Here's the latest in an issue we've been following.
In SCS Carbon Transport LLC v. Malloy, No. 20230149 (May 30, 2024), the North Dakota Supreme Court held that that's state's statute which allows prospective condemnors to enter land to conduct surveys and the like before instituting eminent domain without liability is not unconstitutional, either on its face or as applied to SCS's entries.
SCS is building a CO2 pipeline and decided it needed an interest in Malloy's land. It asked if could enter to take a survey, but Malloy said no. So SCS sued, asserting its power under the statute, asserting it was planning on restoring the property to its "pre-examination" condition, and it was willing to pay compensation for any damage it caused:
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. Cent. Code § 32-15-06. (North Dakota's statute is fairly typical of these things.)
Malloy counterclaimed, arguing the statute was unconstitutional under both the N.D. and U.S. constitutions, and sought an order prohibiting entry. The trial court granted SCS summary judgment, and the case went directly to the N.D. Supreme Court.
The court first rejected the owner's argument that the trial court's order, which did not set any limits on the "nature, extent, or duration" of SCS's entries resulted in a taking. (A judicial taking.) The court concluded that the statute does not require a court to impose any such limitations or restrictions. By incorporating the terms of the statute, the trial court's judgment did enough. While the Supreme Court recognized that trial courts have discretion to impose restrictions and conditions on entry, they are not required to. "The plain text of the statute does not describe any restrictions or conditions the court may or must consider." Slip op. at 6. Thus, the trial court's order conformed to the statutory requirements.
Next, the court concluded this was not unconstitutional, either on the face of the statute, or as applied here. Yes, Cedar Point did conclude that even relatively unintrusive physical invasions under color of state law are takings requiring compensation, but the Court there also noted that the power of prospective condemnors to enter property for pre-takings surveys and examinations is a longstanding traditional limitation on North Dakota property owner's right to exclude:
Despite the significant textual differences between the state and federal constitutional provisions, in this case the constitutional question under each turns on essentially the same legal-historical question: did the people of North Dakota in 1889 understand the eminent domain power to take private property for public use to encompass a right of entry for pre-condemnation examinations and surveys? If yes, then the original public meaning of the 1889 constitution, continued in effect through today in relevant part, does not conflict with the entry statute. Under the Fifth Amendment, answering the same question in the affirmative would establish a longstanding background principle that property rights under state law do not include the right to bar entry to pre-condemnation surveyors.
Slip op. at 9.
The court noted that the power to enter property has been a part of N.D.'s statutory scheme for a century-plus, and that "[t]his longstanding statutory authority is consistent with the common law and the law of other states." Slip op. at 9. Even Judge Cooley recognized this limitation. See slip op. at 10. Thus, a potential condemnor's ability to enter property is a "longstanding background restriction" on an owner's unfettered rights.
The court noted that this power is not unlimited, and that the text of the statute requires that entries be undertaken with "the greatest public benefit and the least private injury," and that the statute must be interpreted to allow "limited to the innocuous surveys and examinations consistent with these historical background principles[.]" Slip op. at 11.
In other words, condemnors, don't take this opinion as carte blanche to come in any time for and do stuff that is more than "innocuous" -
A condemnor’s entry or occupation beyond this mission implicates constitutionally protected property rights. If the entry exceeds the duration or scope reasonably necessary to complete any necessary “examinations, surveys, and maps,” a temporary taking of the right to exclude may be implicated and a judicial remedy may be sought.
Id.
By analogy to traffic stops in Fourth Amenment cases, the court concluded that entries must not extend longer than the time required to fulfill the purpose of the entry: "A constitutionally permissible entry may not be longer or more invasive than necessary to complete the examination or survey need to confirm and minimize the scope of the anticipated taking of private property." Id.
While it would be easy to be seduced by what appears to be a logical standard, we have to take pause because we find it hard to see this other than some kind of "please act in good faith, condemnors" standard. First, the entire purpose of precondemnation entries are to determine if the property might be suitable for the purpose of the anticipated taking. It seems like it would be difficult to not interpret that broadly. Can a big project be studied via "innocuous" entries? How are there any judicially-manageable standards to police the limits of this? Hard to see any. Second, unless the potential condemnor is cowboying it and not acting in good faith, won't most entries be somewhat tailored to the scope of what is necessary by the potential condemnor?
We guess we should be thankful that the court left the door open to property owners having a claim in some situations. We're just not certain what those situations might look like.
Other courts have reached similar results (generally ok with entries, provided they are not "too invasive"). Let's see what develops elsewhere.
SCS Carbon Transport LLC v. Malloy, No. 20230149 (N.D. May 30, 2024)