Filed 09/15/2020 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 196

Cass County Joint Water Resource 

District, Plaintiff and Appellee

v.

Cash H. Aaland, Larry W. Bakko

and Penny Cirks, Defendants and Appellants

and

Richard and Sandra Ihland, Stuart D. Boyer 

and Patricia J. Boyer, Vance G. Gylland, 

Thomas Jorgensen, Brent Larson and 

Timothy Larson, Mary Jo Schmid, Thomas R. 

Nelson and Michelle Nelson, Jeffrey C. 

Shipley and Maria Shipley, Patricia A. 

Rudnick, Dona L. Duffy, Myron Ihland, 

Carol Sheridan, Marjorie Rieger, Betty Jean 

Hulne (deceased), Gregory S. Hulne, Jack T. 

Hulne, Michael J. Hulne, David A. Hulne, 

Jean M. Johnson, Dorothy A. Stapleton and 

Laura Aaland, Defendants and Appellees

No. 20200171

Motion for stay pending appeal from orders of the District Court of Richland

County, Southeast Judicial District, the Honorable John A. Thelen, Judge.

MOTION DENIED.

Opinion of the Court by Tufte, Justice.
Rob A. Stefonowicz, Minneapolis, Minnesota, for plaintiff and appellee.

Jennifer A. Braun, Fargo, North Dakota, for defendants and appellants.
1

Cass County Joint Water Resource District v. Aaland

No. 20200171

Tufte, Justice.

[¶1] Cash Aaland, Larry Bakko, and Penny Cirks (the “Landowners”) move 

to stay, pending appeal, the district court’s orders granting the Cass County 

Joint Water Resource District (the “District”) a right of entry onto their 

properties. The motion to stay is denied.

I

[¶2] In September and December 2019, the District contacted the 

Landowners seeking easements on their properties to conduct long-term 

monitoring for the Fargo-Moorhead Flood Diversion Project (the “Project”). 

After the District failed to obtain these easements, it applied for a permit to 

enter the Landowners’ properties to monitor environmental impacts in 

connection with the Project through December 2021. The application provides 

that access to the Landowners’ properties is necessary to conduct 

examinations, surveys, and mapping, including geomorphic examinations 

requiring installation of survey monuments on certain properties. The 

Landowners opposed the District’s application.

[¶3] After two hearings, the district court granted the application allowing 

the District entry onto the Landowners’ properties through December 2021. 

Aaland and Bakko moved the district court for a stay pending appeal before

this Court. The district court denied their motion.

II

[¶4] Under Rule 8, N.D.R.App.P., we have the authority to grant a stay 

pending appeal. We consider four criteria when deciding whether to grant an 

application for a stay: 1) a strong showing that the appellant is likely to succeed 

on appeal; 2) that unless the stay is granted, the appellant will suffer 

irreparable injury; 3) that no substantial harm will come to any party by reason 

of the issuance of the stay; and 4) that granting the stay will do no harm to the 

public interest. Bergstrom v. Bergstrom, 271 N.W.2d 546, 549 (N.D. 1978).
2

[¶5] The Landowners argue that without a stay they will suffer irreparable 

injury. They contend a stay is necessary “to preserve the rights of the parties 

and to prevent the [District] from taking [their] property rights in the interim 

in an attempt to render the controversy moot.” Specifically, the Landowners

claim the District will deprive them of their rights to possess, use, and dispose 

of their properties, and to exclude others from entering their properties. The 

Landowners rely on Estate of Shubert for the proposition that we have “long 

recognized the failure to obtain a stay may moot issues raised on appeal.” See 

In re Estate of Shubert, 2013 ND 215, ¶ 17, 839 N.W.2d 811. But the 

Landowners are not without an adequate remedy. They could bring an inverse 

condemnation action against the District to obtain money damages for any

temporary or permanent taking. See Aasmundstad v. State, 2008 ND 206, ¶ 15, 

763 N.W.2d 748 (stating that “[i]nverse condemnation actions are a property 

owner’s remedy, exercised when a public entity has taken or damaged the 

owner’s property for a public use without the public entity’s having brought an 

eminent domain proceeding”). Thus, the Landowners will not suffer 

irreparable injury if a stay is denied.

[¶6] The third criteria is whether substantial harm will come to any party by 

reason of the issuance of the stay. The Landowners argue that because the 

District is enjoined from beginning construction on the Project by the United 

States District Court for the District of Minnesota and it lacks certain permits 

to proceed with construction, no substantial harm will come to any party by 

granting a stay. The District argues it would suffer substantial harm if a stay 

is granted because surveys must be completed to advance the Project, and the 

inability to enter the properties would delay this process. We agree with the 

District that a stay could delay the Project. Additionally, the United States 

District Court for the District of Minnesota modified the preliminary 

injunction, as the Landowners noted, to allow construction to continue in nonwaterways in North Dakota, and non-construction design and mitigation work 

in North Dakota and Minnesota. See Richland/Wilkin Joint Powers Auth. v. 

United States Army Corps of Engineers, No. 13-cv-2262, 2019 WL 1516934, at 

6 (D. Minn. Apr. 8, 2019). Although the Landowners advised the Court that 

the issuance of the permits is being litigated, we conclude that even if 

immediate construction is impractical, the District’s other project tasks of 
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surveys and examinations required for the project’s environmental impact

statement may continue. Thus, the likelihood that the District would suffer 

substantial harm in the form of project delays weighs against the issuance of 

a stay.

[¶7] Because we have determined the Landowners have failed to satisfy the 

second and third criteria, we deem consideration of the remaining two criteria 

unnecessary. See Bergstrom, 271 N.W.2d at 554.

III

[¶8] The motion to stay the district court’s orders granting the District a right 

of entry onto the Landowners’ properties is denied.

[¶9] Jerod E. Tufte 

Lisa Fair McEvers

Daniel J. Crothers

Gerald W. VandeWalle

Jon J. Jensen, C.J.