SCS Carbon Transport v. Malloy, et al., 2024 ND 109

SCS Carbon Transport LLC (Summit) sought to build an interstate CO2 pipeline and needed access to landowner properties in North Dakota for pre-condemnation surveys under N.D.C.C. § 32-15-06 (the "entry statute").
Landowners denied Summit permission to enter, so Summit sued for a court order confirming its statutory right of entry for surveys and examinations.
Landowners counterclaimed, arguing that the statute was unconstitutional (both facially and as-applied) as a taking and that the orders for entry exceeded statutory authority.
The district court granted summary judgment to Summit, holding that the entry statute was constitutional, Summit was a proper condemning authority, and the proposed surveys were minimally invasive and within statutory bounds.
Landowners appealed, alleging the statute authorizes a taking without compensation and that the court failed to impose proper limits or protections on entry.

Issue	Landowners' Argument	Summit's Argument	Held
Constitutionality of Entry Statute (Facial)	Entry statute is a facial violation of federal and state takings clauses—authorizes uncompensated taking.	Statute fits historic background principle; surveys are minimally invasive and not a compensable taking.	Statute is not facially unconstitutional; root property rights never included the right to exclude such entry.
Constitutionality of Entry Statute (As-Applied)	Application here is an unconstitutional taking due to lack of time, place, or manner restrictions in the court order.	Judgment appropriately limited; no indefinite or perpetual right was granted and the surveys are limited in scope and duration.	Court's order did not result in a taking; no requirement for court to impose limits beyond statute.
Scope of Statutory Authority	Judgments/order exceed statute—improperly permit unlimited, undefined entry by Summit.	Judgments/order properly confined to surveys and exams needed for project planning.	Court's order and judgments do not exceed statute's proper scope.
Requirement for Court-Imposed Conditions	Court should have imposed conditions to protect landowners (notice, hours, restoration, etc.).	Statute does not require such conditions; court has discretion to impose but not a mandate.	Court has discretion, not duty, to impose extra-statutory protective restrictions.

State v. Anderson, 977 N.W.2d 736 (N.D. 2022) (standards for facial and as-applied constitutional challenges)
Nw. Landowners Ass’n v. State, 978 N.W.2d 679 (N.D. 2022) (background principles of property law and survey rights)
Square Butte Elec. Coop. v. Dohn, 219 N.W.2d 877 (N.D. 1974) (court's discretion to impose conditions on entry under the statute)
In re 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed N.D. Diversion and Associated Structures, 883 N.W.2d 844 (N.D. 2016) (examples of permissible restrictions on entry orders)
Cass Cnty. Joint Water Res. Dist. v. Aaland, 956 N.W.2d 395 (N.D. 2021) (limits of minimally invasive survey authority under entry statute)