United States Court of Appeals

For the Eighth Circuit

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No. 24-1612
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Sandra Short; David Short; Donald Short; Sarah Sarbacker

lllllllllllllllllllllPlaintiffs - Appellees

v.

Billings County, a political subdivision of the State of North Dakota; Lester

Iverson, Billings County Commissioner, in his official capacity; Steven Klym,
Billings County Commissioner, in his official capacity; Dean Rodne, Billings
County Commissioner, in his official capacity

lllllllllllllllllllllDefendants - Appellants
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Appeal from United States District Court

for the District of North Dakota - Western
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Submitted: October 24, 2024

Filed: May 28, 2025
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Before LOKEN, SMITH, and GRASZ, Circuit Judges.

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SMITH, Circuit Judge.

 Billings County and Billings County Commissioners1 (collectively, “County”)
appeal the district court’s grant of a preliminary injunction to enjoin the County from
entering onto the property of Sandra Short, David Short, Donald Short, and Sarah
Sarbacker (collectively, “the Shorts”), during the pendency of the Shorts’ case against
the County in federal court, as well as a state court proceeding. Because the Shorts
are not likely to prevail on the merits of their breach-of-contract claim against the
County, we vacate the preliminary injunction and remand for further proceedings
consistent with this opinion.

I. Background
At issue in this case is the County’s exercise of eminent domain of the Shorts’
land to construct a bridge over the Little Missouri River, known as the Little Missouri
River Crossing (LMRC). In March 2020, the County began condemnation
proceedings for the Shorts’ property to construct the LMRC. But before the official
start of the condemnation action, the Shorts preemptively sued the County. The
parties litigated whether the County violated the Shorts’ constitutional rights; the
Shorts sought a declaration that the taking was not necessary or for a public purpose
under federal or North Dakota law. See Short v. Billings County, No. 1:20-cv-79
(D.N.D.) (“Original Case”).

The Original Case settled in 2021. The parties executed a Settlement

Agreement, which provides in relevant part:

NOW, THEREFORE, THE PARTIES STIPULATE that, the County

having agreed it will not pursue eminent domain to condemn any of the
Short property for a Little Missouri River Crossing or pursue any legal
action against the Shorts to condemn their property and having made

1
The County Commissioners are Lester Iverson, Steven Klym, and Dean
Rodne.

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 the motion stated, the lawsuits referenced above will be dismissed, and
the Shorts will not pursue the above-referenced lawsuits whether in the
original forum or through any appeals, and within fourteen (14) days of
execution of this agreement, the Shorts will dismiss any lawsuits
referenced above that remain pending with prejudice, and without fees,
costs, or expenses awarded by the court to either party and with each
party agreeing to bear its own fees, costs, and expenses.

R. Doc. No. 1-8, at 2 (emphasis added).

Despite the Settlement Agreement, on February 7, 2023, a newly elected Board

of Commissioners2 voted to “proceed with the Little Missouri River crossing bridge
project in the selected location within the [Shorts’ property].” R. Doc. 1-14, at 3. On
June 23, 2023, the County offered the Shorts $20,000 per acre for 29.86 acres and
$500 per acre per year for 12.10 acres as a temporary easement for construction.
Under this proposal, the County had five years to finalize the conditions precedent
to beginning construction of the LMRC. On July 26, 2023, the County notified the
Shorts that they had one week to respond to its June 23 offer.

The Shorts did not respond to the County’s offer. Instead, they filed the present
action in federal court on August 2, 2023. They asserted five claims: (1) breach of
contract under North Dakota law; (2) promissory estoppel under North Dakota law;
(3) a declaratory judgment that the condemnation is not for public use under the Fifth
Amendment; (4) a declaratory judgment the condemnation is not for public use under
Article 1, Section 16 of the North Dakota Constitution and N.D. Cent. Code
§ 32-15-05(1); and (5) a declaratory judgment stating there is a lack of necessity
under N.D. Cent. Code § 32-15-05(2). That same day, the County passed a resolution
condemning the Shorts’ parcels necessary for the LMRC.

2
The election occurred on November 8, 2022. Former Commissioner Mike
Kasian lost his election to Steven Klym.

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 On August 7, 2023, the County effectuated the condemnation of the Shorts’
property by filing the required notices and deposits with the Clerk of the District
Court for Billings County, North Dakota. The County used a quick-take
condemnation proceeding to take possession of the Shorts’ property. As a result,
possession of the condemned property vested in the Board of Commissioners
immediately upon the County’s filing of the notices and deposits. See N.D. Const. art.
I, § 16; N.D. Cent. Code §§ 11-10-26, 24-05-15.

On August 18, 2023, the Shorts moved for a preliminary injunction in federal
district court to prevent the County from entering their land. The Shorts also sought
a stay of the condemnation proceedings that had begun in state court. The County
opposed this request and moved to dismiss the complaint. The County argued that the
Settlement Agreement was invalid because a governmental entity cannot contract
away its sovereign power of eminent domain.

On September 14, 2023, the Shorts appealed the quick-take condemnation

proceeding to state district court. In their appeal, “the Shorts challenge[d] the findings
of fact and conclusion of [the] County that condemnation is necessary and for public
use.” Short v. Billings Cnty. Bd. of Cnty. Comm’rs, No. 04-2023-cv-00010, at 1 (N.D.
Dist. Ct., S.W. Jud. Dist., Billings Cnty. Oct. 18, 2024) (emphases added).

On March 6, 2024, the federal district court granted in part the Shorts’ motion
for preliminary injunction. In evaluating the Shorts’ probability of success on the
merits, “[t]he [c]ourt only consider[ed] the breach[-]of[-]contract claim.” Short v.
Billings County, 722 F. Supp. 3d 959, 970 (D.N.D. 2024). It determined that the Shorts
demonstrated a likelihood of success on the merits of that claim based on the
Settlement Agreement’s language that the County “would not pursue any legal action
to condemn their property in connection with the LMRC project.” Id. at 972.
According to the court, the County’s subsequent decision to pursue the quick-take
proceedings against the Shorts was “contrary to the plain language of the Settlement

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Agreement.” Id. In reaching its conclusion, the federal district court declined to
consider the County’s arguments challenging the Settlement Agreement’s validity,
leaving that for the state court to decide. The court stated:

The Court is aware the Parties have raised the issue of the type of
governmental action the County engaged in when it signed the
Settlement Agreement and the validity of its agreement to refrain from
building the LMRC—that is, its agreement not to exercise eminent
domain. At this stage in the litigation, the Court refrains from deciding
those issues because (1) the factual record is relatively undeveloped to
determine the nature and extent of the contract and (2) this issue will
likely become a consideration for the State Court proceeding to decide.
At this stage, the Court simply limits its analysis to the traditional
breach[-]of[-]contract claim in order to preserve the status quo pending
the outcome of the litigation of the issues.

Id. at 971 n.1. After finding a likelihood of success on the breach-of-contract claim,
the court presumed a finding of irreparable harm, and in turn, a favorable finding for
the Shorts as to the balance of harms. The court enjoined the County and its agents
from entering the Shorts’ property “during the pendency of this case and the
underlying [s]tate [c]ourt appeal.” Id. at 979.

After finding that the Shorts were likely to succeed on their breach-of-contract
claim and issuing preliminary injunctive relief, the court concluded, pursuant to the
Colorado River3 doctrine, that “this case and the [s]tate [c]ourt case are parallel and
extraordinary circumstances justify abstaining from hearing this case at this time.” Id.
at 978. The court found “a substantial likelihood” that the five claims brought in
federal court would “be addressed by the pending [s]tate [c]ourt proceeding.” Id. at
974. The court noted that “the claims for lack of necessity and lack of public use from
the taking and that the taking was unconstitutional are expressly noted in the

3
Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

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administrative appeal.” Id. It also concluded that “[t]he claims for breach of contract
and promissory estoppel should also be asserted in the [s]tate [c]ourt action” but
recognized that it was for “the [s]tate [c]ourt to decide” “whether the Shorts can assert
their breach of contract and promissory estoppel claims in the [s]tate [c]ourt
proceeding.” Id. As a result, the federal district court stayed its proceedings. But it
added that “[i]n the event the [s]tate [c]ourt prohibits the Shorts from asserting each
of their claims in that case, they may file a motion to lift the stay and proceed with
those claims.” Id. at 978–79.

After staying the federal proceeding pending the outcome of the state
proceeding, the district court declined to rule on the County’s motion to dismiss. It
denied the dismissal motion without prejudice and explained that the County could
reassert the motion “[i]n the event the stay is lifted and this case proceeds on any of
the claims.” Id. at 979. It also denied the Shorts’ motion to preliminarily enjoin the
state court’s condemnation proceedings.

On March 21, 2024, the County filed its notice of appeal of the federal district
court’s order “in so far as it determined and adjudged that the [Shorts] are entitled to
a preliminary injunction.” R. Doc. 55, at 1 (emphasis added).4

4
In addition to arguing that the district court erred in granting in part the
Shorts’ motion for preliminary injunction, the County also argues on appeal that the
district court erred in denying without prejudice its motion to dismiss. It asserts that
the dismissal motion is inextricably intertwined with its interlocutory appeal of the
district court’s grant of preliminary relief. The notice of appeal, however, limits the
County’s appeal to the district court’s grant of preliminary relief. See Fed. R. App. P.
3(c)(6) (“An appellant may designate only part of a judgment or appealable order by
expressly stating that the notice of appeal is so limited.”). As a result, we will not
address the County’s argument that the district court erred in denying without
prejudice the County’s motion to dismiss.

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 At the parties’ behest, the state court considered its jurisdiction over the merits
of the Shorts’ claims. On April 5, 2024, the state court ordered briefing on two
questions: “(1) whether the Court has subject matter jurisdiction to decide in this
proceeding the breach[-]of[-]contract and promissory estoppel claims that . . . the
Shorts[] have against [the County]; and (2) whether the Shorts have a procedural
mechanism by which to assert such claims in this proceeding.” R. Doc. 63-1, at 3.

On May 15, 2024, while this federal appeal was pending, the state court issued
an order clarifying the scope of its jurisdiction. It determined that the Shorts’ breach-
of-contract and promissory-estoppel claims were not and could not be before it as part
of the administrative appeal of the County’s condemnation. The court outlined its
understanding of its authority under state law. See N.D. Cent. Code § 32-15-21. In
sum, the court limited its consideration to the validity of the taking and would leave
any damages determination to a jury.

Afterwards, the Shorts moved the federal district court to lift the stay that it had
entered based on the state court’s refusal to allow them to assert those claims. In
response, the County asserted that the Shorts could raise those claims related to the
Settlement Agreement and that the state court’s order “simply barred them from
asserting their breach of contract and promissory estoppel claims as affirmative
claims.” R. Doc. 67, at 2. Additionally, the County argued that its “interlocutory
appeal of the [p]reliminary [i]njunction warrant[ed] a continued stay of this matter.”
Id.

On August 8, 2024, the district court issued a new order denying the Shorts’
motion to lift the stay. Although the district court acknowledged its prior statement
that “it would lift the stay to permit those claims to proceed,” id., if the state court did
not allow the Shorts to assert them in the administrative proceeding, it concluded that
it “lack[ed] jurisdiction over those issues that are subject to the interlocutory appeal
of a preliminary injunction order,” id. at 3. This was because the appeal “involves

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many of the questions presented by the County . . . related to [its] authority to breach
the Settlement Agreement without consequence. This issue will directly bear on the
breach of contract and promissory estoppel claims the Shorts wish to proceed with in
this case.” Id.

On October 18, 2024, the state court granted summary judgment in favor of the
County in the condemnation action. The Shorts argued to the state court that the
County “contracted away its ability to use eminent domain proceedings” in the
Settlement Agreement, and as a result, the County was barred from bringing the
condemnation action. Short, No. 04-2023-cv-00010, at 3. The state court addressed
the Settlement Agreement. It concluded that the Agreement “clearly . . . does not”
“prohibit[] [the] County . . . from acting.” Id. at 7. It explained:

Case law is replete with the clear view that a public body cannot contract
away its eminent domain authority so as to prohibit future public bodies
from exercising that right. Thus, to whatever extent the Shorts are trying
to claim that [the] County did not have the authority to act, based upon
the . . . [S]ettlement [A]greement, summary judgment is hereby granted
in favor of [the] County. The Parties’ [S]ettlement [A]greement may
relate to good faith but that is an issue for the bench trial.

Id. at 7–8.

The state court granted the County summary judgment on the issue of whether
the road was a public use but determined the parties would proceed to trial on the issue
of the necessity for the public use given the presence of disputed facts.

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 II. Discussion
The County’s appeal of the district court’s preliminary injunction challenges the
validity of the Settlement Agreement that the Shorts contend the County breached.
According to the County, the district court erred by conducting a “cursory review of
the elements of breach of contract” without considering the County’s “arguments
regarding the validity of such an agreement.” Appellant’s Br. at i. The County
maintains that it could not contract away its power of eminent domain; therefore, the
Settlement Agreement has no lawful effect.

“We review the district court’s factual findings for clear error, its legal
conclusions de novo, and the ultimate decision to grant the injunction for abuse of
discretion.” Craig v. Simon, 980 F.3d 614, 617 (8th Cir. 2020) (per curiam). When
deciding whether to grant a motion for preliminary injunction, a district court
considers “(1) the threat of irreparable harm to the movant; (2) the state of balance
between this harm and the injury that granting the injunction will inflict on other
parties litigant; (3) the probability that movant will succeed on the merits; and (4) the
public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.
1981) (en banc). “Of the four injunctive factors, likelihood of success on the merits
is most significant because an injunction cannot issue if there is no chance of success
on the merits.” Firearms Regul. Accountability Coal., Inc. v. Garland, 112 F.4th 507,
517 (8th Cir. 2024) (internal quotation marks and citations omitted). “In considering
the likelihood of success on the merits, a movant must show that it has at least a fair
chance of prevailing.” Miller v. Honkamp Krueger Fin. Servs., Inc., 9 F.4th 1011,
1014 (8th Cir. 2021) (internal quotation marks omitted).

Here, of the five claims that the Shorts alleged, the district court examined only
their breach-of-contract claim to determine their entitlement to preliminary injunctive

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relief.5 North Dakota requires three elements for a breach-of-contract claim: “(1) the
existence of a contract; (2) breach of the contract; and (3) damages which flow from
the breach.” Bakke v. Magi-Touch Carpet One Floor & Home, Inc., 920 N.W.2d 726,
731 (N.D. 2018). “The nonperformance of a contractual duty when it is due is a breach
of the contract.” Three Aces Props. LLC v. United Rentals (N. Am.), Inc., 952 N.W.2d
64, 69 (N.D. 2020).

“[W]hether an unambiguous written agreement constitutes a valid contract is a

question of law for the court.” Jerry Harmon Motors, Inc. v. First Nat’l Bank & Tr.
Co., 472 N.W.2d 748, 752 (N.D. 1991). “Under N.D.C.C. § 9-08-01, ‘Any provision
of a contract is unlawful if it is: 1. Contrary to an express provision of law; 2. Contrary
to the policy of express law, though not expressly prohibited; or 3. Otherwise contrary
to good morals.’” E. Cent. Water Dist. v. City of Grand Forks, 9 N.W.3d 705, 712
(N.D. 2024). Here, the question is whether the County could lawfully contract away
the power of eminent domain. If not, then the Shorts are not likely to succeed on their
breach-of-contract claim.

Under “the ‘reserved powers’ doctrine, . . . certain substantive powers of

sovereignty [can]not be contracted away.” United States v. Winstar Corp., 518 U.S.
839, 874 (1996) (citing W. River Bridge Co. v. Dix, 6 How. 507 (1848) (holding that
a State’s contracts do not surrender its eminent domain power)). “These powers
include a [sovereign’s] power . . . to take property through eminent domain.” Janice
C. Griffith, Local Government Contracts: Escaping from the
Governmental/Proprietary Maze, 75 Iowa L. Rev. 277, 284 (1990) (cited in Winstar
Corp., 518 U.S. at 874 n.20).

The power of eminent domain is an attribute of sovereignty, and inheres

in every independent state. The taking of private property for public use

5
Because the district court limited its analysis to the breach-of-contract claim,
we will only examine the Shorts’ likelihood of success on that claim.

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 upon just compensation is so often necessary for the proper performance
of governmental functions that the power is deemed to be essential to the
life of the state. It cannot be surrendered, and, if attempted to be
contracted away, it may be resumed at will. It is superior to property
rights, and extends to all property within the jurisdiction of the state—to
lands already devoted to railway use, as well as to other lands within the
state.

State of Georgia v. City of Chattanooga, 264 U.S. 472, 480 (1924) (emphasis added)
(citations omitted); see also U.S. Tr. Co. of N.Y. v. New Jersey, 431 U.S. 1, 24 n.21
(1977) (“[T]he doctrine that a State cannot contract away the power of eminent domain
has been established since West River Bridge Co. . . .”); Contributors to Penn. Hosp.
v. City of Philadelphia, 245 U.S. 20, 23 (1917) (“There can be now, in view of the
many decisions of this court on the subject, no room for challenging the general
proposition that the States cannot by virtue of the contract clause be held to have
divested themselves by contract of the right to exert their governmental authority in
matters which from their very nature so concern that authority that to restrain its
exercise by contract would be a renunciation of power to legislate for the preservation
of society or to secure the performance of essential governmental duties.”).

Like the United States Supreme Court, the North Dakota Supreme Court has
recognized that “[t]he State’s power of eminent domain is one of the hallmarks of
sovereignty” that “cannot be . . . contracted away.” Cass Cnty. Joint Water Res. Dist.
v. 1.43 Acres of Land in Highland Twp., 643 N.W.2d 685, 694 (N.D. 2002) (quoting
City of Chattanooga, 264 U.S. at 480).

The state court, in granting summary judgment in favor of the County in the
condemnation action, followed applicable state and federal precedents. As the state
court acknowledged, “[c]ase law is replete with the clear view that a public body
cannot contract away its eminent domain authority so as to prohibit future public
bodies from exercising that right.” Short, No. 04-2023-cv-00010, at 7. Our

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examination of the relevant precedents confirms this description of the state of the law
on this issue.

Therefore, we hold that the district court legally erred in concluding that the
Shorts had a fair chance of prevailing on their breach-of-contract claim. Put simply,
the County could not contract away its power of eminent domain. Its Settlement
Agreement to do so was contrary to law. See N.D. Cent. Code § 9-08-01. It certainly
could not do so permanently as it could resume its power “at will.” City of
Chattanooga, 264 U.S. at 480. As a result, the district court abused its discretion in
preliminarily enjoining the County and its agents from entering the Shorts’ property
during the pendency of the federal case and the underlying state court appeal. See
Firearms Regul. Accountability Coal., Inc., 112 F.4th at 517.

III. Conclusion
Accordingly, we vacate the preliminary injunction and remand for further
proceedings consistent with this opinion.6
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6
On April 23, 2025, we asked counsel if the case has been settled based upon
press reports to that effect; that counsel then belatedly furnished us with a Settlement
Agreement dated April 2, 2025; that the Settlement Agreement does not render this
appeal moot; and therefore we are filing the opinion we were prepared to file before
April 23, 2025, with no award of costs or attorney’s fees to either party.

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