BY: JEFF BEACH

BISMARCK, N.D. (North Dakota Monitor) – The North Dakota Supreme Court has ruled in favor of pipeline company Summit Carbon Solutions in a dispute with landowners over the right to access properties to survey the land. 

The ruling released Thursday affirms a lower court ruling that the pipeline company did not need permission from landowners before accessing property to determine a possible route. 

Some landowners have refused to grant Summit access to survey their property as Summit attempts to site its carbon capture pipeline. 

Several cases regarding survey access were grouped together in the case SCS Carbon Transport v. Malloy. 

Howard Malloy of Bismarck owns land in Morton County where Summit wants to site its pipeline. Malloy contends the property is a prime housing development area. 

Iowa-based Summit is trying to obtain property easements for its five-state carbon capture pipeline.  

Summit says it has secured more than 80% of the North Dakota route through voluntary easements but some landowners, such as Malloy, have refused to grant survey access. 

In December, attorneys for the landowners argued that the state law granting survey access is unconstitutional. 

North Dakota law does not require written notice to landowners for survey access and allows survey crews access for projects that would benefit the public to show up at any time. Attorney Brian Jorde argued in December that written notice should be required and landowners should be compensated up front. They also should have a right to challenge access requests in court, he argued.

Without those protections, a pipeline or utility company effectively has an easement on the property, he argued. 

The Supreme Court on Thursday upheld a district court ruling, saying that court’s order “did not grant the functional equivalent of an easement, either temporary or permanent.” 

Jorde said Thursday that for the courts to deem the statute constitutional, it needed to determine that there were already limits on the survey access. He contends the court incorrectly applied the statute’s limits on the use of the property, in this case a pipeline, and applied it to survey access, where the statute provides no limits. 

The ruling did add that landowners could take legal action if Summit damages the land “and unreasonably interferes with its ordinary use, or continues to occupy the land beyond the time reasonably needed to complete its examinations, surveys, and maps.” 

Bismarck attorney Derrick Braaten also represented landowners in the case. 

“The good thing for landowners is that it appears the Supreme Court is going to narrow the scope of what is allowed in precondemnation surveys and has left open the issue of compensation for any damages,” Braaten said in an email. “We disagree that these kinds of surveys are a background restriction on our property rights.” 

Summit issued this statement: 

“Summit Carbon Solutions respects the North Dakota Supreme Court’s decision. We are committed to conducting our surveys responsibly, respecting landowners’ rights, and ensuring minimal impact. We will continue to adhere to legal requirements and compensate for any damages during our activities.”

Jorde said he would continue to analyze the ruling and determine next steps in the coming weeks.

Jorde’s Domina Law firm represents landowners across the footprint of the Summit pipeline project, which aims to connect 57 ethanol plants to an underground carbon storage site northwest of Bismarck. 

There was a similar survey access case argued before the South Dakota Supreme Court, which has yet to rule. A date for oral arguments in another case before the Iowa Supreme Court has yet to be set. 

Jorde said North Dakota’s law would be the most difficult for landowners to overcome. 

Meanwhile, the North Dakota Public Service Commission is holding hearings on Summit’s pipeline route permit application. The PSC denied Summit a permit last year but has allowed Summit to address the PSC’s concerns and reconsider the case.

FARGO — With Election Day for the North Dakota primary fast approaching, the judges, clerks, and inspectors who will be running the show in Cass County are getting safety training from the Sheriff’s Department.

Sessions were held on May 29 and 30, teaching workers how to protect themselves and others, even in a worst-case scenario like an active shooter situation.

The training was held at the Fargodome, with election workers gathering to get some tips on how to handle whatever may arise on Election Day, like de-escalation techniques for dealing with voters potentially acting aggressively.

“They’re really just looking for some information on maybe how to de-escalate some of those situations and how to work through them safely. So our training encompasses that training piece, what people can do to make sure that they’re safe. We certainly don’t expect anything to happen. We don’t have any information that anything would happen, this was just more preventive stuff,” said Cass County Sheriff Jesse Jahner.

The training also went over what workers should do in an active shooter situation, telling them things like how to seek proper cover, and how to help others before first responders arrive.

“We really don’t think that anything would ever happen, but at the end of the day if the worst-case scenario did happen, then we can go ahead and people are prepared and able to say, ‘Yep, we took this training, we know how to react in those situations,’” said Cass County Election Administrator Craig Steingaard.

The session itself was a combination of a presentation and hands-on training, with people learning how to use tourniquets, and getting answers to any questions they may have.

“People that have worked at the polling sites before have come across different situations and they’re bringing those situations up so number one, people that may have never worked at them kind of get an idea of some of the situations that they’ve had to deal with,” Jahner said.

For the county, being able to provide as much training as possible to the workers, is all about getting them as prepared as possible for whatever Election Day may bring.

“Just having the confidence of knowing that they have been trained, I think that that’s a big aspect too, is poll workers want to know that the County has given them the knowledge, given them the training to actually react in a bad situation,” Steingaard said.

The North Dakota Supreme Court has ruled in favor of pipeline company Summit Carbon Solutions in a dispute with landowners over the right to access properties to survey the land.

The ruling released Thursday affirms a lower court ruling that the pipeline company did not need permission from landowners before accessing property to determine a possible route.

Some landowners have refused to grant Summit access to survey their property as Summit attempts to site its carbon capture pipeline.

Several cases regarding survey access were grouped together in the case SCS Carbon Transport v. Malloy.

Howard Malloy of Bismarck owns land in Morton County where Summit wants to site its pipeline. Malloy contends the property is a prime housing development area.

Iowa-based Summit is trying to obtain property easements for its five-state carbon capture pipeline.

More than 80% voluntary easements

Summit says it has secured more than 80% of the North Dakota route through voluntary easements but some landowners, such as Malloy, have refused to grant survey access.

In December, attorneys for the landowners argued that the state law granting survey access is unconstitutional.

North Dakota law does not require written notice to landowners for survey access and allows survey crews access for projects that would benefit the public to show up at any time. Attorney Brian Jorde argued in December that written notice should be required and landowners should be compensated up front. They also should have a right to challenge access requests in court, he argued.

Without those protections, a pipeline or utility company effectively has an easement on the property, he argued.

The Supreme Court on Thursday upheld a district court ruling, saying that court’s order “did not grant the functional equivalent of an easement, either temporary or permanent.”

Jorde said Thursday that for the courts to deem the statute constitutional, it needed to determine that there were already limits on the survey access. He contends the court incorrectly applied the statute’s limits on the use of the property, in this case a pipeline, and applied it to survey access, where the statute provides no limits.

The ruling did add that landowners could take legal action if Summit damages the land “and unreasonably interferes with its ordinary use, or continues to occupy the land beyond the time reasonably needed to complete its examinations, surveys, and maps.”

Bismarck attorney Derrick Braaten also represented landowners in the case.

“The good thing for landowners is that it appears the Supreme Court is going to narrow the scope of what is allowed in precondemnation surveys and has left open the issue of compensation for any damages,” Braaten said in an email. “We disagree that these kinds of surveys are a background restriction on our property rights.”

Summit issued this statement:

“Summit Carbon Solutions respects the North Dakota Supreme Court’s decision. We are committed to conducting our surveys responsibly, respecting landowners’ rights, and ensuring minimal impact. We will continue to adhere to legal requirements and compensate for any damages during our activities.”

Similar case pending in South Dakota

Jorde said he would continue to analyze the ruling and determine next steps in the coming weeks.

Jorde’s Domina Law firm, based in Omaha, represents landowners across the footprint of the Summit pipeline project, which aims to connect 57 ethanol plants to an underground carbon storage site northwest of Bismarck.

There was a similar survey access case argued before the South Dakota Supreme Court, which has yet to rule. A date for oral arguments in another case before the Iowa Supreme Court has yet to be set.

Jorde said North Dakota’s law would be the most difficult for landowners to overcome.

Meanwhile, the North Dakota Public Service Commission is holding hearings on Summit’s pipeline route permit application. The PSC denied Summit a permit last year but has allowed Summit to address the PSC’s concerns and reconsider the case.

This article first appeared in the North Dakota Monitor, a sister site of the Nebraska Examiner in the States Newsroom network.