Northwest Landowners Association

Derrick Braaten is the attorney representing the Northwest Landowners Association. The group has filed a lawsuit over the state's new law relating to a landowner's pore space.

The Tribune editorial board hopes the Northwest Landowners Association wins its lawsuit over “pore space.” We believe the Legislature in an effort to clarify issues surrounding pore space did an injustice to landowners.

Legislators earlier this year passed Senate Bill 2344 relating to cavities in rock or soil that can be used to inject saltwater from oil and gas production or to enhance oil recovery. That’s done by pumping carbon dioxide into old oil fields to extract more oil.

Under the law, which takes effect today, some landowners won’t be compensated for their pore space when it’s used for saltwater disposal or enhanced oil recovery. The exception is if they have an existing contract. Landowners adjacent to a disposal well can’t make a claim that saltwater has migrated into their pore space.

The oil industry fought for the law during the legislative session, arguing it was needed after a 2017 North Dakota Supreme Court ruling that created uncertainty over mineral development. The justices ruled that “a mineral developer may be liable to a surface owner for saltwater disposal into pore space.”

The North Dakota Petroleum Council feared adjacent landowners could seek payments if injected saltwater migrated into their property. The council argued the bill merely clarified the issues and didn’t infringe on landowners.

The Tribune disagrees. We believe the law takes away the rights and protections of landowners. If a landowner has no contract, they may get no payment for the use of their pore space and no control over how it’s used. Adjacent landowners have no protection if saltwater comes into their pore space.

Petroleum Council President Ron Ness defended the new law on Monday. “SB 2344 garnered a wide array of support from landowners, communities and others who saw this as a chance to clarify existing law and reduce further lawsuits to ensure mineral development can continue in the Bakken and make it possible to utilize carbon dioxide for enhanced oil recovery in our mature oil fields.”

In other words, making it easier to search for oil is more important than the rights of landowners. It’s the implied threat, used often, that if the oil industry doesn’t get its way it might reduce development.

After the recent downturn in oil prices, the state was forced to trim budgets and reduce the state’s workforce. It was a sobering time that emphasized the importance of oil development on North Dakota. There’s no doubt that oil has provided many benefits for North Dakotans, and it’s appreciated.

However, that doesn’t mean state officials should surrender the rights of citizens out of fear of losing oil revenue.

The Tribune agrees with Troy Coons, board chairman of the Northwest Landowners Association, when he said there were alternatives to the new law. He suggested compensation could have been reached through private contracts, or legislators could have established a study on the issue. Another possibility was a series of bills to consider the issues, he said.

Instead, the Legislature bowed to the oil industry. We hope the landowners’ suit proves successful, and lawmakers can pass legislation in the future that’s fair to everyone. Landowners shouldn’t have to sacrifice their rights to make it easier to search for oil.

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