author: DIETZEN, Judge.

text:
    David M. McLAUGHLIN, et al., Appellants, v. Wilbert R. HEIKKILA, Respondent.
    No. A04-1906.
    Court of Appeals of Minnesota.
    June 7, 2005.

      Laurence J. Klun, Klun Law Firm, P.A., Ely, MN, for appellants.
    Scott C. Neff, Paul D. Cerkvenik, The Trenti Law Firm, Virginia, MN, for respondent.
    Donald D. Smith, Christopher P. Renz, Thomsen & Nybeek, P.A., Edina, MN, for amicus curiae The Minnesota Association of Realtors.
    Considered and decided by STONEBURNER, Presiding Judge; HUDSON, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellants brought this action for specific performance of a contract to purchase respondent’s real estate. The district court determined that no contract had been formed between the parties and granted respondent’s motion. to dismiss. Because we see no error of law in the dismissal, we affirm.

FACTS

On August 15, 2003, respondent Wilbert Heikkila signed an agreement with Kangas Realty to sell eight parcels of Heikkila’s property. On September 8, 2003, appellant David McLaughlin met with a Kangas agent who drafted, by hand, McLaughlin’s offer to purchase three of the parcels. McLaughlin signed the offer and gave the agent three earnest-money checks, one for each parcel. On September 9 and 10, 2003, the agent prepared three printed purchase agreements, one for each parcel.

McLaughlin never signed any of the purchase agreements. But, on September 14, 2003, his wife, appellant Joanne McLaughlin, met with a second Kangas agent; she signed and initialed two of the agreements and initialed the third. On September 16, 2003, Heikkila met with the second Kangas agent. Writing on the printed agreements., Heikkila changed the price of one parcel from $145,000 to $150,000, the price of another parcel from $32,000 to $45,000, and the price of the third parcel from $175,000 to $179,000. He also changed the closing dates on all three agreements, added a reservation of mineral rights to all three, and signed all three.

Neither of the McLaughlins ever signed or otherwise indicated in writing an acceptance of Heikkila’s changes to the printed agreements before Heikkila withdrew his offer to sell. The McLaughlins learned that Heikkila had withdrawn his offer on January 1, 2004, when the Kangas agent returned the earnest-money checks to them.

In February 2004, the McLaughlins brought this action to compel specific performance of the purchase agreement. Heikkila moved to dismiss their claim. The district court, after considering matters outside the pleadings, granted his motion.

ISSUE

Did a contract to convey real estate exist between the parties?

ANALYSIS

Standard of Review

“[A]ny party may move for judgment on the pleadings.” Minn. R. Civ. P. 12.03. But “[i]f, on such motion, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment....” Id. We therefore review the district court’s decision as a summary judgment, considering whether there are any genuine issues of material fact and whether the district court erred in its application of the law. See State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (on appeal from summary judgment appellate courts ask whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law). And we consider the evidence in a light most favorable to the nonmoving party. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003). Here, no genuine issues of material fact preclude summary judgment. We therefore address the district court’s application of the law.

Existence of a contract

The district court concluded that “A written offer does not evidence a completed contract [for the sale of real estate] and a written acceptance is required. There was no contract formed between the parties.” When the record taken as a whole could not support the existence of a contract, a district court may conclude that no contract existed. See Gresser v. Hotzler, 604 N.W.2d 379, 382 (Minn.App.2000) (summary judgment appropriate when a rational factfinder, taking the record as a whole, could not find that the contract alleged by the nonmoving party exists).

A contract for the sale of land is governed by the statute of frauds, MinmStat. § 513.05 (2004), providing that it “shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party by whom the ... sale is to be made.... ”

The McLaughlins argue that their oral acceptance of Heikkila’s offer was sufficient to create a binding contract for the sale of land. For this argument, they rely on Schwinn v. Griffith, 303 N.W.2d 258, 262-63 (Minn.1981) (holding that a contract was formed by a memorandum of an auction sale that had been signed by the vendor and the auctioneer and accepted by the auctioneer, acting as agent for the vendee). But the McLaughlins’ reliance is misplaced. Schwinn does not support their position for three reasons.'

First, Schwinn distinguished a line of cases that, like this case, involved a written offer that “[did] not evidence a completed contract and a written acceptance [was therefore] required.” Id. at 261. The McLaughlins’ negotiations with Heikkila led to the proposed purchase agreements, which were offers. But Heikkila’s notations on the proposed purchase agreements changed the terms of those offers and therefore were not acceptances but counteroffers, which in turn required written acceptance by the McLaughlins. Because the McLaughlins produced no written acceptance, the delivery of such an acceptance is not at issue here. We note, however, that a written acceptance must be delivered to the other party or that party’s agent to create a binding contract.

Second, the McLaughlins rely on the Schwinn holding that the statute of frauds is satisfied if a writing is signed by the vendor and delivered to and accepted by the vendee. Id. at 262. But this holding pertains only to cases involving “an oral offer, an oral acceptance, and a note or memorandum committing the agreement to writing.” Id. at 261; see also Krohn v. Dustin, 142 Minn. 304, 308, 172 N.W. 213, 215 (1919) (“The parties came to an agreement, [the vendor] received part payment for his farm, signed and delivered a contract reciting the same and agreement to convey and definitely fixing the terms and charging his land with its performance.”); Wilson v. Hoy, 120 Minn. 451, 453, 139 N.W. 817, 818 (1913) (“Were the question simply as to whether there was an oral contract between the parties for the sale of the land, it would be easy to hold that the finding that a contract was made is sustained by the evidence.”). The McLaughlins argue that, like the. vendees in Schwinn-, Krohn, and Wilson, they received and accepted the writing signed by the vendor arid thus satisfied the statute of frauds. But Schwinn-, Krohn, and Wilson are readily distinguishable. Here, the writing had altered terms to which the parties had never agreed; it was not a written memorandum of a completed oral contract. Therefore, its delivery to the McLaughlins and their oral acceptance of it did not create a binding contract.

Third, Schwinn overruled Western Land Ass’n v. Banks, 80 Minn. 317, 322, 83 N.W. 192, 194 (1900) (holding that signature of vendee is not necessary): “We therefore overrule Western Land Ass’n to the extent that it implies that a vendor’s signature alone on an otherwise complete memorandum is sufficient to satisfy the statute of frauds.” Schwinn, 303 N.W.2d at 262. In overruling Western Land', Schwinn implicitly overruled the line of cases that had relied on Western Land to hold that a vendee’s signature is not necessary to satisfy the statute of frauds. Thus, Schwinn provides no support for the McLaughlins’ position that an oral acceptance is sufficient to create a contract for the sale of land.

Moreover, “Minnesota has followed the ‘mirror image rule’ in analyzing acceptance of offers. Under that rule, ‘an acceptance must be coextensive with the offer and may not introduce additional terms or conditions.’ ” Gresser, 604 N.W.2d. at 382 (quoting Podany v. Erickson, 235 Minn. 36, 39, 49 N.W.2d 193, 194 (1951)). The district court correctly concluded that “[Heikkila’s] alterations of the purchase agreements] constitute^] a rejection and counteroffer.” See Rose v. Guerdon Indus., Inc., 374 N.W.2d 282, 284 (Minn.App.1985) (acceptance that seeks to vary, add to, or qualify the terms of an offer constitutes a rejection of the offer and a counteroffer). Heikkila withdrew the counteroffer before the McLaughlins provided a written acceptance, as he was entitled to do. See Everson v. Kapperman, 343 N.W.2d 19, 22 (Minn.1984) (normal contract law permits an offering party to withdraw the offer prior to acceptance.).

Only a written acceptance by the McLaughlins of the written terms proposed by Heikkila on the purchase agreements would have created a binding contract for the sale of land. Without a written acceptance and delivery to the other party to the agreement, no contract was formed. “The high volume of real estate transactions in Minnesota reinforces the importance of identifying and preserving a bright line in the formation of [contracts for the sale of land.]” Gresser, 604 N.W.2d at 384. The purpose of the law is to avoid the potential for disputes in testimony as to whether a written offer was properly accepted. Requiring a written acceptance and delivery to the other party is a means to that end.

DECISION

Because the McLaughlins never signed or otherwise provided written acceptance of Heikkila’s counteroffer and did not deliver the written acceptance to Heikkila or his agent, there was no contract for the sale of land between the parties. The district court did not err in its application of the law and properly granted Heikkila’s motion to dismiss.

Affirmed.

      . For the first time in their reply brief, the McLaughlins argue that Heikkila did not meet "the notice and other procedural requirements” of Minn. R. Civ. P. 56, governing motions for summary judgment. But "[the] reply brief must be confined to new matter raised in the brief of the respondent.” Minn. R. Civ.App. P. 128.02, subd. 3; see also McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990) (issues not raised or argued in an appellant’s principal brief may not be revived in a reply brief), review denied (Minn. Sept. 28, 1990). Because the rule 56 issue is not properly before us, we do not address it.

      . For the purposes of this appeal, we will assume that the McLaughlins did provide an oral acceptance, but we note that the only support for this assertion comes from an affidavit provided by a Kangas agent in which he directly contradicts his own previous affidavit asserting that the parties never successfully completed negotiations for the sale.

      . There is significant historical precedent for this view. See, e.g., Callender v. Kalscheuer, 289 Minn. 532, 533, 184 N.W.2d 811, 812 (1971) (“Under the statute, if an owner of land makes a definite and complete written offer to sell, written acceptance of the offer by the other party results in the formation of an enforceable contract.”); Lake Co. v. Molan, 269 Minn. 490, 496, 131 N.W.2d 734, 738 (1964) (“[T]o constitute a contract, valid within the statute of frauds, to convey real estate, an offer in writing to sell must be accepted in writing.”); Bey v. Keeping, 192 Minn. 283, 286, 256 N.W. 140, 142 (1934) ("Oral acceptance [of an offer, to convey real estate] is insufficient.... The convention of the minds must be solemnized by an appropriate writing, in this case an unqualified written acceptance of all terms proposed ... ”); Kull v. Wilson, 137 Minn. 127, 131, 162 N.W. 1072, 1073 (1917) (“To establish a contract for the sale of real property by correspondence, there must be a definite offer in writing and an unconditional and unqualified written acceptance of the offer.”); Lewis v. Johnson, 123 Minn. 409, 412, 143 N.W. 1127, 1128 (1913); Ferguson v. Trovaten, 94 Minn. 209, 214, 102 N.W. 373, 376 (1905); Newlin v. Hoyt, 91 Minn. 409, 411, 98 N.W. 323, 324 (1904); Bauer v. Sawyer & Britsch Land Co., 90 Minn. 536, 539, 97 N.W. 428, 429 (1903); Kileen v. Kennedy, 90 Minn. 414, 415, 97 N.W. 126 127 (1903); Yeager v. Kelsey, 46 Minn. 402, 402, 49 N.W. 199, 199 (1891); Lanz v. McLaughlin, 14 Minn. 55, 57, 14 Gil. 55, 57 (1869); Rose v. Guerdon Indus., Inc., 374 N.W.2d 282, 284 (Minn.App.1985).

      . Gregory Co. v. Shapiro, 125 Minn. 81, 145 N.W. 791 (1914) on which the McLaughlins also rely, is equally distinguishable but on different grounds. In that case, the vendor and vendee of an interest in a state mining lease entered into an option agreement, signed only by the vendee, whereby after six months either the vendor could voluntarily repurchase or the vendee could require him to repurchase half the interest conveyed, contingent on the vendor’s failing to acquire another interest in that time. 125 Minn, at 83, 145 N.W. at 792. Here, there was no reciprocal nature to the parties' contract: Heikkila was solely a vendor and the McLaughlins were solely vendees.

      . See, e.g., Greer v. Kooiker, 312 Minn. 499, 505, 507-8, 253 N.W.2d 133, 138, 140 (1977) (listing only the signature of the vendor as an essential element of a contract for the sale of land in dictum but affirming a finding that a memorandum signed by both parties to a real estate transaction was a binding contract); Radke v. Brenon, 271 Minn. 35, 40-41, 134 N.W.2d 887, 891-92 (1965) (affirming, in light of "clear and uncontradicted” proof that oral contract existed, district court finding that a letter addressed to the buyer and others offering land for sale with the seller’s name typewritten as a signature was a valid contract for the sale of land); Krohn v. Dustin, 142 Minn. 304, 307 172 N.W. 213, 214 (1919) (upholding finding of contract where “agreement had been made, [seller] had part of the purchase money, and the contract which evidenced the rights of the parties was delivered to [purchaser] through [agent] when it was handed to him by [seller]” although purchaser had not signed); Gregory, 125 Minn, at 86, 145 N.W. at 793; Wilson v. Hoy, 120 Minn. 451, 453, 139 N.W. 817, 818 (1913); McPheeters v. Ronning, 95 Minn. 164, 167, 103 N.W. 889, 890 (1905).

      .The McLaughlins argue that Heikkila is es-topped from relying on the statute of frauds because he directed the Kangas agent not to allow them to sign the purchase agreement. But Heikkila had already withdrawn his offer and was entitled to do so. See id.


source: Caselaw Access Project

author: KAPSNER, Justice.

license: Public Domain

text:
    2005 ND 102
    In the Interest of R.F. North Dakota State Hospital, Petitioner and Appellee v. R.F., Respondent and Appellant.
    No. 20050148.
    Supreme Court of North Dakota.
    June 2, 2005.

      Leo A. Ryan, Special Assistant Attorney General, Jamestown, ND, for petitioner and appellee.
    Thomas E. Merrick, Jamestown, ND, for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] R.F. appeals an order from the Southeast Judicial District Court ordering her to be hospitalized at the North Dakota State Hospital (“State Hospital”) for continuing treatment until March 8, 2006, or until further order of the court. We affirm.

I.

[¶ 2] R.F., a 51-year-old woman, suffers from what doctors describe as “extremely severe” obsessive-compulsive disorder. She has been treated periodically in the State Hospital for the past eleven years and has received continuous treatment in the State Hospital since 2002. R.F. agrees she has obsessive-compulsive disorder and requires treatment, but she argues her current treatment is ineffective. R.F.’s current treatment includes medication, group therapy, and a behavior modification program. R.F. was examined by three doctors, and all agreed she needs treatment in a highly structured setting. R.F. would prefer to be treated in a different hospital, namely Rogers Memorial Hospital near Milwaukee, Wisconsin. One doctor testified a change of environment may be beneficial to R.F. because she has been receiving treatment at the State Hospital for three years with little progress and R.F. feels she has been “terrorized” by staff at the State Hospital. Two of the doctors agreed R.F. does not currently meet the criteria for treatment at Rogers Memorial Hospital, a private hospital that would ■ cost twice as much as the State Hospital.

[¶ 3] The trial court found R.F. suffers from severe obsessive-compulsive disorder which, if left untreated, poses a serious risk of harm to her. The court further found hospitalization is the only adequate means of treatment for her.

II.

[¶ 4] This Court has clearly articulated the standard applied in least-restrictive treatment appeals:

When an individual is found to be a person requiring treatment he has the right to the least restrictive conditions necessary to achieve the purposes of the treatment. The court must make a two-part inquiry: (1) whether a treatment program other than hospitalization is adequate to meet the individual’s treatment needs; and (2) whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others. The court must find by clear and convincing evidence that alternative treatment is not adequate or hospitalization is the least restrictive alternative. This Court will not set aside the trial court’s findings unless they are clearly erroneous.

Interest of R.F., 2005 ND 54, ¶4, 692 N.W.2d 905 (internal citations omitted). A finding is clearly erroneous if it is induced by an erroneous view of the law, it is unsupported by evidence, or this Court, based on a review of the entire record, has a definite and firm conviction a mistake has been made. Id. This Court’s review in involuntary commitment cases is limited to the procedures, findings, and conclusions of the lower court. Interest of D.P., 2001 ND 208, ¶3, 636 N.W.2d 921.

[¶ 5] R.F. argues the State Hospital failed to comply with N.D.C.C. § 25-03.1-21(1), which states:

Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent’s treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon the individual or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days.

[¶ 6] Dr. Sandra Owens, a psychologist employed by the State Hospital, completed a “Report Assessing Availability and Appropriateness of Alternate Treatment.” The report form requires the examiner to “[l]ist in detail any possible programs, facilities, public or private agencies, community resources, etc., whether or not such programs, facilities or resources are appropriate and feasible at the present time.” Dr. Owens wrote, “[d]ue to [R.F.] needing a high level of structure in psychiatric setting, no known facility available to meet her needs,” because “[s]he is a high risk for AWOL. She is quite high risk for being victimized. [R.F.] is in total denial of her OCD mental illness.”

[¶ 7] This Court has found, “[i]n some cases, a reporting doctor may reasonably conclude that less restrictive alternatives to hospitalization simply do not exist.” In the Interest of J.S., 545 N.W.2d 145, 148 (N.D.1996). The “Report Assessing Availability and Appropriateness of Alternate Treatment” in J.S■ listed “[n]one” under alternatives to hospitalization, and gave as reasons “ ‘[J.S.] denies that he is mentally ill or that he needs any medication,’ that J.S. ‘is very dangerous and is potentially violent toward-others when he is off medication, and that J.S. ‘plainly- states that he would not take any [medication] if he was out of the hospital.’ ” Id. at 147. In addition, the “Report of Examination” stated:

[J.S.] continues to refuse to admit that he is mentally ill and will not take medication if it is not court ordered. He has a very serious physical aggressive behavior, when not properly treated while in the community; and this makes him a very difficult patient to get a placement for. He continues to need a structured and supervised arrangement.

Id. at 148. This Court found these statements, in addition to the doctor’s consistent trial testimony, were sufficient to support the doctor’s statement that no alternate treatment was available. Id.

[¶ 8] R.F. was examined by three doctors, Dr. Belanger, Dr. Gulkin, and Dr. Peterson, who provided testimony at trial. Dr. Joseph Belanger, a licensed independent practitioner at the State Hospital, testified that a social worker and another doctor had stated three reasons why they would not be able to find alternative treatment for R.F.: the level of symptomatolo-gy, fluctuating therapeutic alliances, and duration of alternative programs. He testified he was not aware of any appropriate alternative treatment. When asked whether any alternative facilities had been looked at, he replied, “I know that the social worker has looked at them. She did not give me the list of the ones she contacted this morning so I can’t list them by name ...” His testimony did not identify any specific alternative treatments, but he did say R.F. would not meet the criteria to qualify for an alternative treatment.

[¶ 9] Dr. Robert Gulkin, who was appointed to conduct an independent examination of R.F., testified, “I know of no less restrictive alternative treatment program ... it’s not clear to me that a less restrictive treatment program is appropriate at this time. There may be other appropriate programs but I believe we’re looking at locked residential units.” He also did not identify any specific alternative treatments.

[¶ 10] Dr. Peter Peterson also conducted an.independent examination of R.F. Dr. Peterson’s report and testimony indicate he believes R.F. is making little to no progress in her current treatment partly because of her hostile feelings toward staff and other patients. He stated alternate treatments should be evaluated as R.F. may be more successful in a different environment. He indicated she needs to be treated in a “very highly structured, secure residential treatment program” or “other hospital-based treatment programs for severe [o]bsessive-compulsive disorder.” Dr. Peterson testified R.F. required treatment in the same conditions as the State Hospital, just with “[a] different environment, a different staff.”

[¶ 11] When asked on cross-examination if he was aware of any other facilities that could treat R.F., Dr. Peterson replied, “[w]ell, I am aware of — of the Rogers Institute, which is an institute in Wisconsin. I have had other patients go there. The question is if that facility would accept her given her problems.” Dr. Peterson was asked if he was aware of any other facilities, and he answered, “I’m not aware of any. I can say there may be psychiatric group homes, I don’t know where they would be, that would be able to handle a person like her with the use of a wander guard.”

[¶ 12] R.F. testified as well, and submitted into evidence informative literature about Rogers Memorial Hospital. The State recalled Dr. Belanger after he had reviewed the information during a break. Dr. Belanger testified R.F. did not meet the -minimum entry level criteria for Rogers Memorial Hospital, he did not think she would be able to function under the strict schedule, and treatment would cost approximately $20,000 per month, while treatment at the State Hospital was costing “a little bit less than $10,000 a month.” He stated the program at Rogers Memorial Hospital would be “too hard, too demanding, too painful.”

[¶ 13] The trial court found:

I find a treatment program other than hospitalization would not be adequate to meet her needs or be sufficient to prevent harm or injury to herself, and if she’s not hospitalized once again she would be at risk for danger to herself due to her inability to care for herself.
As to the Rogers Institute, as was brought out here today, the Rogers Hospital, rather, it was brought out that that is an — is not a public institution that takes Court Ordered patients and I think that our statutes apply to such a situation....
I certainly believe that the hospital and the guardian would make the best efforts, and I would expect them to put [R.F.] in contact with another hospital, but it appears at this time that Rogers would be a less restrictive — or I shouldn’t say less restrictive, but it appears from what I’ve heard here today she would not meet their criteria at this time. If in the future should she meet that criteria the Court would encourage both the hospital and the guardian to explore that alternative with the understanding that would probably take some type of involvement with the State as well about the cost....

[¶ 14] Dr. Owen’s report and the trial testimony was sufficient to support the court’s finding that no alternative treatment is available. The court’s decision is not clearly erroneous. We affirm.

III.

[¶ 15] R.E., in her closing argument, asked the district court to require the State Hospital to contact Rogers Memorial Hospital to determine if she would qualify for the program. She argues the district court erred in not issuing this mandate.

[¶ 16] Section 25-03.1-21(1), N.D.C.C., requires the State Hospital to prepare a report analyzing “treatment programs other than hospitalization.” Dr. Owens and three doctors who testified at trial all concluded R.F. requires hospitalization. North Dakota only has one hospital. Rogers Memorial Hospital may be able to provide the treatment R.F. requires, but it would still be hospitalization, not a “treatment program!] other than hospitalization.” Nothing in the law requires the State Hospital to look outside this state for treatment options. We are unwilling to say the State Hospital needs to look around the entire country before satisfying itself that hospitalization is the least restrictive treatment available.

[¶ 17] The State Hospital does not have a statutory obligation to 'assess and review hospitals in other states, and the district court did not err in not requiring such review.

IV.

[¶ 18] We affirm the continuing treatment order.

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


author: SANDSTROM, Justice.

text:
    2005 ND 107
    In the Matter of the ESTATE OF Gerald C. KIMBRELL, Deceased. Phyllis Kimbrell, Petitioner and Appellant v. Harry Eisenbeis, Personal Representative of the Estate of Gerald C. Kimbrell, Deceased; Steve Kimbrell; Linda Hams; and Kim Scott, Respondents and Appellees.
    Nos. 20040226, 20040322.
    Supreme Court of North Dakota.
    June 2, 2005.

      Charles A. Stock, Johannson, Rust, Yon, Stock & Rasmusson, P.A., Crookston, MN, for petitioner and appellant.
    Sara K. Sorenson and Ross V. Keller (appeared), Ohnstad Twichell, P.C., Hills-boro, N.D., for respondent and appellee Harry Eisenbeis.
    Stuart A. Larson, P.C., Hillsboro, N.D., for respondents and appellees Steve Kim-brell, Linda Hams, and Kim Scott.
   SANDSTROM, Justice.

[¶ 1] Phyllis Kimbrell appealed from district court orders entered in the administration of the Estate of Gerald C. Kim-brell, Deceased (“Estate”). We conclude she received a homestead estate in Gerald Kimbrell’s homestead for life or until she remarries, subject to existing encumbrances, and we affirm.

I

[¶ 2] Gerald and Phyllis Kimbrell married in 1990. When Gerald Kimbrell died in 2002, he was survived by Phyllis Kim-brell and three adult children from a previous marriage. Gerald Kimbrell’s 1986 will left his estate to his children, without specifically devising his homestead. Throughout their marriage, the Kimbrells lived on Gerald Kimbrell’s homestead, which has an appraised value of $65,000 and is subject to a mortgage used to purchase contiguous land now owned by Phyllis Kimbrell.

[¶ 3] The net augmented estate was valued at $742,075.76. Phyllis Kimbrell received $394,354.92 in non-probate transfers, $10,000 in exempt property, and an $18,000 family allowance. She sought an order granting her a fee simple absolute title to the homestead or an order requiring the Estate to pay the mortgage on the homestead property. The district court concluded that her “statutory right to receive a homestead interest in the property owned by the Decedent at the time of his death ... is not a fee simple absolute interest, but more akin to a life estate,” and that the Estate was not required to pay the mortgage. The court issued an order granting her a “homestead estate” in the homestead property, with “the right to the possession, care, control, income and rents of the above-described real property for life or until she remarries ... subject to existing encumbrances.” In an order approving the personal representative’s final report and distribution of the property in the Estate, the district court granted her “a homestead estate with right to possession, care, control, income and rents for life or until she remarries in the [homestead] property.” Phyllis Kimbrell appealed the district court orders.

[¶ 4] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. §§ 30.1-02-02 and 27-05-06. The appeal was timely. under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 30.1-02-06.1 and 28-27-02.

II

[¶ 5] Phyllis Kimbrell has raised several issues relating to the nature of the interest created by the homestead provisions in N.D.C.C. ch. 30.1-07 and the application and interpretation of N.D.C.C. chs. 30-16 and 30.1-07 and N.D.C.C. .§ 47-18-01. Relying on several references to homestead allowances in North Dakota’s adoption of the Uniform Probate Code in N.D.C.C. tit. 30.1 and two Montana cases, In re Estate of Merkel, 190 Mont. 78, 618 P.2d 872 (1980), and In re Estate of Martelle, 306 Mont. 253, 32 P.3d 758 (2001), Phyllis Kimbrell contends she “must be awarded the marital homestead in fee simple plus $15,000.00;. alternatively she must be awarded the homestead in fee simple up to its value of $65,000.00; or, thirdly, she should be awarded a life estate plus a monetary payment of either $80,000.00 or $45,257.58.”

[¶ 6] Section 30.1-07r-00.1, N.D.C.C. [U.P.C. § 2-401], provides, in part: “This chapter applies to the estate of a decedent who dies domiciled in this state.” Our legislature adopted most of the Uniform Probate Code in 1973. 1973 N.D. Sess. Laws ch. 257. Chapter 30.1-07, N.D.C.C., adopted much of article II, part 4, of the Uniform Probate Code in providing for exempt property and allowances. The General Editorial Board Comment to N.D.C.C. ch. 30.1-07, states, in part:

This chapter describes certain rights and values to which a surviving spouse and certain children of a deceased domiciliary are entitled in preference over unsecured creditors of the estate and persons to whom the estate may be devised by will.
States adopting the Code may see fit to alter the dollar amounts suggested in these sections, or to vary the terms and conditions in other ways so as to accommodate existing traditions.

[¶ 7] U.P.C. § 2-402, which has not been adopted in North Dakota, provides that a decedent’s surviving spouse is entitled to a “homestead allowance of [$15,-000]” and provides that the “[h]omestead allowance is in addition to any share passing to the surviving spouse or minor or dependent child by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share.” Instead of the homestead allowance provided in U.P.C. § 2-402, our legislature has enacted N.D.C.C. § 3.0.1-07-01 [U.P.C. § 2-403], which provides, in part:

In addition to the homestead defined in section 47-18-01, the decedent’s surviving spouse is entitled from the estate to a value, not exceeding ten thousand dollars in excess of any security interests therein, in household furniture, automobiles; furnishings, appliances, and personal effécts.... Rights to exempt property and assets needed to make up a deficiency of exempt property have priority over all claims against the estate, but the right to any assets to make up a deficiency of exempt property abates as necessary to permit earlier payment of the homestead allowance and family allowance. These rights are in addition to any benefit or share passing to the surviving spouse or children ■ by. the decedent’s will, unless otherwise provided, by intestate succession, or by way of elective share.

Section 47-18-01, N.D.C.C., provides, in part:

The homestead of any person, whether married or unmarried, residing in this state shall consist of the land upon which the claimant resides, and the ■ dwelling house on that land in which the homestead claimant resides, with all its appurtenances, and all other improvements on the land, the total not to exceed eighty thousand dollars in value, over and above liens or encumbrances or both.

What is now codified as N.D.C.C. § 47-18-01 has been “ ‘construed, not as an attempt to define the meaning of the word homestead, but as an act recognizing the right to a homestead exemption and fixing the amount in area and value of the homestead property which could be held exempt.’ ” In re Teiten’s Estate, 63 N.D. 729, 732, 249 N.W. 913, 914 (1933) (quoting Calmer v. Calmer, 15 N.D. 120, 126, 106 N.W. 684, 686 (1906)).

[¶8] Sections 30-16-01 and 30-16-02, N.D.C.C., also deal with homesteads. Section 30-16-01, N.D.C.C., provides, in part:

In this chapter, unless the context or subject matter otherwise requires:
1. “Homestead” has the meaning set forth in section 47-18-01.
2. “Homestead estate” means the right to the possession, use, control, income, and rents of the real property held or occupied by the decedent as a homestead at death.

Section 30-16-02, N.D.C.C., provides, in part:

Upon the death of a person in whom the title to real property constituting a homestead is vested, a homestead estate shall survive, and, until otherwise disposed of according to law, shall be set over to the persons and in the order following:
1. To the surviving spouse for life or until the surviving spouse again marries.

[¶ 9] “Statutory interpretation is a question of law subject to full review upon appeal.” Harter v. North Dakota Dep’t of Transp., 2005 ND 70, ¶7, 694 N.W.2d 677. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02; “When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. “ ‘In construing a statute, our duty is to ascertain the Legislature’s intent, which initially must be sought from the statutory language itself, giving it its plain, ordinary, and commonly understood meaning. We construe statutes as a whole and harmonize them to give meaning to related provisions.’ ” Larson v. Larson, 2005 ND 67, ¶8, 694 N.W.2d 13, quoting Boumont v. Boumont, 2005 ND 20, ¶8, 691 N.W.2d 278.

[¶ 10] Read together, N.D.C.C. §§ 30-16-01 and 30-16-02 provide that the surviving spouse of a decedent occupying real property as a homestead receives a limited estate: “the right to the possession, use, control, income, and rents of the real property held or occupied by the decedent as a homestead at death,” N.D.C.C. § 30-16-01(2), “for life or until the surviving spouse again marries,” N.D.C.C. § 30-16-02(1). That estate is limited in size and value by N.D.C.C. § 47-18-01 to “the land ... and the dwelling house ... with all its appurtenances, and all other improvements on the land, the total not to exceed eighty thousand dollars in value, over and above liens or encumbrances or both.” Construing N.D.C.C. §§ 30-16-01, 30-16-02, 30.1-07-01, and 47-18-01 together, and giving the language used in each of those statutes its plain, ordinary, and commonly understood meaning, we conclude the district court properly determined that Phyllis Kim-brell’s interest in the homestead property is a homestead estate, with a right to possession, care, and control of the property, and the income and rents from it for life or until she remarries, subject to existing encumbrances.

[¶ 11] Phyllis Kimbrell observes that “North Dakota’s Uniform Probate Code is littered with references to the term ‘homestead allowance,’ ” and cites N.D.C.C. §§ 30.1-05-01(3), 30.1-07-00.1, 30.1-07-01, 30.1-07-02, 30.1-07-03, and 30.1-12-01. Her reliance on references to homestead allowances in several sections of N.D.C.C. tit. 30.1 is misplaced. Because our legislature chose not to adopt U.P.C. § 2-402, creating a homestead allowance, and, instead, chose to provide a “homestead defined in section 47-18-01” in N.D.C.C. § 30.1-07-01, all references to “homestead allowance” in the probate code must be read with reference to N.D.C.C. §§ 30-16-01, 30-16-02, and 47-18-01. Phyllis Kim-brell’s reliance on the Montana decisions of Martelle, 306 Mont. 253, 32 P.3d 758, and Merkel, 190 Mont. 78, 618 P.2d 872, is similarly misplaced. Those decisions turned on two things not present in North Dakota: (1) When Montana adopted the Uniform Probate Code in 1974, it repealed § 91-2405, R.C.M.1947, which had allotted to the surviving spouse a life estate in a homestead (a limited form of which North Dakota has retained in N.D.C.C. §§ 30-16-01 and 30-16-02); and (2) Montana adopted what is now codified at § 72-2-412, M.C.A., which is the same, except for the dollar amount, as U.P.C. § 2-402, providing a “homestead allowance of [$15,-000],” which North Dakota has not adopted.

Ill

[¶ 12] The orders of the district court are affirmed.

[¶ 13] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and .MARY MUEHLEN MARING, JJ„ concur.


author: VANDE WALLE, Chief Justice.

text:
    2005 ND 104
    PEOPLE TO SAVE THE SHEYENNE RIVER, INC. and the Government of the Province of Manitoba, Plaintiffs and Appellants, v. NORTH DAKOTA DEPARTMENT OF HEALTH, and North Dakota Water Commission, Defendants and Appellees. Peterson Coulee Outlet Association, Plaintiff and Appellant, v. North Dakota Department of Health, and North Dakota Water Commission, Defendants and Appellees.
    Nos. 20040376, 20040377.
    Supreme Court of North Dakota.
    June 2, 2005.

      William J. Delmore (argued), Kelsch, Kelsch, Ruff & Kranda, Mandan, ND; and Daniel E. Buchanan (appeared), Buchanan Law Office, Jamestown, ND, for plaintiff and appellant, People to Save the Shey-enne River.
    Richard A. Wegman (appeared) and Eldon Greenberg (appeared), Washington, D.C., for plaintiff and appellant, Government of the Province of Manitoba.
    Dean J. Haas (argued), Office of Attorney General, Bismarck, ND, for defendant and appellee, North Dakota Department of Health.
    Matthew Arnold Sagsveen (argued), Office of Attorney General, Bismarck, ND, for defendant and appellee, North Dakota State Water Commission.
    Joseph J. Cichy (appeared), Olson Cichy Bliss, Bismarck, ND, for plaintiff and appellant, Peterson Coulee Outlet Association.

      Cynthia Wagner Goulet (on brief), Man-dan, ND; Richard P. Cool (on brief) and Jill Schlick (on brief), Assistant Attorneys General, Office of Minnesota Attorney General, St. Paul, MN, for amicus curiae Minnesota Department of Natural Resources and Minnesota Pollution Control Agency.
   VANDE WALLE, Chief Justice.

[¶ 1] The Government of the Province of Manitoba, the People to Save the Shey-enne River, Inc., and the Peterson Coulee Outlet Association appealed from a district court judgment affirming a decision by the North Dakota Department of Health to grant the North Dakota State Water Commission a permit for an outlet to discharge water from Devils Lake into the Sheyenne River. We conclude the Health Department’s issuance of the permit was not arbitrary, capricious, or unreasonable under the statutory scheme for the issuance of this permit, and we affirm.

I

[¶ 2] Devils Lake is a 125,000 acre lake in northeastern North Dakota. The lake is located within the Hudsoh Bay drainage basin, but it has no natural outlet and currently is not hydrologically connected to any other surface waters in the Hudson Bay basin. Devils Lake is about fifteen miles from the Sheyenne 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 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 the Hudson Bay.

[¶ 3] Because Devils Lake has no natural outlet, the water level of the lake generally increases during wet periods and decreases during dry periods. Since 1993, the Devils Lake area has received above normal precipitation, and Devils Lake has risen nearly 25 feet in elevation, which has resulted in the flooding and the destruction or relocation of numerous homes, businesses, and roads near Devils Lake. A three-pronged approach has been developed to- provide relief from the flooding, including infrastructure protection, upper-basin water storage, and an outlet to the Sheyenne River.

[¶4] In 1997, Congress directed the United States Army Corps of Engineers to “initiate and complete preconstruction engineering and design and the associated Environmental Impact Statement for an emergency outlet from Devils Lake ... to the Sheyenne River.” Act of June 12, 1997, Pub.L. No. 105-18, 1997 U.S.C.C.A.N. (111 Stat.) 176. In April 2003, the Corps of Engineers issued a final integrated planning report and environmental impact statement for a proposed outlet on the east side of Devils Lake to the Sheyenne River. The Corps of Engineers’ proposed outlet would have resulted in a 300 cubic feet per second discharge into the Sheyenne River with an estimated cost of about $186.5 million. The Corps of Engineers did not construct this outlet pioject.

[¶ 5] In 1999, the North Dakota Legislature authorized the construction of a state outlet project. See 1999 N.D. Sess. Laws ch. 535, § 3. In August 2002, the Water Commission applied to the Health Department for a North Dakota Pollutant Discharge Elimination System (“NDPDES”) permit for the construction and operation of a state outlet from the West Bay of Devils Lake into the Shey-enne River. The Health Department conducted an environmental review of the project and issued a public notice and intent to issue a permit for the state outlet. The Health Department’s notice identified two public hearings to solicit comments prior to the finalization of permit conditions. Public hearings were held on May 20, 2003, in Devils Lake, and on May 21, 2003, in Valley City, before L. David Glatt, the Chief of the Environmental Health Section of the Health Department. The Health Department also received written comments about the project and prepared written responses to the comments. In July 2003, Glatt recommended issuing the Water Commission a permit for the state outlet, subject to several conditions.

[¶ 6] In August 2003, the Health Department approved the recommendation to issue the Water Commission a permit for the state outlet. The approved permit limits the initial discharge rate to 50 cubic feet per second during the first year of operation of the outlet and requires establishment and implementation of an adaptive management program to ensure compliance with permit requirements and applicable water standards. After the first year of operation, the permit requires submission of a final draft of the adaptive management plan to the Health Department for approval. Upon approval by the Health Department, the adaptive management plan will become part of the permit and the discharge rate may be increased to 100 cubic feet per second. The permit also requires biological assessments of the ecological condition of the Sheyenne River at four different points, and an intake screen to prevent the transfer of adult fish species to the Sheyenne River. The permit limits operation of the state outlet to May through November and precludes any discharge when the elevation of Devils Lake is below 1445 feet. The outlet is scheduled to begin operation in the summer of 2005, and the permit authorizes operation of the outlet through June 2008.

[¶ 7] Several parties who opposed the permit filed petitions for reconsideration under N.D.C.C. § 28-32-40. The Health Department reopened the administrative record for further comments, responded to comments received after the record was reopened, and decided the permit would remain in effect as originally issued. Manitoba and the People to Save the Sheyenne River appealed to the district court. The Peterson Coulee Outlet Association separately appealed to the district court. The appeals were consolidated, and the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency, and the Minnesota Attorney General participated in the district court as amici curiae. The district court'affirmed the Health Department’s decision to issue the Water Commission a permit for the state outlet. Manitoba, the People to Save the Shey-enne River, and the Peterson Coulee Outlet Association (hereinafter collectively referred to as “Manitoba”) appealed, and the Minnesota Department of Natural Resources, the Minnesota Pollution Control Agency, and the Minnesota Attorney General appeared as amici curiae.

II

[¶ 8] Our examination of the appeal requires that we outline in detail issues about our standard of review and the procedure for the review and issuance of a NDPDES permit in conjunction with Manitoba’s claim the Health Department failed to conduct the permitting process in accordance with the law.

[¶ 9] As relevant to this case, the 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).

[¶ 10] 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.

[¶ 11] 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.

[¶ 12] Section 61-28-07, N.D.C.C., provides:

Any proceeding under this chapter for issuance or modification of rules, including emergency orders relating to control of water pollution or for determining compliance with or violation of this chapter, or adoption of any rule or order under this chapter by the department, must be conducted in accordance with chapter 28-32. Any person claiming to be aggrieved or' adversely affected by actions taken, or by any rule or order issued under this chapter may request a hearing by the department. There is a right of appeal to the district court from any adverse ruling by the department.

[¶ 13] Chapter 28-32, N.D.C.C., is the Administrative Agencies Practices Act, and the Health Department is an administrative agency governed by its procedures. See N.D.C.C. § 28-32-01(2) (defining administrative agency). The Act generally outlines procedures for an “adjudicative proceeding,” which was previously called a “contested case.” See 2001 N.D. Sess. Laws ch. 293, §§ 12 and 35. An adjudicative proceeding is now defined in N.D.C.C. § 28-32-01(1) to mean an administrative matter resulting in an agency issuing an order after an opportunity for hearing is provided or required and includes administrative matters involving a hearing on an application seeking a Ught, privilege, or authorization from an agency, including a licensing hearing. A license is defined in N.D.C.C. § 28-32-01(6) as a permit, or similar form of authorization required by law. The Act generally contemplates an adjudicative proceeding for issuance of a permit.

[¶ 14] Section 28-32-21, N.D.C.C., outlines procedures for an adjudicative proceeding, including the right to present evidence and cross-examine witnesses under N.D.C.C. §§ 28-32-24 and 28-32-35. Section 28-32-21(1), N.D.C.C. .describes the procedure for an adjudicative proceeding involving a hearing on a complaint against a specific-named respondent, and N.D.C.C. § 28-32-21(3) outlines the procedure for an adjudicative proceeding that does not involve a complaint against a specific-named respondent. An agency may dispose of any adjudicative proceeding by informal disposition, unless otherwise prohibited by statute or rule. N.D.C.C. § 28-32-22. The admissibility of evidence in any adjudicative proceeding is generally governed by the North Dakota Rules of Evidence. N.D.C.C. § 28-32-24(1). In any adjudicative proceeding, an agency may consider competent or relevant information in its possession or furnished by members of its staff in addition to evidence presented at a hearing. N.D.C.C. § 28-32-25. The person presiding at a hearing shall regulate the hearing in conformity with N.D.C.C. ch. 28-32 and any rules adopted by the agency, and any other applicable laws. N.D.C.C. § 28-32-35. An agency must make a record of all testimony, written statements, documents, exhibits, and other evidence presented at any adjudicative proceeding, or other administrative proceeding heard by the agency. N.D.C.C. § 28-32-36. In any adjudicative proceeding, an agency shall make findings of fact, ’ conclusions of law, and an order based upon its findings and conclusions. N.D.C.C. § 28-32-39.

[¶ 15] -Any. party before an administrative agency who is aggrieved by the agency’s final order may file a petition for reconsideration. N.D.C.C. § 28-32^10(1). Any party to “any proceeding heard by an administrative agency, except when the order of the administrative agency is declared final by any other statute, may appeal from the order” to the district court. N.D.C.C. § 28-32-42(1). The agency maintains and certifies the official record of each adjudicative proceeding, or other administrative proceeding heard by it, see N.D.C.C. § 28-32-44, and a district court reviews the agency’s determination based only on the record filed with the court and under the deferential standards outlined in N.D.C.C. § 28-32-46. This Court reviews a district court review of an agency decision under those same deferential standards, see N.D.C.C. § 28-32-49, and we review the. agency’s decision and record compiled before the agency while giving respect to sound reasoning of the district court. Gross v. North Dakota Dep’t of Human Servs., 2004, ND 24, ¶6, 673 N.W.2d 910.

[¶ 16] Section 28-32-46, N.D.C.C., requires this Court to affirm an administrative agency decision unléss:

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.

[¶ 17] The provisions for adjudicative proceedings in N.D.C.C. ch. 28-82 generally provide for evidentiary hearings with the right to cross-examine witnesses and require the agency to make appropriate findings of fact, conclusions of law, and to issue an order, which is subject to appeal. However, as relevant to this case, N.D.C.C. ch. 23-01 specifically pertains to the duties of the Health Department, and N.D.C.C. § 28-01-23 provides:

A permit hearing conducted for purposes of receiving public comment or an investigatory hearing conducted under chapters 23-20.1, 23-20.3, 23-25, 23-29, 61-28, and 61-28.1 is not an adjudicative proceeding under chapter 28-32 and is not subject to the requirements of chapter 54-57.

[¶ 18] In construing the statutes pertaining to the Health Department’s hearings on applications for NDPDES permits, our duty is to ascertain the intent of the legislature. See Stewart v. Ryan, 520 N.W.2d 39, 45 (N.D.1994). We initially seek to ascertain the legislature’s intent from the language of the statute, and words in the statutes must be given their plain, ordinary, and commonly understood meanings. Id. Statutory provisions must be considered as a whole with each provision harmonized, if possible. Id. In interpreting statutory provisions, every effort must be made to give each word, phrase, clause, and sentence meaning and effect because the law neither does nor requires idle acts. Id.; County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 325 (N.D.1985). A specific statute controls over a general statute. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 766 (N.D.1996).

[¶ 19] Section 23-01-23, N.D.C.C., was enacted in 1995 to specifically preclude application of the “contested case” procedural requirements of the Administrative Agencies Practice Act to environmental permit hearings conducted for the purpose of receiving public comment, because the potential cost requirements for contested case procedures for those type of permit hearings would be “astronomical.” See Hearing on Senate Bill 2154- before Senate Judiciary Committee, 54th N.D. Legis. Sess. (Jan. 11, 1995) (testimony of William J.- Delmore, Assistant Attorney General for Environmental Section of Health Department). The language and legislative history of N.D.C.C. § 23-01-23 indicates a “permit, hearing conducted for purposes of receiving public comment .. conducted under ... [N.D.C.C. ch.] 61-28 ... is not an adjudicative proceeding under [N.D.C.C. ch.] 28-32.” Under the specific language of N.D.C.C. § 23-01-23, the general procedural requirements for an adjudicative proceeding in N.D.C.C. ch. 28-32 do not apply to a “permit hearing conducted for purposes of receiving public comment” under N.D.C.C. ch. 61-28.

[¶ 20] Here, the Health Department’s public notice of intent to issue a NDPDES permit stated there would be “two public hearings to solicit comments prior to finalizing permit conditions under authority” of N.D.C.C. § 61-28-04. Those hearings were conducted according to the Health Department’s procedures for hearings on permits. See N.D. Admin. Code ch. 33-16-01. After the permit was issued, several parties who had opposed the permit filed petitions for reconsideration, citing N.D.C.C. § 28-32-40. One of the parties requested “a hearing on this matter” in the context of its petition to reconsider, but in any event the record does not reflect that any party sought an adjudicative proceeding under N.D.C.C. ch. 28-32. See N.D.C.C. § 61-28-07. On this record, we need not decide the full range of the administrative procedures that may have been available to Manitoba, and we reject Manitoba’s claim the Health Department failed to conduct the permitting process in accordance with the law.

[¶ 21] Because the hearing for the purpose of receiving public comment was not' an adjudicative proceeding, the Health Department was not required to issue findings of fact and conclusions of law under N.D.C.C. § 28-32-39. Nevertheless, the person conducting the hearings for 'public comment did issue some recommended findings and conclusions and a recommended decision to issue the permit, and the Health Department adopted that recommendation to issue the Water Commission a NDPDES permit.

[¶ 22] Any party to “any proceeding héard by an administrative agency” may appeal from the agency order under N.D.C.C. § 28-32-42, and judicial review of appeals from the agency determination is generally governed by the deferential standards in N.D.C.C. §§ 28-32-46 and 28-32-49. Those deferential standards of review for an agency’s findings of fact, conclusions of law, and decision are anchored in the separation of powers doctrine. See Wagner v. Sheridan County Soc. Servs. Bd., 518 N.W.2d 724, 729 (N.D. 1994) (citing Power Fuels, Inc. v. Elkin, 283 N.W.2d 214 (N.D.1979)); However, the deferential standard of review for findings of fact in N.D.C.C. § 28-32-46 is not completely compatible with administrative determinations where there has been no adjudicative proceeding and preparation of findings of fact. Nevertheless, those deferential standards of review generally comport with judicial review of non-judicial decision-making, which is limited to whether a decision is arbitrary, capricious, or unreasonable. See Little v. Traynor, 1997 ND 128, ¶ 17, 565 N.W.2d 766 (citing City of Fargo v. Ness, 529 N.W.2d 572, 576 (N.D.1995); Burleigh County Water Res. Dist. v. Burleigh County, 510 N.W.2d 624, 627 (N.D.1994); and Shaw v. Burleigh County, 286 N.W.2d 792, 797 (N.D.1979)). In Little, at ¶¶ 12-17, we applied the arbitrary, capricious, or unreasonable standard in the predecessor to N.D.C.C. § 28-32-47(4) to review an agency’s quasi-legislative rule-making function in which there was not an adjudicative proceeding with a corresponding record, and we said the record was adequate for our review if it enabled us to discern the rationale for the agency’s decision.

[¶ 23] In Koch Hydrocarbon Co. v. State, 454 N.W.2d 508, 510-11 (N.D.1990), we considered the standard of review of a tax assessment decision by. the State Board of Equalization, which had been excluded from the definition of an administrative agency in 1981 after our decision in Soo Line R.R. Co. v. State, 286 N.W.2d 459 (N.D.1979). We said the rationale for the limited scope of judicial review of nonjudicial decision making was the separation of powers doctrine, and we held the appropriate scope of review of the Board’s assessment was whether it was arbitrary, capricious, or unreasonable. Koch, at 511.

[¶ 24] The principles underlying the separation of powers doctrine are especially applicable to the Health Department’s decision to issue a NDPDES permit, because there was not an adjudicative proceeding and the general standard of review of agency’s findings for adjudicative proceedings under N.D.C.C. ch. 28-32 is incompatible with the procedural posture of this case. Considering the type of record in this proceeding, the Health Department’s decision is entitled to even greater deference than a proceeding after an adjudicative proceeding, and we review the Health Department’s permitting decision to determine whether it is arbitrary, capricious, or unreasonable. See Little, 1997 ND 128, ¶ 17, 565 N.W.2d 766; Koch, 454 N.W.2d at 511. See also Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846; Pic v. City of Grafton, 1998 ND 202, ¶¶6, 8, 586 N.W.2d 159; Anderson v. Richland County Water Res. Bd., 506 N.W.2d 362, 367 (N.D.1993). See generally 5 Stein, Mitchell, Mezines, Administrative Laiv § 43.02[6](2004) (stating arbitrary and capricious standard is more restrictive than substantive evidence standard because under arbitrary and capricious standard court must uphold agency if there is any rational basis for decision). That deferential standard is particularly applicable where, as here, the subject matter is complex or technical and involves agency expertise. See Kraft v. North Dakota State Bd. of Nursing, 2001 ND 131, ¶ 10, 631 N.W.2d 572. 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. See Little, at ¶ 17, 565 N.W.2d 766; Graber, at ¶ 7, 598 N.W.2d 846. We consider the issues raised in Manitoba’s appeal in light of that highly deferential standard of review.

Ill

A

[¶ 25] Manitoba argues the Health Department’s decision to issue a permit for the state outlet failed to adequately consider increased phosphorus loading in downstream waters. Manitoba argues the Health Department failed to determine how the discharge of Devils Lake water into the Sheyenne River would contribute to existing and projected chronic violations of North Dakota’s numeric phosphorus water quality standard of .1 million per liter of water. See- N.D. Admin. Code § 33-16-02.1-09(3) and Table 1. Manitoba argues the state outlet project’s discharge of phosphorus-rich Devils Lake water into the Sheyenne River will necessarily contribute to violations of the Sheyenne River’s phosphorus standard. The Health Department responds the phosphorus guidelines are not strict standards, but, under its rules, are “intended as interim guideline limits. Since each stream or lake has unique characteristics which determine the levels of these constituents that will cause excessive plant growth (eutrophication), the department reserves the right to review these standards after additional study and to set specific limitations on any waters of the state.” N.D. Admin. Code § 33-16-02.1-09, Table 1, fn. 1. The Health Department argues phosphorus loading from the state outlet will not effect beneficial uses or have adverse consequences to the downstream waters, because the increased phosphorus load will not contribute to eutrophication in Lake Ashtabula or the. Sheyenne River due to the limited amount of available nitrogen, which is also • necessary for plant growth.

[¶ 26] The Health Department’s interpretation of its regulations and the phosphorus guideline as a flexible standard is entitled to deference, especially whén, as here, the subject matter is complex or technical. See St. Benedict’s Health Center v. North Dakota Dep’t. of Human Servs., 2004 ND 63, ¶ 9, 677 N.W.2d 202. Moreover, there is evidence in this record that additional phosphorous loading may be a problem when it contributes to eutro-phication, which is a condition in an aquatic ecosystem where high nutrient concentrations such as phosphorus and nitrogen stimulate blooms of algae. There is evidence in this record that due to the limiting effect of the absence of nitrogen in the downstream waters, the addition of phosphorus to those waters will not result in a commensurate increase in algae and will not affect beneficial uses for those waters. The phosphorus issue was part of the environmental impact statement prepared by the Corps of Engineers for the proposed federal project. According to the Corps of Engineers, phosphorus loading was not an impediment to the federal project, which had a greater proposed discharge rate than the state outlet. The record also reflects the Health Department considered the increased phosphorous load in response to comments submitted to it and stated:

the annual phosphorus load will increase; however, its impact on the Shey-enne River and Lake Ashtabula will likely be minimal. Primary productivity is largely controlled by a limiting substance which, in this situation, is likely to be nitrogen. Therefore, any increase in available nitrogen will increase algal growth, whereas an increase of phosphorus will not. Because Lake Ashtabula will trap a significant portion of the phosphorus, downstream reaches of the Sheyenne River should experience nearly base conditions. Phosphorus concentrations in the Red River will be near base conditions, and therefore, no changes in trophic condition or response are expected.

.[If 27] We have reviewed the administrative record about the phosphorous level in the downstream waters, and we conclude there is evidence in the record which supports the Health Department’s determination. The record reflects the Health Department adequately addressed the phosphorous issue, and its decision on this issue is not arbitrary, capricious, or unreasonable.

B

[¶ 28] Manitoba argues the permit violated North Dakota’s anti-degradation regulations in N.D. Admin. Code § 33-16-02.1-02(2). Manitoba argues the outlet will result in significant degradation of the receiving waters, and the Health Department failed to take several specified steps in accordance with its anti-degradation review process. Manitoba argues the Health Department did not affirmatively demonstrate that degradation was necessary to accommodate important social or economic development, the Health Department did not adequately assess whether any reasonable non-degrading or less degrading alternatives were available, and the Health Department granted the permit even though the discharge would contribute additional compliance problems involving phosphorous in the zone of influence of the proposed discharge.

[¶ 29] The record includes what the parties recognize as the Health Department’s anti-degradation procedure. See N.D. Admin. Code ch. 33-16-02.1. Under that procedure, the Sheyenne River, Red River, and Lake Ashtabula are category 1 waters, and the Health Department must conduct an anti-degradation review for NDPDES permit applications for discharges into category 1 waters unless the source of the discharge would have no significant permanent effect on the quality and beneficial use of the downstream waters. Under the Department’s anti-degradation procedures for category 1 waters, proposed activities that lower the ambient quality in a water body of any parameter by more than fifteen percent, reduce the available assimilative capacity by more than fifteen percent, or increase permitted pollutant loadings by more than fifteen percent are deemed to have significant effects. Proposed activities that have no significant effect on water quality or beneficial uses axe eliminated from further anti-degradation review. Under the Health Department’s procedures, the primary purpose of category 1 review is to determine if reasonable' non-degrading or less-degrading alternatives are available, and an applicant must also show that a discharge will be of economic or social importance in the area.

[¶ 30] The Health Department determined phosphorus was not a parameter of concern for anti-degradation review because the addition of phosphorus to downstream waters would not alter the beneficial use of those waters. There is evidence in this record that phosphorous was not a parameter of concern for anti-degradation review because any additional-phosphorous would not alter the beneficial use of the downstream waters. We conclude the Health Department’s determination that phosphorus was not a parameter of concern for anti-degradation review is not arbitrary, capricious, or unreasonable.

[¶31] Manitoba also argues the Health Department failed affirmatively to demonstrate the state outlet was necessary for social or economic development and the Health Department did not adequately assess whether any reasonable non-degrading or less degrading alternatives were available. . There is evidence in the record that the Health Department considered non-degrading or less degrading alternatives, including water management alternatives in the Devils Lake basin, water treatment alternatives, and alternative discharge locations. Although Manitoba and the amici curiae dispute the Health Department’s analysis of those alternatives, on this record, we conclude the Health Department adequately considered other non-degrading or less degrading alternatives.

[¶ 32] The record also includes information that the flooding on Devils Lake has forced roads to be raised, dikes to be constructed and homes and towns to be relocated at an estimated cost of nearly four hundred million dollars since 1993. The Corps of Engineers’ environmental impact statement indicates that millions of dollars in costs have been incurred by businesses and the general public because of detours from permanent and temporary road closures and constant construction in response to the rising lake. There is evidence that the rising waters have impacted insurance rates, forced costly flood prevention measures, for property owners, and threatened sewer lines, electrical utilities, and water supplies. The information submitted by the Water Commission and included in the Corps of Engineers’ report demonstrates that the state project is part of a multi-pronged flood control effort designed to accommodate social and economic factors in the affected regions. On this record, we conclude the Health Department adequately considered those anti-degradation issues, and its determination the outlet will not violate North Dakota’s anti-degradation rules is not arbitrary, capricious, or unreasonable.

C

[¶ 33] Manitoba argues the permit fails to incorporate required measures to minimize the risks of biota transfer. Manitoba argues two fish parasites, gyro-dactylus hoffmani and ligula intestinalis, are found in Devils Lake, but are not present in the Sheyenne River and the Red River. Manitoba argues the permit fails to incorporate appropriate technology-based control measures, including a sand filter, to minimize the risk the state outlet will transfer alien and invasive species of biota from Devils Lake to the Shey-enne and the Red River watersheds. Manitoba argues the Health Department’s decision not to require a sand filter is not supported by the evidence.

[¶ 34] As part of its environmental impact statement, the Corps of Engineers conducted a biota transfer risk assessment to evaluate the potential for an outlet to transfer biota from Devils Lake to downstream waters. The Corps of Engineers’ study examined fish, fish parasites, arid pathogens, algae communities, vascular plants, protozoa, and invertebrates. The study assembled a list of probable biota of concern that could directly or' indirectly cause environmental and economic damage to downstream waters. The study indicated that a large majority of probable biota of concern were ultimately classified as non-biota for risk assessment because they were found to be widespread and able to disburse readily among water bodies. The study explained that Devils Lake biota can be transferred across the basin boundary by existing natural disbursal vectors such as wind and vertebrae animals, and by anthropogenic means, including recreational boats and trailers, bait fish transfer, and an active fish stocking program that has affected reciprocal transfers among many waters in the state. The study recognized those natural pathways have been an effective means of biota transfer, and it was unlikely that transfers of biota would involve first-time introductions.

[¶ 35] There was conflicting evidence about whether two parasites found in Devils Lake, gyrodactylus hoffmani and lígula intestinalis, were also present in downstream waters. There is some evidence that the two parasites were present in Devils Lake and were not present in downstream waters. A consultant for the Corps of Engineers explained that concerns over the two parasites were unwarranted. . The consultant indicated lígula intestinalis was a parasite that was not host-specific and was widely dispersed by birds. The consultant indicated some experts have confirmed the presence of lígula intestinalis in much of the Hudson Bay’s drainage area and have indicated that it was highly unlikely that the species was confined only to Devils Lake. The consultant also indicated the gyrodactylus hoff-mani is a parasite of a fish species commonly used as prey by game fish, but there was evidence of its presence in Minnesota, including the waters in the Red River basin.

[¶ 36] The Corps of Engineers also conducted a full-risk analysis of two species, the striped bass and Eurasian water-milfoil. The Corps of Engineers explained there was only a small possibility that the striped bass posed a risk to downstream waters and Eurasian watermilfoil was not known to occur in Devils Lake but was found in the Shéyenne River below Lake Ashtabula. The striped bass previously had been stocked in Devils Lake, but its continued presence in Devils Lake was doubtful, and the Corps explained there was only a small possibility that the fish posed a risk to downstream waters. The Health Department nevertheless required a mesh screen on the intake structure for the state outlet to minimize the risk of transferring adult striped bass into downstream waters.

[¶ 37] The Health Department found that although there was “a concern that an outlet m&y result- in an undesirable transfer of biota from Devils Lake to the Shey-enne River, no specific biota of concern was identified. Surveys and studies completed by the State Water Commission and Game and Fish Department indicate that Devils Lake is within the Hudson Bay watershed and has historically been connected to that watershed.” ■ There is some evidence in this record that Devils Lake is connected to downstream waters through natural pathways and shares the same biota with the downstream waters. The record further reflects the risk of transfer of biota is very low. There have been studies and literature reviews that have examined the potential for biota transfer associated with the movement of water from Devils Lake into the downstream waters. Although those studies may not be as conclusive as Manitoba or the amici curiae would like, those studies do not show that the state outlet would result in a significant risk of harm in the transfer of alien and invasive species of biota from Devils Lake to the downstream waters. There is evidence in this record which was available to the Health Department and which supports its determinations regarding the risk of biota transfer. We conclude the Health Department’s determinations regarding the risk of biota transfer are not arbitrary, capricious, or unreasonable.

TV

[¶ 38] Under our deferential standard of review, we conclude there is evidence in this record which supports the Health Department’s decision to issue the Water Commission a permit for the state outlet under the conditions stated in the permit. We decline Manitoba’s invitation to reweigh the evidence. Rather, under our deferential standard of review, we conclude the Health Department’s decision to issue the permit is not arbitrary, capricious, or unreasonable.

■ V

[¶ 39] We affirm the district court judgment affirming the Health Department’s decision to-issue the Water Commission a permit for the state outlet.

[¶ 40] DALE V. SANDSTROM, CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur. .

      . Our analysis of the issues raised by the amici curiae is limited to the issues raised by Manitoba. See N.D.R.App.P. 29(a).


author:
' EAPSNER, Justice.
      VANDE WALLE, Chief Justice,

text:
    2005 ND 101
    ROLETTE COUNTY SOCIAL SERVICE BOARD and the North Dakota Department of Human Services as assignees of T.P., and T.P., Individually, Plaintiffs and Appellants v. B.E., Defendant and Appellee.
    No. 20040357.
    Supreme Court of North Dakota.
    June 2, 2005.

      John Douglas Waller, Special Assistant State’s Attorney, Devils Lake, N.D., for plaintiffs and appellants.
    B.E., defendant and appellee; no appearance.
   ' EAPSNER, Justice.

[¶ 1] The Rolette County Social Service Board and the North Dakota Department of Human Services (“Rolette”) appealed from an order of the district court dismissing, without prejudice, Rolette’s action against B.E. (“Barbara”) seeking court ordered child support and medical insurance coverage for Barbara’s three minor children. We hold the district court had concurrent jurisdiction with the tribal courts of the Turtle Mountain Band of Chippewa Indians to entertain this action and we, therefore, reverse and remand for further proceedings.

I. Facts

[¶ 2] T.P. (“Thomas”), the children’s father, Barbara, and the three children are all members of the Turtle Mountain Band of Chippewa Indians, and it is undisputed the children were.conceived on the reservation. Thomas has custody of the children and he resides with them on the reservation. When these proceedings were commenced, Barbara was residing in Fargo outside the boundaries of the Indian reservation.

[¶ 3] Having provided benefits for the children, Rolette acquired an assignment from Thomas of his rights to collect support from Barbara and then filed this action in state court against her for support. In her answer to the complaint, Barbara admits she is the mother of all three children and that she is financially able to provide medical insurance and reasonable support for the children. However, she disputes the amount of support she is obligated to provide, and she moved for dismissal of the action for lack of personal and subject-matter jurisdiction. The district court determined the tribal courts have exclusive jurisdiction over this action and dismissed the complaint without prejudice.

II. Appealability

[¶ 4] Ordinarily, a dismissal without prejudice is not appealable because either side may commence another action. Rodenburg v. Fargo-Moorhead Y.M.C.A., 2001 ND 139, ¶ 12, 632 N.W.2d 407. However, a dismissal without prejudice may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum. Winer v. Penny Enterprises, Inc., 2004 ND 21, ¶ 6, 674 N.W.2d 9. In this case, the district court’s order dismissing for lack of subject-matter jurisdiction effectively foreclosed litigation of Rolette’s action in the courts of this state. Consequently, we conclude the order of dismissal is final and appealable.

III. Subjech-Matter Jurisdiction

[¶ 5] Rolette asserts the trial court erred in relying upon a line of paternity cases in which this Court concluded state courts lack subject-matter jurisdiction to entertain actions to determine the paternity of Indian tribal members, because the assumption of jurisdiction by the state courts would impermissibly infringe on tribal rights of self-governance. Ro-lette asserts this case is distinguishable from those relied upon by the district court, because this is strictly an action to establish a support obligation, not to determine parentage, and because the respondent has conceded she is the biological mother of all three children involved in this case.

[¶ 6] A judgment entered without personal or subject-matter jurisdiction is void. McKenzie County Soc. Serv. Bd. v. C.G., 2001 ND 151, ¶ 10, 633 N.W.2d 157. When the jurisdictional facts are not in dispute, the question of subject-matter jurisdiction is a question of law, and we review the jurisdiction decision de novo. Allied Mut. Ins. Co. v. Director of North Dakota Dep’t of Transp., 1999 ND 2, ¶ 9 n. 1, 589 N.W.2d 201. Relative to the issue of state court jurisdiction, if there is an available forum in the tribal courts, considerations of tribal sovereignty and the federal interest in promoting Indian self-governance and autonomy arise. McKenzie County Soc. Servs. Bd. v. V.G., 392 N.W.2d 399, 402 (N.D.1986); see also Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 893, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986). Under the infringement test as set forth by the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), state court jurisdiction over certain claims is not allowed if it would “undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.”

[¶ 7] In McKenzie, 392 N.W.2d at 402, this Court held the state district court had no jurisdiction to decide a paternity action involving enrolled members of the Three Affiliated Tribes, stating “the determination of the parentage of a child of Indian tribal members is a matter that is intimately connected with” the tribe’s right of self-governance. This Court held the exercise of jurisdiction to dedde paternity would unduly infringe on that right. Id. We followed the rationale of the McKenzie case in In Interest of M.L.M., 529 N.W.2d 184, 186 (N.D.1985), wherein we held the district court properly dismissed for lack of subject-matter jurisdiction an action by the Grand Forks County Social Services Board against the alleged father, an enrolled Indian with the Turtle Mountain Band of Chippewa Indians, to determine paternity and child support. The crux of the, decisions in McKenzie and M.L.M. is the belief that the determination of the parentage of a child of Indian tribal members is intimately connected with the right of reservation. Indians to make their own laws and to be ruled by them. McKenzie County Soc. Serv. Bd. v. C.G., 2001 ND 151, ¶ 15, 638 N.W.2d 157.

[¶ 8] Following this line of cases, the district court reasoned that it did not have subject-matter jurisdiction to entertain this case:

Our Supreme Court from 1986 to the 'present day has basically said that parentage as between tribal ■members where conception occurs on the reservation is exclusively a tribal matter even though it may involve collection of welfare benefits.
Applying the above cases to the present case this Court determines based on the facts as it knows them that the State Court does not have subject matter jurisdiction. There appears to be no dispute that the parents and children are members of the Turtle Mountain Band of Chippewa and that conception occurred on the reservation. As between the biological mother and father there is no evidence that the parentage has been established by the Tribal Court which has exclusive jurisdiction of parentage.
The fact that the mother is presently residing off the reservation does not give the State jurisdiction. A State Court cannot take jurisdiction to set child support: and collect welfare benefits when parentage has not be[en] established when it involves tribal members with conception occurring on the reservation.

While we give due regard to the district court’s thoughtful analysis in this case, we believe the facts here present a different set of circumstances, distinguishing this case from the McKenzie and M.L.M. cases, resulting in the state district courts and tribal courts having concurrent jurisdiction to entertain Rolette’s action to establish Barbara’s support obligation.

[¶ 9] In McKenzie, 2001 ND 151, ¶3, 633 N.W.2d 157 and M.L.M., 529 N.W.2d 184 (N.D.1985), the state, social service agencies sought to have the state courts determine paternity and then establish a child support obligation against putative Indian fathers residing on an Indian reservation. In McKenzie paternity was not acknowledged by the putative father., Although in M.L.M. the putative father acknowledged paternity of three of four children there still remained an issue of parentage with respect to a fourth child. In this case the action to establish a support obligation is against the biological mother who concedes she is the mother of all three children. Another distinguishing factor is that Barbara, at all times relevant to this case, has resided in Fargo outside the boundaries of the Indian reservation,. whereas in McKenzie and M.L.M. the putative fathers were at all relevant times residing on the Indian reservation.

[¶ 10] Under the circumstances of this case, we believe the state court’s establishment of Barbara’s support obligation for her children will not unduly infringe tribal rights of self-governance. This conclusion finds support in other case decisions which have held that state courts' have concurrent jurisdiction with the tribal courts to entertain actions for child support against enrolled members of an Indian tribe. See, e.g., Jackson County Child Support Enforcement Agency v. Swayney, 319 N.C. 52, 352 S.E.2d 413, 418 (1987); State ex rel. LeCompte v. Keckler, 628 N.W.2d 749, 751 (S.D.2001); Anderson v. Beaulieu, 555 N.W.2d 537, 541 (Minn.App.1996); State ex rel. Dep’t of Human Servs. v. Jojola, 99 N.M. 500, 660 P.2d 590, 593 (1993).

[¶ 11] In Jackson the Supreme Court of North Carolina held state courts do not have subject-matter jurisdiction to establish paternity of a child, where the alleged parent is an enrolled Indian living on the reservation, because assumption of jurisdiction would for that purpose unduly infringe the tribe’s right of self-governance, and the tribe has exclusive jurisdiction to make the parentage determination. However, the Supreme Court of North Carolina further held the state courts did have subject-matter jurisdiction for collection of past debt and for establishment of future child support, if paternity was not then an issue:

[W]e find before us nothing which suggests that the tribe’s interest in self-governance would be significantly affected by the exercise of concurrent state and tribal court jurisdiction over actions to collect debts lawfully owed to the State. We find, therefore, that the exercise of state court jurisdiction over causes of action to recover debts for payment of past public assistance does not unduly infringe on the interest of Indian self-governance.
The State’s interest in exercising jurisdiction over causes of action for future child support is in essence the same state interest in exercising jurisdiction over actions for debts for payment of past public assistance — to secure payments by persons legally liable for a child’s support as mandated by the AFDC program. Thus we find that the State’s exercise of jurisdiction over actions for future child support mandated by the AFDC program likewise does not unduly infringe on tribal self-governance.

Jackson, 352 S.E.2d at 418. In accord with that decision is the later case of Jackson County Child Support Enforcement Agency v. Smoker, 115 N.C.App. 400, 445 S.E.2d 408, 415 (1994), wherein the Court of Appeals of North Carolina held that it would not unduly infringe upon tribal sovereignty if the state courts exercised subject-matter jurisdiction to decide child support even though the issue, had been litigated previously in tribal court, but without notice to the state.

[¶ 12] The state has a significant interest in having a parent fulfill her obligation to provide support and maintenance to her children to the extent of her ability. N.D.C.C. § 14-09-10; see also Roe v. Doe, 2002 ND 136, ¶ 18, 649 N.W.2d 566. To pursue that interest, we agree with the above-cited authorities that tribal courts and state courts have concurrent subject-matter jurisdiction to determine a support obligation against an enrolled- Indian, where parentage is not at issue and the defendant is not residing on the Indian reservation when the action is commenced.

IV. Conclusion

[¶ 13] We conclude the state court has concurrent jurisdiction with the. tribal court to establish Barbara’s child support obligation in this case. We, therefore, reverse the district court’s order dismissing this action and remand for further proceedings on the merits.

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

VANDE WALLE, Chief Justice,

dissenting.

[¶ 15] I respectfully dissent. Although I agree that McKenzie County Soc. Servs. Bd. v. V.G., 392 N.W.2d 399 (N.D.1986) and In Interest of M.L.M., 529 N.W.2d 184 (N.D.1995) are distinguishable on their facts, I am not convinced we should distinguish them. In the first instance, I am uncomfortable with a State court determining what “undermine[s] the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves,” the test prescribed, as the majority notes, by the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 223, 79 S.Ct, 269, 3 L.Ed.2d 251 (1959). Because of the relationship of the federal government to the Indian tribes, see Article 1, § 8 of the United States Constitution (“Congress shall have power ... [t]o regulate commerce ... with the Indian tribes”) and decisions such as Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 764, 105 S.Ct., 2399, 85 L.Ed.2d 753 (1985) (holding “The Constitution vests the Federal Government with exclusive authority over relations with Indian tribes”) it seems to me to be presumptuous for the State courts to .determine for the Tribes what is infringement on their right to govern themselves.

[¶ 16] Second, the Tribe itself does indeed have an interest in who is declared a parent of a child for, alone, the proceedings may result in the child being declared a member of the Tribe. Although the issue of parenthood may not be an issue in the instant case it very'well may be in the future and ordinarily the Tribe is not a party to proceedings for child support.

[¶ 17] Finally, the majority opinion is on a potential collision course with its concept of concurrent jurisdiction. The collision, of course,, comes when the Tribal court and the State court, each exercising its “concurrent jurisdiction,” issue dueling opinions regarding the same parties and the same facts. Indeed, that was the issue in Byzewski v. Byzewski, 429 N.W.2d 394 (N.D.1988), when the majority of this Court held that the Tribal court, not the State court, has jurisdiction over the child custody and support claims and reversed the State court judgment. In so concluding, the Byzewski majority noted:

Moreover, domestic relations among its members is an important area of “traditional tribal control.” We do not believe this tribal interest in domestic relations dissipates merely because one of the parties to a marriage is a non-Indian. Thus, in view of the traditional tribal interest over domestic relations, which we believe to be an integral component of tribal self-government, a non-Indian divorce plaintiffs compliance ... is not necessarily determinative of a district court’s subject matter jurisdiction over such matters as child custody and support where the custodial domicile has at all pertinent times been on the reservation.

Id. at 399 (citations omitted) (emphasis added).

[¶ 18] It might be argued that Byzew-ski is distinguishable because here Barbara is not presently domiciled on the Reservation; but Thomas and the three children for whom support is sought are living on the Reservation and, unlike By-zewski, here both parties are members of the Tribe. Had we not reversed the district court in Byzewski there may have been a stalemate. Byzewski was also decided before this Court adopted N.D.R.Ct. 7.2, requiring the courts of this State to recognize Tribal court judgments except under certain limited conditions, another complicating factor to concurrent jurisdiction. I specially concurred in Byzewski on the narrow ground that the Tribal court action predated the State court action, although only by one day. Perhaps that is an answer to the dilemma I pose above. Nevertheless, the race to the Tribal court or State court is a poor response to the Williams infringement test. The Court, applying the Williams test in Byzewski noted that test

while resembling in some respects a sufficient contacts test for ascertaining personal jurisdiction, is actually a rule for gauging whether a court has subject matter jurisdiction over the action itself. Furthermore, contacts within the state but off the reservation, which might arguably suffice to grant a court personal jurisdiction over an Indian domiciled on a reservation, are not necessarily sufficient to grant the court subject matter under the infringement test.

Byzewski, 429 N.W.2d at 398 (citations omitted).

[¶ 19] While I did not sign the Byzew-ski majority but rather concurred on the basis of first in time, I have subsequently recognized Byzewski as the controlling precedent. See In Interest ofM.L.M., 529 N.W.2d at 185, discussing the holding in McKenzie County Social Servs. Bd. v. V.G., 392 N.W.2d 399 (N.D.1986), that the determination of the parentage of a child of Indian Tribal members is a matter that is intimately connected with the Tribe’s right of self-government and citing Williams and Byzewski for the proposition that in view of the availability of a Tribal forum the exercise of jurisdiction by the state district court would unduly infringe on that right.

[1Í 20] Unfortunately, this case was submitted to this Court without briefing by the appellee. Nevertheless, I believe the majority in this case, relying on case law from other jurisdictions whose recognition of Tribal self-government may be substantially different from that in North Dakota, has set out on a substantially different path from that established in our previous case law. Because I believe that path does interfere with Tribal self-government and is not well advised, I dissent.

[¶ 21]

Gerald W. Vande Walle, C.J.

      . All names are pseudonyms.