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North Dakota Eminent Domain Laws and Property Rights

PROPERTY RIGHTS IN THE STATE OF NORTH DAKOTA

North Dakotans place a very high value on property ownership and the defense of private property. The first line of the Constitution of North Dakota enshrines the value: “All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of … acquiring, possessing and protecting property….” ND Constitution art. 1, § 1.

North Dakota voters responded to the federal Kelo v. New London decision by passing an initiated measure and amendment to article I, section 16 of the North Dakota constitution. Initiated Measure No. 2, approved Nov. 7, 2006; N.D. Const. art. 1, § 16. That measure restricted the scope of public uses allowed for condemnation purposes and added the following language to the ND Constitution:

  • For purposes of this section, a public use or a public purpose does not include public benefits of economic development, including an increase in tax base, tax revenues, employment, or general economic health. Private property shall not be taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business.

As the United States District Court for the District of North Dakota recently commented, “From farming to original homesteads, it is in the blood of North Dakota landowners to be protective of their real estate.” WBI Energy Transmission, Inc. v. Easement & Right-Of-Way Across, No. 1:18-cv-078, Doc. 131, p.12 (D.N.D. Nov. 1, 2022).

Meet OCA's North Dakota Attorney

Derrick Braaten

Derrick Braaten

Derrick Braaten provides legal services to family farmers and ranchers, and other private landowners. Mr. Braaten’s practice focuses on standing beside the landowners and the land, whether it involves forcing an energy developer to remediate soil or protecting private property rights from government overreach in eminent domain and other areas of law. Braaten Law Firm works exclusively on the side of landowners in condemnation and other proceedings.

A SUMMARY OF NORTH DAKOTA EMINENT DOMAIN LAWS

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

  • Who can exercise Eminent Domain Laws?

    Generally speaking, the state or any of its departments, agencies or political subdivisions can exercise the power of eminent domain with appropriate statutory authorizations. North Dakota’s Constitution prohibits private property from being “taken for the use of, or ownership by, any private individual or entity, unless that property is necessary for conducting a common carrier or utility business.”

  • What Are the Legal Requirements for Exercising the Power?

    There are three primary statutory requirements with which a condemnor must comply before condemnation is authorized by a court:

    1. That the use to which it is to be applied is a use authorized by law.
    2. That the taking is necessary to such use.
    3. If already appropriated to some public use, that the public use to which it is to be applied is a more necessary public use.

    N.D.C.C. § 32-15-05. Additionally, the Supreme Court of North Dakota held almost a century ago that “courts can always inquire into the nature of the use for which the property is to be condemned for the purpose of determining whether such is, in fact, a public use.” City of Jamestown v. Leevers Supermarkets, Inc., 552 N.W.2d 365, 369 (N.D. 1996) (emphasis added) (citing Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570, 574 (1896). See also Northern Pacific Ry. Co. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679, 681 (1908). “[M]ere legislative fiat cannot make that a public use which is clearly not such use.” Northern Pacific Ry. Co. v. Kreszeszewski, 17 N.D. 203, 115 N.W. 679, 681 (1908). “Courts can inquire because a use must be public before private property can be taken by eminent domain under N.D. Const. Art. I, § 16 and U.S. Const. amend. V.” City of Jamestown v. Leevers Supermarkets, Inc. at 369.

  • What Limitations or Defenses Exist?

    Landowners can challenge whether a project truly has a public use or whether their property is truly necessary for the public use. These are very difficult challenges on which to succeed because the government is generally given a large amount of deference by the courts. Nonetheless, landowners have a right to challenge any takings that is in excess of what is reasonably necessary for the public project. The North Dakota Supreme Court has said:

    • Generally, the nature or extent of a title or rights taken in the exercise of eminent domain depends on the statute conferring that power. Such statute will be strictly construed. Where the estate or interest to be taken is not definitely set forth, only such estate or interest may be taken as is reasonably necessary to carry out a public purpose for which the land is being taken.
    • In eminent domain, therefore, that construction must be adopted which leaves the owner with the greatest possible estate, in event of uncertainty or indefiniteness in the statute.

    Wallentinson v. Williams Cty., 101 N.W.2d 571, 575 (N.D. 1960).

  • What Constitutes a Public Purpose?

    The North Dakota Supreme Court addressed this issue in Square Butte Elec. Coop. v. Hilken with reference to numerous other cases it discussed in that decision:

    From these cases, it appears that the following elements must be present for a public use to exist in the state where the property sought to be condemned lies. First, the public must have either a right to benefit guaranteed by regulatory control through a public service commission [Bokma] or an actual benefit [Gralapp]. Second, although other states may also be benefited, the public in the state which authorizes the taking must derive a substantial and direct benefit [Greenwich Water], something greater than an indirect advantage [Grover Irrigation]. Third, the public benefit, while not confined exclusively to the state authorizing the use of the power [Greenwich Water], is nonetheless inextricably attached to the territorial limits of the state because the state's sovereignty is also so constrained [Clark and Grover Irrigation].

    Square Butte Elec. Coop. v. Hilken, 244 N.W.2d 519, 525 (N.D. 1976).

    North Dakota Century Code 32-15-02 also sets forth the public purposes declared by the Legislative Assembly to be permissive uses for which eminent domain may be exercised and includes most traditional public uses.

  • How is Just Compensation Determined?

    The Supreme Court of North Dakota stated in Otter Tail Power Company v. Von Bank that the landowner is “entitled to compensation for such of his property rights as were appropriated by the plaintiff in the taking of the easement and for damage done by the taking to the remainder of the property not covered by the appropriation.” Otter Tail Power Company v. Von Bank, 72 N.D. 497, 506, 8 N.W.2d 599, 604 (1942). This measure is also found in statute in N.D.C.C. § 32-15-22 which requires the fact-finder to assess “the value of the property sought to be condemned and all improvements thereon pertaining to the realty and of each and every separate estate or interest therein.”

  • How Is Fair Market Value Defined?

    The North Dakota Supreme Court explains: “Although not necessarily an absolute or exclusive standard or method, the general rule for determining the value of property taken under subsection (1) of § 32-15-22, NDCC, is a consideration of the fair market value of such property. This court has defined fair market value in condemnation cases as the highest price property can be sold for in the open market by a willing seller to a willing purchaser, neither acting under compulsion and both exercising reasonable judgment.” Hazelton v. Daugherty, 275 N.W.2d 624, 627 (N.D. 1979).

    For partial takings like pipeline easements, the use of the “before and after” approach, which assesses the loss in value to the larger parcel before and after imposition of the easement, is an accepted approach, but is not required in North Dakota. “There is no sole measure for determining severance damages as such damages are not susceptible to precise proof and can only be approximately shown by the opinion of witnesses having the requisite information.” Hazelton v. Daugherty, 275 N.W.2d 624, 628 (N.D. 1979).

  • What About Recovering Damages to Remaining Property?

    N.D.C.C. § 32-15-22(2) and 32-15-22(3) require payment of both severance and other damages to the property arising from the taking:

    • If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned by reason of its severance from the portion sought to be condemned and the construction of the improvement in the manner proposed by the plaintiff. If the property, though no part thereof is taken, will be damaged by the construction of the proposed improvement, the amount of such damages.

  • Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

    Landowners generally recover their attorneys’ fees, court expenses, and expert witness fees in eminent domain proceedings in North Dakota. Under N.D.C.C. § 32-15-32, “The court may in its discretion award to the defendant reasonable actual or statutory costs or both, which may include interest from the time of taking except interest on the amount of a deposit which is available for withdrawal without prejudice to right of appeal, costs on appeal, and reasonable attorney's fees for all judicial proceedings.”

    This statutory provision has generally been interpreted as a law that was “designed for the benefit of the landowner, and should be construed so as to give him its benefit to the full extent.” Petersburg Sch. Dist. of Nelson Cty. v. Peterson, 103 N.W. 756, 759 (1905). For example, in 1977 Justice Vogel wrote: “The purpose of the statute allowing attorney fees in eminent-domain actions was to make certain that the landowner received the full ‘just compensation’ for his land, without diminution by attorney fees.” City of Bismarck v. Thom, 261 N.W.2d 640, 647 (1977) (Vogel, Justice, dissenting).

North Dakota

Braaten Law Firm
109 N. 4th Street, Suite 100
Bismark, ND 58501
Tel: (701) 221-2911 | Fax: (701) 221-5842
Derrick@braatenlawfirm.com
www.braatenlawfirm.com

Derrick Braaten provides legal services to family farmers and ranchers, and other private landowners. Mr. Braaten’s practice focuses on standing beside the landowners and the land, whether it involves forcing an energy developer to remediate soil or protecting private property rights from government overreach in eminent domain and other areas of law. Braaten Law Firm works exclusively on the side of landowners in condemnation and other proceedings.

Publications

  • Braaten, Derrick (2016) “This Land Is Not for Sale,” Mitchell Hamline Law Review: Vol. 42 : Iss. 4 , Article 2.
  • Legal Issues with Local Food Systems, Drake J. Agric. L. 15 Drake J. Agric. L. 9 (2010) (co-author with Marne Coit)
  • The Right to Be Heard in City of Sherrill v. Oneida Indian Nation; Equity and the Sound of Silence, 25 Law & Ineq. 227 (2007)

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • Northwest Landowners Ass’n v. State, 2022 ND 150, 978 N.W.2d 679. Northwest Landowners Association, an organization representing North Dakota’s landowners and their property rights, sued the State of North Dakota and numerous officials and agencies to strike down legislation as an unconstitutional taking of private property. A North Dakota district court and later a unanimous North Dakota Supreme Court struck down the legislation as an unconstitutional taking, saying the following:

    Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071, 210 L. Ed. 2d 369 (2021). “[A]n owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property.” Loretto, 458 U.S. at 436.

  • WBI Energy Transmission, Inc. v. Easement & Right-Of-Way Across, No. 1:18-cv-078, (D.N.D. Nov. 1, 2022). This matter was a federal Natural Gas Act eminent domain action. The United States District Court for the District of North Dakota issued several important rulings, including a ruling allowing landowners to use other pipeline easements as comparable sale transactions and a ruling that under federal Natural Gas Act proceedings, state law applies with respect to recovery of attorneys’ fees and landowners are entitled to recover their attorneys’ fees under North Dakota law. Landowners relied heavily on the OCA member Andrew Prince Brigham’s work in the Sabal Trail Transmission, LLC v. Real Estate case in Florida (now affirmed by the 11th Circuit). 255 F. Supp. 3d 1213, 1214 (N.D. Fla. 2017); Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy Cty., Nos. 21-11995, 21-11998, 2023 U.S. App. LEXIS 2773, at *1 (11th Cir. Feb. 3, 2023).
  • North Dakota Pipeline Company LLC vs. James and Krista Botsford Trust and James R Botsford, et al., Civ. No. 18-2014-CV-01058 (Defended landowners against eminent domain proceeding by Enbridge subsidiary North Dakota Pipeline Company. The Botsfords challenged the right to condemn their property. The Pipeline Company dropped the action just ahead of arguments before the Supreme Court of North Dakota, and agreed to pay all the landowners’ attorneys’ fees and expenses for successfully defending their land.)

Education

  • University of Minnesota Law School, JD, Magna Cum Laude
  • University of Minnesota, Morris, BA

Bar Admissions and Memberships

  • State of North Dakota
  • State of Minnesota
  • United States District Court for the District of North Dakota
  • United States District Court for the District of Minnesota
  • United States Court of Appeals, Eighth Circuit

Honors and Awards

Derrick is a strong advocate for soil health, and is a Merit Award recipient from the national Soil and Water Conservation Society for his conservation efforts. He is also a Business Stewardship Award recipient from the North Dakota chapter of the Soil and Water Conservation Society for promoting soil conservation through his legal practice.

Derrick Braaten provides legal services to family farmers and ranchers, and other private landowners. Mr. Braaten’s practice focuses on standing beside the landowners and the land, whether it involves forcing an energy developer to remediate soil or protecting private property rights from government overreach in eminent domain and other areas of law. Braaten Law Firm works exclusively on the side of landowners in condemnation and other proceedings.

Publications

  • Braaten, Derrick (2016) “This Land Is Not for Sale,” Mitchell Hamline Law Review: Vol. 42 : Iss. 4 , Article 2.
  • Legal Issues with Local Food Systems, Drake J. Agric. L. 15 Drake J. Agric. L. 9 (2010) (co-author with Marne Coit)
  • The Right to Be Heard in City of Sherrill v. Oneida Indian Nation; Equity and the Sound of Silence, 25 Law & Ineq. 227 (2007)

Significant Eminent Domain and Property Rights Representations and Reported Decisions

  • Northwest Landowners Ass’n v. State, 2022 ND 150, 978 N.W.2d 679. Northwest Landowners Association, an organization representing North Dakota’s landowners and their property rights, sued the State of North Dakota and numerous officials and agencies to strike down legislation as an unconstitutional taking of private property. A North Dakota district court and later a unanimous North Dakota Supreme Court struck down the legislation as an unconstitutional taking, saying the following:

    Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071, 210 L. Ed. 2d 369 (2021). “[A]n owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property.” Loretto, 458 U.S. at 436.

  • WBI Energy Transmission, Inc. v. Easement & Right-Of-Way Across, No. 1:18-cv-078, (D.N.D. Nov. 1, 2022). This matter was a federal Natural Gas Act eminent domain action. The United States District Court for the District of North Dakota issued several important rulings, including a ruling allowing landowners to use other pipeline easements as comparable sale transactions and a ruling that under federal Natural Gas Act proceedings, state law applies with respect to recovery of attorneys’ fees and landowners are entitled to recover their attorneys’ fees under North Dakota law. Landowners relied heavily on the OCA member Andrew Prince Brigham’s work in the Sabal Trail Transmission, LLC v. Real Estate case in Florida (now affirmed by the 11th Circuit). 255 F. Supp. 3d 1213, 1214 (N.D. Fla. 2017); Sabal Trail Transmission, LLC v. 18.27 Acres of Land in Levy Cty., Nos. 21-11995, 21-11998, 2023 U.S. App. LEXIS 2773, at *1 (11th Cir. Feb. 3, 2023).
  • North Dakota Pipeline Company LLC vs. James and Krista Botsford Trust and James R Botsford, et al., Civ. No. 18-2014-CV-01058 (Defended landowners against eminent domain proceeding by Enbridge subsidiary North Dakota Pipeline Company. The Botsfords challenged the right to condemn their property. The Pipeline Company dropped the action just ahead of arguments before the Supreme Court of North Dakota, and agreed to pay all the landowners’ attorneys’ fees and expenses for successfully defending their land.)
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