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A drilling rig is pictured near Lake Sakakawea near New Town on Sept. 8. Some fear that uncertainty about who owns the minerals under the lake will deter oil development in the area. 

The fight over the retention of mineral rights by private citizens commandeered by the state when Lake Sakakawea was built continues.

The North Dakota Attorney General’s office is arguing that a law governing mineral rights under the lake does not apply to a case currently before the North Dakota Supreme Court because the land in question is under the Missouri River, not the lake.

The Legislature recently passed a law clarifying that the state does not own the minerals where private mineral owners retained the rights after the property was sold for the building of the lake.

However, in Wilkinson v. Board of University and School Lands of the State of North Dakota, which is currently before the North Dakota Supreme Court and was the inspiration behind the legislation, the Attorney General's office filed a brief on Monday, making the argument that the the new law doesn’t apply.

SB 2134 was meant to set up a process to return an estimated $187 million in mineral payments received by the state that, in some cases, may have belonged to private citizens who retained their mineral rights when the U.S. Army Corps of Engineers bought the land for Lake Sakakawea.

Uncertainty over mineral ownership has led to lawsuits, including the Wilkinson suit.

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During the legislative session, the court stayed the Wilkinson case pending the outcome of the legislation. After the bill passed, the court allowed submission of supplemental briefs addressing the effect of the legislation.

The Wilkinson property is west of the Highway 85 bridge, which the Attorney General's office says also puts it west of where the river transitions into the lake. It goes on to say the property was never inundated by the lake, even during the 2011 flood.

“Which certainly begs the question if the mineral tract was above the 2011 all-time historic flood, how is it possible the minerals are located within the "ordinary high water mark" as claimed by the State in its OHWM survey?” North Dakota Petroleum Council attorney Craig Smith said in an emailed statement rebutting the attorney general's argument.

The Supreme Court has scheduled oral arguments in the case for June 12.

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Reach Jessica Holdman at 701-250-8261 or jessica.holdman@bismarcktribune.com

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