Here’s the recently-filed cert petition in a case we’ve been following.
Rather than attempt to sum it up, we suggest you read the petition, especially the Questions Presented:
Montana Dakota Utility (hereinafter MDU), a private corporation, employed the power of eminent domain to procure an easement on Vern Behm’s farmland immediately along a pre-existing county road but outside the right-of-way. This taking by a private entity was for the purpose of extending an underground natural gas pipeline for the sole use of another private company, Burlington Northern Santa Fe. The district court dismissed the action, finding that the purpose of the pipeline (heating a switch during the winter months) was already being met by the use of propane tanks and that MDU’s refusal to use the township thirty-three foot easement that follows and parallels the existing county road demonstrated that the subject easement was not necessary and was indeed a mere convenience to the railroad.
On appeal the North Dakota Supreme Court reversed the district court, ignoring the lower court’s findings relating to necessity and mere convenience to a private company, holding that the only requirement for the taking is a determination by the private company that its taking was for a public use. Montana-Dakota Utilities Co. v. Behm, 2019 ND 139, 927 N.W.2d 865. Lavern Behm asserts that this taking is unwarranted and a violation of due process and the taking clause.
The petitioner presents the following questions:
1. Is it a violation of due process and the taking clause for the state – as a matter of law – to allow a private corporation to take private property through eminent domain based solely on the private corporation’s own determination that the taking is for a public use?
2. In an eminent domain case where the trier of fact has found that the taking is not a public use, is not necessary, and is merely for the convenience of one private entity for the benefit of another private entity, is it a violation of the federal due process and the federal taking clause for an appellate court to disregard these evidentiary findings and allow the taking to occur based solely on the private company’s own determination that there is a public use?
3. Should the case of Kelo v. New London, 545 U.S. 469 (2005), be overruled and the analysis presented by Justice Thomas in his dissent be adopted by this Court?
4. Where the state legislature provides for attorney fees in all eminent domain actions relating to “all proceedings” and where attorney fees are allowed at the District Court [and appellate court] level, must such award of attorneys fees also include the fees and costs relating to a petition for certiorari before the United States Supreme Court?
Stay tuned, or follow along on the Court’s docket here.