When a straightforward constitutional question isn't
It seems like a simple and straightforward constitutional question: Can the government flood your private property by building a massive dam and reservoir, then claim ownership of that property without compensating you for what they flooded?
A law degree should not be required to answer this question. Without grabbing a textbook or googling the Constitution, your first instinct was probably something along the lines of, "Hey, doesn't something in the Constitution, like the Takings Clause, protect us from that?"
Our founding fathers would likely agree. After all, they believed so strongly in the importance of private property rights they accorded it gospel-like status by including the prohibition against the government taking your property in the Bill of Rights.
The Fifth Amendment of the United States Constitution seemingly provides the answer to our question in its closing sentence, stating "[N]or shall private property be taken for public use, without just compensation."
This simple sentence is of particular significance here, in the Great Plains, where our economy and livelihoods depends on the land and agriculture. Not that it needed repeating, but the homesteaders who broke this tough prairie soil and turned it into the breadbasket of the world enshrined the same sacrosanct principle in the North Dakota Constitution at Article I, Section 16, which provides, "Private property shall not be taken or damaged for public use without just compensation having been first made to, or paid into court for the owner, ... ."
So, the short answer is that the government should not be able to take your property by flooding it.
Unfortunately, for hundreds of landowners in western North Dakota, that is exactly what has happened. The agency responsible for managing the state's minerals, the Board of University and School Lands, is claiming the state owns hundreds of thousands of private mineral acres by virtue of the United States flooding that land with Lake Sakakawea in the 1950s and 1960s.
Back in the 1950s, the United States began approaching landowners with two options, neither good. In essence, the United States said either sell us your land because we're going to flood it, or we'll take you to court and get your land condemned.
Imagine the heartache of the government taking your land. The United States, though, allowed these landowners, who were losing some of their best farm and ranchland to the man-made government reservoir, to keep their minerals. For decades, these landowners and their heirs went on to lease these minerals.
I'm the proud son of a fourth-generation farmer from Maddock, N.D. My dad and grandpa still farm there. They both get Agweek and have ever since I can remember. My great-great grandparents homesteaded near Esmond, N.D. That land is part of our story, just like your land is part of your family's story — a tie that binds over 100 years of our family.
Now, as a lawyer, I see landowners who, after losing their land to the federal government for Lake Sakakawea, have to contend with an agency claiming the same land flooded nearly 60 years ago, despite the clear protections in the United States and North Dakota Constitutions. The original heartache and devastation their grandparents endured is reopened.
In response, the state Legislature passed and the governor signed Senate Bill 2134. This bill, codified at Chapter 61-33.1 of the North Dakota Century Code, recognizes that the state has no claim to the mineral interests that were reserved by landowners when their property was flooded by Lake Sakakawea.
All is right, then? No, all is not right. Despite the Legislature passing Senate Bill 2134, and even with the protections for private property in the United States and North Dakota Constitutions, the Land Board refuses to yield, still claiming this private property. The issue will culminate this summer at the North Dakota Supreme Court. When a straightforward constitutional issue isn't.
Editor's note: Swanson is an attorney at Vogel Law Firm in Fargo, N.D., and practices land use, natural resource, ag and business law. He is filling in this week for Peter Welte.