Determining Oil and Gas Rights Ownership

Along the shoreline of the waters of the Missouri River in Western North Dakota, a titanic battle is being litigated between the North Dakota State Land Department and riparian citizen land owners, as to who owns the oil and gas rights along the shoreline of the river. The State claims a sovereign right to the oil and gas mineral rights under navigable bodies of water, under the “Public Trust Doctrine” to hold and administer such mineral rights for the public. However, such water rights have been traditionally extended to matters of “navigation, bathing, swimming, recreation and fishing”. J.P. Furlong Enters., Inc. v. Sun Exploration and Production Co., 423 N.W. 2d 130, 140 (N.D. 1988). It is undecided if the public trust doctrine extends to the production of oil and gas deposits 10,000 feet underground.

Another point of argument is, even if the State does have the right to own and lease oil and gas rights under the public trust doctrine, does the State get to claim the minerals to the high water mark or the low water mark on such shoreline? The zone between the high water mark and the low water mark is called the “shore zone”. The fact that the Missouri river can be manipulated by the existence of the two large man-made dams (Ft. Peck Dam and Garrison Dam) make application and determination of normal river high and low shore water marks very difficult and susceptible to government manipulation. Even the North Dakota Attorney General, in an official opinion in 2009, stated “there is some question about the exact nature of the State’s title in the area between the ordinary high watermark and the low watermark”. (N.D.A.G. Letter Opinion 2009-L-18)

It is alleged that since 2010, the State of North Dakota, has been pressing its claim to all minerals to a high water mark established by the State, and the State has been leasing such minerals, casting a cloud over the mineral title of adjacent landowners. Now, those riparian landowners near Williston have organized and commenced a legal action to challenge the State’s claim to all issues including the State claiming mineral title under the public trust doctrine. Your author is co-counsel for the landowners in this legal action captioned Stanford Reep, et al v. State of North Dakota, et al, Civil No.: 53-2012-CV-00213, District Court, Williams County, North Dakota.

The State of North Dakota has filed several motions before the Court, including a motion to dismiss the lawsuit outright, claiming a statute of limitation defense, that citizens should have known what the State was up to, and a sovereign immunity defense, that the State Land Commissioner, in his sovereign capacity, is beyond the reach of the Plaintiffs in this action. The District Court, Williams County heard arguments on the State’s motions on June 12, 2013, and no ruling has yet been issued by the Court on the State’s motion to dismiss the lawsuit.

While the State has characterized this lawsuit as a mere “title dispute”, those citizens who have seen their mineral title clouded and their oil and gas checks held in suspense (by the oil company who does not know who to pay) claim the State’s actions are more than just a title dispute, and are, in fact, an unconstitutional taking of their property by the State of North Dakota.

You can follow this lawsuit online at, click on “Courts” on the left side of your screen, under “District Courts” click on Case/Calendar Search.

Charles Neff is a senior partner of the law firm Neff, Eiken & Neff, P.C.

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