Check out the North Dakota Supreme Court's opinion in Cass County Joint Water Resource District v. Aaland, No. 20200171 (Mar. 24, 2021). It's a quick read, and worth your time.
North Dakota has one of those "precondemnation entry" statutes allowing a (potential) condemnor to enter private property to check it out to see if this property is suitable for the anticipated public use. Indeed, North Dakota's statute is modeled on California's pre-1963 entry statute (the one analyzed by the California Supreme Court in the somewhat-recent decision in Property Reserve):
In all cases when land is required for public use, the person or corporation, or the person's or corporation's agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32-15-21. Whoever is in charge of such public use may enter upon the land and make examinations, surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.
N.D.C.C. § 32-15-06.
Here, the District's proposed entries "to conduct examinations, surveys, and mapping" to see if the land was suitable for a flood control project were opposed by the owners. The trial court agreed with the District that these were relatively small, innocuous, and nonpermanent invasions, so they were covered by the statute. Entries granted.
Not so fast, held the N.D. Supreme Court, even though one of its more recent decisions (on which we posted here (ND: Entry Statutes Are Not Takings, Even If There's A Physical Invasion") might indicate otherwise. The test borings in that case were small, eventually replaced on the land, and were compensated and therefore qualified as minimally invasive ("innocuous") entries covered by the statute. But not so here:
For sixteen and one-half months, [the trial court's] order granting right to entry gave the District access to the land to make examinations, surveys, and maps thereof. As part of the 2017 order, the District was allowed to perform geomorphic examiations, which required the installation of survey monuments on the properties. The District conceded at oral argument that these monuments were in fact installed pursuant to the 2017 order.
Slip op. at 4. Total time the District could access the owners' properties was certainly not permanent: 35 months. The survey monuments were there longer (nearly 3 years).
That was enough to convince the N.D. Supreme Court that these type of entries were not "innocuous" and qualified as more permanent (even though, factually speaking, the entries were not permanent).
In short, Loretto solved the question:
[The statute] permits entry upon the land to make examinations, surveys, and maps thereof, which is "preliminary to the condemnation action itself." Under the 2017 order, the District was afforded sixteen and one-half months to perform its examinations and surveys. Placement of survey monuments on the Landowners' properties for as long as three years is not an "innocuous entry" and would seriously impinge upon or impair the rights of the Landowners to the use and enjoyment of their properties. A physical occupation of this duration goes beyond the minimally invasive examination and testing permitted under N.D.C.C. § 32-15-06. Accordingly, we reverse the district court's May 2020 orders granting the District a right of entry onto the Landowners' properties.
Slip op. at 6.
In other words, these entries are not privileged, and are ... takings (Are you listening, SCOTUS?).
Cass County Joint Water Resource District v. Aaland, No. 20200171 (N.D. Mar. 24, 2021)
