In re: 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed North Dakota Diversion and Associated Structures
Steven Brakke; Colleen Brakke; Dorothy V. Brakke, as trustee of the Dorothy V. Brakke Revocable Living Trust under agreement dated April 3, 1980, as amended and as beneficiary and possible successor Trustee of the H. Donald Brakke Revocable Living Trust under agreement dated July 28, 1977, as amended; Paul E. Brakke; and H. Donald Brakke; K-F Farm Partnership; Christopher Narum; and Jeanne D. Narum, Defendants Cass County Joint Water Resource District, Plaintiff and Appellee Steven Brakke; Colleen Brakke; Dorothy V. Brakke, as trustee of the Dorothy V. Brakke Revocable Living Trust under agreement dated April 3, 1980, as amended and as beneficiary and possible successor Trustee of the H. Donald Brakke Revocable Living Trust under agreement dated July 28, 1977, as amended; Paul E. Brakke; and H. Donald Brakke, Appellants In re: 2015 Application for Permit to Enter Land for Surveys and Examination Associated with a Proposed North Dakota Diversion and Associated Structures Cass County Joint Water Resource District, Plaintiff and Appellee
Glen Libbrecht; Danyeal Barta; Vance Barta; Laurie Brakke; Michael Brakke; Marilyn G. Libbrecht and Glen Libbrecht, Co-Trustees of the Catherine Libbrecht Trust; Annette Delaney; David Delaney; Derek S. Flaten; Micheal Fosse; Merry Lou Haakson; Kenneth W. Hatlestad; David Houkom; Douglas W. Johnson; Jeffrey K. Johnson; Martin Johnson; Douglas Kummer; Jacalyn Kummer, Jon Larson, Julie Larson; Brian T. Leiseth; Timothy J. Leiseth; Glen Libbrecht; Marilyn G. Libbrecht; Nancy Loberg; David L. Lotzer, James Martin, Marlys Martin; Anne Miller; Collin Miller; Roger Miller; Mari Palm and Robert Helbling, Co-Trustees of the MKRM Trust; Kelly Pergande; Kristie Sauvageau; Terry Sauvageau; Alan and Barbara Thurnberg, Co-Trustees of the Thunberg Living Trust; Kristine Valan; Orlen Valan, Jr.; Western Trust Company; Kayla M. Woodley, Defendants Mari Palm and Robert Helbling, Co-Trustees of the MKRM Trust; Michael Brakke; and Laurie Brakke, Appellants
from the District Court of Cass County, East Central Judicial
District, the Honorable Steven E. McCullough, Judge.,
Honorable Douglas R. Herman, Judge.
Christopher M. McShane (argued) and Andrew D. Cook (on
brief), for plaintiff and appellee.
Jonathan T. Garaas, DeMores Office Park, for defendants and
1] In this consolidated appeal several landowners appeal from
district court orders granting the Cass County Joint Water
Resource District (District) permission to enter
Landowners' property. The Landowners argue that the
district courts lacked subject matter jurisdiction over the
cases because the District failed to serve a summons and
complaint, that soil borings and other tests are outside the
scope of permitted examinations and they were entitled to a
jury trial to determine just compensation. We affirm the
district courts' orders.
2] The District filed applications with the district court
for permission to enter Landowners' property to conduct
surveys, mapping and examinations required for evaluating and
designing a proposed flood control project. The District
stated the examinations and surveys may include drilling
holes on certain properties to obtain subsurface soil
samples. The Landowners objected, claiming the court was
without jurisdiction to hear the applications. The Landowners
claimed the District's proposed entry onto their property
constituted a taking of private property under the North
Dakota Constitution and the District should not be allowed
the right to enter their property to conduct examinations and
surveys until a jury determined appropriate compensation.
After hearings the district courts granted the District
permission to enter the Landowners' property and the
3] The Landowners argue the district courts erred granting
the District permission to enter their property because the
courts were without jurisdiction to hear the applications.
"To issue a valid order, a district court must have both
subject-matter jurisdiction and personal jurisdiction over
the parties." Alliance Pipeline L.P. v. Smith,
2013 ND 117, ¶ 18, 833 N.W.2d 464. "Subject-matter
jurisdiction is the court's power to hear and determine
the general subject involved in the action...."
Albrecht v. Metro Area Ambulance, 1998 ND 132,
¶ 10, 580 N.W.2d 583. "Issues involving subject
matter jurisdiction cannot be waived and can be raised sua
sponte at any time." Earnest v. Garcia, 1999 ND
196, ¶ 7, 601 N.W.2d 260.
4] "For subject-matter jurisdiction to attach, 'the
particular issue to be determined must be properly brought
before the court in the particular proceeding.'"
Albrecht, 1998 ND 132, ¶ 11, 580 N.W.2d 583.
North Dakota Rules of Civil Procedure 12(h)(3) compels the
district court to dismiss an action whenever it appears the
court lacks jurisdiction of the subject matter. "When
jurisdictional facts are not disputed, the issue of subject
matter jurisdiction is a question of law, which we review de
novo." In re Estate of Vaage, 2016 ND 32,
¶ 14, 875 N.W.2d 527.
5] The Landowners allege the North Dakota Rules of Civil
Procedure required the District to commence the actions by
serving eminent domain summons and complaints before the
district courts could obtain jurisdiction. We disagree. The
District sought permits to enter land under N.D.C.C. ch.
32-15 relating to eminent domain. "Except as otherwise
provided... the provisions of the North Dakota Rules of Civil
Procedure are applicable to and constitute the rules of
practice in the proceedings mentioned in this chapter."
N.D.C.C. § 32-15-33. Rule 81(a), N.D.R.Civ.P., Table A,
contains "a nonexclusive list of statutes pertaining to
special statutory proceedings." Chapter 32-15, N.D.C.C.,
is included in N.D.R.Civ.P. 81(a), Table A. These special
statutory proceedings "are excluded from [the] rules to
the extent they are inconsistent or in conflict with the
procedure and practice provided by these rules."
N.D.R.Civ.P. Rule 81(a).
6] "[A] proceeding for a court order authorizing
examinations and surveys under N.D.C.C. § 32-15-06 is
'preliminary to the condemnation action itself' and
is not a condemnation proceeding." Alliance Pipeline
L.P. v. Smith, 2013 ND 117, ¶ 15, 833 N.W.2d 464
(quoting Square Butte Elec. Co-op. v. Dohn, 219
N.W.2d 877, 883 (N.D. 1974)). Because a proceeding under
N.D.C.C. § 32-15-06 is preliminary to condemnation, an
eminent domain summons and complaint are not required. This
is consistent with N.D.R.Civ.P. 81(a), Table A, stating
N.D.C.C. ch. 32-15 is a special statutory proceeding exempt
from the North Dakota Rules of Civil Procedure. Because the
District was not required to commence these actions by
service of a summons, the district courts did not lack
subject matter jurisdiction over the District's
applications for permits to enter the Landowner's
7] The Landowners argue soil borings and other tests are
beyond the scope of the examinations ...