The recent controversy surrounding the Red River Pipeline has brought the ideas of government land repossession, easement payments, and the idea of eminent domain back into the spotlight in North Dakota. With a renewed interest comes more questioning into what exactly the ideas of easements and eminent domain mean for landowners. The answer is one that goes back a bit longer than expected but sheds some light on the issues that farmers and ranchers taking a stand against the Red River pipeline are now facing.

The original incarnation of eminent domain stems from De jure belli ac pacis (On the Law of War and Peace), a Dutch legal treatise from 1625. First referred to using the Latin term Dominium Eminens (or ‘Supreme Ownership’), it originally stated that “The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But, when this is done, the state is bound to make good the loss to those who lose their property.”

According to the Legal Information Institute of Cornell Law School, the current form of this — now known as eminent domain — in the United States is the power that the government holds to take away private property for the purpose of public use. It’s worth noting that this ability doesn’t just extend to land. Through the view of ‘public use’, the government can even use this system to take intangible property like contract rights, trade secrets, and patents so long as they could be seen to be of greater public use. At one point, it was even used to try and take over the Oakland Raiders football team franchise (though this was later invalidated due to potential Constitution violations). It’s primarily used to discuss land, though, and this is especially the case in rural states, where land will often be co-opted to allow for the creation of more pipelines and industrial establishments.

Taking ownership of or using the land does come at a cost, so those who find their territory appropriated are not left completely empty-handed. As outlined by the original treatise, and reinforced by both the 5th Amendment and cases such as Kohl v. United States and Loretto b. Teleprompter Manhattan, if the government seeks to take land from a private owner using eminent domain or makes an easement agreement, they are required to pay what is deemed as a fair sum to the landowner.

Oftentimes when it comes to land though, eminent domain does not need to come into play. Many groups will offer easements — paid agreements to cross or use a farmer’s territory for a specific purpose — to people whose land they seek to cross or use.

If this sounds confusing, it might be easier to see an example. Here’s a graphic that demonstrates the idea of a necessary easement, as well as the difficulties that arise when it comes to building and requesting passage through private land.

In this example, the pipeline is going directly through Farmer Tim’s land. Tim has signed an easement agreement that states the pipeline company will compensate him for the use of his land so long as the pipeline remains there. However, there is an issue with this setup. If we assume there’s no bordering public land, it isn’t physically possible for necessary government vehicles and supplies to get from the main road to the pipeline without crossing through Farmer Eric’s private territory.

In order to remedy this, the government would need to make an easement agreement with Farmer Eric so vehicles can travel through his land to ensure that these supplies and essential pieces of equipment can get to the pipeline in a timely manner. Although they will try to minimize the exact amount of land in the easement (ideally just enough to traverse a path, it’ll have to be enough to allow everything that’s needed — including heavy machinery — through the area. If Eric refuses to sign an easement, then the pipeline company may threaten to sue him citing eminent domain.

Unfortunately for landowners, there’s nothing that can be done to completely avoid troubles that stem from an eminent domain claim. It is possible for one to attempt to fight the concept in court by claiming there’s no need for it to become public land due to other options or a lack of explanation, but this is usually extremely difficult to prove (in the above example, for instance, the land needs to be taken because it is the only path to the pipeline). Eric will still receive compensation either way, but compared to potential court fees, it would be beneficial for him to take the easement and avoid having it forced on him.

When it comes to most passage proposals, farmers are relatively receptive. The issue with the Red River pipeline isn’t exactly from the mere idea of the easements, though: It’s much more related to how the farmers feel short-changed by the company. In KX’s conversations with the farmers and ranchers affected by the pipeline, factors like the amount offered (especially when compared to other companies who require less investment in the land) are the major concern in this situation. Many landowners claim the easement offers they have received from Red River are extremely low, especially when compared to previous deals made with oil and gas companies.

In most cases of eminent domain and easements, American courts have deemed that the idea of ‘just compensation’ as outlined in the 5th Amendment is the average market value of the property (referring back to the example, if the company wished to use an acre of land right now, they would need to pay the farmer an amount equal to the cost of that acre in 2022). The estimates that the Red River project are providing are believed to be the market value from over 10 years ago. If these claims are true, then this could be a major tilt in the dispute. Without providing proper market value, an eminent domain claim does not hold water in court.

While the Red River situation is still ongoing, we hope that this explanation of some of the ideas at the forefront of the debate helps illustrate the complex situation that North Dakota’s farmers have found themselves in. More information on the Red River Pipeline will be available here on KXNet as it becomes available.