concurring in part and dissenting in part.
We concur in the result, but only because compliance with the Energy Conversion and Transmission Facility Siting Act, Chapter 49-22, North Dakota Century Code, may supply the due process we believe to be otherwise lacking in the notice given to the landowners involved in this case. We understand the majority opinion as requiring compliance with the Act.
Dome’s pipeline project was the subject of years of planning and preparation. On July 27, 1973, it was sufficiently definite so that an application for a certificate of public convenience and necessity could be made. No notice was given to the landowners whose land was to be subjected to an easement for the pipeline. Notice was given to one county commissioner in each county to be crossed by the line, to one newspaper in each county, and to all potential competitors of Dome. But no notice was given to those whose lands would be perpetually burdened by the taking, and the notice to the newspapers was submitted as *667a news item, not as a paid advertisement. There is no proof that any of the newspapers published the news item, and there is proof that some did not.
Similarly, the landowners were given no notice of the amended order of August 22, 1973, or the petition for amendment of September 6, 1974, or the amended order of September 10,1974, or any other part of the proceedings.
In fact, it is stipulated that all of the landowners would testify, as one of them did, that they had no notice at all of the plan to take easements across their lands until they were called on by an easement negotiator on August 12, 1975, more than two years after the Public Service Commission received the application for the certificate of public convenience and necessity.
By the time the landowners received notice from the negotiator, Dome had already obtained its certificate of public convenience and necessity and amended it twice, it had built some miles of line in the State, it had negotiated easements from a substantial number of landowners, and it had expended a large sum of money. We are told that some of the easements already obtained were located on both sides of the lands of these appellants.
Dome now asserts that there is no statutory or constitutional requirement of notice to these landowners, since they' have the statutory right to contest the necessity of the taking of the land when eminent-domain proceedings are instituted. This argument is based upon the language of an eminent-domain statute, Section 32-15-05, N.D.C.C., which provides, in part:
“Before property can be taken it must appear:
“1. That the use to which it is to be applied is a use authorized by law.
“2. That the taking is necessary to such use.”
In the ordinary case, it seems to us, this provision affords a defendant sufficient opportunity to contest the necessity of the taking. But in a case such as the one now before us, where a certificate of public convenience and necessity has already been obtained from the Public Service Commission, the fact of the matter is that necessity has already been irretrievably adjudicated.
Section 49-03-01, N.D.C.C., provides, in part:
“No public utility henceforth shall begin in the construction or operation of a public utility plant or system or extension thereof, without first obtaining from the commission a certificate that public convenience and necessity require or will require such construction and operation.”
In the case before us, the certificate of public convenience and necessity had been obtained, and presumably hundreds of easements had been obtained and possibly millions of dollars expended on the project before the landowners involved in this action ever heard of the project. Under these circumstances, we believe it is a mockery of reality to say that these landowners have any meaningful opportunity to contest the necessity of the taking of an easement on their lands. That necessity had already been determined before they heard of the project.
If it were not for the Siting Act, supra, we would dissent in this case on the ground that procedural due process had been violated. However, we are advised that the Public Service Commission has ordered Dome to comply with the Siting Act. That Act requires more and better notice than was given here, but does not require service of notice directly upon affected landowners. Whether such service complies with due process we cannot decide on the record before us. The sufficiency of such notice was neither briefed nor argued in this case. It may be sufficient. In the hope that it will be, we concur in the result in this case.
If the notice required by the Siting Act is not sufficient, Dome should be required to start over and the trial court should be free to reinstate its order to the Public Service Commission to hold new hearings.
It is our view, put very simply, that when the necessity of the taking of land, or easements across land, is for all practical purposes determined in a hearing on an appli*668cation for a certificate of public convenience and necessity, procedural due process requires notice to the affected landowners and an opportunity to present evidence on the necessity of the taking. We would further hold that a determination of public convenience and necessity by the Public Service Commission makes ineffectual the notice and opportunity to contest the necessity of the taking of property under the eminent-domain statutes because the necessity of such taking has already been determined by the Public Service Commission.
Notice of the issues involved in a hearing and an opportunity to defend are implicit in the concept of due process. In re M. L., 239 N.W.2d 289 (N.D.1976); McGuire v. Warden, 229 N.W.2d 211 (N.D.1975).
In the case of “a person in jeopardy of serious loss,” he must be given “notice of the case against him and opportunity to meet it.” Frankfurter, concurring, in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 171, 71 S.Ct. 624, 649, 95 L.Ed. 817, 854 (1950).
“Prior cases establish, first, that due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard.” Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971).
“ . . . What the Constitution does require is ‘an opportunity * * * granted at a meaningful time and in a meaningful manner,’ [citation omitted] (emphasis added), ‘for [a] hearing appropriate to the nature of the case,’ [citation omitted].” Boddie v. Connecticut, supra, 401 U.S. 371, 377, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, 119.SAND, J., concurs.