BISMARCK — A judge on Thursday, Jan. 21, struck down a North Dakota law that prevented landowners from receiving compensation for the use of underground cavities and rock formations on their property.
Handing a victory to the Northwest Landowners Association over the state and the titan oil company Continental Resources, District Judge Anthony Benson wrote that he had "no choice in the matter" since the law amounted to "an unconstitutional taking of an inherent, inalienable property right."
Troy Coons, chairman of the Northwest Landowners Association, told reporters that the complexity of the pore space issue shouldn't overshadow the importance of this win for North Dakota landowners.
"I'm kind of getting emotional right now. It's a very big deal," he said. "I know most people aren't going to probably still grasp what was at risk for them, and may still be at risk, but with energy development in this state where it is right now, pore space is a massive, massive part of the puzzle."
Senate Bill 2344, which Gov. Doug Burgum signed into law during the 2019 legislative session, looked to clarify laws around the use of underground cavities known as "pore space," which can be used for the subterranean storage of saltwater or for the injection of carbon dioxide to help extract more crude oil from the surrounding area.
Under the law, landowners could not receive compensation if oil companies used their pore space for either of these purposes, nor could adjacent landowners claim that the stored substances had migrated into their pore space.
The Northwest Landowners Association avidly opposed the bill when it went before lawmakers two years ago and warned that the bill's passage could result in lawsuits, but Burgum said at the time that the bill had been properly vetted and amended in legislative committees to preserve landowners' rights.
Following Burgum's decision to sign it into law in 2019, the Northwest Landowners Association sued the state, entering a year-and-a-half long legal battle in which Continental Resources also intervened to defend the law.
Benson ruled the law unconstitutional under both the federal and North Dakota constitutions, writing that it gave "landowners' value from pore space to the oil and gas industry, for free, under the guise of the North Dakota Industrial Commission," the three-member oversight body chaired by Burgum, which was also party to the case.
A spokesperson for Burgum said the governor does not normally comment on pending litigation, since the result could still be appealed to the North Dakota Supreme Court. A spokesperson for the Industrial Commission said its members will be briefed on the ruling in closed session during their meeting next week.
For members of the Northwest Landowners Association, it was a landmark victory impacting property owners across the state.
"This one tested our resolve and went above and beyond anything I think we ever thought we would have to do," Coons said.
Derrick Braaten, an attorney representing the landowners association, said he would not be surprised to see the opposing side appeal the decision. The state and Continental Resources have 60 days from the ruling to file an appeal.
Readers can reach reporter Adam Willis, a Report for America corps member, at firstname.lastname@example.org.