Josh Swanson, attorney, Vogel Law Firm joins Jason Spiess to talk about how eminent domain is used, has been used and may be used in energy development.
Swanson, who is considered one of the top eminent domain attorneys in the state, recently won a ND Supreme Court Case Wilkinson vs. Board of University and School Lands involving mineral rights and payments in the Bakken and Lake Sakakawea.
“There’s an appeal now. There’s two issues, one is ownership and the title of ownership which we prevailed on two times before the North Dakota Supreme Court related to the ownership question.” Swanson said. “Then the last time on appeal that we won the Supreme Court said that the District Court had to decide our damages, and the District Court said our clients weren’t damaged at all.”
Swanson continued saying that case will be heard in the next couple of weeks and they will contend that their clients did suffer damaged from not receiving any royalty payments for over a decade while the state attempted an eminent domain of those minerals.
“The state (North Dakota) literally held our clients royalties for ten years. The great news is that we finally got those back in late 2020 but the issue is when you are deprived approximately $600,000 over ten years because the government just said ‘I own that I am going to keep that and you can use it’ you are deprived of the ability to use that money,” Swanson said. “So all those family members couldn’t do things like pay for a kid’s education, pay for a trip, invest the money or pay off a mortgage.”
Swanson said that for ten years that money sat in The Bank of North Dakota and under the 5th Amendment they are required to pay interest on those funds in escrow or set aside.
“It’s frustrating. The state doesn’t seem to understand they are the government. This isn’t a private property dispute over two private individuals,” Swanson said.
Eminent Domain In Pipelines
The interview segways into the eminent domain issues happening in the state of North Dakota and the Midwest Carbon Express Pipeline. Swanson said he is already hearing enough buzzwords and seeing enough behaviors to know this pipeline is not going to be as easy as some think.
“The overarching concern that I have is that we are on the precipice of some very important decisions when it comes to government power and government overreach and the state deciding what private land owners can and can not do with their own private property,” Swanson said.
Swanson mentioned Summit Carbon Solutions as an example and some of the recent news that has been surfacing regarding their business practices with landowners.
“Threatening eminent domain so early and throwing out the term ’eminent domain’ if you are any pipeline company and you are starting to lob out that malatof cocktail of eminent domain you better know what you are doing,” Swanson said. “Cause you are going to light some stuff up and tick off some farmers, ranchers, private property owners by banding about that term cause its a legal term and legal instrument.”
According to a story published in AgWeek, landowner Todd McMichael describes himself as becoming a “mouthpiece” for landowners in the path of the Summit Carbon Solutions pipeline in North Dakota who object to the threat of eminent domain to gain right-of-way for the pipeline.
He made a presentation in front of his county board in March, which unanimously adopted a resolution: “That the Richland County Commission officially opposes eminent domain for the Summit Carbon Solutions Pipeline within Richland County, North Dakota.”
Neighboring Sargent County has passed a similar resolution. McMichael says he’s in regular contact with about 75 people on the pipeline issue. He’s also made connections with pipeline opponents in other states.
Summit already has applied for permits in Iowa and South Dakota. The public dockets with the Iowa Utilities Board and South Dakota Public Utilities, where people can submit comments, are overwhelming against the pipeline.
In Iowa, 26 counties touched by the pipeline have filed objections to carbon pipelines. There also have been efforts in the Legislature there to limit the Iowa Utilities Board’s ability to grant eminent domain authority.
When North Dakota landowners first started getting letters about the project, North Dakota Governor Doug Burgum went on KFGO radio in Fargo and said there was “zero” chance that eminent domain would be used for the project in the state.
Essentially the company will be capturing the CO2 from the fermenters in the ethanol plant, dehydrate it to a liquid, transport it by pipeline and inject it into the geological formations for storage.
Wade Boeshans of Summit Carbon Solutions was recently interviewed by Spiess about the Midwest Carbon Express Pipeline, click here for the interview.
“What we have in the Williston Basin that makes it suitable for carbon storage, is thick layers of sand and sandstone one-to-two-miles below the surface with rocks that are high permeability and ferocity with lots of capacity of fluid to be stored within them,” Boeshans said.
After the CO2 is stored a couple miles below the surface, Summit Carbon Solutions monitors the levels to ensure safe protocols are taken and leak prevention.
“There’s several techniques for monitoring CO2, one is through the use of installing subsurface gages for the detection of CO2, monitoring the formations themself,” Boeshans said. “Secondly, is through the use of 3D seismic or other kinds of surface methods where you can actually verify and monitor, and finally you’ll have to continue to monitoring on the injection well bores up and down as well as monitoring the ground water continuously for detection of any CO2 that might show up in there.”
For more information on Summit Carbon Solutions click here
Recently Continental Resources, Carbon Summit Solutions and the Tharaldson Ethanol Plant. Continental Resources Inc. held a press conference announcing Continental Resources will commit $250 million over the next two years to help fund the development and construction of Summit’s $4.5 billion carbon capture and sequestration project.
Continental Resources Chairman Harold Hamm and CEO Bill Berry along with Summit Agricultural Group CEO Bruce Rastetter attended a press conference hosted by North Dakota entrepreneur Gary Tharaldson at the Tharaldson Ethanol Plant in Casselton, which is participating in the carbon capturing project.
North Dakota Gov. Doug Burgum and Nebraska Gov. Pete Ricketts also attended the press conference which highlighted the importance of carbon capture and storage to U.S. energy security.
Spiess and Swanson discuss the controversial Kelo v. City of New London Supreme Court Case in regards to eminent domain.
Kelo v. City of New London, 545 U.S. 469, was a case decided by the Supreme Court of the United States involving the use of eminent domain to transfer land from one private owner to another private owner to further economic development.
The case arose in the context of condemnation by the city of New London, Connecticut, of privately owned real property, so that it could be used as part of a “comprehensive redevelopment plan.” After the Court’s decision, the city allowed a private developer to proceed with its plans; however, the developer was unable to obtain financing and abandoned the project, and the contested land remained an undeveloped empty lot in 2022.
The two pontificated whether Summit Carbon Solution’s would cite “public health”, “climate change” or “public use” for the Carbon Pipeline. Whatever the justification is for throwing out the word “eminent domain” already, Swanson hopes for basic civility.
He added that even though the Midwest Carbon Express Pipeline has gotten off to a rocky start, his hope is that this carbon company will follow oil and gas’ lead in professional decorum with landowners.
“Maybe they (Summit) will take heed and sit down and treat landowners fairly, at least that’s my hope,” Swanson said. “ONEOK, I will use them as my example, they are a company I deal with on pipeline right-a-ways all the time, and they are in not the most fair, one of the fairest companies when it comes to negotiation and fair terms when it comes to landowners and agreeing to put an oil and gas pipeline on their property.”
The interview starts out with NFL Draft talk as the two discuss the potential of Christian Watson, WR, North Dakota State University. Swanson is also a writer and talk show host for NDSU Bison Sports with his column in Bison Illustrated and weekend talk show Heard It Hear with Swanny on 740AM The Fan.
Swanny believes Watson will be drafted in the first round and teams like the Green Bay Packers and Kansas City Chiefs are rumored to be interested in Watson, whereas, if he slips to the second round, the Washington Commanders and Minnesota Vikings are the teams showing interest.
According to the NCAA’s website, at least one former North Dakota State football player has been drafted in each of the last three NFL drafts. That includes quarterback Trey Lance, the No. 3 overall pick in 2021, who was followed in the second round by tackle Dillon Radunz.
Former North Dakota State wide receiver Christian Watson could follow suit as a potential first- or second-round draft pick in the 2022 NFL Draft, thanks to his 6-foot-5 frame, sub-4.4-second 40-yard dash time and his ability to contribute as a runner and kick returner.
School: North Dakota State
Position: Wide receiver
Height: 6-foot-5
Weight: 208 pounds
Years active: 2017-21
Watson attended North Dakota State University, where he spent five seasons. He redshirted as a freshman during the 2017 season before playing the next four seasons, helping North Dakota State win the 2018, 2019 and 2021 FCS championships. Watson developed from a player who started twice as a redshirt freshman, while playing in all 14 of the team’s games, to a second-team all-conference performer as as redshirt sophomore in 2019 while starting 11 games.
Watson helped propel the Bison to the 2019 FCS national championship game after scoring 70-plus-yard touchdowns on back-to-back offensive plays as he caught a 75-yard touchdown pass, then rushed for a 70-yard touchdown, showing the speed that would later be on full display when he ran a 4.36-second 40-yard dash at the 2022 NFL Combine.
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