SCS Carbon Transp. v. Malloy

1

2024 ND 109

SCS Carbon Transport LLC, Petitioner and Appellee v. Howard L. Malloy, Trustee of the Harry L. Malloy Trust No. 2 dated May 25, 2008, Connie Erickson, Larry Hoge, Dean Twardowski, BRH LLLP, 8N2E Properties LLP, Paul E. Kuetemeyer, Hoge Farm Limited Partnership, Timothy J. Hoge, John M. Carrels, Loren E. Staroba and Diane L. Staroba, Trustees of the Staroba Revocable Living Trust dated April 8, 2016, Verdell T. Jordheim and Phyllis J. Jordheim Trustees of the Verdell J. Jordheim and Phyllis J. Jordheim Living Trust dated February 25, 2005, Valera A. Hayen, Shirley Waloch, Randall Waloch and Karla Waloch, SPLJ, LLP, Respondents and Appellants

Nos. 20230149, 20230162-20230176

Supreme Court of North Dakota

May 30, 2024

Appeals from the District Courts of Morton and Burleigh Counties, South Central Judicial District, and Dickey Richland, and Sargent Counties, Southeast Judicial District the Honorable Daniel D. Narum, Judge. AFFIRMED.

Keith R. Blackwell (argued), Brian D. Boone (on brief), Michael R Hoernlein (on brief), and Kyle R. Hair (on brief), Charlotte, NC, and Lawrence Bender (appeared) and Spencer D. Ptacek (on brief), Bismarck, ND, for petitioner and appellee.

Brian E. Jorde (argued), Omaha, NE, and Steven J. Leibel (appeared) and David M. Knoll (on brief), Bismarck, ND, for respondents and appellants.

Philip J. Axt (argued), Solicitor General, Bismarck, ND, for amicas curiae State of North Dakota. Derrick L. Braaten (argued), Bismarck, ND, for amicas curiae Northwest Landowners Association. Matthew C. Tews, Minneapolis, MN, for amicas curiae Basin Electric Power Cooperative.

OPINION

Tufte, Justice.

[¶1] Respondents ("Landowners") appeal from judgments and an order permitting SCS Carbon Transport LLC ("Summit") to enter their lands to conduct surveys and examinations. Landowners argue the statute authorizing entry is unconstitutional on its face and as applied to them and the judgments and order exceed the scope of the statute by allowing unlimited entry without restrictions. We affirm, concluding the Landowners have not established a constitutional violation on the face of the entry statute or as applied to them, and the judgments and order do not exceed the scope of the entry statute.

I

[¶2] Summit intends to construct an interstate pipeline in North Dakota and four other states which would transport carbon dioxide and deliver it to sequestration sites in North Dakota. Summit alleged it needs to access Landowners' lands to determine the appropriate pipeline route. After Landowners denied Summit permission to enter their lands to conduct surveys, Summit commenced these lawsuits against Landowners. Summit's petitions requested a court order confirming its right under N.D.C.C. § 32-15-06 (the "entry statute") to enter the lands to conduct pre-condemnation surveys and examinations. Summit's petitions asserted that the proposed surveys would be conducted in a manner compatible with the greatest public benefit and the least private injury, and Summit would provide compensation for any damages caused by the survey activities and comply with other reasonable restrictions imposed by the district court.

[¶3] In response to the petitions for entry, Landowners answered and counterclaimed, seeking declaratory and injunctive relief, declaring the entry statute unconstitutional in violation of the federal and state takings clauses and enjoining Summit from entering their lands. Summit moved for summary judgment, arguing there is no genuine dispute of material fact and it is entitled as a matter of law to judgment confirming its authority to enter Landowners' property to conduct surveys and examinations. Landowners opposed the motion, arguing the entry statute is unconstitutional and void, and in the alternative, there is a genuine dispute of material fact whether Summit is a common pipeline carrier authorized to exercise eminent domain, the surveys proposed by Summit go beyond what the entry statute allows, and, if entry is granted, then they have a right to reasonable protections.^[1]

[¶4] After oral argument on the motion, the district court granted summary judgment to Summit, concluding the entry statute does not constitute an unconstitutional per se taking, Summit is a common carrier authorized to exercise eminent domain, and the proposed surveys and examinations are the type of minimally invasive surveys and examinations allowed under the entry statute. In its order for judgment, the court relied on Summit's stated plan to "restore each property to a near pre-examination condition" and "promptly repair [any] damage or reimburse Respondents for the repairs, at their choice." The court entered judgments, granting Summit's petitions for entry and dismissing Landowners' counterclaims. The judgments state:

The Court confirms that Summit has the right under N.D.C.C. § 32-15-06 to enter upon the lands described on Exhibit A, attached hereto, for the purpose of completing civil, environmental, and archaeological/cultural, surveys and examinations, including any necessary geotechnical/soil borings, archaeological/cultural resource surveys and examinations, and including any necessary core or water sampling activities subject to any conditions.

Landowners appeal the judgments and order granting summary judgment.

II

[¶5] Our standard of review is well established:

Summary judgment under N.D.R.Civ.P. 56 is a procedural device for the prompt resolution of a controversy on the merits if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Summary judgment is appropriate if the issues in the case are such that the resolution of any factual disputes will not alter the result. Whether the district court properly granted summary judgment is a question of law that we review de novo on the entire record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law.

Vic Christensen Min. Tr. v. Enerplus Res. (USA) Corp., 2022 ND 8, ¶ 8, 969 N.W.2d 175.

III

[¶6] Landowners argue the entry statute is unconstitutional on its face and as applied to them under the Takings Clause of the Fifth Amendment and article I, § 16 of the North Dakota Constitution.

[¶7] "A claim that a statute on its face violates the constitution is a claim that the Legislative Assembly exceeded a constitutional limitation in enacting it, and the practical result of a judgment declaring a statute unconstitutional is to treat it 'as if it never were enacted.'" State v. Anderson, 2022 ND 144 ¶ 7, 977 N.W.2d 736 (quoting Sorum v. State, 2020 ND 175, ¶ 21, 947 N.W.2d 382). We interpret statutes "in harmony with the state and federal constitutions to avoid constitutional infirmities." Hector v. City of Fargo, 2014 ND 53, ¶ 13, 844 N.W.2d 542; N.D.C.C. § 1-02-38(1) (providing interpretive presumption that intended meaning of statute complies with state and federal constitutions); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449-50 (2008) ("In determining whether a law is facially invalid, we must be careful not to go beyond the statute's facial requirements and speculate about 'hypothetical' or 'imaginary' cases."). Under N.D. Const. art. VI, § 4, we "shall not declare a legislative enactment unconstitutional unless at least four of the members of the court so decide."

[¶8] An "as-applied" challenge, on the other hand, is a claim that the constitution was violated by the application of a statute in a particular case. Anderson, 2022 ND 144, ¶ 7. "Generally, a party may only challenge the constitutionality of a statute as applied to that party." Id. "As a general rule a court will inquire into the constitutionality of a statute only to the extent required by the case before it and will not anticipate a question of constitutional law in advance of the necessity of deciding it." Id. at ¶ 11. Accordingly, when both an as-applied challenge and a facial challenge are raised, we generally first consider the narrower as-applied challenge. See Anderson, 2022 ND 144, ¶¶ 7, 11 ("[A] court will inquire into the constitutionality of a statute only to the extent required by the case before it and will not anticipate a question of constitutional law in advance of the necessity of deciding it, and will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied."); State v. Morris, 331 N.W.2d 48, 58 (N.D. 1983) (limiting review to as-applied challenge where appellant failed to show statute was unconstitutional as applied to him). If we conclude the application of a statute is unconstitutional as applied in a case, we may grant relief without the necessity of determining whether it is also unconstitutional in circumstances not presented in that case.

A

[¶9] Summit argues Landowners failed to preserve an as-applied challenge on appeal by failing to raise the issue in the district court. Specifically, Summit asserts the phrase "as applied" does not appear in Landowners' brief opposing summary judgment and they did not cite case law articulating the applicable standard. Landowners argue they have maintained the same arguments; namely, the access requested under the entry statute is not "minimally invasive" and reasonable conditions must be ordered. Although Landowners did not use the label "as applied" in their summary judgment brief, the substance of their arguments concerning the requirements of minimal invasion and reasonable conditions on appeal invoke both facial and as-applied claims and are the same as the arguments...