BISMARCK — Northwest Landowners Association has filed another lawsuit against the State of North Dakota, asking a court to strike down certain laws as unconstitutional takings of private property rights.

The laws at issue in the new lawsuit are largely related to the injection of carbon dioxide into pore space to sequester it and the storage of gas.

The specific laws at issue give the North Dakota Industrial Commission authority to “amalgamate” the pore space to create a storage facility, but the NWLA argues the statute takes the property from the surface owner and gives it to the storage facility operator to use. This is the type of taking the courts ruled was unconstitutional in the association’s prior lawsuit, according to NWLA.

Following the prior lawsuit in North Dakota, and a recent United States Supreme Court ruling in Cedar Point Nursery v. Hassid, these types of laws purporting to grant access to private property without condemnation and just compensation are also a “physical invasion” of the private property and therefore a per se taking under the law, NWLA argues.

The association is asking for the specific laws to be struck down as violations of the takings clauses of the state and federal constitutions and is also asking for certain of these laws to be interpreted by the courts in a manner that makes them constitutional. For example, one law states that the North Dakota Industrial Commission will find that landowners will be equitably compensated, but it does not require a determination by a jury or “just compensation,” as the constitution does.

“This is why we have a constitution in this country. There are some lines that the government cannot cross,” said NWLA Chairman Troy Coons.

NWLA stated the association worked with Sen. Jeffery Magrum, R-Hazelton, during the last legislative session to address bills related to pore space, which is the space between soil particles that may contain air or water, and avoid litigation.

“It is always our goal to work cooperatively with the government and industry to address issues related to use of the land for energy development,” Coons said. “Unfortunately, on this issue, the state and the industry chose to ignore our concerns and forced us to raise them in a court of law. We always begin by holding our hand out to the industry and government and asking to work together. If we end up in court, it is not because we did not roll up our sleeves and work hard to find solutions.”