Filed 09/15/2020 by Clerk of Supreme Court



### IN THE SUPREME COURT STATE OF NORTH DAKOT A

2020 ND 196

Cass County Joint Water Resource District, Pla intiff 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, Patric ia 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 an d Laura Aaland

, Defendants and Appellees

No. 20200171

Motion for stay pending a ppeal 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, Minne apolis, M innesota, for plaintiff and appellee.

Jennifer A. Braun, Fargo, N orth D akota

, 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 appea l, the district court’s order s granting the Cass County Joint Water Resource District (the “District”) a ri ght of entry on to 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

- M oorhead Flood Diversion Project (the “Project”)

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

en te r 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 g eomorphic 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 on to the Landowners’ prop erties through December 2021.
Aaland and Bakko moved the district court for a stay pending appeal before
this Court . The district court denied the ir 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) t hat unless the stay is granted, the appellant will suffer irreparable injury; 3) t hat no substantial harm wil l come to any party by reason of the issuance of the stay; and 4) t hat 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

. ” S pecifically, 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
Landow ners 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 t he
Landow ners are not without an adequate remedy. They could bring an inv erse condemnation action against the D istrict to obtain money damages for an y 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

em inent 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 Minneso ta 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 proper ties would delay this process. We agree with the District that a stay c ould delay the Project . Additionally, the United States
District Court for the District of M innesota modified the preliminary injunction , as the La ndowners noted, to allow construction to continue in non

waterways in North Dakota , and non

- construction design and mitigation work
in North Dakota and Minnesota

. See Richla nd/Wilkin Joint Powers Auth. v. United St ates Army Corps of Engineers , No. 13

- cv

- 22 62, 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 i f
immediate construction is im practical, the District’s other project task s of3 surveys and examinations required for the project’s environmental impact statement may continue

. T hus, 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 th e 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 order s granting the District a right
of entr y on to the L andowners’ properties is denied.

[¶9] Jerod E. Tufte
Lisa Fair McEvers
Daniel J. Crothers
Gerald W. VandeWalle Jon J. Jensen, C.J.