Petition for Writ of Certiorari — William S. Wilkinson, et al., Petitioners v. Board of University and School Lands of North Dakota, et al.

No. _____

In the Supreme Court of the United States

William S. Wilkinson, et al.,

Petitioners,

v.

The Board of University and School Lands of the

State of North Dakota, et al.,

Respondents.

On Petition for Writ of Certiorari to

the North Dakota Supreme Court

PETITION FOR WRIT OF CERTIORARI

Monte L. Rogneby*

*Counsel of Record

Joshua A. Swanson

Robert B. Stock

Vogel Law Firm

218 NP Avenue

PO Box 1389

Fargo, ND 58107-1389

Telephone: 701.237.6983

Email:

mrogneby@vogellaw.com

jswanson@vogellaw.com

rstock@vogellaw.com

Counsel for Petitioners

February 7, 2023

ii

QUESTION PRESENTED

Whether the North Dakota Supreme Court

erred in finding the Fifth Amendment to the United

States

Constitution

does

not

require

just

compensation when the State of North Dakota

claimed title to, and leased private oil and gas

interests for over a decade, which the North Dakota

Supreme Court ultimately held the State did not

own?

iii

PARTIES TO THE PROCEEDINGS BELOW

Petitioners William S. Wilkinson, Ann L.

Nevins, Ann L. Nevins, and Amy Perkins as

Personal Representatives for the Estate of Dorothy

A. Wilkinson; Barbara Caryl Materne, Trustee of

the Petty Living Trust; Charlie R. Blaine and

Vanessa E. Blaine, as Co-Trustees of the Charlie R.

Blaine and Vanessa E. Blaine Revocable Trust; Lois

Jean Patch, life tenant; and Lana J. Sundahl, Linda

Joy Weigel, Deborah J. Goetz, Marva J. Will,

Ronald J. Patch, Michael Larry Patch, and Jon

Charles Patch, Remaindermen (collectively, the

“Wilkinsons”), were the plaintiffs in the district

court and appellants in the North Dakota Supreme

Court.

Respondents The Board of University and

School Lands of the State of North Dakota,

iv

Brigham Oil & Gas, LLP; Statoil Oil & Gas LP,

were defendants and in the district court and

appellees in the North Dakota Supreme court.

Respondents EOG Resources, Inc.; XTO Energy

Inc., Petrogulf Corporation; and all other persons

unknown who have or claim an interest in the

property

described

in

the

Complaint,

were

defendants in the district court. Respondent North

Dakota State Engineer was an intervenor in the

district court and an appellee in the North Dakota

Supreme Court.

v

RELATED PROCEEDINGS

Wilkinson v. The Board of University & School

Lands of the State of North Dakota, 2022 ND 183,

North Dakota Supreme Court. Judgment entered

November 10, 2022.

Wilkinson v. The Board of University & School

Lands of the State of North Dakota, 2020 ND 179,

North Dakota Supreme Court. Judgment entered

August 27, 2020.

Wilkinson v. The Board of University & School

Lands of the State of North Dakota, Civil No. 532012-CV-00038. Judgment entered January 10,

2022.

Wilkinson v. The Board of University & School

Lands of the State of North Dakota, Civil No. 532012-CV-00038. Judgment entered September 6,

2019.

vi

TABLE OF CONTENTS

QUESTION PRESENTED ................................. ii

PARTIES TO THE PROCEEDING .................. iii

RELATED PROCEEDINGS ...............................v

TABLE OF CONTENTS.................................... vi

TABLE OF AUTHORITIES ............................ viii

PETITION FOR WRIT OF CERTIORARI ........ 1

OPINIONS BELOW ........................................... 1

JURISDICITON ................................................. 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................... 2

STATEMENT OF THE CASE ........................... 3

A. Legal Background .................................. 3

B. Factual Background .............................. 4

C. Procedural Background ......................... 7

REASONS FOR GRANTING THE PETITION

................................................................. ..11

A. The Decision Below Conflicts with the

Decisions of this Court and the Federal

Circuit… ............................................... 13

vii

TABLE OF CONTENTS

(continued)

B. The Decision Below Presents an

Important

Federal

Constitutional

Question on which this Court Has Not

Directly Opined. ................................... 23

C. This Case is a Good Vehicle to Decide the

Federal

Constitutional

Question

Presented Herein. ................................ 25

CONCLUSION .......................................... 27

viii

TABLE OF AUTHORITIES

CASES

Armstrong v. United States, 364 U.S. 40, 49

(1960)…………………………………………3

Central Pines Land Co. v. United States, 107

Fed. Cl. 310 (Fed. Cl. 2010)……...15, 16, 18

Central Pines Land Co. v. United States, No. 98314L, 2008 WL 8958319 (Fed. Cl. Sept. 30,

2008)

First English Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., Cal., 482

U.S. 304 (1987)…………………3, 21, 22, 24

Knick v. Township of Scott, Pa., 139 S. Ct. 2162

(2019)……………………………4, 21, 22, 24

Petro-Hunt, LLC v. United States, 90 Fed. Cl. 51

(Fed. Cl. 2009)…………………………15, 19

Pettro v. United States, 47 Fed. Cl. 136 (Fed. Cl.

2000)………………………………..15, 18, 19

PPL Montana, LLC v. Montana, 565 U.S. 576

(2012)…………………………………………6

United States v. Clarke, 445 U.S. 253 (1980)….21

Yuba Goldfields, Inc. v. United States, 723 F.2d

884 (Fed. Cir. 1983)…………………..15, 17

ix

TABLE OF AUTHORITIES

(continued)

CONSTITUTION, STATUTES, AND RULES

U.S. Const. amend. V…………………………passim

42 U.S.C. § 1983…………………………………..8, 15

N.D. CENT. CODE § 61-33.1-02…………….passim

SUP. CT. R. 10……………………………………….12

1

PETITION FOR WRIT OF CERTIORARI

The Petitioners respectfully petition for a

writ of certiorari to review the judgment of the

North Dakota Supreme Court.

OPINIONS BELOW

The North Dakota Supreme Court’s opinion

(App. 1a-42a) is reported at 2022 ND 183, 981

N.W.2d 853.

The district court’s opinion is

unpublished but reproduced in the appendix (App.

71a-152a).

JURISDICITON

The North Dakota Supreme Court entered

on judgment resolving all claims in the case on

November 10, 2022.

Jurisdiction in this Court

exists under 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution states:

No person shall be held to answer for

a capital, or otherwise infamous

crime, unless on a presentment or

indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in actual

service in time of War or public

danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be

a witness against himself, nor be

deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public

use, without just compensation.

U.S. Const. amend. V.

The State Ownership of Missouri Riverbed Act, as

set forth in Chapter 61-33.1, is reproduced in full in

the appendix (App. 174a-184a).

3

STATEMENT OF THE CASE

A.

Legal Background

The Takings Clause of the Fifth Amendment

to the United States Constitution, as incorporated

against the States by the Fourteenth Amendment

to the United States Constitution, requires just

compensation when the government takes private

property for public use. U.S. Const. amend. V; U.S.

Const. amend. XIV. As this Court has repeatedly

recognized, “government action that works a taking

of property rights necessarily implicates the

‘constitutional

obligation

compensation.’”

First

to

English

pay

just

Evangelical

Lutheran Church of Glendale v. Los Angeles Cnty.,

Cal., 482 U.S. 304, 314 (1987) (quoting Armstrong

v. United States, 364 U.S. 40, 49 (1960)).

constitutionally

required

just

The

compensation

4

“generally consist[s] of the total value of the

property when taken, plus interest from that time.”

Knick v. Township of Scott, Pa., 139 S. Ct. 2162,

2170 (2019).

B.

Factual Background

Over half a century ago, the Wilkinson

family (the Petitioners’ predecessors in interest)

acquired title to 286.04 acres of property in

Sections 12 and 13, Township 153 North, Range

102 West, in Williams County, North Dakota. (See

App. 4a, at ¶ 2). In 1958, the Wilkinsons sold the

surface of that property to the United States for

construction and operation of the Garrison Dam

and its reservoir, Lake Sakakawea. Id. In the deed,

however, the Wilkinsons reserved their interest in

the minerals in and under the property (“Wilkinson

Property”), which include valuable oil and gas

5

interests. See id. It is undisputed the Wilkinsons

have leased the minerals numerous times since

they conveyed the surface of the property to the

United States. Id. at ¶ 3.

In

2010,

despite

the

Wilkinsons’

longstanding ownership interests, the State of

North Dakota (“State”), 1 a stranger to title, claimed

it owned the Wilkinson Property. (See App. 5a at

¶ 4).

The State purportedly claimed ownership

based studies, commissioned by the State, to

measure the current and historic ordinary high

water mark (“OHWM”) of the Missouri River. (See

1 The Wilkinsons collectively refer to Respondents The Board

of University of School Lands of the State of North Dakota

and the North Dakota State Engineer as the “State.”

6

App. 28a at ¶ 43). 2 Upon admission to the Union

in 1889, the State of North Dakota acquired title

under the equal footing doctrine to the beds of

navigable waters within its boundaries up to the

OHWM, including the bed of the Missouri River.

See PPL Montana, LLC v. Montana, 565 U.S. 576,

580-81 (2012).

Rivers are “variable,” and the

Missouri River was known to “shift[] and flood[]

often.” Id. at 582. Capitalizing on these dynamics,

the State claimed “title to the bed of the Missouri

River up to the current” OHWM to broadly assert

ownership over valuable mineral rights reserved by

private owners, such as the Wilkinsons. Wilkinson

2 These studies are known as the Phase I and Phase II

studies. Lake Sakakawea, the Reservoir for the Garrison

Dam, altered the OHWM, prompting the studies.

7

v. Board of Univ. & Sch. Lands, 2017 ND 231, ¶ 7,

903 N.W.2d 51 (“Wilkinson I”) (emphasis added).

In addition to claiming ownership of the

minerals, the State entered into leases for the

Wilkinson Property. (App. 5a, at ¶ 4). As a result

of these leases, the State received royalties for oil

production from the Wilkinsons Property in Section

12 and bonus payments for Section 13. Id.

As a result of the State’s competing claim to

ownership of the Wilkinson Property, royalty

payments to the Wilkinsons were suspended, and

Statoil escrowed the royalty payments to the State

at the State-owned Bank of North Dakota. (See

App. 6a, at ¶ 5).

C.

Procedural Background

In 2012, the Wilkinsons brought this lawsuit.

(See App. 6a, at ¶ 5).

As relevant here, the

8

Wilkinsons sued the State seeking to quiet title to

the minerals at issue and just compensation

pursuant to the Takings Clause of the Fifth

Amendment. 3

See id.; see also U.S. Const.

amend. V; 42 U.S.C. § 1983.

On May 18, 2016, the state district court

granted summary judgment in favor of the State,

finding the State owned the Wilkinson Property.

(App. 7a, at ¶ 6).

The Wilkinsons appealed. Id.

During the pendency of the appeal, the North

Dakota Legislature enacted Chapter 61-33.1 of the

North Dakota Century Code, limiting the State’s

ownership claim “only to the historical Missouri

riverbed channel up to the” OHWM before

3 The Wilkinsons brought other claims against the State and

other defendants, but the federal takings claim is the only

claim at issue for purposes of this Petition.

9

construction of the Garrison Dam. N.D. Cent. Code

§ 61-33.1-02 (emphasis added).

Accordingly, the

North Dakota reversed the district court’s grant of

summary

judgment

and

remanded

for

consideration of N.D.C.C. ch. 61-33.1. (See App. 7a,

at ¶ 6); see also Wilkinson I, 2017 ND 231, ¶ 29, 903

N.W.2d 51 (reversing and remanding).

On remand, the district court granted

summary judgment in favor of the Wilkinsons,

confirming that the Wilkinsons – and not the State

– own the Wilkinson Property. (See App. 7a, at ¶ 7).

The State appealed before a final judgment

disposing of all claims, and the North Dakota

Supreme Court affirmed that the Wilkinsons own

the Wilkinson Property. See id.; see also Wilkinson

v. Board of Univ., 2020 ND 179, ¶ 32, 2020 ND 179

(“Wilkinson II”) (affirming ownership) (republished

10

at appendix 43a-69a). The North Dakota Supreme

Court then remanded for the district court to

resolve the Wilkinsons’ remaining claims, including

their federal takings claim, and to determine

damages. (See App. 7a-8a, at ¶ 7). Following that

decision in November 2020, the Wilkinsons finally

received royalties owed to them since November

2010. (See App. 8a, at ¶ 8).

In July 2022, on remand, the district court

held a bench trial on the remaining claims and

damages. See id. at ¶ 9. Contrary to the law, the

district court dismissed the Wilkinsons’ takings

claim and denied damages, interest, costs, and

attorney’s fees. (App. 151a-152a).

The Wilkinsons appealed, and the North

Dakota Supreme Court affirmed. (App. 1a-42a).

The North Dakota Supreme Court confirmed that

11

the Wilkinsons – and not the State – own the

Wilkinson

Property;

that

the

State

claimed

ownership to and entered into leases to the

Wilkinson Property; and that, because of the State’s

actions, the Wilkinsons did not receive royalties for

production on the Wilkinson Property for a decade.

See id. However, the North Dakota Supreme Court

wrongly concluded that the State’s actions did not

constitute a taking under the Fifth Amendment.

See id. From that decision, the Wilkinsons petition

for review.

REASONS FOR GRANTING THE PETITION

The question presented in this case is

whether

the

Takings

Clause

of

the

Fifth

Amendment requires just compensation when the

State claims ownership to, and leases, valuable,

private oil and gas interests, depriving the private

12

owner of royalty payments for a decade.

The

Wilkinsons respectfully submit that the Takings

Clause requires just compensation under these

circumstances. The North Dakota Supreme Court,

however, found that no just compensation was due,

because the State’s conduct was the product of a

title dispute and did not amount to a taking under

federal law. (App. 17a-29a).

The Court should hear this case because it

involves a decision by a state court of last resort,

the North Dakota Supreme Court, on an important

question of federal law that conflicts with opinions

of the Federal Circuit and is inconsistent with the

existing guidance from this Court on the Takings

Clause. See Sup. Ct. R. 10(c). Beyond that, this

case involves a specific question of federal law on

which this Court has not directly opined.

Id.

13

Further, this case is a good vehicle to address that

important federal question because the underlying

facts, and the Wilkinsons’ ownership of the

Wilkinson

Property,

are

not

in

dispute.

Accordingly, this Petition should be granted so that

this Court can correct the North Dakota Supreme

Court’s decision on federal constitutional law.

A.

The Decision Below Conflicts with

the Decisions of this Court and the

Federal Circuit

The district court characterized this matter

as

a

mere

“title

dispute”

rather

than

an

unconstitutional taking. (App. 104a-105a). That

characterization was contrary to federal law. The

North Dakota Supreme did correctly find that

“[r]eframing the action as merely an action for quiet

title does not preclude a determination of the

takings claim on the merits.” (App. 16a at ¶ 23).

14

However, the North Dakota Supreme Court

erroneously deviated from federal law in finding

the State’s conduct here nevertheless did not

amount to a taking. More specifically, the North

Dakota Supreme Court erred in finding that the

government conduct at issue did not amount to a

taking under federal law when the State claimed

title to, leased, the minerals, causing royalty

payments to be withheld for over a decade.

Review of this case is warranted because the

decision below conflicts with decisions from the

United States Court of Appeals for the Federal

Circuit and the United States Court of Federal

Claims.

Courts in the Federal Circuit have found

that the mere assertion of title by the government,

standing alone, does not amount to an actionable

15

taking. However, those cases also recognize that a

taking does occur when such an assertion of title is

coupled with other government conduct that

interferes with a private property interest. See

generally Yuba Goldfields, Inc. v. United States,

723 F.2d 884 (Fed. Cir. 1983); Central Pines Land

Co. v. United States, 107 Fed. Cl. 310 (Fed. Cl.

2010) (“Central Pines II”); Central Pines Land Co.

v. United States, No. 98-314L, 2008 WL 8958319

(Fed. Cl. Sept. 30, 2008) (“Central Pines I”) Pettro

v. United States, 47 Fed. Cl. 136 (Fed. Cl. 2000); see

also Petro-Hunt, LLC v. United States, 90 Fed. Cl.

51 (Fed. Cl. 2009). In other words, the government’s

“assertion of title plus something more” is an

unconstitutional taking. Central Pines II, 107 Fed.

Cl. at 325.

16

Numerous cases have found the issuance of

mineral leases is “‘something more’ than the mere

assertion of title,” constituting a taking. Central

Pines II, 107 Fed. Cl. at 325. For example, like in

this case, in Central Pines, a property owner sold

the surface of the land to the United States but

reserved ownership of the minerals. Central

Pines I, 2008 WL 8958319, at *1. Sixty years after

the conveyance, the federal government circulated

an

internal

memorandum

determining

the

government actually owned the minerals. Id. at *3.

The government subsequently leased the minerals.

Id. The mineral owner filed a quiet title action

along with a takings claim under federal law. Id. at

*4. The government argued that a mere incorrect

assertion of ownership, or a title dispute, is not a

taking. Id. at *4-5. The Court of Federal Claims

17

rejected the government’s argument, explaining

that any good-faith belief by the government that it

owned the minerals did not change the fact that the

government issued leases for minerals it did not

own. Id. at *11-12.

Other cases from the Federal Circuit have

reached the same conclusion in similar contexts.

See, e.g., Yuba, 723 F.2d 884 (reversing summary

judgment to the government where the government

asserted a good-faith claim to title but nonetheless

interfered with private mineral rights); Pettro, 47

Fed. Cl. 136 (finding the government’s assertion of

title cannot excuse interference with private

mineral rights).

Despite the guidance from these cases in the

Federal Circuit, the North Dakota Supreme Court

found that the State claiming ownership to,

18

entering into mineral leases for, the Wilkinson

Property was not “something more” than a mere

government assertion of title. (App. 37a at ¶ 60).

The North Dakota Supreme Court reached that

conclusion despite the fact that the State interfered

with the Wilkinsons receiving royalties on its

minerals for over a decade. (App. 41a at ¶ 67).

Inconsistent with the opinions of the courts

from the Federal Circuit, the North Dakota

Supreme Court found no temporary physical

taking, because “the leases neither invaded the

property nor legally authorized a physical invasion

or occupation of the [Wilkinson] property.” (App.

21a, at ¶ 31); cf. Central Pines II, 107 Fed. Cl. at

325, 238 (assessing mineral leases as a temporary

physical taking); Pettro, 47 Fed. Cl. at 138, 145-49

(same for preventing plaintiff to mine minerals);

19

Petro-Hunt, 90 Fed. Cl. at 64, 67 (same for mineral

leases).

The North Dakota Supreme Court

otherwise

rejected

that

a

regulatory

taking

occurred because the Wilkinsons were also able to

enter into leases for their minerals, ignoring the

total

deprivation

of

the

royalties

from

the

production under the leases with the State.

(App. 29a-30a, ¶ 45).

In all the North Dakota Supreme Court’s

decision cannot be reconciled with the cases from

the Federal Circuit. Rather, those cases stand for

the proposition that the State is not excused from

its constitutional duty to pay just compensation

simply because it commits a taking under the guise

of a title dispute. Instead, once the government

asserts title and then does “something more”—such

as entering into leases and causing the suspension

20

of royalty payments—the government has worked a

taking, and just compensation is due.

The cases from the Federal Circuit are the

most analogous.

However, the North Dakota

Supreme Court’s decision is also inconsistent with

the guidance from this Court regarding takings.

Review of this case is further warranted on this

basis.

The

North

Dakota

Supreme

Court

erroneously determined that the State’s conduct in

this case did not interfere with the Wilkinsons’

property rights because the Wilkinsons were able to

enter into mineral leases on the Wilkinson Property

as well. However, that determination wholly that

the Wilkinsons were nevertheless deprived of

royalty payments for a decade because of the State’s

interference with their property.

21

The Wilkinsons’ receipt of the royalty

payments a decade later does not change the fact

that the State worked a taking when it leased the

Wilkinson Property, resulting in the suspension of

those payments. Rather, this Court has instructed

that the Takings Clause of the Fifth Amendment is

“self-executing.”

First English, 482 U.S. at 315

(quoting United States v. Clarke, 445 U.S. 253, 257

(1980)). In other words, “a property owner has a

constitutional claim for just compensation at the

time of the taking.”

Knick, 139 S. Ct. at 2171.

Indeed, no government conduct after the taking can

“nullify

the

property

owner’s

existing

Fifth

Amendment right [to compensation]: ‘[W]here the

government's activities have already worked a

taking of all use of property, no subsequent action

by the government can relieve it of the duty to

22

provide compensation.’” Id. (quoting First English,

482 U.S. at 321). That constitutionally requested

compensation includes interest from the time of the

taking. Id. at 2170.

As applied to this case, these principles

provide that the Wilkinsons were entitled to just

compensation from the time that the State worked

a taking on the Wilkinson Property by claiming

ownership to and leasing it, resulting in the

deprivation of royalties to the Wilkinsons. At a

minimum, the Wilkinsons were entitled to just

compensation “at the time” the State interfered

with their right to royalties from their oil and gas

interests. Knick, 139 S. Ct. at 2171. Although the

North Dakota Legislature intervened, forcing the

State to concede that the Wilkinsons – and not the

State – owned the Wilkinson Property, that

23

“subsequent action by the government” does not

relieve

the

State

“of

the

duty

to

provide

compensation.” Id. As a result, the decision below

directly conflicts with the guidance of this Court

that the Wilkinsons were due just compensation,

“plus interest from that time,” for the decade they

were deprived the royalty payments. Id.at 2170.

In sum, this Court should review the decision

below because its conclusions on the federal

Takings Clause cannot be reconciled with the

opinions from the Federal Circuit or the guidance

from this Court.

B.

The Decision Below Presents an

Important Federal Constitutional

Question on which this Court Has Not

Directly Opined.

As noted above, the cases from the Federal

Circuit are the most analogous in that they directly

consider whether the Takings Clause is invoked

24

when the government frames its conduct as a title

dispute as opposed to a taking.

This Court’s

guidance in seminal cases such as First English and

Knick are consistent with the conclusions reached

by those courts in the Federal Circuit—that the

government’s assertion of title constitutes a taking

when coupled with interference with the private

owners property rights. However, this Court has

not directly considered the “title dispute” defense

that the State asserted to the federal takings claims

in this case. Accordingly, the Court should review

the decision below in order to directly rule on this

important federal constitutional question.

Indeed, guidance is needed on this question.

The cases from the Federal Circuit, cited above,

demonstrated the government has repeatedly

attempted to evade its constitutional duty to pay

25

just compensation by reframing a taking as a mere

title dispute.

In addition to the cases from the

Federal Circuit, other courts have similarly

wrestled with this question, in a variety of contexts.

(App. 105a-108a (cases cited therein)). Thus, this

is not an isolated incident or question; it is a

recurring attack on the Takings Clause that this

Court should address.

C.

This Case is a Good Vehicle to Decide

the Federal Constitutional Question

Presented Herein.

The Court should grant review of this case

because the decision below is a good vehicle to

decide

the

federal

constitutional

question

presented—whether just compensation is due when

the State claims ownership to and leases private

mineral interests, depriving the lawful owner of

royalty payments for a decade. This case is the

26

appropriate vehicle for resolving the question of

whether the State’s position, that it was merely

acting as a landowner in disputing title, is a valid

defense to a federal takings claim.

This case is a good vehicle because the

underlying

facts

are

entirely

undisputed.

Importantly, it is undisputed that the Wilkinsons

own the Wilkinson Property, and that they have

owned that property (through their predecessors in

interest) for over half a century.

It is further

undisputed that the State does not now own, nor

has it ever owned, the Wilkinson Property. That is,

it is undisputed that the State was a stranger to

title when it claimed ownership to, and entered

leases for, the Wilkinson Property.

Under these circumstances, the Court need

not concern itself with the ultimate merits of the

27

State’s supposed “title dispute,” but can instead

focus

on

presented:

the

important

whether

federal

just

constitution

compensation

is

nevertheless due.

CONCLUSION

The

North

Dakota

Supreme

Court

erroneously denied the Wilkinsons relief on their

federal takings claim, depriving them of the just

compensation required under the Fifth Amendment

to the United States Constitution.

The decision

below is inconsistent with federal case law and the

guidance from this Court on the Takings Clause.

This case is an appropriate vehicle for resolving the

important

federal

constitutional

question

presented—whether just compensation is due when

a government claims ownership to and leases

private property, resulting in deprivation of

28

payment due to the property owner for over a

decade. For these reasons, the Wilkinsons’ Petition

for Certiorari should be granted.

DATED: February 7, 2023.

Respectfully submitted,

Monte L. Rogneby*

*Counsel of Record

Joshua A. Swanson

Robert B. Stock

Vogel Law Firm

218 NP Avenue

PO Box 1389

Fargo, ND 58107-1389

Telephone: 701.237.6983

Email:

mrogneby@vogellaw.com

jswanson@vogellaw.com

rstock@vogellaw.com

Counsel for Petitioners