883 N.W.2d 844
N.D.2016Background
- Cass County Joint Water Resource District sought court permission under N.D.C.C. § 32-15-06 to enter multiple landowners’ properties to conduct surveys, mapping, and limited geotechnical testing (soil borings) for a proposed flood-control project.
- The District described borings as limited (typically 6–8 inches diameter, 60–90 feet deep), removing about a pint or two per boring, paying $250 per boring, and restoring sites afterward.
- Landowners objected, arguing the district courts lacked subject-matter jurisdiction because the District did not commence by eminent-domain summons/complaint, that soil borings exceed the statutory scope of "examinations," and that any taking requires a jury to fix compensation.
- District courts granted permits with protective conditions (limits on entry, advance notice, indemnity, $250 per boring, restoration or compensation for damage).
- Landowners appealed; the Supreme Court of North Dakota reviewed jurisdiction, statutory scope, and takings/jury-trial arguments and affirmed the permits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction: whether rules required eminent-domain summons/complaint before court could hear § 32-15-06 entry applications | Landowners: Rule-based eminent-domain process (summons/complaint) required, so court lacked jurisdiction without it | District: § 32-15-06 proceedings are preliminary special statutory proceedings exempt from normal Rules; summons not required | Court: No summons/complaint required; § 32-15-06 proceedings are preliminary and within court jurisdiction |
| Scope of permitted "examinations": whether soil borings are beyond § 32-15-06 "examinations" | Landowners: Soil borings are invasive and not covered by "examinations" in the statute | District: "Examinations" includes nonvisual testing; borings are limited and investigative in nature | Court: Soil borings are a permissible, limited form of "examination" under § 32-15-06 |
| Physical invasion / taking: whether borings constitute a compensable taking requiring immediate compensation | Landowners: Removal/penetration constitutes a taking needing compensation | District: Borings are minimal, temporary, and do not effect a compensable taking; statutory text excludes claims except for negligence etc. | Court: Removing a pint or two and restoring sites is not a compensable taking; within statutory exemption |
| Right to jury trial: whether landowners are entitled to jury to determine compensation now | Landowners: entitled to jury to fix compensation for any taking | District: § 32-15-06 proceedings are preliminary to condemnation; compensation/jury issues are premature absent a taking or damages from negligence | Court: No jury trial required at this preliminary stage; permit is not a condemnation and provides remedies only for negligence/wantonness/malice or damages later |
Key Cases Cited
- Alliance Pipeline L.P. v. Smith, 833 N.W.2d 464 (N.D. 2013) (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 to traverse land for survey and limited testing may be granted with protective conditions)
- Wild Rice River Estates v. City of Fargo, 705 N.W.2d 850 (N.D. 2005) (framework for regulatory/takings analysis and parcel-as-a-whole rule)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (takings analysis focuses on economic impact, investment-backed expectations, and character of government action)
- Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470 (1987) (parcel-as-a-whole principle in takings analysis)