district court determines that the State owns the minerals, the Plaintiffs will be deprived of the mineral interests. The Supreme Court determined the district court must therefore reconsider this issue on remand if it decides the State owns the disputed minerals. On December 1, 2017, the proceedings at the district court were stayed until such time as the final review
findings to determine the ordinary high water mark of the historic Missouri riverbed channel, as required by N.D.C.C. § 61-33.1-03, are adopted by the North Dakota Industrial Commission. See the below article regarding N.D.C.C. ch. 66-33.1 for a further discussion of the final review requirements.
North Dakota Enacts N.D.C.C. ch. 61-33.1 Concerning State Ownership of the Minerals Underlying Lake Sakakawea
In an effort to resolve the dispute among private mineral owners and the State of North Dakota illustrated above in the Wilkinson case, during the 2017 legislative session Senate Bill 2134 was introduced to create chapter 66- 33.1 of the North Dakota Century Code. The purpose of chapter 66-33.1 is to govern mineral rights of the lands inundated by the Pick-Sloan Missouri River basin project dams. The law, among other things, limits “state sovereign land mineral ownership of the riverbed inundated by Pick-Sloan Missouri basin project dams to the historical Missouri riverbed channel up to the ordinary high water mark.” It further provides that “[t] he state holds no claim or title to any minerals above the ordinary high water mark of the historical Missouri riverbed channel inundated by Pick-Sloan Missouri basin project dams, except for original grant lands acquired by the state under federal law and any minerals acquired by the state through purchase, foreclosure, or other written conveyance.” In addition, chapter 66-33.1 requires that the last known corps survey be considered the presumptive determination of the historical ordinary high water mark. However, it further requires the North Dakota Industrial Commission oversee a review of the corps survey to correct or modify certain survey segments if there is evidence that shows an adjustment of the ordinary high water mark is necessary. The review began April 21, 2017 and is still ongoing. After the final review has been adopted by the North Dakota Industrial Commission, a two year implementation period is provided for with an estimated date of June 30, 2020 as the deadline for the completed implementation period. At this time, all lease acreage, bonus and royalty adjustments should be completed.
However, on January 10, 2018, a lawsuit was filed in Cass County District Court challenging the constitutionality of Senate Bill 2134. The case, entitled Paul Sorum, Marvin Nelson, et. al. v. The State of North Dakota, The Board of University School Lands of the State of North Dakota, The North Dakota Industrial Commission, The Hon. Douglas Burgum, in his official capacity as Governor of the State of North Dakota, and The Hon. Wayne Stenehjem, in his official capacity as Attorney General of North Dakota (Cass County, Civil No. 09- 2018-CV-00089), alleges that the State of North Dakota owns all minerals under Lake Sakakawea which was created by the construction of the Garrison Dam under the Equal Footing Doctrine, therefore Senate Bill 2134 is unconstitutional. Plaintiffs further allege that the legislation violates the anti-gift clause of the North Dakota Constitution by giving away $1.96 billion of state-owned minerals. In addition, the lawsuit seeks an immediate injunction to prevent the state from completing the ongoing high water mark review required by chapter 66-33.1. However, the State has yet to file their answer and there has been no decision issued by the court ordering an injunction on the survey review. At this time, the review process of the survey is still ongoing. Should the lawsuit sufficiently delay the process of implementing the review, however, it is possible the two year deadline requiring royalty adjustments to be completed would be delayed. Ownership of the oil and gas along the Missouri River and underlying the Missouri riverbed is difficult to determine due to the complexities of title created by the river as well as the above described issues. The purpose of Senate Bill 2134 was to provide a way to resolve the
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