Respondents Brief — Lavern Behm, Petitioner v. Montana-Dakota Utilities Co.

No. 19-197

In the

Supreme Court of the United States

__________________

LAVERN BEHM,

v.

Petitioner,

MONTANA-DAKOTA UTILITIES CO.,

Respondent.

__________________

On Petition for Writ of Certiorari to the

Supreme Court of North Dakota

__________________

BRIEF IN OPPOSITION

__________________

MALCOLM H. BROWN

CROWLEY FLECK PLLP

100 West Broadway Ave.

Suite 250

Bismarck, ND 58502

(701) 223-6585

DALE SCHOWENGERDT

Counsel of Record

CROWLEY FLECK PLLP

900 N. Last Chance Gulch

#200

Helena, MT 59601

(406) 457-2040

dschowengerdt@crowleyfleck.com

Counsel for Respondent

October 15, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Whether this Court should review a question of

federal law that was not decided by or properly

presented to the state supreme court.

2. Whether the Fifth Amendment prohibits a public

utility from exercising eminent domain to install an

underground gas line to service a customer within

its area of service, when the state legislature has

specifically declared the use of land for

“pipelines . . . for supplying or conducting gas” to be

an appropriate “public use.”

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . iii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR DENYING THE PETITION . . . . . . . . . . . . 6

I.

This Court Lacks Jurisdiction Over this Case

Because Behm Did Not Properly Present A

Federal Issue to the Lower Courts . . . . . . . . . 6

II.

This Case Is A Poor Vehicle to Revisit Kelo v.

City of New London, Because It Does Not

Implicate Use of Eminent Domain for

Economic Development . . . . . . . . . . . . . . . . . 10

III.

The North Dakota Supreme Court’s Decision

Is Consistent With This Court’s Eminent

Domain Precedent . . . . . . . . . . . . . . . . . . . . . 12

A. The North Dakota Supreme Court’s

Determination that the Proposed Pipeline

Is a “Public Use” Was Correct . . . . . . . . . 12

B. The Federal Constitution Leaves

Necessity Determinations to the

Legislative Branches and the North

Dakota Supreme Court’s Determination

that the Pipeline Is Necessary under

North Dakota Law Is Not Reviewable by

this Court . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF AUTHORITIES

CASES

Adams v. Robertson,

520 U.S. 83 (1997). . . . . . . . . . . . . . . . . . 6, 7, 9, 10

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001) (per curium) . . . . . . . . . . . . 10

Backus v. Fort St. Union Depot Co.,

169 U.S. 557 (1898). . . . . . . . . . . . . . . . . . . . . . . 16

Cardinale v. Louisiana,

394 U.S. 437 (1969). . . . . . . . . . . . . . . . . . . . . . . . 7

Carolina Tel. & Tel. Co. v. McLeod,

364 S.E.2d 399 (N.C. 1988). . . . . . . . . . . . . . . . . 14

Del Castillo v. McConnico,

168 U.S. 674 (1898). . . . . . . . . . . . . . . . . . . . . . . 17

Dyer v. Texas Electric Service Co.,

680 S.W.2d 883 (Tex. App. 1984) . . . . . . . . . . . . 14

Handley v. Cook,

252 S.E.2d 147 (W. Va. 1979) . . . . . . . . . . . . . . . 14

Hawaii Hous. Auth. v. Midkiff,

467 U.S. 229 (1984). . . . . . . . . . . . . . . . . . . . . . . 12

Heng v. Rotech Med. Corp.,

2006 ND 176, 720 N.W.2d 54 (ND 2006) . . . . . . . 9

Hillsboro Nat. Bank v. Ackerman,

189 N.W. 657, Syl. (N.D. 1922). . . . . . . . . . . . . . . 4

Howell v. Mississippi,

543 U.S. 440 (2005). . . . . . . . . . . . . . . . . . . . . . . . 6

iv

Kelo v. City of New London, Connecticut,

545 U.S. 469 (2005). . . . . . . . . . . . . . . . . . . passim

Komposh v. Powers,

244 P. 298 (Mont. 1926), aff’d,

275 U.S. 504 (1927). . . . . . . . . . . . . . . . . . . . . . . 14

Michigan v. Tyler,

436 U.S. 499 (1978). . . . . . . . . . . . . . . . . . . . . . 8, 9

Montana-Dakota Utilities Co. v. Behm,

2019 ND 139, 927 N.W.2d 865. . . . . . . . . . . 12, 14

Mountain Valley Pipeline, LLC v. McCurdy,

793 S.E.2d 850 (W. Va. 2016) . . . . . . . . . . . . . . . 15

Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama

Interstate Power Co.,

240 U.S. 30 (1916). . . . . . . . . . . . . . . . . . . . . . . . 13

National Railroad Passenger Corporation v.

Boston & Maine Corp.,

503 U.S. 407 (1992). . . . . . . . . . . . . . . . . . . . 13, 17

Olsrud v. Bismarck-Mandan Orchestral Ass’n,

2007 ND 91, 733 N.W.2d 256 . . . . . . . . . . . . . 5, 6

Serv. Co. of Colorado v. Shaklee,

784 P.2d 314 (Colo. 1989) . . . . . . . . . . . . . . . . . . 14

Shoemaker v. United States,

147 U.S. 282 (1893). . . . . . . . . . . . . . . . . . . . . . . 16

State v. Nice,

2019 ND 73, 924 N.W. 2d 102 (N.D. 2019) . . . 5, 8

United States v. Gettysburg Electric R. Co.,

160 U.S. 668 (1896). . . . . . . . . . . . . . . . . . . . . . . 12

v

Webb v. Webb,

451 U.S. 493 (1981). . . . . . . . . . . . . . . . . . . . . . 7, 8

Zivotofsky v. Clinton,

566 U.S. 189 (2012). . . . . . . . . . . . . . . . . . . . . . . 10

CONSTITUTION AND STATUTES

28 U.S.C. § 1257(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

45 U.S.C. § 562(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Alaska Stat. Ann. § 09.55.240 . . . . . . . . . . . . . . . . . 13

Idaho Code Ann. § 7-701 . . . . . . . . . . . . . . . . . . . . . 13

Mont. Code Ann. § 70-30-102. . . . . . . . . . . . . . . . . . 13

Nev. Rev. Stat. Ann. § 37.010 . . . . . . . . . . . . . . . . . 13

N.D. Const. art. I, § 16 . . . . . . . . . . . . . . . . . . . . 11, 17

N.D.C.C. § 24-07-03 . . . . . . . . . . . . . . . . . . . . . . . . . . 4

N.D.C.C. § 32-15-01 . . . . . . . . . . . . . . . . . . . . . . 11, 17

N.D.C.C. § 32-15-02(10) . . . . . . . . . . . . . . . . . 3, 12, 13

Utah Code Ann. § 78B-6-501 . . . . . . . . . . . . . . . . . . 13

RULE

Sup. Ct. R. 14.1(g)(i). . . . . . . . . . . . . . . . . . . . . . . . . . 7

1

INTRODUCTION

Lavern Behm petitions this Court to decide whether

the Fifth Amendment prohibits a public utility from

exercising eminent domain to provide service to a

customer. The transfer of private property to a public

utility is in the class of eminent domain cases that

Justice O’Connor labeled “relatively straightforward

and uncontroversial.” Kelo v. City of New London,

Connecticut, 545 U.S. 469, 498 (2005) (O’Connor, J.,

dissenting). Nevertheless, Behm asserts that the case

presents an important challenge to the Court’s decision

in Kelo, and raises various questions addressing “the

proper interpretation of the Due Process Clause, the

Taking Clause, and Public Use Clause of the Fifth

Amendment, and the Right to Jury under the Seventh

Amendment.” Pet. 1.

The Court should deny Behm’s petition. First, this

Court lacks jurisdiction because Behm did not properly

present any federal issue to the North Dakota Supreme

Court or the district court. This Court does not consider

federal issues raised for the first time in a petition for

certiorari. That alone is enough to deny the petition.

Second, even if Behm had properly raised federal

claims and the Court were inclined to revisit Kelo, this

case is not the vehicle to do so. While Behm styles his

petition as an attack on Kelo, the underlying case does

not involve takings for the purpose of economic

development and therefore does not implicate Kelo

whatsoever. In fact, North Dakota law explicitly

prohibits use of eminent domain for “economic

development.”

2

Rather, this case involves one of the most basic and

universal uses of eminent domain: a public utility

condemning land for the benefit of a customer

requesting utility service. The petition does not present

a question that warrants this Court’s attention.

STATEMENT OF THE CASE

BNSF Railway Company (“BNSF”) operates a rail

line that runs through Ward County, North Dakota. As

with most rail lines, the line has railroad switches that

allow trains to be safely guided from one track to

another. Through summer months, the switches work

smoothly with little need for maintenance. But in the

winter months, when temperatures in Ward County

plummet, the switches become covered with snow and

ice and will freeze and become inoperable unless they

are heated. Affidavit of Paul Fiechtner, ¶¶ 5-8.

BNSF currently uses propane tanks to supply the

switch heaters, which it must regularly service and

refill by truck. Id. ¶6. The problem is that when the

heaters are needed most the weather is at its worst.

The roads are unpaved and in winter they are

sometimes impassable because of snow and ice, which

sometimes prevents BNSF from being able to refill the

tanks. Ibid.; Pet. App. 2.

To solve the problem, BNSF requested that

Respondent Montana-Dakota Utilities Co. (“MDU”)

install an underground gas pipeline so the heaters

would have a reliable source of fuel. Pet. App. 2. MDU

agreed to install the gas line, and to do so it sought an

easement from Petitioner Lavern Behm. After Behm

refused, MDU brought an eminent domain action to

3

acquire an easement across Behm’s property to run the

gas line for the railroad switch. Pet. App. 58-64. North

Dakota law specifically authorizes exercise of eminent

domain to install gas pipelines. N.D.C.C.

§ 32-15-02(10); Pet. App. 7-8. The pipeline is four

inches in diameter and would run beneath Behm’s

property. It would require an easement 10 feet wide

and 240 feet long across Behm’s land and would run

adjacent to a road. Tr. Ex. 3; Pet. App. 24.1 Because the

easement is underground, it would pose no long-term

harm to Behm’s land and it would not interfere with

his farming operations except for the brief period

necessary for the installation of the pipe.

Behm opposed MDU’s eminent domain action based

solely on state law, arguing that MDU exceeded its

authority under state statutes and the state

constitution. See Pet. App. 64-71. Behm made no

argument in the district court that MDU’s eminent

domain action violated the federal constitution. See

Pet. App. 64-71. Consequently, the district court only

analyzed whether MDU’s eminent domain action

complied with state law. Pet. App. 41-48.

Part of Behm’s argument is that the easement

across his property is not “necessary” because MDU

has two alternatives routes it could use. Pet. App. 12.

Behm’s first alternate would run around Behm’s

property and through an existing BNSF easement. But

1

Amicus Northwest Legal Foundation claims, without citation,

that a portion of the road is asphalt and that there is an adjacent

“19 foot easement way.” Amicus, 4. Both contentions are incorrect

and have no support in the record. No portion of the road is paved

and there is no “19 foot easement way” available to MDU.

4

MDU showed that the route was impractical because it

would add an entire 18,000 feet of pipeline at an

additional cost of $1.2 million. Ibid. Behm’s second

alternate route was also impractical because it ran

through an existing section line right of way that was

adjacent to MDU’s proposed route; MDU’s rights would

therefore be permanently subject to a public easement.2

Ibid. Because MDU’s easement would be subordinate,

MDU would have to yield to any conflict that arose in

the future, such as a change in the road or future

development. Ibid.

The district court held that while MDU’s proposed

pipeline is a public purpose authorized by state law

(Pet. App. 42), MDU failed to show that the use was

“necessary.” Pet. App. 44-45. The district court

interpreted “necessity” based primarily on an 1883

California case interpreting California law. Pet. App.

44. Because BNSF could fuel the heaters by truck with

propane, the district court found that MDU’s easement

was not necessary. Pet. App. 45. The district court

limited its analysis to issues under North Dakota law;

no federal constitutional issues were raised by either

party in their pleadings. See Pet. App. 58-62; Pet. App.

64-71.

2

By statute, in North Dakota “the congressional section lines are

considered public roads open for public travel to the width of

thirty-three feet [10.06 meters] on each side of the section lines.”

N.D.C.C. § 24-07-03. The North Dakota Supreme Court has

explained that “[a]ll section lines, under the grant of Congress of

1866 (section 2477, Rev. Stats. U. S. [U. S. Comp. St. § 4919]),

having been accepted by chapter 33, Laws Dak. Ter. 1871, became

public highways from the time of the congressional grant.”

Hillsboro Nat. Bank v. Ackerman, 189 N.W. 657, Syl. (N.D. 1922).

5

The North Dakota Supreme Court reversed. The

Court found that the Legislature specified a public

utility installing gas pipelines is an authorized “public

use” under North Dakota’s eminent domain statutes,

even when the portion of the pipeline at issue is for the

benefit of a single customer. Pet. App. 7-9. The Court

also recognized that long-standing state law required

deference to the Legislature’s determination of what

constitutes a necessary public use. Pet. App. 8. On

necessity, the Court reaffirmed its past precedent that

“a showing of customer convenience in uninterrupted

[utility] service . . . was sufficient to render reasonable

a conclusion in favor of a taking’s necessity” and

rejected Behm’s arguments to the contrary. Pet. App.

11; see also Pet. App. 7 (“To the extent he is not simply

misreading our cases, Behm has not provided

persuasive reasons for us to depart from the reasoning

in more than 40 years of our precedent”). The Court

further found that Behm’s proposed alternative

pipeline routes were impractical. Pet. App. 12-13. As a

result, the North Dakota Supreme Court held that

under North Dakota law, MDU’s eminent domain

action was necessary for a public use. Pet. App. 14.

Behm raised ten issues in a cross appeal, including

“[w]hether the district court erred in not finding a

violation of federal and state constitutional rights by

the proposed taking.” Pet. App. 14. The Court, however,

did not address any of Behm’s issues, including the

federal issue, because he did not “specifically address

any of them in his brief.” Pet. App. 14 (citing State v.

Nice, 2019 ND 73, ¶ 11, 924 N.W. 2d 102 (N.D. 2019)

(issues raised but not supported by argument are

waived); see also Olsrud v. Bismarck-Mandan

6

Orchestral Ass’n, 2007 ND 91, ¶ 25, 733 N.W.2d 256

(“We have often said a party waives an issue by not

providing supporting argument, and without

supportive reasoning or citations to relevant

authorities, an argument is without merit”).

REASONS FOR DENYING THE PETITION

I.

This Court Lacks Jurisdiction Over this

Case Because Behm Did Not Properly

Present A Federal Issue to the Lower

Courts.

The first time Behm pressed any federal claim in

this case was in his petition to this Court. That alone

is enough reason to deny his petition.

This Court has jurisdiction to review final decisions

of a state supreme court “where any . . . right . . . is

specifically set up or claimed under the Constitution or

the treaties or statutes of . . . the United States.” 28

U.S.C. § 1257(a) (emphasis added). “Under that statute

and its predecessors, this Court has almost unfailingly

refused to consider any federal-law challenge to a statecourt decision unless the federal claim ‘was either

addressed by or properly presented to the state court

that rendered the decision we have been asked to

review.’” Howell v. Mississippi, 543 U.S. 440, 443

(2005) (quoting Adams v. Robertson, 520 U.S. 83, 86

(1997) (per curiam). When a state court’s decision does

not address the federal questions presented in the

petition, this Court assumes that the issue was not

properly presented. Adams, 520 U.S. at 86. The

petitioner then “bears the burden of defeating this

assumption, by demonstrating that the state court had

7

‘a fair opportunity to address the federal question that

is sought to be presented here.’” Id. (quoting Webb v.

Webb, 451 U.S. 493, 501 (1981)). This has long been the

law and this Court has consistently applied it. See

Cardinale v. Louisiana, 394 U.S. 437, 438 (1969) (citing

cases).

This Court’s rules amplify this requirement,

mandating that a petitioner show when and how he

raised the federal issues at both the trial court and the

appellate court. “If review of a state-court judgment is

sought, specification of the stage in the proceedings,

both in the court of first instance and in the appellate

courts, when the federal questions sought to be

reviewed were raised” and “the method or manner of

raising them and the way in which they were passed on

by those courts, so as to show that the federal question

was timely and properly raised and that this Court has

jurisdiction to review the judgment on a writ of

certiorari.” Rule 14.1(g)(i). Although Behm gives lip

service to the rule by stating that the “federal questions

were timely and properly raised” (Pet. 1-2), he did no

such thing.

In his brief to the North Dakota Supreme Court,

Behm raised ten issues, nine of which raised state-law

grounds mostly addressing Behm’s argument that the

taking was not “necessary” under state law. His tenth

issue asked, “Whether the district court erred in not

finding a violation of federal and state constitutional

rights by the proposed taking.” Appellee and Cross

Appellants’ Brief, 6. But he did not support that claim

with any argument. He cited no federal cases and

nowhere did he even mention the federal due process,

8

takings, or public use clauses, much less the right to a

jury under the Seventh Amendment. That does not

meet the Court’s minimum requirement that there “be

no doubt from the record that a claim under a federal

statute or the Federal Constitution was presented in

the state courts and that those courts were apprised of

the nature or substance of the federal claim at the time

and in the manner required by the state law.” Webb v.

Webb, 451 U.S. 493, 501 (1981). Simply mentioning

“federal constitution” once in a question presented

without any argument to support it does not apprise

the state court “of the nature or substance of the

federal claim.”

Moreover, “[f]ailure to present a federal question in

conformance with state procedure constitutes an

adequate and independent ground of decision barring

review in this Court, so long as the State has a

legitimate interest in enforcing its procedural rule.”

Michigan v. Tyler, 436 U.S. 499, 512, n.7 (1978). Like

this Court, the North Dakota Supreme Court does not

address claims that are not supported by argument.

The court noted that “Behm lists ten issues in his

cross-appeal but does not specifically address any of

them in his brief. We do not address inadequately

briefed issues.” Pet. App. 14. The North Dakota

Supreme Court consistently applies that rule, Pet. App.

14 (citing State v. Nice, 2019 ND 73, ¶11, 924 N.W.2d

102 (ND 2019), and it only makes sense. Courts cannot

be required to guess at what a party’s arguments are.

But even if Behm had properly presented a federal

claim on appeal, the state supreme court would still

have refused to consider it because he failed to make

9

any federal claims or even mention the federal

constitution in the district court. He did not raise it in

his answer or in his counterclaims, Pet. App. 64-71,

and he never mentioned a federal issue in any of his

briefing in the district court. Not surprisingly, the

North Dakota Supreme Court does not address

questions raised for the first time on appeal. Heng v.

Rotech Med. Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54

(ND 2006). That is yet another independent and

adequate state ground barring this Court’s

consideration of Behm’s belated federal claims. Tyler,

436 U.S. at 512, n.7.

This Court’s consistent refusal to address federal

claims raised for the first time in a petition for

certiorari is not only jurisdictional, it also “serves an

important interest of comity.” Adams, 520 U.S. at 90.

As the Court has explained, “‘it would be unseemly in

our dual system of government’ to disturb the finality

of state judgments on a federal ground that the state

court did not have occasion to consider.” Ibid. Here it

would be fundamentally unfair to the North Dakota

Supreme Court to review its decision on federal

grounds when no federal claims were properly

presented to it.

Beyond interests in comity, the rule is also

necessary for the efficient administration of this

Court’s docket and for proper development of issues.

“Requiring parties to raise issues below not only avoids

unnecessary adjudication in this Court by allowing

state courts to resolve issues on state-law grounds, but

also assists us in our deliberations by promoting the

creation of an adequate factual and legal record.” Id. at

10

90-91; Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012)

(deciding cases in the first instance forces the Court to

decide issues “without the benefit of thorough lower

court opinions to guide” its analysis).

Behm’s assertion that he “timely and properly”

raised his federal issues but the North Dakota

Supreme Court “refused to address the federal

questions” is both inaccurate and unfair to the North

Dakota Supreme Court and the State District Court.

This “is a court of final review and not first review.”

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103,

110 (2001) (per curium) (internal quotation marks

omitted). The Court should refuse to give Behm his

first review of the federal questions he presents.

II.

This Case Is A Poor Vehicle to Revisit Kelo

v. City of New London, Because It Does Not

Implicate Use of Eminent Domain for

Economic Development.

Behm identifies no split among circuit courts or

state courts of last resort on the questions he presents

in his petition. Rather, Behm styles his petition as a

vehicle for this Court to revisit its decision in Kelo v.

New London, Connecticut, and adopt the rationale put

forth in Justice Thomas’ dissent. See, e.g., Pet. 10-11.

Even if the Court were inclined to revisit Kelo, this case

is a poor vehicle to do so because it is not a taking

based on economic development.

Kelo’s central holding was that exercise of eminent

domain to promote economic development could

constitute a “public use” under the Fifth Amendment.

545 U.S. at 484. At issue in Kelo was the City of New

11

London’s plan to condemn private property to make

way for private development, which would increase the

tax base and be more profitable for the city. Id. at 47375. Connecticut had a statute that specifically

authorized use of eminent domain to promote economic

development, and the question in Kelo was whether

that purpose qualified as a “public use” under the Fifth

Amendment. Id. at 484.

This case does not involve use of eminent domain

for economic development, and Behm makes no

argument that it does. Nor could he. North Dakota is

one of several states that exercised its authority to

place “further restrictions on its exercise of the taking

power,” Kelo, 545 U.S. at 489, by enacting legislation

and passing a constitutional amendment to explicitly

prohibit use of eminent domain to promote economic

development. See N.D. Const. Art. 1, Section 16 (“For

purposes of this section, a public use or a public

purpose does not include public benefits of economic

development, including an increase in tax base, tax

revenues, employment, or general economic health.”);

N.D. Cent. Code § 32-15-01.

Rather, this is a run-of-the-mill eminent domain

case involving a utility easement, which, as detailed

below, is well supported by over a century of this

Court’s precedent. See 545 U.S. at 498 (O’Connor, J.,

dissenting). Simply put, if Behm and his amicus seek

to undue Kelo, this is not the case to accomplish it.

12

III.

The North Dakota Supreme Court’s

Decision Is Consistent With This Court’s

Eminent Domain Precedent.

A. The North Dakota Supreme Court’s

Determination that the Proposed

Pipeline Is a “Public Use” Was Correct.

This Court has long been deferential to legislative

judgments about what constitutes a public use. For

over a century, “public use jurisprudence has wisely

eschewed rigid formulas and intrusive scrutiny in favor

of affording legislatures broad latitude in determining

what public needs justify the use of the takings power.”

Kelo, 545 U.S. at 483. This Court has “made clear that

it will not substitute its judgment for a legislature’s

judgment as to what constitutes a public use ‘unless

the use be palpably without reasonable foundation.’”

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984)

(quoting United States v. Gettysburg Electric R. Co.,

160 U.S. 668, 680 (1896)).

In the North Dakota Legislature’s reasoned

judgment, the installation of a natural gas pipeline by

a public utility is an appropriate public use. See

N.D.C.C. § 32-15-02(10) (listing “pipelines and works

and plants for supplying or conducting gas . . . for the

use of any county, city, or the inhabitants thereof” as a

recognized public use justifying the use of eminent

domain). This remains true even if the portion of the

pipeline under dispute is intended to serve a single

customer. Montana-Dakota Utilities Co. v. Behm, 2019

ND 139, ¶ 10, 927 N.W.2d 865. The public use is

especially obvious in this this case, given that BNSF,

the customer the pipeline will serve, is itself a common

13

carrier. See N.D.C.C. § 32-15-01(2) (“Private property

may not be taken for the use of, or ownership by, any

private individual or entity, unless that property is

necessary for conducting a common carrier or utility

business” (emphasis added)).

The North Dakota legislature’s judgment is not only

reasonable, it is nearly universal. This Court has long

recognized that a public utility or common carrier

supplying services to customers is a public use. Mt.

Vernon-Woodberry Cotton Duck Co. v. Alabama

Interstate Power Co., 240 U.S. 30 (1916); National

Railroad Passenger Corporation v. Boston & Maine

Corp., 503 U.S. 407 (1992). While Behm seeks to

overturn the majority’s decision in Kelo, he overlooks

that a point of unanimous agreement was the

“straightforward and uncontroversial” public use by “a

railroad [and] a public utility.” Kelo, 545 U.S. at 498

(O’Connor, J., dissenting); see also Id. at 512 (Thomas,

J., dissenting) (characterizing common carriers as

“quasi-public entities” and explaining common carrier

condemnations are “‘public uses’ in the fullest sense of

the word”). This is a very common public purpose for

purposes of state eminent domain statutes, and

necessarily so since all benefit from both public utilities

and railroads.3

3

Several Western States have statutes almost identical to North

Dakota’s that provide that a utility company providing gas line is

a “public use” for purposes of eminent domain. See, e.g., Nev. Rev.

Stat. Ann. § 37.010; Mont. Code Ann. § 70-30-102; Utah Code Ann.

§ 78B-6-501; Idaho Code Ann. § 7-701; Alaska Stat. Ann.

§ 09.55.240.

14

The analysis is unchanged simply because a public

utility is using the property to deliver services to a

single customer as opposed to many. In Kelo, Justice

Thomas explained that a utility or carrier supplying

services to a customer is a public use because it is

grounded in the rationale that they are “quasi-public

entities” that are “regulated by law and compelled to

serve the public” and the public can “legally use and

benefit from them equally.” Kelo, 545 U.S. at 512

(Thomas, J., dissenting). Accordingly, lower courts

have therefore uniformly rejected Behm’s contention

and agreed with the North Dakota Supreme Court’s

conclusion that “where, as here, eminent domain is

exercised by a utility business, ‘condemnation for

service to a single industrial customer does not

forestall a finding that the taking is for a public use.’”

Behm, 2019 ND 139, ¶ 9 (citation and brackets

omitted). See, e.g., Handley v. Cook, 252 S.E.2d 147

(W. Va. 1979) (power company supplying power to a

single customer a public use); Carolina Tel. & Tel. Co.

v. McLeod, 364 S.E.2d 399 (N.C. 1988) (telephone

service to single customer a public use); Serv. Co. of

Colorado v. Shaklee, 784 P.2d 314, 318 (Colo. 1989)

(“As long as every member of the public has an equal

right with all others, on equal terms, to the use of the

[utility services], it matters not that every person is not

actually benefited thereby.”); Dyer v. Texas Electric

Service Co., 680 S.W.2d 883 (Tex. App. 1984) (electric

service to single customer a public use); Komposh v.

Powers, 244 P. 298 (Mont. 1926), aff’d, 275 U.S. 504

(1927) (road serving a single farm a public use).

This rule applies with even more force in sparsely

populated states like North Dakota, where utility

15

service to single customers is the norm and necessary.

Kelo, 545 U.S. at 482 (explaining that this Court’s

“jurisprudence has recognized that the needs of society

have varied between different parts of the Nation” and

emphasizing the “great respect” owed to state

legislatures in discerning local need). Indeed, rural

residents “would be horrified” to learn that necessary

services—such as water, power, electricity, or more

particularly relevant today, broadband internet—would

no longer be “forthcoming due to a recalcitrant adjacent

landowner.”

Mountain Valley Pipeline, LLC v.

McCurdy, 793 S.E.2d 850, 860 (W. Va. 2016).

Behm also asserts that the public use in this case

was established “solely on the private company’s own

determination that there is a public use.” Pet. ii. That

misconstrues North Dakota law and the state supreme

court’s decision in this case. The North Dakota

Legislature, not MDU, established that a gas pipeline

installed by a utility is a public use. Pet. App. 7.

Perhaps what Behm meant to say was that the court

deferred to MDU’s determination that the gas line was

necessary to accomplish that authorized public use

under state law. As MDU notes below, however,

whether a public use is necessary goes beyond what the

Fifth Amendment requires and is a creature of state

law, not federal law, and thus not a concern for this

Court. In any event, that determination was subject to

judicial review, and the North Dakota Supreme Court

affirmed MDU’s determination that the easement

across Behm’s property was necessary. Pet. App. 1213.

16

In short, Behm’s contention that “the concept of

public use must be more than just the use for one of [a

utility’s] customers” (Pet. 10) is not in accord with this

Court’s framework for determining what constitutes a

public use under the Fifth Amendment. The focus of

the Constitution is on the nature of the “use” to which

the property is put rather than the number of persons

served by the use. Considering this Court’s precedent

and the deference due the legislative branch, the North

Dakota Supreme Court correctly concluded MDU’s

pipeline was a public use.

B. The Federal Constitution Leaves

Necessity Determinations to the

Legislative Branches and the North

Dakota Supreme Court’s Determination

that the Pipeline Is Necessary under

North Dakota Law Is Not Reviewable by

this Court.

Under the federal Constitution, the question of

whether the taking is necessary is “not one of a judicial

character, but rather one for determination by the

lawmaking branch of the government.” Backus v. Fort

St. Union Depot Co., 169 U.S. 557, 568 (1898). Absent

from the Takings Clause is any language requiring

necessity as condition to condemnation. Once a court

finds the use is a public use, the “judicial function is

exhausted; that the extent to which such property shall

be taken for such use rests wholly in the legislative

discretion, subject only to the restraint that just

compensation must be made.” Shoemaker v. United

States, 147 U.S. 282, 298 (1893).

17

Behm cites National Railroad Passenger

Corporation v. Boston & Maine Corp., 503 U.S. 407,

426 (1992), to support his argument that the entity

exercising eminent domain must show not only “public

use,” but also that the taking is necessary. The case

does not help Behm because it was interpreting

statutory language, not applying the Fifth Amendment.

It involved construction of 45 U.S.C. § 562(d), which

required a condemning authority to show that property

was “required for intercity rail passenger service.” It

therefore has no application to cases invoking the Fifth

Amendment’s Takings Clause. Id. Even so, the case is

still unhelpful to Behm. The Court’s interpretation of

“required” in that statute was almost identical to the

North Dakota Supreme Court’s interpretation that a

taking is “necessary” under the state constitution and

statutes governing eminent domain if it is “reasonably

suitable and usable for the authorized public use.” Pet.

App. 11

Unlike the federal Constitution, the North Dakota

Constitution and North Dakota statute do impose a

necessity condition to condemnation. N.D. Const. art.

I, § 16; N.D.C.C. § 32-15-01(2). This Court, however,

does not have authority to review the North Dakota

Supreme Court’s conclusions under either for error.

Del Castillo v. McConnico, 168 U.S. 674, 679 (1898).

Thus, insofar as Behm bases his contention “that

property cannot be taken unless absolutely necessary”

(Pet. 11) on the federal Constitution he is mistaken;

insofar as he bases his contention on the North Dakota

Constitution or North Dakota law his contention is

unreviewable by this Court.

18

CONCLUSION

For the foregoing reasons, this Court should deny

the petition.

Respectfully submitted,

MALCOLM H. BROWN

CROWLEY FLECK PLLP

100 West Broadway Ave.

Suite 250

Bismarck, ND 58502

(701) 223-6585

DALE SCHOWENGERDT

Counsel of Record

CROWLEY FLECK PLLP

900 N. Last Chance Gulch

#200

Helena, MT 59601

(406) 457-2040

dschowengerdt@crowleyfleck.com

Counsel for Respondent