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North Dakota court puts the brakes on 'quick take' in diversion land case

Gene and Brenda Sauvageau argued that an expedited eminent domain process was unfair and illegal. They own almost 8 acres needed for the metro flood diversion project.

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A crane waits to install floodgates onto abutments in the diversion inlet structure on Monday, May 16, 2022, south of Horace, North Dakota. When the project is operational, the gates will control the flow of floodwater into the 30-mile diversion channel that will skirt the Fargo-Moorhead area.
Michael Vosburg/The Forum
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FARGO — The North Dakota Supreme Court has reversed a lower court and concluded that officials were improperly using a streamlined eminent domain process called "quick take" to obtain a farmstead for the metro flood diversion project.

The Supreme Court ruled unanimously that the Cass County Joint Water Resource District, which is acquiring land for the $3.2 billion project, must use the standard eminent domain process to acquire land and other property owned by Gene and Brenda Sauvageau.

“They’re validating landowners’ rights,” Cash Aaland, the Sauvageaus’ lawyer, said Monday, May 16, in response to the Supreme Court’s decision. Aaland said the water resource district was using the quick take process to pressure the Sauvageaus into accepting an unfair offer.

“They’re not negotiating in good faith,” he said, adding that the North Dakota Supreme Court now has ruled twice that the district was acting improperly in acquiring land. “You have a pattern here of Cass Joint violating landowners’ rights.”

Water resource district officials have widely used the quick take process to acquire property for the diversion project. Aaland and the diversion's land acquisition officials gave differing views of how sweeping the Sauvageau decision would be in shaping future land negotiations.

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The streamlined quick take process is improper in the Sauvageaus’ case because officials weren’t merely acquiring an easement or right of way, or a parcel or strip of land, but to acquire all of their property, Justice Daniel Crothers wrote in the opinion.

“The District’s taking here goes beyond the scope of (the law) for acquiring a right of way easement by quick take,” the opinion added. The water resource district must use the less expedient full eminent domain process when “acquiring a greater interest in property,” the justices ruled.

“By labeling the interest in the Sauvageaus’ property as a ‘permanent right of way easement,’ the District is attempting to evade the requirements and property owners’ protections” provided by the law, the decision concluded.

The Sauvageaus own 7.8 acres of land and other property near St. Benedict Church in rural Cass County, including a house and large garage, that the water resource informed the couple it needed in October 2021.

In November 2021 the water resource district notified the Sauvageaus that they were required to vacate their property by March 15, but the North Dakota Supreme Court blocked the eviction and ruled on April 28 in the Sauvageaus’ favor.

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Gene and Brenda Sauvageau, who own a farmstead near Horace, North Dakota, have argued in court that officials acquiring land rights for the metro flood protection project gave preferential treatment to homeowners in Oxbow, a country club community south of Fargo. Diversion officials counter that Oxbow was a unique situation and say they are following the law.
Submitted photo

The water resource district is offering $460,000 for the property, which it said is the appraised value, but the Sauvageaus have rejected the offer and say they also are legally entitled to relocation assistance.

Earlier, the water resource district paid generous relocation assistance for about 40 homeowners in the Oxbow subdivision near the Oxbow Country Club. Citing one example, the homeowner not only was paid $600,000 for the home, but another $700,000 for relocation assistance, since no other homes were available in the subdivision.

By contrast, the Sauvageaus and other rural homeowners are not being offered relocation payments, Aaland said. In Stanley Township, where the Sauvageaus live, zoning rules require homes to occupy lots of at least 10 acres, he said.

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“We’re seeking a fair deal for our clients,” Aaland said, adding that the Sauvageaus are asking for relocation payments that are less than those paid to the Oxbow homeowners. He declined to disclose what the Sauvageaus are asking in compensation.

“We’re going to litigate this until we get a fair deal,” Aaland said, noting that the Supreme Court’s rejection of the expedited quick take process in the Sauvageau case means the water resource district will have to change the way it negotiates with landowners.

“They have to redraw their whole procedure,” he said. Instead of depositing the appraised value with the court and then gaining access to the land, the district will have to negotiate under the standard eminent domain process, Aaland said.

“They can’t do this anymore,” he said. Any cases that end up going to trial will take a long time to resolve, Aaland said, noting that land compensation dispute trials involving the diversion project now are being scheduled in 2024.

“They need to respect landowners’ rights and treat them fair,” he said. “Right now they’re being predatory.”

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A shop on the almost 8-acre farmstead belonging to Gene and Brenda Sauvageau near Horace, North Dakota. Their property is one of about 30 facing "quick claim" eminent domain to obtain land rights for the metro flood control project.
Submitted photo

In acquiring land for the diversion, the water resource district has “applied the same legal principles to all impacted parties, to include the opportunity for negotiations as well as access to mitigation programs and relocation assistance,” Jodi Smith, director of lands and compliance for the Metro Flood Diversion Authority, said in a statement.

As of Monday, 27 eminent domain cases filed by the water resource district against Cass County landowners were pending. “We have dozens of clients that aren’t even in litigation yet,” Aaland said, including property for which the diversion is seeking flowage easements, which would allow water to pool temporarily on their land when the project operates during extreme floods.

Smith said the Supreme Court’s decision in the Sauvageau case will not require the water resource district to overhaul the way it negotiates to acquire land.

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“The Sauvageau decision is narrowly tailored to the property of Gene and Brenda Sauvageau, which is factually different from other properties” being acquired for the diversion project, she said.

Under the court’s decision, the district will have to use regular eminent domain procedures to acquire the Sauvageaus’ property, Smith said.

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Workers prepare abutments in the diversion inlet structure for the installation of floodgates Monday, May 16, 2022, south of Horace, North Dakota.
Michael Vosburg/The Forum
F-M flood diversion map.PNG

Patrick Springer first joined The Forum in 1985. He covers a wide range of subjects including health care, energy and population trends. Email address: pspringer@forumcomm.com
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