Lavern Behm v. Montana-Dakota Utilities Co.

Montana Dakota Utility (hereinafter MDU), a private corporation, employed the power of eminent domain to procure an easement on Vern Behm’s farmland immediately along a pre-existing county road but outside the right-of-way. This taking by a private entity was for the purpose of extending an underground natural gas pipeline for the sole use of another private company, Burlington Northern Santa Fe. The district court dismissed the action, finding that the purpose of the pipeline (heating a switch during the winter months) was already being met by the use of propane tanks and that MDU’s refusal to use the township thirty-three foot easement that follows and parallels the existing county road demonstrated that the subject easement was not necessary and was indeed a mere convenience to the railroad. On appeal the North Dakota Supreme Court reversed the district court, ignoring the lower court’s findings relating to necessity and mere convenience to a private company, holding that the only requirement for the taking is a determination by the private company that its taking was for a public use. MontanaDakota Utilities Co. v. Behm, 2019 ND 139, 927 N.W.2d

1. Lavern Behm asserts that this taking is unwarranted and a violation of due process and the taking clause. The petitioner presents the following questions:

2. Is it a violation of due process and the taking clause for the state – as a matter of law – to allow a private corporation to take private property through eminent