The North Dakota Attorney General’s Office is seeking to delay a court case involving an oil and gas mineral ownership dispute along the Missouri River that the Supreme Court sent back to district court.
The attorney representing the family of William S. Wilkinson in the case against the North Dakota Board of University and School Lands calls the state’s request for a delay “completely unnecessary” and plans to oppose it.
The North Dakota Supreme Court said in September the court case should be returned to district court to determine if new legislation related to minerals under Lake Sakakawea and the Missouri River should be applied in the case.
Family members argue the state took their oil and gas mineral rights from property in Williams County acquired by the federal government for the construction of the Garrison Dam.
The legislation, Senate Bill 2134, requires a survey to define the ordinary high water mark of the Missouri River channel as it existed before the Garrison Dam.
Assistant Attorney General Hope Hogan argues in court filings that a district judge should postpone proceedings in the case until nine months after the North Dakota Industrial Commission adopts the survey findings. Hogan filed the motion about a week after meeting with the Land Board in a closed-door executive session to discuss the case.
Hogan writes in a court brief that the Industrial Commission is not anticipated to approve the survey findings until late 2018. She argues the review could affect the state’s claims and additional time would be needed to prepare for a trial.
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A timeline provided by the Department of Mineral Resources says the commission would consider the survey in July 2018 after a review process that includes public hearings.
Attorney Joshua Swanson, who represents the family, said he agrees that the court case should be delayed until after the survey findings are adopted, but he said 30 to 60 days would be more reasonable.
“The state has already put this family through enough, and both the Legislature and now the North Dakota Supreme Court have made clear the state’s claim cannot stand,” he said.
Swanson also sent a letter requesting the state disclaim mineral ownership in light of the Supreme Court ruling.
Swanson said his position is the Wilkinsons will be determined to own the minerals if the new legislation is applied. However, if it’s determined that the state owns the minerals, the state would owe the Wilkinsons damages if an unconstitutional taking occurred, Swanson said. He estimates the damages would likely exceed $1 million.
Hogan responded in a letter to Swanson that the state was not in a position to make a stipulation of mineral ownership.
A status conference is scheduled in the case on Nov. 29 before Northwest Judicial District Judge Paul Jacobson in Williams County.