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- Title
IGNORANCE OF THE CONSTITUTION IS NOT BLISS: THE TAKINGS CLAUSE PROTECTS AGAINST THE STATE OF NORTH DAKOTA CLAIMING PRIVATE MINERALS UNDERNEATH LAKE SAKAKAWEA BY VIRTUE OF THE UNITED STATES ACQUIRING THE LAND FOR THE GARRISON DAM PROJECT.
- Authors
Swanson, Joshua A.
- Abstract
The government cannot flood private property by virtue of a man-made dam, or acquire such property for flood control purposes, and then claim that it owns the property. This principle is not nuanced, complex, or complicated. It is basic Constitutional law. It is a bedrock protection afforded landowners through the Takings Clause of the United States and North Dakota Constitutions. In cases of artificial, government-induced flooding, or the acquisition of private property for flood control purposes, state law lacks the power to transfer title to the government without compensation and a showing that the property is being taken for a public use. The Takings Clause is an unbreakable shield protecting property owners from the government claiming their minerals through fiat, study, or legislation. The Takings Clause shields property owners like the Wilkinson family who lost their surface lands to the United States when it acquired the property for the Garrison Dam and Lake Sakakawea in the late 1950s but reserved the mineral interests. The State of North Dakota has no right, title, or claim to any of the minerals, like the Wilkinsons' mineral interests, underneath Lake Sakakawea. Given North Dakota's economic dependence on its land for agricultural and energy-related purposes, it is imperative that our courts protect landowners from ultra vires attempts by the State to eviscerate private property rights and claim that which is not theirs. This article discusses the State's unconstitutional attempt to claim ownership of all the mineral interests underlying Lake Sakakawea and the history of the Wilkinson case, where one family stood up to the State to protect property that has been in their family for generations.
- Subjects
LAKE Sakakawea (N.D.); UNITED States; TAKINGS clause (Constitutional law); PROPERTY rights; LEGAL status of landowners; LAND title registration &; transfer -- Law &; legislation; CONSTITUTIONAL law; GARRISON Dam (N.D.)
- Publication
North Dakota Law Review, 2019, Vol 94, Issue 3, p545
- ISSN
0029-2745
- Publication type
Article