On Jan. 29, North Dakota District Judge David W. Nelson ruled in favor of the State of North Dakota in a suit filed by private interest holders over ownership of mineral estates in the area between the ordinary high and low watermarks of navigable waterways, commonly known as the “shore zone.”
The ruling applied to two cases, one filed by Stanford Reep, a Williams County landowner, and the other filed by Brigham Oil and Gas, both of which argued that the mineral rights in the shore zone belong to the adjacent or “riparian” landowner. Nelson, however, ruled otherwise. “The Court concludes that it is the State of North Dakota — as part of its title to the beds of navigable waterways — that owns the minerals in the area between the ordinary high and low watermarks on these waterways, and that this public title excludes ownership and any proprietary interest by riparian landowners,” Nelson said in his ruling.
North Dakota Land Commission Lance Gaebe said he was pleased with outcome. “Trust Lands functions on behalf of all of the citizens of the State of North Dakota, so our responsibility is to ensure the state’s interests are maintained,” Gaebe told Petroleum News Bakken. However, Gaebe acknowledges it is a very complex issue.
Under the federal Equal Footing Doctrine, the State of North Dakota is the sovereign owner of the all mineral rights that lie between the high water marks of all navigable waterways at the time North Dakota was granted statehood in 1889. The state claims ownership of the riverbed and the minerals between the ordinary high water marks. However, others maintain the state does not own between the ordinary high water marks and cite a section of the North Dakota Century Code which states that an upland or riparian land owner on a navigable waterway owns the mineral rights down to the low water mark.
Issue may not be over
And so the issue may not be over. In his ruling, Nelson said that the court “understands that its decision is not necessarily the final word on this title question, and that the circumstances may warrant an immediate appeal.” If his ruling is appealed it would go directly to the North Dakota Supreme Court.
The North Dakota Land Board commissioned a survey in 2008 to establish the ordinary high water mark of the Missouri and Yellowstone rivers to establish the acreages between those high and low water lines so that the mineral leases could be nominated for sale, and some are on the block in the Feb. 5 Trust Lands lease auction. Gaebe said that survey, which was just recently completed, “fulfilled our responsibility to the people of the state.”
Drew Combs of Minerals Management division of Trust Lands said it is important for people understate the state’s position. “We’re not trying to make a land grab here,” Combs said, “We have a responsibility to the State of North Dakota.”
Of Nelson’s ruling, Gaebe said “it’s a positive outcome for the state, but it could be the first of many steps necessary to sort out this very complicated issue.”
