Serving The Bakken And Beyond

Landowners Challenge Constitutionality Of “Pore Space” Law

A landowners group is challenging the legality of new North Dakota legislation which clarifies “pore space”, and has the backing of the ND Petroleum Council as well as several landowners and farm groups.

The complaint was filed by the Northwest Landowners Assn. in Bottineau County against ND state officials, the Dept. of Trust Lands and the ND Industrial Commission.

It contends that “Senate Bill 2344 strips landowners of their right to possess and use the pore space within their lands and allows the state of North Dakota to directly redistribute that right to others without the consent of or compensation to the landowners.”

However, the NDPC contended that SB 2344 was a vehicle to clarify existing law and reduce future lawsuits. It also insures that “mineral development can continue in the Bakken and make it possible to utilize carbon dioxide for enhanced oil recovery in our mature oil fields”, the NDPC said.

The NLA wants the law declared unconstitutional, and to prevent state officials from enacting administrative rules to implement it.

“In passing SB 2344, the Legislative Assembly has privileged mineral estate owners above surface estate owners and afforded them rights and privileges that it has prohibited to and barred from surface estate owners,” the lawsuit stated.
The law still allows landowners to file suit, but clarifies ownership.

“As it relates to production water, CO2 enhanced oil recovery, and natural gas storage injections, the bill simply limits recovery in common law tort claims like trespass and nuisance to instances where actual damage occurs,” the NDPC said during the legislative session.

The legislation stemmed from a lawsuit brought by Medora rancher Randal Moser against Denbury Resources. He contended that he should be paid by Denbury for 3.9 million barrels of salt water injected into the “pore space” of a well on his property.

The ND State Supreme Court ruled Denbury did not have to pay Moser to inject the waste water beneath his property. The water was injected to a depth of about 5,496 feet.