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In cases like Sandpiper, eminent domain can be frustrating for landowners

James Botsford talks to people while exiting the Grand Forks County Courthouse in Grand Forks, ND on Tuesday, August 11, 2015. (Grand Forks Herald/ Joshua Komer)

After James Botsford's parents died, he and his brother split their land so they could later pass it on to their own heirs.

"Upon inheriting this land, we told our children we considered it to be part of our family legacy," he wrote in an online essay.

That sentiment helps explain why Botsford appeared frustrated after a recent court hearing in Grand Forks. He and his wife Krista, who together own rural property west of Emerado, N.D., were sued last year after they refused to grant the right to build a new crude oil pipeline through it.

North Dakota Pipeline Co., a venture between Enbridge Energy Partners and a subsidiary of Marathon Petroleum Corp., is citing eminent domain, or the right to use private property for a public use, in an effort to obtain an easement to the property for the 600-mile Sandpiper Pipeline. The Botsfords would still own and be able to use the land above the pipeline, a company spokeswoman has said.

Still, eminent domain cases can prove distressing to landowners, who experts say can face an uphill battle in preventing the use of their land.

"The fact that you might have your career based in this piece of property, or your family's heritage, or your long-term goals and dreams wrapped up into this can be very upsetting to the individual," said Cathy Newman, executive director of the Florida-based Owners' Counsel of America. "The only thing a property owner has done wrong, in terms of eminent domain, is own property."

And while one national pipeline official was unsure how often eminent domain is used, he said it's sometimes necessary to complete infrastructure projects. That includes roads, water lines and sidewalks.

"Like any project, the vast majority of people will accept it and understand, and there will always be a few holdouts," said John Stoody, a spokesman for the Association of Oil Pipe Lines. "That's why eminent domain exists, because (governments) recognize that these projects that are in the general public good should not be stopped by a few folks who don't agree."

Public use?

Although eminent domain is rooted in the U.S. Constitution, what defines a "public use" has been debated for years. North Dakota was one of more than 40 states that adjusted its laws after a U.S. Supreme Court ruling in 2005 that upheld a Connecticut project's ability to exercise eminent domain in the name of economic development.

The North Dakota constitutional amendment said "public benefits that result in economic development are not the traditional public uses that we want eminent domain to be used for in the state," said Larry Morandi, the director of state policy research at the National Conference of State Legislatures.

"It's one of the more comprehensive definitions of eminent domain use that limits it to traditional ideas of what public use is," Morandi said.

In the case of Sandpiper, NDPC argued it is a "statutorily defined public utility" seeking to build a common carrier pipeline, and a district court judge has ruled that Sandpiper meets the requirements for "public use," according to court records.

"Here, North Dakota residents will have a right to conduct oil through the pipeline for which condemnation is sought, and that right is guaranteed by state regulatory control," NDPC argued in a memo earlier this year.

Botsford, who cites climate change concerns and Enbridge's record of spills for his opposition to the pipeline, has said an oil pipeline doesn't present the same traditional public benefits to affected property owners as a rural electric or water line. He also said Sandpiper would mainly benefit private interests like Enbridge, and he worries that the easement could be sold to another party in the future.

"This is not a taking for a particular purpose, which is what the law historically has said you can do for eminent domain," Botsford told the Herald earlier this month.

Botsford said earlier this month he plans to appeal the case to the North Dakota Supreme Court.

The Fifth Amendment to the U.S. Constitution allows the taking of private property for a public benefit as long as there is "just compensation" to the landowner. While landowners may not be able to prevent the use of their land through eminent domain, attorneys can help in areas like compensation to "lessen the blow," Newman said.

'Ongoing relationship'

Botsford's case appears to be a rare one, said Thomas Wheeler, vice president of the Northwest Landowners Association in North Dakota. In most cases, pipeline companies and landowners come to an agreement before it reaches the courthouse.

"Our goal is to make every reasonable attempt to work with landowners," Enbridge spokeswoman Lorraine Little previously wrote in an email.

Ron Ness, president of the North Dakota Petroleum Council, called eminent domain proceedings a "last resort" that aren't available for smaller gathering lines.

Moreover, relationships between pipeline officials and landowners have improved over the past year, Wheeler said. Both sides have recognized that the oil industry will be around in North Dakota for a long time, he said.

Ness pointed to a new ombudsman program available through the North Dakota Department of Agriculture to facilitate discussion between landowners and pipeline companies.

"This isn't a one-time deal. This is going to be an ongoing relationship," Wheeler said. "It's easier to get along than it is to continually fight."

But Wheeler empathizes with landowners affected by pipeline construction. After all, he initially opposed a pipeline to reach an oil pad on his land until he saw how many trucks were needed to do the job.

"Our roads here were horrendous," said Wheeler, who lives near Ray, N.D. "The only way to get the trucks off of the road is to put pipe in the ground. So now I'm somewhat an advocate for pipes.

"We are not against production of minerals. ... We just want the land reserved for future generations," he added. "You don't like seeing your land torn up. But you're willing to do for the better good of the state and the country."

John Hageman

John Hageman covers North Dakota politics from the Forum News Service bureau in Bismarck. He attended the University of Minnesota in the Twin Cities, where he studied journalism and political science, and he previously worked at the Grand Forks Herald and Bemidji Pioneer.  

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