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Eminent domain case appealed to US Supreme Court

Burlington landowner seeks to establish new precedent

A Burlington property owner who fought a natural gas pipeline easement is appealing the eminent domain case to the U.S. Supreme Court.

The North Dakota Supreme Court on May 16 overturned the December 2017 ruling of North Central District Judge Gary Lee, who determined Montana Dakota Utilities’ use of eminent domain to procure an easement on Lavern Behm’s farmland was not a public necessity. An appeal to the U.S. Supreme Court was filed this week.

Behm’s attorney, Lynn Boughey, said the Supreme Court could decide sometime after reconvening in early October whether to hear the case.

The case originated with an eminent domain filing by MDU, which 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. 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.

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. He stated MDU hadn’t given adequate weight to other alternatives, including use of the existing section line right of way for the pipeline. MDU argued other alternatives would be more expensive or might require future modification or removal. MDU’s concern that the section line right of way might someday be torn up for road improvements is speculative, Lee wrote in his decision.

MDU appealed and Behm cross-appealed to the North Dakota Supreme Court, which overturned Lee’s decision and ordered the case to go to trial to determine an amount to be awarded Behm for the easement damages.

In an opinion written by Justice Jerod Tufte, the court stated, “The district court’s belief that the pipeline was unnecessary because BNSF could continue to heat the railroad switch with propane erroneously focuses on the customer’s necessity rather than the public utility’s necessity.”

The court ruled MDU, and not the courts, has authority to determine eminent domain under state law.

“In the absence of bad faith, gross abuse of discretion, or fraud by the condemning authority in its determination that the property sought is necessary for the authorized use and is pursuant to specific statutory authority, such determination should not be disturbed by the courts,” Tufte wrote. “Behm did not establish that MDU acted in bad faith, grossly abused its discretion, or committed fraud in determining whether its chosen route across Behm’s property was reasonably suitable in terms of the greatest public benefit and the least private injury.”

The court did not act on Behm’s cross-appeal, stating the 10 items raised were not adequately addressed in his court brief.

The appeal to the U.S. Supreme Court asks whether due process was violated in allowing a private corporation to take private property through eminent domain solely on the basis of the private corporation’s determination that the taking is for a public use. It questions the due process of taking from one private entity to benefit another private entity. It also asks the court to reconsider Kelo v. City of New London, a 2005 Connecticut case in which the U.S. Supreme Court upheld redevelopment as a “public use” in allowing eminent domain to transfer land from one private owner to another.

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