Defending Against Eminent Domain for Pipelines and Utility Easements in North Dakota

Receiving a certified 'Final Offer' letter threatening to condemn a right-of-way across your ranch in McKenzie or Williams County-or a high-voltage transmission corridor through your irrigated cropland in Cass or Morton County-is an intimidating experience. Pipeline and utility landmen often tell North Dakota landowners that 90% of the neighbors have already signed and warn that refusing their initial per-rod or per-acre offer will leave you paying massive legal bills in court.

What right-of-way agents rarely mention is that North Dakota has some of the strongest constitutional and statutory landowner protections in America. Under North Dakota law, a condemning company not only owes you full fair market value for the easement strip and severance damages for the loss in value to the rest of your farm, but can also be ordered by the judge to pay 100% of your attorney's fees and appraiser costs. Defending against eminent domain for pipelines and utility easements in North Dakota starts with understanding your leverage before signing a voluntary right-of-way contract.

Condemnation Rules by Project Type: CO2 Pipelines, Gas Lines, and Power Lines

In North Dakota, private corporations do not possess an automatic right to take private land. Under N.D. Const. art. I, § 16 and N.D. Cent. Code § 32-15-01, private property cannot be taken for private economic development; a corporation may exercise eminent domain only if the legislature has expressly delegated that power for an authorized public use.

Carbon Dioxide (CO2) Pipelines and Subsurface Pore Space Rights

With the rapid expansion of carbon capture and storage projects across central and western North Dakota, developers have sought both surface pipeline easements and underground pore space storage rights. Under N.D. Cent. Code § 49-19-01 and N.D. Cent. Code § 49-19-12, a carbon dioxide pipeline operator can exercise eminent domain only if it files a formal written acceptance with the North Dakota Public Service Commission, Bismarck agreeing to operate as a regulated 'common pipeline carrier' available to the public.

Crucially, North Dakota landowners also own the microscopic subsurface cavities ('pore space') beneath their soil. In the landmark decision Northwest Landowners Association v. State, 978 N.W.2d 679 (ND Supreme Court 2022), the North Dakota Supreme Court struck down state legislation that attempted to let energy companies inject gas into subsurface pore space without paying landowners just compensation and barred the legislature from stripping landowners of their statutory right to recover attorney's fees in pore space takings regulated under N.D. Cent. Code § 38-22-10 and the North Dakota Industrial Commission, Bismarck.

Crude Oil and Natural Gas Gathering vs. Transmission Pipelines

Not every oil or natural gas pipeline in the Bakken has eminent domain power. While interstate natural gas transmission pipelines holding a federal FERC certificate and intrastate common carriers certified under N.D. Cent. Code § 49-19-01 possess condemnation authority, private midstream 'gathering lines' that haul exclusively for a single producer without filing common-carrier acceptance often lack the legal authority to condemn your land. Even when a pipeline qualifies as a common carrier, landowners can use the threat of condemnation litigation to negotiate strict depth-of-cover guarantees (minimum 48 to 60 inches), double-ditching topsoil segregation, and single-pipeline restrictions.

High-Voltage Electric Transmission Lines

Investor-owned utilities and rural electric cooperatives condemning corridors for 230-kV or 345-kV transmission lines create permanent visual, agricultural, and safety burdens across North Dakota farmland. High-voltage H-frame and monopole towers force farmers to maneuver wide air seeders and sprayers around guy wires, interfere with GPS auto-steer signals, block center-pivot irrigation booms, and prevent aerial crop dusting. As demonstrated in Montana-Dakota Utilities Co. v. Behm, 927 N.W.2d 865 (ND Supreme Court 2019), landowners can challenge both the necessity of the chosen transmission alignment and demand substantial severance damages for the permanent operational interference caused to the remainder of the farming unit.

Challenging 'Public Use' Necessity and Rejecting Lowball Offers

When a pipeline or utility company files a condemnation lawsuit in North Dakota, the proceeding is split into two distinct phases: Right-to-Take (Public Use & Necessity) decided by a judge, and Just Compensation decided by a local jury.

How to Challenge 'Public Use' and 'Necessity'

Under N.D. Cent. Code § 32-15-05, before any property can be taken, the condemning company bears the burden of proving in court: (1) that the use is a public use authorized by law, and (2) that the taking of your specific property is necessary to that use. Under City of Medora v. Golberg, 569 N.W.2d 257 (ND Supreme Court 1997), while courts grant deference to a utility's route selection, a landowner can defeat or force a reroute of the easement by proving bad faith, gross abuse of discretion, or that the company failed to qualify as a true public common carrier.

What to Do If the Initial Offer Is Too Low: Fair Market Value + Severance Damages

Initial offers from pipeline and utility companies typically compensate you only for the narrow 50-to-100-foot easement strip itself, ignoring the damage done to the rest of your ranch or farm. Under N.D. Cent. Code § 32-15-22, North Dakota landowners are constitutionally entitled to two separate buckets of compensation:

• Value of the Property Taken: The full fair market value of the permanent easement strip and any temporary workspace easements at the property's 'highest and best use.'
• Severance Damages to the Remainder Parcel: The diminution in market value suffered by the remaining 600+ acres of your farm or ranch because it is now bisected by a high-pressure CO2 pipeline or high-voltage power line. Severance damages account for stigma, buyer fear of pipeline ruptures, loss of future subdivision or commercial potential, soil mixing, and forever-altered farming patterns.

How North Dakota's Attorney Fee-Shifting Statute Works

North Dakota has one of the most pro-landowner eminent domain fee-shifting statutes in the nation. Under N.D. Cent. Code § 32-15-32, the District Court may, in its discretion, award the defendant landowner reasonable actual or statutory costs, including reasonable attorney's fees and expert appraisal fees, for all judicial proceedings. As the North Dakota Supreme Court reaffirmed in Montana-Dakota Utilities Co. v. Behm, 927 N.W.2d 865 (ND Supreme Court 2019) and Northwest Landowners Association v. State, 978 N.W.2d 679 (ND Supreme Court 2022), this statute ensures that landowners are not forced to spend part of their constitutional 'just compensation' on legal defense-creating immense pressure on condemning companies to offer generous settlements rather than pay both sides' lawyers at trial.

Step-by-Step Process to Defend Against Eminent Domain in North Dakota

If a pipeline or transmission developer approaches you in Williston, Watford City, Mandan, Bismarck, or Fargo, follow these five steps to protect your land and maximize compensation:

Step 1: Do Not Sign Voluntary Survey Permits or Initial Right-of-Way Forms

Landmen often ask you to sign a 'harmless' survey permission slip that actually contains fine print granting environmental soil boring rights or binding options. Under N.D. Cent. Code § 32-15-06, if you decline voluntary entry, the company must petition the court for a strictly limited survey order that protects your biosecurity and livestock and holds the company liable for any surface damage.

Step 2: Intervene in Public Service Commission Siting Proceedings

Major pipelines and transmission lines must apply to the North Dakota Public Service Commission, Bismarck for a certificate of corridor compatibility and route permit under N.D. Cent. Code ch. 49-22.1 and N.D. Admin. Code art. 69-06. Affected landowners can participate in local public hearings to request route adjustments that keep easements on section lines rather than cutting diagonally across center-pivot quarters.

Step 3: File an Answer Challenging Necessity and Demanding a Jury Trial

If negotiations stall and the company serves you with Form 1, North Dakota, District Court, Summons and a complaint drafted under N.D.R. Civ. P. 10 in the Williams County District Court, Williston, the McKenzie County District Court, Watford City, the Morton County District Court, Mandan, the Burleigh County District Court, Bismarck, or the Cass County District Court, Fargo, your attorney files an Answer under N.D.R. Civ. P. 8 and N.D.R. Civ. P. 12 within 21 days. Remember that unlike federal courts, North Dakota does not grant private pipeline companies 'quick-take' possession-under N.D. Const. art. I, § 16, private corporations generally cannot take possession of your land until just compensation is determined and paid into court.

Step 4: Commission an Independent Rural Severance Appraisal

Your eminent domain attorney hires a certified rural appraiser to perform a 'before-and-after' valuation of your entire farming or ranching unit under N.D. Cent. Code § 32-15-22, quantifying both the value of the easement strip and the percentage loss in market value suffered by the remainder of your property.

Step 5: Present Valuation to a County Jury and Move for Attorney's Fees

If the utility refuses to pay full severance value and accept landowner-protective easement terms, a local county jury determines just compensation. Following the verdict, your attorney petitions the judge under N.D. Cent. Code § 32-15-32 to force the condemning company to pay your reasonable attorney's fees, appraisal invoices, and litigation costs in full.

How Much Does It Cost in North Dakota?

Thanks to North Dakota's statutory fee-shifting protections, defending your property rights against condemnation rarely requires paying out-of-pocket legal fees:

• Statutory Fee Shifting (N.D. Cent. Code § 32-15-32): In contested judicial condemnation proceedings, North Dakota judges routinely order the pipeline or utility company to pay the landowner's reasonable hourly attorney's fees (typically $300 to $500 per hour) and expert witness costs.
• Value-Added Contingency Fee Option: For pre-suit negotiations, many North Dakota eminent domain attorneys offer a 'value-added' contingency arrangement-charging 33.3% only on the additional money negotiated above the company's initial written offer. Your initial offer remains 100% yours untouched.
• Independent Certified Appraisal Costs: A comprehensive before-and-after rural condemnation appraisal typically costs between $4,000 and $12,000, which is recoverable as an expert litigation cost in judicial condemnation actions under N.D. Cent. Code § 32-15-32.
• Court Appearance Fees: Filing an Answer in a North Dakota state district court condemnation action costs $100 under N.D. Cent. Code § 27-05.2-03(1)(c) (while initiating an inverse condemnation lawsuit costs $160 under N.D. Cent. Code § 27-05.2-03(1)(a)).

How Long Does the Process Take?

Eminent domain and pipeline easement disputes in North Dakota follow specific procedural timelines:

• PSC Route Permit Process (6 to 12 Months): Public hearings and route permitting before the North Dakota Public Service Commission, Bismarck generally take 6 to 12 months before condemnation lawsuits can begin.
• Deadline to Answer a Condemnation Summons (21 Days): Once served with a condemnation complaint, a landowner has strictly 21 days to serve a formal Answer.
• Right-to-Take Bench Hearing (2 to 5 Months): If you challenge public use or necessity under N.D. Cent. Code § 32-15-05, the District Court judge typically holds an evidentiary hearing within 60 to 150 days.
• Jury Trial on Just Compensation (9 to 18 Months): Completing rural appraisals, expert depositions, and a county jury trial to determine fair market value and severance damages generally takes 9 to 18 months-and because private corporations lack 'quick-take' power under N.D. Const. art. I, § 16, this timeline gives landowners tremendous settlement leverage when a company faces strict construction deadlines.

Frequently Asked Questions (FAQ)