Alliance Pipeline L.P. v. Smith
2013 ND 117
| N.D. | 2013Background
- Alliance Pipeline sought a court order under N.D.C.C. § 32-15-06 to enter Leonard and Ione Smith’s Renville County farmland to perform surveys and examinations needed for a federal certificate of public convenience and necessity for a proposed pipeline.
- Alliance alleged it had permission from over 90% of affected landowners but the Smiths refused access; Alliance claimed it was in the category of persons authorized to seek eminent domain and thus entitled to pre-condemnation entry.
- The district court held a hearing and entered an order authorizing Alliance to enter the Smiths’ land for surveys, subject to conditions and a $50,000 bond; Alliance mailed notice of entry of that order on May 18, 2012.
- The Smiths filed a motion for supplemental findings or reconsideration (citing N.D.R.Civ.P. 52(b), 59, and 60) which the district court denied on July 30, 2012; the Smiths appealed from the denial order but did not appeal the original May 15 order.
- The district court found many of the Smiths’ requests moot (surveys were completed), rejected their jurisdictional and summons-content challenges as not properly raised or premature, and denied attorney fees under N.D.C.C. § 32-15-32.
- The Supreme Court of North Dakota affirmed, concluding the district court did not abuse its discretion in denying reconsideration or awarding fees.
Issues
| Issue | Plaintiff's Argument (Alliance) | Defendant's Argument (Smiths) | Held |
|---|---|---|---|
| Jurisdiction to authorize entry for surveys under § 32-15-06 | Court has subject-matter jurisdiction and Alliance is in category authorized to seek eminent domain | Court lacked jurisdiction; summons invalid; due-process violation | Court had subject-matter jurisdiction; Smiths’ procedural challenges not timely/waived; no abuse of discretion |
| Timeliness & reviewability of motion for reconsideration | Motion should be evaluated under Rule 60(b) because Rule 59(j) deadline was missed | Motion sought relief under Rules 52(b), 59, and 60 | Motion untimely under Rule 59(j); considered under Rule 60(b) and denial reviewed for abuse of discretion; affirmed |
| Mootness / scope of relief requested by Smiths | Proceedings for surveys are preliminary; surveys completed, so additional limits moot | Sought additional limitations and jurisdictional rulings | Court properly treated parts of Smiths’ request as moot; no reversible error |
| Attorney fees under § 32-15-32 | Fees are not warranted for preliminary § 32-15-06 survey proceedings | Smiths sought attorney fees for defending the petition | Court acted within discretion to deny fees, applying Wetsch factors; affirmed |
Key Cases Cited
- Square Butte Elec. Coop. v. Dohn, 219 N.W.2d 877 (N.D. 1974) (pre-condemnation survey petitions require showing only that petitioner is in category entitled to seek eminent domain)
- Minnkota Power Coop., Inc. v. Anderson, 817 N.W.2d 325 (N.D. 2012) (foreign electric cooperative authorized to use eminent domain powers may access land for surveys under § 32-15-06)
- Waslaski v. State, 830 N.W.2d 228 (N.D. 2013) (treatment and appellate review standards for motions construed under Rules 59 and 60)
- Lang v. Lang, 558 N.W.2d 859 (N.D. 1997) (order on Rule 52(b) motion is not appealable)
- Morton County Bd. of Park Comm’rs v. Wetsch, 136 N.W.2d 158 (N.D. 1965) (factors for awarding attorney fees in eminent domain proceedings)