Northwest Landowners Association v. State

Citations

• 2022 ND 150

Syllabus

To resolve a facial challenge, we need only interpret the challenged legislation and the relevant constitutional provisions to determine whether there is a conflict. North Dakota law has long established that surface owners have a property interest in pore space. Surface owners have a right to compensation for the use of their pore space for disposal and storage operations. Government-authorized physical invasions of property constitute the \clearest sort of taking\ and therefore are a per se taking. A statute that strips surface owners of their right to possess, use, and exclude others from pore space within their lands and assigns that right to oil and gas operators without surface owners' consent or compensation is a per se taking. It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand. 42 U.S.C. § 1988 authorizes attorney's fees to a prevailing challenger of a federal constitutional claim in state court against the state or a state official sued in his or her official capacity regardless of whether §§ 1983 and 1988 are expressly pled in the complaint.