Eminent Domain Law in North Dakota

When the government wants to acquire private property to facilitate a project that will benefit the community as a whole, it has the power to take private land through eminent domain. But when a landowner refuses to sell or disagrees with the government’s offer to buy their property, they can fight for their right to just compensation. 

What Is Eminent Domain?

Eminent domain refers to the government’s power to take private property and convert it to public use. Under the Fifth Amendment to the U.S. Constitution, the government can only exercise this power if it provides just compensation to the property owner. 

The U.S. Supreme Court first recognized the government’s eminent domain powers in 1876 in the case of Kohl v. United States. The Court allowed the federal government to take private property for public uses that are “essential to its existence and perpetuity.” However, the Court required that the government provide the landowner with just compensation. 

Traditionally, the government has exercised its eminent domain powers to facilitate transportation, supply water, construct public buildings, and aid in defense readiness. 

Eminent Domain Proceedings

Once planners have identified the land to be taken, they work with appraisers to determine its value and will make an offer to purchase the property. If the property owner accepts the government’s offer, the transaction is usually straightforward. But if the landowner disagrees with the government’s offer, the matter moves to a condemnation proceeding where the property owner can offer their own property valuation. Before initiating condemnation proceedings, the government must make a reasonable and diligent effort to negotiate with the landowner for the purchase of the property.  

Typically, the government will obtain a property appraisal or provide a written summary of how it arrived at the proposed purchase price. The landowner can accept or refuse the offer and has the right to request a list of at least ten neighboring landowners to whom offers are being made for the same project. The landowner also has the right to examine any map in the government’s possession that shows property affected by the condemnation and to demand a list of other landowners in the same or adjacent counties whose properties will be taken. 

“Quick Take” Proceedings

North Dakota recognizes a “quick take” procedure that allows the government to acquire property needed for a project before the landowner has accepted the purchase offer. The government begins the “quick take” procedure by making an offer to purchase the property. If the homeowner refuses the offer, the government deposits the amount of the proposed purchase with the district court in the county where the property is located. The clerk will notify the landowner of the deposit and, if the landowner disputes the purchase amount, the landowner must appeal the matter to the district court. 

Landowner Rights in Eminent Domain Cases

In most cases, you will not be able to stop the government from taking your land. However, you are entitled to just compensation. In an eminent domain case, the landowner can challenge the government’s use or necessity for taking the land. This argument is rarely successful. 

The most common dispute in eminent domain cases is whether the government has offered the landowner just compensation for the property. 

Just Compensation

The Fifth Amendment requires that private landowners receive just compensation for their property. Courts have generally found that just compensation is the fair market value of the land. Fair market value is determined by factors such as the size of the parcel and any resources on it.  

The landowner may also be entitled to severance damages if the property taken is part of a larger parcel of land and the value of the property is reduced because it is severed from the part that is being taken. 

A landowner can receive consequential damages if the property was not taken but was damaged by the construction project. 

Courts will also award reasonable costs and attorney’s fees associated with taking an eminent domain case to trial, even in cases where the landowner loses the case. In 2018, in the case of Cass County Joint Water District v. Erickson, the North Dakota Supreme Court ordered the government to pay the landowner’s attorney’s fees associated with taking an eminent domain case to trial, even though the Court found that the landowner was not entitled to a higher value for the land. The lesson to be learned is that you should contact an attorney anytime the government tries to take your property through eminent domain.  

Fargo, North Dakota Eminent Domain Cases

In Fargo, North Dakota, flood-control planners have identified approximately 1,300 parcels of land encompassing about 7,000 acres that they wish to acquire through eminent domain. The project’s goal of the project is to reduce the risk of flooding by creating a flood diversion channel along the Red River of the North. The Flood Diversion Authority has obtained the necessary permits and financing and is now seeking to acquire the land. But some property owners have refused the government’s offers and are fighting for their right to just compensation.

Currently, there are approximately 30 eminent domain cases pending in Cass County District Court and one in Clay County District Court. Taking these cases to trial will cost approximately $100,000 each, or $3 million if all of the cases go to trial. Under North Dakota’s “quick take” eminent domain law, the Flood Diversion Authority can take the land and start construction before the courts have resolved the landowners’ right to just compensation. 

While the Metro Flood Diversion Authority claims to want to settle these cases, they recognize that there is a significant difference between their valuation of the property and that of the landowners. For example, in one case the government has offered $950,000 against a counter-offer of $2.2 million. 

Fremstad Law’s Eminent Domain Lawyers Can Help

Fremstad Law attorney James Teigland recently prevailed in a North Dakota eminent domain lawsuit on behalf of two landowners. After a three-day trial, the jury awarded Mr. Teigland’s clients $399,640 in additional compensation for the taking of their land, plus $100,000 in prejudgment interest, approximately $60,000 in attorney’s fees, $90,000 in expert witness fees, and $8,000 in other expenses. 

If you have an eminent domain matter and need assistance, contact Fremstad Law today to schedule a confidential consultation to discuss your situation and how we can help move you forward.