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Joel Toso, far left, a water resource engineer, presents his findings from a review of the historical ordinary high water mark of the Missouri River on April 17 at the state Capitol to the members of the North Dakota Industrial Commission. The commissioners are, from left, Agriculture Commissioner Doug Goehring, Gov. Doug Burgum and Attorney General Wayne Stenehjem.

Mineral owners and their attorneys will be busy for the next two months reviewing a new study of the historical channel of the Missouri River, a report that aims to resolve disputes over oil and gas ownership.

Consultant Wenck Associates presented Tuesday an overview of its study of the ordinary high water mark of the Missouri River as it existed before the construction of the Garrison Dam, which created Lake Sakakawea.

The full survey and supporting materials will be made public by Friday at www.dmr.nd.gov.

The study, ordered by the Legislature, investigated the accuracy of the 1950s river survey conducted by the U.S. Army Corps of Engineers.

Differences between the Corps survey and a 2009 survey used by the Department of Trust Lands have caused multiple parties to claim ownership of the same minerals, in some cases leading to lawsuits.

The consultant firm used aerial photos, topographical maps, river flow data, information from the Corps and other sources to conduct the survey, said Joel Toso, senior water resources engineer for Wenck.

The review area starts at New Town, excluding the Fort Berthold Reservation, and extends about 9 river miles upstream from Williston.

Wenck’s review shows that North Dakota owns 10,402 more acres than the Corps survey showed.

By comparison, North Dakota owns an estimated 25,000 more acres when comparing the 2009 survey with the Corps survey, according to a fiscal note prepared by the Department of Trust Lands during the legislative session.

The public will be able to review the consultant’s findings in detail and provide comments to the North Dakota Industrial Commission.

“There are a lot of tracts and quarter sections along there that gain and lose,” said Director of Mineral Resources Lynn Helms. “I expect people to challenge the determination, particularly if they’re losing acres.”

The public will have until June 20 to submit written comments. The public also can comment during an all-day public hearing on June 26 in Bismarck. More information about how to comment is expected to be released by Friday.

Fargo attorney Josh Swanson attended Tuesday’s presentation with clients who have a lawsuit on hold until the survey is adopted. They’re eager to see how their minerals near Williston would be affected by the survey, but were pleased to hear the consultant’s methodology.

“We feel a little bit of relief,” Swanson said.

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Swanson said he expects he and other attorneys will get a lot of calls in the coming weeks, particularly from mineral owners who may lose minerals under the firm’s survey.

“I wouldn't anticipate that those mineral owners would just go quietly into the night,” he said.

Sen. Kelly Armstrong, R-Dickinson, who sponsored the bill that led to the study, said he hadn’t seen the full results yet, but his initial reaction is the consultant did a thorough review.

“The key takeaway from this is making sure private mineral owners get their minerals back,” Armstrong said. “The important thing for the industry is finally they get some certainty.”

The Department of Trust Lands is waiting for the review to be posted online to analyze it and compare to the 2009 study completed by Bartlett and West, said North Dakota Land Commissioner Jodi Smith.

The consultant did not compare its findings with the 2009 study, Toso said.

Meanwhile, a lawsuit that challenges the legislation continues in Cass County District Court. The case filed by Rep. Marvin Nelson, D-Rolla, former Republican governor candidate Paul Sorum and others challenges the constitutionality of the law and argues the state attempts to “give away” nearly $2 billion in state-owned mineral rights.

A hearing on a preliminary injunction, which could affect the survey review process, is scheduled for April 30 in Fargo.

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(Reach Amy Dalrymple at 701-250-8267 or Amy.Dalrymple@bismarcktribune.com)

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