City of Pembina, ND

Oldest Settlement in the Dakota Territories

Special City Council Meeting - April 4, 2006

5:30 p.m.

152 W. Rolette St.

Present: Beverly Burke, Pat Burton, John Feldman, Rick Senum, and Mayor Warren Hillukka. Absent: Nancy Thompson, Kyle Dorion

Others Present: Aud./Admin. Kathy Johnson, Hetty Walker, Larry Wilwant

Call to order at 5:30 p.m.

1. Conference call with city attorney Dan Gaustad re: Letter of Undertaking. Gaustad cautioned that the letter is very broad, the Canadian attorney has not advised the city as to progress/projections concerning the case, and that despite requests, information has not been shared. Gaustad’s research into the matter appears to show that there is no agreement in writing by the State Water Commission, the Red River Joint Board, or the Pembina County Commissioners to "reimburse and hold harmless the City of Pembina should costs be awarded". At best, the information indicates a non-binding letter of intent, which is basically a statement of moral obligation. This leads Gaustad to find Mr. Fleming’s statements to be "not exactly accurate", and he cannot advise the City Council to sign the letter of intent.

2. Conference call with US attorney on the case, Neil Fleming. Fleming reiterated that it is imperative to the case that the City of Pembina sign the Letter of Undertaking, as this is being required by the Canadian federal judge in lieu of a security bond. If such signed letter is not forthcoming, the Canadian court may a) choose to require actual post security for costs, or b) dismiss the claim completely. Fleming had already forwarded a transcript of the State Water Commission’s proceedings which covered his visit with them (and upon which the minutes will be based) in which the SWC did motion to pay damages up to 50% of the projected maximum amount of $175,000, and minutes of the March 21, 2006 minutes of the Pembina County Commissioners meeting which approved additional funding of the lawsuit contingent upon the actions of the State Water Commission. Fleming had also been in verbal contact with Tom Fischer of the Red River Joint Board, who had indicated to him that the Board would also follow the lead of the SWC.

Fleming reminded the council that they signed the resolution in support of the lawsuit, adding that "If we lose this case, which is highly unlikely, it would be covered by my malpractice bond which is set at 2 million dollars." Son Rob was sent to the office to fax over additional letters which support the claim of urgency of the matter. Twelve pages were received, including letters not seen previously by the City of Pembina nor attorney Gaustad.

3. Discussion following the calls centered on these facts: a) Fleming had not followed through with the requests for letters of intent as promptly or thoroughly as he should have. b) Not withstanding, the case appears to be progressing favorably (as corroborated by Wilwant in his discussion with Canadian attorney Collin MacArthur in January 2006), and c) there will not be the chance of having the state and county pay for Canadian litigation to require the dike to be removed ever again. Motion by Feldman, second by Senum, to sign the Letter of Undertaking. Roll call vote: Ayes: Burke, Burton, Feldman and Senum. Nays: none. Absent and not voting: Dorion and Thompson. Motion carries.

4. Motion to adjourn by Burke, 6:30 p.m.

By: Warren Hillukka, Mayor

Attested to: K. Johnson, City Aud/Adm