2016 ND 165
N.D.2016Background
- Cass County Joint Water Resource District (the District) sought court permission under N.D.C.C. § 32-15-06 to enter multiple landowners’ properties to perform surveys, mappings, and limited geotechnical testing (soil borings) for a proposed flood-control diversion project.
- The applications described penetration-test borings (6–8" diameter, potentially 60–90 ft deep) that would remove small soil samples (described at hearings as about 1–2 pints each) and proposed a $250 payment per boring with site restoration and indemnity protections.
- Landowners objected, arguing: (1) the courts lacked subject-matter jurisdiction because the District did not commence with eminent-domain summons/complaints; (2) soil borings exceed the scope of "examinations" permitted by § 32-15-06; and (3) the entries constitute a taking entitling them to a jury trial on just compensation.
- Two district courts granted the District permits to enter, imposing protective conditions (limits on entering buildings/trees, payment per boring, restoration, notice, indemnity), and the landowners appealed.
- The Supreme Court consolidated appeals and affirmed, holding permits were authorized and soil borings were within the statute’s scope; no jury trial on compensation was required at this preliminary stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court had subject-matter jurisdiction without an eminent-domain summons/complaint | District: actions required summons/complaint under eminent-domain rules before court may act | District (appellee): § 32-15-06 proceedings are preliminary statutory proceedings exempt from full civil-rule commencement formalities | Held: No summons/complaint required; § 32-15-06 proceedings are preliminary and the courts had jurisdiction (Rule 81(a) exemptions). |
| Whether soil borings/tests fall outside the scope of "examinations" authorized by § 32-15-06 | Landowners: borings are invasive and exceed permissible "examinations," so entry is a taking | District: borings are limited, investigative examinations necessary for design and within ordinary meaning of "examination"; mitigations minimize impact | Held: Borings are "examinations," minimally invasive/limited, and permitted under § 32-15-06 (Square Butte controlling). |
| Whether landowners were entitled to a jury trial for compensation at this stage | Landowners: physical invasion by borings requires jury determination of just compensation | District: § 32-15-06 entry is preliminary to condemnation and does not create a current claim for compensation absent negligence/wantonness/malice | Held: No jury trial at preliminary permit stage; the statute disclaims a right to relief for such entry except for negligent/wanton/malicious injury. |
Key Cases Cited
- Alliance Pipeline L.P. v. Smith, 2013 ND 117, 833 N.W.2d 464 (proceedings under § 32-15-06 are preliminary to condemnation and not condemnation proceedings)
- Square Butte Elec. Co-op. v. Dohn, 219 N.W.2d 877 (N.D. 1974) (authorization for limited soil testing/traversal under § 32-15-06 and imposition of protective conditions)
- Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842 (statutory language construed by ordinary meaning)
- Wild Rice River Estates v. City of Fargo, 2005 ND 193, 705 N.W.2d 850 (takings analysis; parcel-as-a-whole principle and Penn Central factors)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (regulatory takings framework)
- Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (support for parcel-as-a-whole approach)