Entry statutes are in the news lately. As we reported here for example, the California Supreme Court recently saved California's entry statute from unconstitutionality by implying a requirement for a jury trial (and other eminent domain protections) when the entries which the condemnor seeks to undertake constitute takings.
In that case, the party seeking entry proposed to bore and fill holes on the property. Which meant that the entries were undoubtedly permanent physical appropriations. This triggered the requirement that the entry conform to the eminent domain process, such as having a jury determine just compensation. Thus, the court understood that in the absence of its reformation of the statute (i.e., rewriting it), the entry process as applied would be unconstitutional. We'll save for another post our commentary on the California Supreme Court's approach.
But such details didn't concern the North Dakota Supreme Court in its opinion applying that state's entry statute in In re 2015 Application for Permit to Enter Land for Surveys and Examination, No. 20150311 (Aug. 18, 2016). That court analyzed the circumstances much more simply. In that case, the potential condemnor sought entry under the N.D. statute to make test borings which would remove -- and then later replace -- two pints of soil. This, according to the court, was no big deal, and not a taking. "Removing one to two pints of soil for testing and replacing the soil after testing does not constitute a compensable taking." Slip op. at 5. Thus, this activity fell within the definition of allowable "examinations" permitted by North Dakota's entry statute. No jury trial, no compensation or damages beyond what are allowed by the statute.
The problem is that the court determined that these borings were not takings by applying the ad hoc Penn Central regulatory takings test, and did not apply the Loretto/Kaiser Aetna physical invasion test. "The soil boring proposed here is an 'examination' as described by N.D.C.C. § 32-15-16. Although the proposed soil borings penetrate the ground's surface, the testing is nevertheless minimally invasive, or 'limited.'" See slip op. at 5. We're not sure that this is the correct analysis, even if we're not convinced the result is wrong. Physical invasions, as the U.S. Supreme Court has repeatedly told us, do not depend on the size of the incursion, so "one or two pints of soil" should not be the determinative factor. Perhaps it was that the physical removal/invasion was not "permanent" because the removed soil was replaced with (apparently) the very same dirt? Ultimately, we don't know because the court doesn't say.
What we are left with is a sense that the court just wasn't impressed that the property owners were going to be harmed by the entries. That may be true, but was Mrs. Loretto really going to be harmed by a small cable box on her apartment roof? Probably not, but that's never been the physical takings test, has it? Absent the North Dakota court's application of the correct standard, we don't have much but a vibe, and the court's tautology that these were not takings because they were examinations; and they were examinations because they were not takings.