and suppression of emotions. It was Dr. Volk’s opinion that Barrera should undergo sex offender treatment before being released.

[¶ 13] The testimony presented shows Barrera’s antisocial personality disorder renders him more likely to disregard the rights of others to achieve his own ends. This is demonstrated by Barrera’s extensive criminal history and previous sexual offense. Testimony also established that Barrera’s failure to complete sex offender treatment and an alcohol treatment program increased his risk levels overall. We conclude the district court’s commitment order is supported by clear and convincing evidence and therefore is not clearly erroneous.

[¶ 14] We affirm.

[¶ 15] MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.

KAPSNER, Justice,

concurring in the result.

[¶ 16] I concur in the result reached by the majority. However, rather than analyzing Barrera’s actuarial test scores in an effort to predict Barrera’s likelihood of recidivism, I would note the importance of the district court’s ability to make the “ultimate decision to determine whether the State has met its burden of producing clear and convincing evidence sufficient for commitment” by considering evidence other than actuarial test scores. Interest of P.F., 2006 ND 82, ¶29, 712 N.W.2d 610 (Kapsner, J., concurring).

[¶ 17] As I have explained in prior decisions, “[a] psychological test cannot act as a substitute for independent judicial review,” and the district court may take into account a multiplicity of factors or evidence, beyond actuarial test scores, in deciding whether an individual is suited for commitment as a sexually dangerous individual. Interest of P.F., at ¶ 29 (Kapsner, J., concurring). The fact that Barrera’s score on the RRASOR only indicates medium risk of re-offense, and his score on the Static-99 did not indicate a high risk of re-offense, does not determine whether there is clear and convincing evidence to support his commitment. Actuarial tests speak to the likelihood of recidivism of a population of people having similar characteristics. They say nothing about the likelihood of an individual within that population to offend again.

[¶ 18] The district court was provided with evidence of the nature of Barrera’s prior sexually predatory conduct, namely, his conviction for sexually assaulting a young child. There was evidence demonstrating the existence of mental illnesses, an anti-social personality disorder and psychopathy, which together create a serious difficulty in Barrera’s ability to control his behavior. The district court received evidence of Barrera’s resistance to sex offender treatment, his lack of remorse for victims, limited self-awareness or plans for preventing future assaults, his history of impulsive physical aggression, and issues of substance abuse that inhibit his ability to control his actions. These facts may be weighed and considered by the district court. For these reasons, I would find clear and convincing evidence supports the order of the district court and affirm the order committing Barrera as a sexually dangerous individual.

[¶ 19] CAROL RONNING KAPSNER


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

text:
    2008 ND 34
    PEOPLE TO SAVE the SHEYENNE RIVER, INC., the Peterson Coulee Outlet Association, the National Wildlife Federation and the Government of the Province of Manitoba, Appellants v. NORTH DAKOTA DEPARTMENT OF HEALTH, and North Dakota State Water Commission, Appellees.
    No. 20070118.
    Supreme Court of North Dakota.
    Feb. 21, 2008.
    See also 697 N.W.2d 319.

      William J. Delmore (argued) and Daniel Nagle (on brief), Kelsch, Kelsch, Ruff & Kranda, Mandan, N.D., and Daniel E. Buchanan (on brief), Jamestown, N.D., for appellant People to Save the Sheyenne River, Inc.
    Joseph J. Cichy, P.C. (on brief), Bismarck, N.D., for appellant Peterson Coulee Outlet Association.
    James Murphy (on brief), Montpelier, VT, for appellant National Wildlife Federation.
    Richard A. Wegman (appeared) and Eldon V.C. Greenberg (appeared), Garvey Schubert Barer, Washington, D.C., for appellant the Government of the Province of Manitoba.
    Dean J. Haas (argued), Assistant Attorney General and Lyle G. Witham (appeared), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee North Dakota Department of Health.
    Matthew Arnold Sagsveen (argued), Assistant Attorney General, Office of Attorney General, Bismarck, N.D., for appellee North Dakota State Water Commission.
   CROTHERS, Justice.

[¶ 1] Opponents to the modification of a permit for the Devils Lake outlet (collectively “Manitoba”) appeal from a district court judgment affirming a decision by the North Dakota Department of Health to modify the permit. Manitoba claims the Health Department failed to conduct a required antidegradation review before modifying the permit and there was not “cause” to support the modification. We conclude the Health Department did not act arbitrarily, capriciously, or unreasonably in deciding an antidegradation review was not required to modify the permit and there was cause to modify a sulfate limitation in the initial permit. We also conclude, however, the Health Department acted arbitrarily, capriciously, and unreasonably in deciding there was cause to modify the method for measuring total suspended solids (“TSS”) and the period of operation for the permit. We affirm in part, reverse in part, and remand with instructions to remove the modifications for TSS and the period of operation for the permit.

I

[¶ 2] As part of an approach to provide relief from flooding by Devils Lake, the Health Department granted the North Dakota State Water Commission a North Dakota Pollutant Discharge Elimination System (“NDPDES”) permit in August 2003, to construct and operate an outlet to discharge water from the West Bay of Devils Lake into the Sheyenne River. Devils Lake is about fifteen miles from the Shey-enne River, which is a tributary to the Red River. The Sheyenne River generally flows in a southeasterly direction and forms Lake Ashtabula at the Bald Hill Dam, which is about 270 river miles upstream from the Sheyenne River’s confluence with the Red River. The Red River forms the boundary between North Dakota and Minnesota and flows north across the Canadian border into Lake Winnipeg in Manitoba, which in turn drains into Hudson Bay. The NDPDES permit expires at midnight on June 30, 2008, and includes ongoing requirements for monitoring water quality.

[¶ 3] In People to Save the Sheyenne River, Inc. v. North Dakota Dep’t of Health, 2005 ND 104, 697 N.W.2d 319, we described additional factual background and circumstances leading up to the issuance of the initial permit, and in June 2005, we affirmed the Health Department’s decision to issue the permit. The Water Commission began operating the outlet in August 2005, with a discharge point into the Sheyenne River between an upstream monitoring gauge at Flora and a downstream monitoring gauge at Bremen. The initial permit allowed the Water Commission to operate the outlet “only during the open-water season, the months May through November” as long as the discharge of water into the Sheyenne River did not cause the sulfate concentration at Bremen to exceed 300 milligrams per liter, or TSS to exceed 100 milligrams per liter.

[¶4] In 2005, the Water Commission only operated the outlet in August, primarily because sulfate levels at Bremen exceeded the 300 milligrams per liter limitation. The Water Commission investigated the high sulfate levels in the Sheyenne River, and the Commission determined the natural background sulfate levels varied considerably and often exceeded the water quality standard of 450 milligrams per liter for category 1 waters like the Sheyenne River and the 300 milligrams per liter required by the initial permit.

[¶ 5] In May 2006, the Water Commission asked the Health Department to modify three conditions of the permit: (1) to raise the sulfate limit at Bremen from 300 milligrams per liter to 450 milligrams per liter, which is the standard for the Shey-enne River, or alternatively, to allow the operation of the outlet to increase the sulfate level by 15 percent above the 300 milligrams per liter limit up to a maximum of 450 milligrams per liter; (2) to change the operating period of the outlet “to the ice free portion of the year to allow operation of the outlet earlier in the year if the ice is off the lake and river and flooding is not a concern”; and (3) to remove or revise the 100 milligrams per liter limit for TSS, because “[ojperational controls do not allow for detecting and responding to TSS fluctuations that may occur prior to realizing a limit exceedance as the TSS is determined by lab test rather than real time monitoring.”

[¶ 6] After notice and a public hearing in June 2006, and an opportunity for written comments with responses, the Health Department modified the permit, effective August 17, 2006, incorporating the Water Commission’s request. The Health Department adopted the chief of the Environmental Health Section’s recommended findings and conclusions, which provided:

“2.0 The North Dakota Department of Health made the determination to modify the NDPDES permit based on receipt of new information. The specific conductance measurements at the Flora and Bremen gages were established during 2005. Prior to 2005, there were limited data available at the point of insertion. In the process of developing a relationship between specific conductance and sulfate concentration, it was recognized that the natural background levels for sulfate at the point of insertion were higher and more variable than known previously.
3.0 The water quality standard of 450 milligrams per liter (mg/L) in the Sheyenne River and 250 mg/L in the Red River of the North will not be exceeded as a result of the proposed permit modification.
4.0 The permit modification allows for a 15 percent increase above base conditions of sulfate in the Shey-enne River, not to exceed 450 mg/L. For example, if the sulfate concentration in the Sheyenne River upstream of the outlet were 300 mg/L, the maximum increase allowed would only be 45 mg/L above background. The natural background concentration near the point of discharge into the Shey-enne River periodically exceeds the numeric criterion for sulfate.
5.0 Antidegradation review was not required because beneficial use of the waters is not affected by the permit modification. The permit modification will not cause the concentration of any parameter of concern, including sulfate, to be exceeded by more than 15 percent.
6.0 Extending the discharge time frame will have no significant, permanent effect on the quality and beneficial uses of the water because the permit does not allow discharge under ice conditions.
7.0 There presently are no total suspended solids (TSS) stream standards for any classes of waters in North Dakota. The control of TSS in the outlet discharge is achieved primarily through proper design, operation and maintenance. As part of operation and maintenance, the permitee will be required to implement best management practices (BMPs) to control TSS and to continue sampling for TSS at the outlet structure. BMP requirements are more appropriate than numeric limits for controlling TSS in this discharge.”

The district court affirmed the Health Department’s decision to modify the permit.

II

[¶ 7] In People to Save the Sheyenne, 2005 ND 104, ¶¶ 9-11, 697 N.W.2d 319, we summarized the basic framework for issuance of a NDPDES permit:

“[T]he Clean Water Act, 33 U.S.C. § 1251 et seq., prohibits the discharge of any pollutant from a point source to surface waters except when the discharge complies with a National Pollutant Discharge Elimination System permit. See 33 U.S.C. §§ 1311(a) and 1342. The United States Environmental Protection Agency has delegated authority to the Health Department to issue NDPDES permits as part of the Clean Water Act. See 33 U.S.C. § 1342(b). In issuing a permit, the Health Department must comply with federal law. See 33 U.S.C. § 1342(b).
“The Health Department issues NDPDES permits under the authority granted in N.D.C.C. ch. 61-28, which relates to the control, prevention, and pollution abatement of surface waters. Section 61-28-04, N.D.C.C., designates the Health Department as the state water pollution control agency and authorizes the Health Department to make rules governing the issuance, denial, modification, or revocation of permits and to hold hearings necessary for the proper administration of N.D.C.C. ch. 61-28. Section 61-28-06, N.D.C.C., prohibits the construction of an outlet for the discharge of any wastes into the waters of this state without a valid permit.
“Under the authority in N.D.C.C. ch. 61-28, the Health Department has promulgated N.D. Admin. Code ch. 33-16-01, which establishes procedures for the application for, and the issuance, denial, and modification of NDPDES permits. N.D. Admin. Code § 33-16-01-01(2). Those provisions require notice and public participation for tentative determinations and draft permits, a period for public comment, a requirement for responses to comments, the preparation of fact sheets for applications, notice to appropriate government agencies, and public hearings for applications involving significant public interest. See N.D. Admin. Code §§ 33-16-01-06, 33-16-01-07, 33-16-01-07.1, 33-16-01-08, 33-16-01-09, 33-16-01-10, and 33-16-01-11.”

[¶ 8] Proceedings for modification of a NDPDES permit are governed by the procedures in N.D.C.C. § 61-28-07, which incorporates the procedures of N.D.C.C. ch. 28-32. See N.D. Admin. Code § 33-16-01-25(3). See also People to Save the Sheyenne, 2005 ND 104, ¶¶ 12-24, 697 N.W.2d 319. However, under N.D.C.C. § 23-01-23, a permit hearing is not an adjudicative proceeding. People to Save the Sheyenne, at ¶¶ 17-19.

[¶ 9] Here, the Health Department granted the permit modification after a public hearing and without an adjudicatory proceeding. In a similar procedural posture, we relied heavily on the separation of powers doctrine and reviewed the Health Department’s initial decision to grant the NDPDES permit under an arbitrary, capricious, and unreasonable standard. People to Save the Sheyenne River, 2005 ND 104, ¶24, 697 N.W.2d 319. We explained the arbitrary, capricious, and unreasonable standard was a highly deferential standard of review that was particularly applicable for complex or technical matters involving agency expertise. Id. We said, “[a] decision is arbitrary, capricious, or unreasonable if it is not the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.” Id. We also recognized the Health Department was not required to issue findings of fact and conclusions of law for an initial permit decision, but we said the record must be sufficient to understand the reason for the Department’s decision. Id. at ¶¶ 21-22. This appeal comes to us in a similar procedural posture after a public hearing, and we review the Health Department’s decision to modify the permit under the same arbitrary, capricious, and unreasonable standard.

Ill

[¶ 10] Manitoba argues that, in modifying the sulfate limitation in the initial permit, the Health Department failed to conduct a required antidegradation review under N.D. Admin.Code ch. 33-16-02.1 (Appendix IV).

[¶ 11] Appendix IV outlines North Dakota’s antidegradation procedure and delineates the Health Department’s process for implementing antidegradation policy. N.D. Admin. Code ch. 33-16-02.1 (Appendix IV). Under that procedure, all waters in North Dakota receive one of three different levels of antidegradation protection, and antidegradation requirements are necessary whenever a proposed regulated activity, including a NDPDES permit, “may have some effect on water quality.” Id. Under the Health Department’s antidegra-dation requirements for category 1 waters like the Sheyenne and Red Rivers and Lake Ashtabula, regulated activities resulting in a new or expanded source of pollutants are subject to antidegradation review “unless the source would have no significant permanent effect on the quality and beneficial uses of those waters, or if the effects will be appropriately minimized and temporary.” Id. See also People to Save the Sheyenne, 2005 ND 104, ¶ 29, 697 N.W.2d 319. “The department will identify and eliminate from further review those proposed activities that will have no significant effect on water quality or beneficial uses.” N.D. AdmimCode ch. 33-16-02.1 (Appendix IV). Under those regulations, “significant effects” are deemed to be “[proposed activities that would lower the ambient quality in a water body of any parameter by more than 15 percent, reduce the available assimilative capacity by more than 15 percent, or increase permitted pollutant loadings to a water body by more than 15 percent.” Id. Proposed activities having no significant effect on water quality or beneficial uses are eliminated from further antidegradation review. Id. See People to Save the Sheyenne, at ¶ 29.

[¶ 12] In People to Save the Sheyenne, 2005 ND 104, ¶ 28, 697 N.W.2d 319, those opposing the initial permit argued that the permit would result in significant degradation of the receiving waters, including additional phosphorus in the proposed discharge area, and that the Health Department failed to follow its antidegradation review process. This Court concluded the Health Department’s decision that phosphorus was not a parameter of concern for antidegradation review was not arbitrary, capricious, or unreasonable based on record evidence that phosphorous was not a parameter of concern for antidegradation review and because any additional phosphorus would not alter the beneficial use of the downstream waters. Id. at ¶ 30. We also concluded the Health Department adequately considered social economic issues regarding antide-gradation, and the Health Department’s decision that the outlet would not violate antidegradation rules was not arbitrary, capricious, or unreasonable. Id. at ¶ 32.

[¶ 13] Manitoba argues that under the terms of the modified permit, the total annual pollutant loadings of sulfates into the Sheyenne River were increased by more than 15 percent through the combined effect of the increased sulfate limitation and the extension of the operating period for the permit. Manitoba contends that allowing an increase in sulfate concentration above the baseline rate for the Sheyenne River by 15 percent, up to a maximum of 450 milligrams per liter, combined with allowing discharge to occur outside the May 1 through November 30 time period, necessarily means the total annual pollutant load will increase by more than 15 percent above what would have occurred under the limit of 300 milligrams per liter in the initial permit. Manitoba claims the threshold for a “significant effect” was met by the modification, the Health Department’s failure to conduct an antidegradation review was unlawful, and the permit modification cannot be allowed to stand. The Health Department responds that modification of the sulfate limit does not violate antidegradation rules because the modification will not impact the quality and beneficial use of the state’s waters and will not lower the ambient water quality by more than 15 percent for any parameter.

[¶ 14] The Health Department found antidegradation review was not required because the beneficial use of the waters was not affected by the modification and the modification would not cause the concentration of any parameter of concern, including sulfate, to be exceeded by more than 15 percent; because the water quality standard for the Sheyenne River and the Red River would not be exceeded as a result of the modification; and because the modification allows for a 15 percent increase above base conditions for sulfate in the Sheyenne River, which periodically exceeds the numeric criterion for sulfate near the discharge point. In response to a submitted comment that it had failed to undertake an antidegradation review, the Health Department explained:

“Because beneficial use is not affected, the antidegradation review is not required. ...
“Because it is targeted at natural background concentrations, the ambient quality will not exceed 15 percent. The assimilative capacity applies to noncon-servative constituents. Sulfate is a conservative constituent or is assimilated at a very low rate and not considered for these purposes. The additional sulfate at these levels does not affect the assi-milative capacity of the stream.
“The application of mass loading criteria to this stream is inappropriate. Mass loading criteria are applied to water bodies such as lakes or reservoirs that have a hydraulic residence time. The sulfate standard is intended to protect drinking water uses. Drinking water supply systems respond to concentration considerations, not mass loading. As such, it is appropriate to evaluate sulfate additions to water bodies with an established drinking water use in terms of concentration. The department issues to municipalities and industries discharge permits which are based on concentration of constituents in the discharge and the stream.”

[¶ 15] This record contains evidence that the sulfate level in the Shey-enne River varies considerably and was often above the 300 milligrams per liter limit in the initial permit. The Health Department specifically found the trigger for the antidegradation review was not met and the limits for the modified permit would not be greater than 15 percent for any parameter of concern, including sulfate. Sulfate limits involve a technical area in which the Health Department’s decision is entitled to deference. See People to Save the Sheyenne, 2005 ND 104, ¶ 24, 697 N.W.2d 319. Moreover, the Health Department’s decision not to apply mass loading criteria to the Sheyenne River is authorized by its interpretation of the antidegradation procedure. See N.D. Ad-mimCode ch. 33-16-02.1 (Appendix IV) (“the characteristics of the receiving water body (e.g., lake versus river, etc.)” is relevant in regulating a parameter of concern). An administrative agency’s reasonable interpretation of a regulation is entitled to deference. St. Benedict’s Health Ctr. v. North Dakota Dep’t of Human Serv., 2004 ND 63, ¶ 9, 677 N.W.2d 202. “An agency has a reasonable range of discretion to ... apply its own regulations, and the agency’s expertise is entitled to deference when the subject matter is complex.” Id.

[¶ 16] The Health Department’s decision about sulfate limitations and mass loading under its antidegradation regulations involves a complex subject and is entitled to deference. We reject Manitoba’s claim that this issue “involves the straightforward application of regulatory standards, where the facts in the record demonstrate that the regulatory standards have not been met.” Rather, we conclude the Health Department’s findings reflect the application of the factual circumstances of this case to those regulations in a complex and technical area, which resulted in a factual determination that the requirements for an antidegradation review had not been triggered. We conclude the Health Department’s decision that an anti-degradation review was not required is not arbitrary, capricious, or unreasonable.

TV

[¶ 17] Manitoba argues the permit modifications failed to meet the “cause” requirement in the Health Department’s regulations.

[¶ 18] The Health Department may modify a permit for cause. N.D. Admin. Code § 33-16-01-25(2). The causes set forth in 40 C.F.R. § 122.62(a), are explicitly incorporated into North Dakota’s regulations and, as relevant to this case, define cause for a modification to include new information or to correct technical mistakes:

“(a) Causes for modification. The following are causes for modification....
“(2) Information. The Director has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance. For NPDES general permits (§ 122.28) this cause includes any information indicating that cumulative effects on the environment are unacceptable. For new source or new discharger NPDES permits (§§ 122.21, 122.29), this cause shall include any significant information derived from effluent testing required under § 122.21(k)(5)(vi) or § 122.21 (h)(4)(iii) after issuance of the permit.
“(15) To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.”

A

[¶ 19] Manitoba argues the Health Department’s modification of the sulfate limitation is unjustified because the base lines for sulfate levels in the Shey-enne River were, or should have been, clearly known when the Health Department issued the original permit and the data obtained after the permit was issued only confirmed those trends. Manitoba thus claims the information about the base line trends for sulfate in the Sheyenne River was not “new information.”

[¶ 20] Manitoba’s argument involves evidence about the sulfate readings at two checkpoints on the Sheyenne River, the upstream Flora gauge and the downstream Bremen gauge. There is evidence those gauges were not operating when the original permit was issued, and sulfate levels instead were recorded at gauges in Harvey and in Warwick. There is also evidence that after the outlet began operating in August 2005, sulfate readings at the Bremen gauge indicated the sulfate level was above the limitations imposed by the initial permit. After a study by the Water Commission, it reported the natural sulfate levels in the Sheyenne River near the outlet were often higher than the limitations imposed in the initial permit. According to the Water Commission, the “operating restrictions in the [initial] NDPDES permit and the modeling conducted for the permit were based upon the historic water quality record at Warwick through 1999,” and it had been incorrectly assumed the Sheyenne River had relatively similar sulfate concentrations along its entire course.

[¶ 21] A fact sheet prepared by the Health Department explained that “[r]e-cent monitoring shows increasing trends in the background sulfate levels in the upper Sheyenne” and concluded:

“Based on the recent data, sulfate concentrations in the Sheyenne River at the outlet appear to be naturally occurring and higher than those at Warwick. Influx of fresh groundwater between the outlet and the Warwick gage dilutes the higher sulfate concentrations upstream and limits their downstream effects. “There is substantial evidence that natural and historical sulfate concentrations at the Flora and Bremen gages are significantly higher than those at Warwick. As a result, the natural freshening of the river between Bremen and Warwick is substantial enough that greater sulfate concentrations at Bremen could be sustained without causing concentrations significantly above 300 mg/1 at Warwick. “Based on available information, the Department of Health proposes to modify the instream sulfate limit. Any discharge from this project will still be managed so as not to exceed the 300 mg/1 sulfate limit when natural background sulfate concentrations in the river are less than 260 mg/1. When the ambient concentration of sulfate in the river is equal to or greater than 260 mg/1, then a concentration not to exceed 15 percent above this level is allowed. However, the discharge from the outlet shall not cause the sulfate concentration at Bremen to exceed 450 mg/1.”

[¶ 22] The Health Department modified the permit based on new information, stating the specific conductance measurements were established at Flora and Bremen during 2005. The Health Department noted that before 2005, limited information was available at the point of discharge into the Sheyenne River, but the subsequent measurements revealed the natural background levels for sulfate at the discharge point were higher and more variable than previously known.

[¶ 23] In Calcasieu League for Envtl. Action Now v. Thompson, 661 So.2d 143, 148-50 (La.Ct.App.1995), the court considered a claim that a “new information” test was not met under a similar administrative regulation in the context of a modification of a hazardous waste disposal permit. There, a claim was made that the information justifying the modification was available when the original permit was issued. Id. at 149. The court was asked to decide whether the agency’s determination that there was new information was arbitrary, capricious, or manifestly contrary to standards for modification. Id. The court concluded the agency’s construction of its rules to authorize modification of the permit was not arbitrary, capricious, or contrary to standards for modification. Id. See also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 372-85, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (agency decision not to prepare supplemental environmental impact statement under regulation requiring supplements for significant new circumstances or information relevant to environmental concerns required high degree of technical expertise and was not arbitrary and capricious).

[¶ 24] We conclude the Health Department was justified in treating the new readings from the gauges at Bremen and Flora as new information that was not available when the initial permit was issued and that would have justified different permit conditions. The sulfate levels involve technical information, and the record on this issue provides a rational explanation for the Health Department’s decision to modify the sulfate limitations. We conclude the Health Department’s decision to modify the sulfate limitations in the permit was not arbitrary, capricious, or unreasonable.

B

[¶ 25] Manitoba argues there is no basis in the regulations for the removal of the TSS limit and the change in the period of outlet operation because those changes were not prompted by “new information.” Manitoba claims the Health Department did not use a “technical mistake” as a rationale to support its decision to modify the permit and that ground is simply an after-the-fact rationale that cannot support the Health Department’s action. The Health Department responds that it had cause to modify the TSS limit and the period of operation. The Health Department claims that after the permit was issued, the Water Commission advised the Health Department that the Water Commission could not detect TSS fluctuations in real time and that a better standard, an operational one, required the discharge to be operated “in accordance with sound engineering practices to minimize contribution of suspended solids to the Sheyenne River.” The Department asserts that information is either new information or a technical mistake.

[¶ 26] A fact sheet for the modification of the TSS limit explained:

“The Department has reconsidered the technical basis for the current numeric limit and is proposing that the limit for TSS be revised in response to the modification request.
“The modification to the TSS limit is being proposed for the following reasons: currently there are no TSS stream standards for Class IA streams in North Dakota; numeric TSS limits are typically applied to industrial applications such as mining operations, not water-to-water transfers and; the purpose and method for controlling TSS at this facility is more typical of discharges regulated through Best Management Practices (BMPs).
“The department will replace the numeric TSS limit in the Devils Lake outlet permit with a best management practice (BMP) requirements for the control of TSS. The permittee will still be required to sample for TSS at the outlet structure. In addition, best management practices will continue to be implemented as part of the operation and maintenance of the system to minimize any adverse effects on the Sheyenne River due to the contribution of sediment.”

[¶ 27] The Health Department’s response to public comments about the TSS limit stated:

“There presently are no TSS stream standards for any classes of waters in North Dakota. In addition, there are no effluent guidelines or permitting requirements for water-to-water transfers. Even specific sources regulated under the NDPDES Program (e.g., stormwa-ter discharges) are required to implement best management practices (BMPs) in lieu of numeric effluent limits to prevent sediment impacts.
“The control of TSS in the outlet discharge is primarily achieved through proper design, operation and maintenance. The outlet does not include features which can be, reasonably controlled to respond to sudden changes in TSS concentration caused by such events as natural variability or storm inflows. As such, BMP requirements are more appropriate than numeric limits for controlling TSS in this discharge.
“The department intends to replace the 100 mg/L TSS limit with BMP requirements for the control of TSS as part of the permit modification. As part of the operation and maintenance of the system, the permittee will be required to (1) implement BMPs to control TSS and (2) continue sampling for TSS at the outlet structure. The department has chosen to use the former limit as a notification level to initiate a review of the system and BMPs.”

[¶ 28] Neither the Health Department nor the Water Commission have cited evidence in this record that shows information about TSS standards was not available when the initial permit was issued. In the absence of any such evidence, the Health Department’s decision to modify the TSS standard with a “more appropriate” method of monitoring under the auspices of new information was not the product of a rational mental process by which the facts and the law relied upon were considered together for the purpose of achieving a reasoned decision. Therefore, the Health Department’s reliance on new information to justify modification of the TSS standard is arbitrary, capricious, and unreasonable.

[¶ 29] The Health Department also claims modification of the TSS standard was to correct a technical mistake under 40 C.F.R. § 122.62(a)(15), which refers to “technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.”

[¶ 30] One court has construed the “technical mistakes” to mean “only errors in mathematical calculations, computer errors, clerical mistakes, and the like.” Texas Mun. Power Agency v. Admin. of U.S. Envtl. Prot. Agency, 836 F.2d 1482, 1491 (5th Cir.1988). In Texas Mun. Power Agency, at 1491, the Fifth Circuit Court of Appeals rejected an electric utility’s argument that its request for modification regarding TSS limits constituted a technical mistake, stating the utility’s argument would open the door to full judicial review of agency fact finding after the statute of limitations for review of the initial permit decision had run.

[¶ 31] Neither the Health Department nor the Water Commission have cited evidence in this record supporting a claim that the change in TSS standards constitutes an error in “mathematical calculations, computer errors, clerical mistakes, and the like” so as to constitute a technical mistake. Rather, this record reflects the Health Department modified the TSS standard solely because the Health Department decided best management practices was a “more appropriate” standard. We conclude modification of the TSS standard was not the product of a rational mental process by which the facts relied upon were considered together for the purpose of achieving a reasoned decision and was arbitrary, capricious, and unreasonable.

[¶ 32] Manitoba also argues the extension of the period of operation does not involve new information or a technical mistake. The Health Department responds it had cause to modify the operational period because “operations for the period from May through November are nothing more than a loose proxy for ice-free conditions” and “Substituting an operational period based on actual conditions improves flood-control, and constitutes the correction of a technical mistake.”

[¶ 33] Although the Health Department’s decision is entitled to "appropriate deference, there is no evidence in this record that modification of the period of operation involves information that was not available when the initial permit was issued or involves an error in mathematical calculation, computer error, clerical mistake, or the like. The explanation that the operational period in the initial permit was nothing more than a proxy for ice-free conditions does not support a determination of new information or a technical mistake. We conclude the decision to modify the period of operation of the permit does not constitute cause for modification of the NDPDES permit, as required by its regulations, and was arbitrary, capricious, and unreasonable.

V

[¶ 34] We affirm the district court judgment affirming the Health Department’s decision about antidegradation requirements and the modification of the sulfate limitation in the permit, and we reverse the decision to modify the TSS standard and the period of operation and remand with instructions to remove the modifications for TSS and the period of operation for the permit.

[¶ 35] DANIEL J. CROTHERS and CAROL RONNING KAPSNER, JJ., concur.

VANDE WALLE, Chief Justice,

concurring and dissenting.

[¶ 36] I agree with all of the majority opinion other than that part of section IV B concerning the period of operation. The current permit authorizes operation of the outlet from May to November. The Water Commission contends its purpose was and continues to be to allow discharge during the open-water season and that its request to amend the permit to allow operation during the ice-free portion of the year is simply reflective of that fact. Manitoba and the majority refer to the change as an “extension of the period of operation.” Given the vagaries of North Dakota weather it is not clear to me that the ice-free period of the year will be greater than the May to November period of the year. The proposed change requires the application of common sense rather than the sophisticated and technical principles of “technical mistake” or “new information.” I would therefore also affirm that portion of the district court judgment affirming the decision of the Department to modify the permit.

[¶ 37] DALE V. SANDSTROM and MARY MUEHLEN MARING, JJ., concur.