MDU v. Behm, 951 N.W.2d 208

MDU instituted eminent domain proceedings under N.D.C.C. ch. 32-15 to acquire an easement across Behm’s land for a 3,000-foot natural‑gas pipeline serving a BNSF railroad switch.
The district court bifurcated necessity/public‑use from damages, concluded the pipeline was an authorized public use but that the taking was not necessary, and awarded pre‑appeal attorney fees that MDU later tendered.
This Court reversed the district court’s necessity ruling and remanded solely for trial on damages. Behm petitioned the U.S. Supreme Court for certiorari; the petition was denied.
On remand the parties stipulated to the easement valuation; the district court adopted the stipulation and limited the proceedings to damages as directed by this Court’s mandate.
Behm requested $49,561.78 in additional attorney’s fees (including fees for the certiorari petition); the district court awarded $17,443, denying fees for the certiorari petition and for certain unrelated or internal billing entries.
Behm appealed the fee rulings and re‑asserted constitutional/jury claims; MDU sought appellate sanctions under N.D.R.App.P. 38.

Issue	Plaintiff's Argument (MDU)	Defendant's Argument (Behm)	Held
Whether Behm may relitigate constitutional takings/due‑process/jury claims after remand	Law of the case/mandate rule bars relitigation of issues previously decided	Constitutional rights were violated and should be relitigated, including before a jury	Barred by law of the case and the mandate rule; issues were decided or should have been raised earlier
Whether district court abused discretion by denying fees for Behm’s certiorari petition	Fees for a U.S. Supreme Court cert. petition are not reasonably related to the condemnation proceeding and may be denied	Section 32‑15‑32 permits fees for "all judicial proceedings," so certiorari fees should be recoverable	No abuse: court reasonably denied certiorari fees as unrelated/"improvident" and limited fees to condemnation‑related proceedings
Whether reductions for contacts with non‑parties and internal billing were improper	Such entries were unrelated, excessive, or administrative and properly excluded	All requested hours were reasonable and compensable	Reductions were reasonable; district court properly excluded unrelated or excessive items
Whether Behm’s appeal was frivolous and merits Rule 38 sanctions to MDU	Appeal re‑raises issues beyond remand and is frivolous	Appeal not frivolous	Appeal (insofar as it reasserted precluded issues) met frivolous standard; MDU awarded $500 in costs/fees

Montana‑Dakota Utils. Co. v. Behm, 2019 ND 139, 927 N.W.2d 865 (prior appeal reversing district court on necessity and remanding for damages)
Dale Expl., LLC v. Hiepler, 2020 ND 140, 945 N.W.2d 306 (explaining law of the case and mandate rule)
Johnston Land Co., LLC v. Sorenson, 2019 ND 165, 930 N.W.2d 90 (mandate rule authority)
Lincoln Land Dev., LLP v. City of Lincoln, 2019 ND 81, 924 N.W.2d 426 (standard of review and §32‑15‑32 interpretation for fees)
Cass Cty. Joint Water Res. Dist. v. Erickson, 2018 ND 228, 918 N.W.2d 371 (factors for awarding attorney’s fees in eminent domain)
N.D. Dep’t of Transp. v. Rosie Glow, LLC, 2018 ND 123, 911 N.W.2d 334 (exclude excessive or redundant hours)
United Power Ass’n v. Moxness, 267 N.W.2d 814 (N.D. 1978) (limiting fee recovery to condemnation/inverse condemnation litigation)
Gissel v. Kenmare Twp., 512 N.W.2d 470 (N.D. 1994) (affirming reductions for overextended conferences and improvident appeals)
Frontier Fiscal Servs., LLC v. Pinky’s Aggregates, Inc., 2019 ND 147, 928 N.W.2d 449 (standard for finding an appeal frivolous)
Witzke v. City of Bismarck, 2006 ND 160, 718 N.W.2d 586 (defining frivolous appeal)