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Photo by Nick Nelson, Agweek

BRAATEN: Landowners should use courts to fight for eminent domain

BISMARCK — I have the great fortune of spending my days fighting for landowners, many of whom have decided to take a principled stand, usually against a powerful energy company. While many of these fights certainly feel like David battling Goliath, I am often reminded of the words of Atticus Finch in To Kill a Mockingbird: “There is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution ... is a court ... Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.”

It is true that our courts have their faults, and that using the courts can be a significant financial burden, but for landowners dealing with multinational energy developers, the courts are often the last bastion for standing up for their land and their principles. This is what James and Krista Botsford decided to do when they were sued by a joint venture of Enbridge in 2014. Left with the choice of agreeing to give an easement on their land for a pipeline they did not support, or going to court, they chose to meet the company on the courthouse steps. Two years later, we were set to meet the company at the North Dakota Supreme Court and, at the last minute, the company agreed to release the easement it had acquired by force. The Botsfords were reimbursed for all of the fees and expenses they had paid in their fight. Although I enjoyed the two years of litigation, I know the Botsfords would have been happy had the company never come knocking.

They were faced with a choice, however, and I know they will live the rest of their lives with heads held high knowing they stood up for their land and their principles, and won. But what I respect the most is that it was not simply about winning. Certainly that was their goal and I would be a terrible attorney if it was not mine as well, but even if the Botsfords had lost, they would have lost knowing that they had not acquiesced to something to which they were philosophically opposed.

I share this because another reason the Botsfords took on this fight was to show other landowners that you can win. Courts really are great levelers. Only strange people such as myself enjoy lawsuits, but the courts do provide a playing field upon which landowners can fight back, and win.

I also share this because more and more, I am seeing the power of eminent domain abused in this state, and around the country in general. The power to take private property from citizens should be used only after it is shown that society must take from one to benefit the many. The Botsford case had the potential to change some important case law in North Dakota regarding eminent domain, and I suspect that is one reason the company settled the case before the Supreme Court had a chance to hear it.

I have other eminent domain cases right now, and perhaps one of them will make its way to the Supreme Court so that the Court can take a hard look at our laws. But I encourage all landowners to follow the Botsfords’ lead, not only by drawing a line in the sand when it comes to our principles, but also to continue the good they have done for landowners by pushing our legislative assembly this session to address the abuse of eminent domain.

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