The North Dakota Supreme Court heard oral arguments Tuesday on a case that could have major implications on mineral rights along the Missouri River.
Payout of hundreds of millions of dollars in oil lease bonuses is at stake in the case, which is to determine whether the state or individual property owners have the right to minerals under the Missouri and Yellowstone rivers.
Earlier this year a Northwest District court judge ruled that the state owned the minerals up to the high-water mark along both rivers in Williams County. An appeal was made to the Supreme Court.
Two lawsuits were brought against the state Department of Trust Lands which were then combined for the appeal.
One of the suits was brought by a group of landowners in the Williston area. The other is by Brigham Oil and Gas. The company has dozens of people claiming ownership of minerals on a producing well on a unit that is located between the low- and high-water mark along the Missouri River.
Brigham has been withholding payments until the case is resolved. The land department also has been withholding more than $100 million in lease bonuses until a final decision is made.
Jan Conlin, a lawyer from Minneapolis, was representing Brigham and landowners on Tuesday.
Conlin said prior to statehood North Dakota moved to ensure that it was “set up as a low-water mark state.”
She repeatedly cited Chapter 47-01-15 of North Dakota Century Code. This part of law states that the upland property owner owns the land and minerals along navigable lakes or streams down to the low-water mark. This is provided that there isn’t any interference on its use of the river as a public highway.
A 1994 Supreme Court decision, State v. Mills, dealt with ownership along the Missouri River. It ruled that the state and private landowners in the shore zone between high- and low-water mark have “coexistent, overlapping” interests.
Bismarck attorney Charles Carvell, arguing on behalf of the state, said the court should consider the Mills case as a question of surface rights not of minerals. He said the Mills case “took place far before horizontal drilling.”
Carvell added that the court had declined in the Mills case to specifically rule on the issue of ownership in the shore zone. He said this left a lot of room for the court to decide in future cases such as the one before them now.
Carvell argued that the state has owned navigable river beds to the high-water mark since statehood and can’t simply give away public resources. He went on to say that if the court sided with the individual landowners it would be “a massive and unprecedented transfer” of minerals from public to private hands.
The court took the case under consideration. A decision will be issued at an undetermined date.