A Burlington property proprietor who fought a pure fuel pipeline easement is interesting the eminent area case to the U.S. Supreme Courtroom.
The North Dakota Supreme Courtroom on Might 16 overturned the December 2017 ruling of North Central District Choose Gary Lee, who decided Montana Dakota Utilities’ use of eminent area to acquire an easement on Lavern Behm’s farmland was not a public necessity. An enchantment to the U.S. Supreme Courtroom was filed this week.
Behm’s lawyer, Lynn Boughey, stated the Supreme Courtroom might resolve someday after reconvening in early October whether or not to listen to the case.
The case originated with an eminent area submitting by MDU, which sought an easement throughout Behm’s property in Burlington Township to assemble a pure fuel pipeline to service Burlington Northern Santa Fe. The railroad maintains and operates a swap on its proper of manner that’s heated within the winter by a propane heater. MDU proposed to get rid of the tanks by putting a buried Four-inch pipeline for three,000 ft from an present pipeline it maintains alongside the southern fringe of the Behm property, in keeping with court docket information.
North Dakota regulation prohibits non-public property from being taken for possession or use of any non-public particular person or entity until the property is important for conducting a typical provider or utility enterprise.
Lee acknowledged that the pipeline is handy however not crucial for MDU as a result of the choice of the propane tank exists. He acknowledged MDU hadn’t given satisfactory weight to different options, together with use of the present part line proper of manner for the pipeline. MDU argued different options could be costlier or would possibly require future modification or elimination. MDU’s concern that the part line proper of manner would possibly sometime be torn up for highway enhancements is speculative, Lee wrote in his choice.
MDU appealed and Behm cross-appealed to the North Dakota Supreme Courtroom, which overturned Lee’s choice and ordered the case to go to trial to find out an quantity to be awarded Behm for the easement damages.
In an opinion written by Justice Jerod Tufte, the court docket acknowledged, “The district court docket’s perception that the pipeline was pointless as a result of BNSF might proceed to warmth the railroad swap with propane erroneously focuses on the shopper’s necessity quite than the general public utility’s necessity.”
The court docket dominated MDU, and never the courts, has authority to find out eminent area underneath state regulation.
“Within the absence of unhealthy religion, gross abuse of discretion, or fraud by the condemning authority in its dedication that the property sought is important for the licensed use and is pursuant to particular statutory authority, such dedication shouldn’t be disturbed by the courts,” Tufte wrote. “Behm didn’t set up that MDU acted in unhealthy religion, grossly abused its discretion, or dedicated fraud in figuring out whether or not its chosen route throughout Behm’s property was moderately appropriate by way of the best public profit and the least non-public harm.”
The court docket didn’t act on Behm’s cross-appeal, stating the 10 objects raised weren’t adequately addressed in his court docket temporary.
The enchantment to the U.S. Supreme Courtroom asks whether or not due course of was violated in permitting a personal company to take non-public property by eminent area solely on the idea of the non-public company’s dedication that the taking is for a public use. It questions the due technique of taking from one non-public entity to profit one other non-public entity. It additionally asks the court docket to rethink Kelo v. Metropolis of New London, a 2005 Connecticut case by which the U.S. Supreme Courtroom upheld redevelopment as a “public use” in permitting eminent area to switch land from one non-public proprietor to a different.