Introduction

Eminent domain, sometimes known as a taking or associated with an inverse condemnation, is the government’s ability to take privately owned property necessary for public use. The property can then be given to a private company or kept by the government. The Fifth Amendment provides protections to landowners and requires the government or company obtaining the property to pay just compensation. However, before the government will allow a company to obtain your property, the company must make reasonable and diligent efforts to negotiate for it. If an agreement can’t be reached, eminent domain proceedings can be commenced. For this reason, it can be a long process when the government or companies institute eminent domain proceedings.

What Does It Mean To Be Necessary For Public Use?

In North Dakota, the Public Service Commission’s determination on whether or not the taking is necessary is generally upheld by the courts. Eckre v. Pub. Serv. Comm’n, 247 N.W.2d 656, 666 (N.D. 1976). Additionally, the North Dakota Supreme Court has stated that there is a presumed public use when the legislature has declared it to be. Montana-Dakota Utilities Co. v. Behm, 2019, 927 N.W.2d 865. The North Dakota legislature has declared pipelines to be public use. Chapter 32-15 of the Century Code provides: “[t]he right of eminent domain may be exercised on behalf of the following public uses: Oil, gas, coal, and carbon dioxide pipelines and works and plants…” North Dakota has therefore given great deference in allowing virtually any pipeline to be considered for public use.

Regulations Under Eminent Domain

A common pipeline carrier, such as a carbon dioxide or oil and gas pipeline company, has the right and the power of eminent domain so long as they accept regulation by the Public Service Commission (“PSC”). The PSC is in charge of establishing and enforcing rates and safety standards and investigating public complaints relating to maintenance, design, leaks, etc. The pipeline carrier would also be subject to related Federal regulations.

Landowner Rights

A landowner can’t object to a pipeline route merely because some other location could have been used for the pipeline. KEM Elec. Co-op., Inc. v. Materi, 1976, 247 N.W.2d 668. However, landowners do have outlets to have their voices heard. First, landowners can voice their concerns at the local county commission hearing. Landowners can also voice their concerns at the public hearing provided by the Public Service Commission once the pipeline company has filed an application to start the eminent domain process.

Chapter 32-15 of the Century Code provides landowners the right to request a list of at least ten neighboring landowners to whom offers are being made for the same project. If fewer than ten are affected, then a list of all landowners must be provided. Landowners are also entitled to an appraisal with the compensation value of the land.

Finally, landowners can also hire an attorney to attend settlement negotiations with the pipeline company with hopes of receiving a better offer and  ultimately defending their property against the pipeline company in the event of a trial. If the case does go to trial, the landowner may be required to present evidence and witnesses to support their position of the land’s value. This can be tricky, and courts can award attorney’s fees, so landowners are not simply fighting for their land without equal bargaining power.

Conclusion

Overall, the eminent domain process can be a stressful and complicated process. Our property law team at SW&L Attorneys is knowledgeable in cases dealing with eminent domain to help guide you through the process. To get in touch with our team, call 701-297-2890 or email us at: info@swlattorneys.com.

This article is for informational purposes only and is subject to our disclaimer.

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