As ND Supreme Court considers Summit Carbon survey order, a similar debate looms in SD

A North Dakota Supreme Court case tied to a survey access law leveraged by Summit Carbon Solutions, a company with ongoing plans to build an interstate carbon capture pipeline, could prove to be influential in an similar appeal pending before South Dakota's own judicial tribunal.

North Dakota Supreme Court heard oral arguments Monday in SCS Carbon Transport v. Malloy, et al, an appeal centered around a May 2 district court's final order to allow Summit Carbon access to perform surveys and examinations of property belonging to Malloy and 16 other parties.

The company entered lawsuits against the landowners, which had resisted survey efforts, to determine the route for their five-state pipeline.

Brian Jorde, a Nebraska-based attorney representing landowners in pipeline-related lawsuits across the Midwest, appealed the decision, in part because the judge's order did not impose any limitations or safeguards on Summit Carbon's access and use of the landowners' properties.

In a press e-mail Sunday, Jorde said the arguments could be a preview of a battle within the South Dakota Supreme Court, where two cases between landowners and Summit Carbon over a survey access order are currently pending.

In May, state Fifth Circuit Judge Richard Sommers issued an order granting the company the ability to conduct surveys after landowners filed a civil lawsuit.

While an opinion may take several months into 2024 to develop — two cases are currently listed as "not ready for trial" within the state's court records system — Jorde wrote the issues in South Dakota are "substantially similar" to its northern neighbor, setting the stage for a challenge over the state's survey access laws.

Landowner attorney argues surveys are an unconstitutional 'invasion' of private property

The heart of the issue lies within North Dakota Century Code 32-15-06, a state law which determines the manner in which entities exercising eminent domain can access private lands for surveys and requires condemners to negotiate with affected parties.

But the law, as well as the way it was applied by the district court, is "unconstitutional" in the face of the North Dakota Constitution, Jorde argued before the tribunal.

Jorde argued the decision to allow Summit Carbon access to the landowners' properties without reasonable limitations constitutes a "per se taking."

"Taking," as a legal concept, typically refers to the actual seizure of private property by government and permitted corporations, such as common carriers and utility companies, through eminent domain laws.

In Malloy's case, the North Dakota District Court found "no material issues of fact existed with respect to [Summit Carbon's] status as a common carrier," legitimizing the company's ability to perform the surveys in accordance with the North Dakota Constitution.

However, Jorde said the final order gave way to a "per se taking" — in this case, the permanent physical occupation of his clients' lands by the company in order to perform surveys.

Jorde pointed to Cedar Point Nursery v. Hassid, a 2020 U.S. Supreme Court case centered on a California labor regulation that permitted union organizers to access private farms to solicit support from employees during non-work hours, with some limitations on who could visit the property and on what days.

In a 6-3 decision, the majority of justices found the regulation did constitute a per se taking due to the temporary intrusions, and, because the owners were not paid after the union activists had "taken access" to their property, this was considered to be in violation of the Fifth Amendment, which covers protection the taking of property by the government without compensation.

Where this legal precedent coincides with the North Dakota District Court's order is in Summit Carbon's permitted access to land without reasonable restrictions, Jorde argued.

"[The law] allows a third party … to enter the property of any privately owned parcel in this state 24 hours a day, seven days a week, 365 days a year, without limit to duration, frequency, where the invasion can take place, or what can happen so long as it falls under survey examination," Jorde said.

Drawing another line to the Cedar Point case, Jorde also reasoned the May order violates the state's constitution on the basis that the landowners were not given "just compensation" by the carbon company after conducting the surveys.

Keith Blackwell, an attorney representing Summit Carbon, argued the statute by itself is a sufficient limitation, since the company would only be allowed to perform survey work.

Landowners have expressed concerns about potential damages that could arise from the company's examinations. In June, Brown County farmer Jared Bossly criticized Summit Carbon after engineers used a large drilling rig to sample the soil of his land. Generally, people opposed to Summit Carbon's project also have concerns about whether their pipeline is safe, how its installation could affect the value of their land, and how future land development could be impacted, among other things.

In terms of the May 2 decision, landowners' concerns primarily revolve around the lack of specificity by the judge, especially since, Jorde implied, the order itself is permanent.

"It remains in complete effect forever, which … practically speaking, well, I mean, are they really going to come back in 99 years, or 50 or 30? They can," Jorde said. "They can go anywhere on your property and do anything they want under whatever examination, survey or making maps — whatever's convenient. This is a statute of convenience."

But within the scope of the North Dakota statute, Blackwell said the historical and traditional interpretation of the law already holds companies like Summit Carbon to certain standards, even if a court order doesn't spell it out the specifics — which Summit Carbon's attorney admitted were not explicitly stated by the district court.

For example, entry onto land for survey purposes must be "innocuous" and "temporary" while surveys and examinations are required to be "minimally invasive" and "not seriously impair the owner's right to the use and enjoyment of the property," Blackwell said.

Blackwell said the state's survey access statute does not require condemners to give advanced notice when planning to enter property, which the court order also did not stipulate.

"I think that it would be perfectly lawful to simply for a prospective condemner to simply go out and survey the property," Blackwell said. "Obviously, there may be some practical problems with that. That could invite some sort of confrontation that, in very practical terms, would be a bad thing, and so we want to actually encourage prospective condemners to do what Summit did in this case: To go to court, to certainly give notice of an intent to survey the property through the judicial proceedings, and then to get a court order."

Derrick Braaten, an attorney for Northwest Landowners Association, a party supporting the landowners' appeal, argued the possibility of damages to occur during a land survey means the statute is always unconstitutional and must be at least partially struck down.

This is because damages incurred when entering property in North Dakota would legally require "just compensation" on behalf of Summit Carbon, according to the state's constitution, yet the survey statute offers "no claim for relief except for injuries resulting from negligence, wantonness or malice," Braaton said.

"If property is damaged — and I will say, soil bores damage property — if property is damaged, it is not a question of whether there was negligence. It is a question of 'Was there damage?' Braaton said. "Yes? Just compensation. That's what's required."

North Dakota arguments set the stage for a South Dakota Supreme Court battle

The outcome of the case in front of the North Dakota Supreme Court could be an early indicator for similar cases under consideration in South Dakota.

The South Dakota Supreme Court is preparing to consider two appeals from landowners suing Summit Carbon, one of which stems from a May final order by Fifth Circuit Judge Richard Sommers which allowed the company to perform land surveys without express permission.

The appeal, which was filed shortly after decision was announced, is similar in nature to the North Dakota proceedings, because the May order authorized Summit Carbon to conduct a per se taking without requiring due payment to South Dakota landowners, Jorde told Argus Leader on Tuesday.

Jorde said South Dakota's survey access statutes are not identical to its northern counterpart, but he added the arguments will likely be similar.

"It all flows from the fact that wen you take away someone's right to exclude an unwanted third party, that's a taking," Jorde said. "As soon as it's a taking, you're required to have a just compensation determination on the on the taking."

Judge Sommers order, akin to the decision rendered in North Dakota, did not include limitations on when Summit Carbon could enter property nor the frequency of their visits. The order did specify access would be restricted to necessary surveys and examinations, and only specific landowner parcels subject to visitation were named in the order.

While a calendar date has not been set for oral arguments on the two appeals, Jorde expects to made his case in 2024.

"I'd like to get them, you know, as soon as the court's ready, we're ready to go, because it's just absolutely facially unconstitutional," Jorde said. "We'd like to get this argued as soon as possible."

This article originally appeared on Sioux Falls Argus Leader: Summit Carbon survey order was unconstitutional, landowner attorney argues