Vikse v. Basin Elec. Power Co-op., 82-1614
| Decision Date | 25 July 1983 |
| Docket Number | No. 82-1614,82-1614 |
| Citation | 712 F.2d 374 |
| Parties | Monrad VIKSE; Jacob Lang; Delano W. Lang; Elmer F. Lang; James M. Wieseler and Marietta L. Wieseler, husband and wife, Myron Wieseler and Joyce Wieseler, husband and wife; and Mathilda Wieseler, Appellants, v. BASIN ELECTRIC POWER COOPERATIVE, a North Dakota cooperative corporation; C.R. Thiessen; Clarence Welander; Dennis Lindberg; Marvin Beyers; George A. Hargens; J. William Keller; Quentin Louden; Jim Frame and Fred W. Schmidt, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jos. A. Vogel, Jr., Vogel Law Firm, Mandan, N.D., for appellants.
Malcolm H. Brown, Bair, Brown & Kautzmann, Mandan, N.D., for appellees.
Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and ROBERTS, District Judge. *
A group of South Dakota landowners brought this civil rights action under 42 U.S.C. § 1983 claiming that its members were denied equal protection of the laws because Basin Electric Power Cooperative and its officers made additional payments to landowners in North Dakota who, like appellants, had had their property condemned by the utility. We find no denial of equal protection and affirm the judgment of the district court 1 denying the claim.
Basin, a private generator of electricity located in North Dakota, planned to construct a transmission line from its Antelope Valley Station near Beulah, North Dakota, to Huron, South Dakota. It was necessary for Basin to obtain easements across the real estate in the path of the line. Basin was granted the power of eminent domain by both North Dakota and South Dakota.
Appellants are among the few South Dakota landowners who refused to settle with Basin. Appellants went to trial in condemnation cases for the easements, and judgments were obtained between October and December, 1979. These judgments are now final and have been paid. The claims of appellants Monrad Vikse, Jacob Lang, Delano W. Lang, and Elmer F. Lang were appealed to the Supreme Court of South Dakota. Basin Electric Power Cooperative v. Lang, 304 N.W.2d 715 (S.D.1981).
Basin acquired easements for 96% of the right-of-way in South Dakota by negotiation and settlement. Basin agreed with the settling landowners, either orally or in writing, that in the event it paid other landowners more per acre, outside of condemnation awards, it would pay additional amounts to these settling landowners so that all would be paid equally.
In contrast to the situation in South Dakota, Basin encountered organized resistance when it commenced negotiations with North Dakota landowners. A loose-knit landowners' organization demanded that negotiations be made collectively rather than on an individual basis, and that the negotiations be conducted on its behalf by the one law firm which had represented most of the individual North Dakota landowners. Approximately 220 separate eminent domain proceedings were instituted by Basin in North Dakota in March, 1980. In May of 1980, after several of the cases were tried, Basin and the North Dakota landowners' group arrived at a basic settlement agreement regarding the compensation to be paid for easement acquisition. This agreement set per acre prices of $619 for pastureland and $825 for cropland. These prices were substantially higher than both the amounts paid to those landowners in South Dakota who had negotiated settlements and the jury awards received by appellants in South Dakota.
Basin made additional payments to the North Dakota condemnees who had received jury awards of less than $619 for pastureland or $825 for cropland, so that all would receive the amount called for in the agreement. Basin made no such additional payments to the South Dakota condemnees, including appellants.
Basin made additional payments to all North Dakota and South Dakota landowners from whom it had acquired easements by negotiation and settlement so that all would receive the per acre prices called for in the basic settlement agreement.
Appellants brought this action under 42 U.S.C. § 1983 claiming denial of their constitutional rights by Basin's paying additional amounts to other landowners. The district court granted summary judgment in favor of defendants on two alternative grounds: (1) Basin was not acting under color of state law, and (2) appellants were not denied due process or equal protection.
On appeal appellants argue denial of equal protection in Basins' failure to pay them an additional amount based on the basic settlement agreement while doing so to North Dakota landowners who had received jury awards less than the prices called for in the basic settlement agreement. They also argue that summary judgment should not have been granted. They do not raise the due process arguments presented to the district court.
Appellants argue that summary judgment was improper in this case because there were disputes as to material questions of fact. We discern only one issue of fact that is in dispute, and that is whether Basin included in its offer to settle with appellants an offer to increase compensation if any other landowner was later paid more. Appellants claim that Basin never made such an offer. We do not view this particular fact as material for the question presented in this case, which is based on the limited question of whether appellants were denied equal protection because the North Dakota landowners who...
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