Judge’s ruling on eminent domain case is welcomed

North Central District Judge Gary Lee’s ruling on May 29 in favor of a Burlington property owner embroiled in an eminent domain struggle with Montana-Dakota Utilities, was a solid decision and demonstrates that there are limits to public sector overreach.

MDU sought an easement across Lavern 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.

The issue of “necessary” seemed to come into play in Lee’s ruling.

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

It’s clear that the proposed use of eminent domain was not vital or necessary, does not address a compelling public need, and instead was a simple matter of convenience.

Public sector entities should not be in the business of seizing public property because of convenience. In fact, that borders on odious.

Eminent domain is just one government practice that often inspires the ire of the public. Over the past decade, government overreach of all types and from numerous institutions has bordered on Orwellian. From environmental interests seeking control of property based on the presence of a small pond, to the discovery in the last administration that all Americans’ communications are being captured by federal authorities, violation of property rights and the right to privacy have been so trampled upon that it is a challenge to track all of the government largesse.

This decision demonstrates that even in today’s era of intrusive government, there are limits and some are willing to point that out. A tip of the hat is due to Judge Lee, to Lavern Behm for standing up for his rights and to Behm’s able attorney, Lynn Boughey.


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