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Judge halts MDU eminent domain

A district judge has dismissed Montana-Dakota Utilities’ eminent domain proceeding for a proposed pipeline west of Minot.

North Central District Judge Gary Lee ruled May 29 that the injury to landowner Lavern Behm, Burlington, exceeds any public benefit associated with the pipeline. MDU officials had no immediate comment, saying they still are evaluating the recent decision.

MDU sought an easement across Behm’s property in Burlington Township to construct a natural gas pipeline to service Burlington Northern Santa Fe. The railroad maintains and operates a switch on its right of way that is heated in the winter by a propane heater. Propane tanks are located near the property. MDU proposed to eliminate the tanks by placing a buried 4-inch pipeline for 3,000 feet from an existing pipeline it maintains along the southern edge of the Behm property, according to court records.

MDU obtained the necessary permits and approvals from state and federal agencies and sought to exercise eminent domain to take an easement across the Behm property.

North Dakota law prohibits private property from being taken for ownership or use of any private individual or entity unless the property is necessary for conducting a common carrier or utility business.

Lee stated that the pipeline is convenient but not necessary for MDU because the option of the propane tank exists.

“A public convenience is not such a necessity as authorizes the exercise of the right of eminent domain,” he wrote.

Lee added that MDU hadn’t given adequate weight to other alternatives, including use of the existing section line right of way for the pipeline. He said MDU’s concern that the section line right of way might someday be torn up for road improvements “is based on the speculative fear of a future event which may never occur, and even if it does, may not necessitate the repair or replacement of the pipeline. The necessity proposed by MDU is nothing more than its own mere convenience.”

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