Governor Doug Burgum and the Land Board Need to Get in Control of Their Bureaucrats

A drilling rig is pictured near Lake Sakakawea near New Town, N.D., on Thursday, Sept. 8, 2016. Some fear that uncertainty about who owns the minerals under the lake will deter oil development in the area. Amy Dalrymple/Forum News Service

There is a land grab being pursued by some North Dakota bureaucrats, an immoral sort of expropriation of valuable private mineral rights, that is now in defiance of not only decency but legislative intent.

Our state’s elected leaders serving on the Board of Trust Lands need to step in and restore order. They need to rein in their bureaucrats.

At issue are mineral rights under Lake Sakakawea, which I’m sure I don’t need to remind you readers is a man-made body of water resulting from the damming of the Missouri River.

When it was created it flooded hundreds of square miles of private property.

Property with some very valuable minerals underneath.

This is a remarkable development. Legislation passed by strong majorities, and signed into law by Governor Doug Burgum, is now being dismissed by lawyers working on behalf of a board that Burgum himself heads.

The State of North Dakota, without question, owns the rights to minerals under the Missouri River. Those mineral rights are managed by what everyone calls the Land Board. Sitting on that board is Governor Doug Burgum, Attorney General Wayne Stenehjem, Superintendent Kirsten Baesler, Treasurer Kelly Schmidt, and Secretary of State Al Jaeger.

When it comes to the mineral rights under Lake Sakakawea, North Dakota has always claimed those minerals under the historic Missouri River channel as it existed prior to the creation of the lake.

Except, in 2015 the Land Board ordered state engineers to do a new survey. Now the state has been claiming in legal disputes that their rights extend to the ordinary high water mark of the Missouri River, and that includes all of Lake Sakakawea.

“Lake Sakakawea is simply an expansion of the Missouri River; it is not a separate and discrete water body,” attorney Jennifer Verleger, who works for Attorney General Wayne Stenehjem, wrote in Wilkinson v. Board of University and School Lands.

The implications of this statement are astounding. Oil industry folks I’ve spoken to say companies have been paying royalties on these rights to private owners for years. Their estimate, should the state win this argument, is that billions of royalty payments would have to be unwound. Something that would undoubtedly result in blizzard of lawsuits involving the oil industry, these private mineral owners, and the state.

All because the state, in 2015, rather arbitrarily changed the definition of which minerals belong to them.

During the legislative session earlier this year lawmakers passed SB2134, introduced by Senator Kelly Armstrong of Dickinson, which seeks to put a stop to the state’s claim on those minerals.

Except now lawyers from the Attorney General’s office, acting on behalf of the Land Board, have filed a brief (see below) in a court case related to the dispute over the minerals arguing that the new law doesn’t apply.

The Bismarck Tribune also reports on this filing.

This is a remarkable development. Legislation passed by strong majorities, and signed into law by Governor Doug Burgum, is now being dismissed by lawyers working on behalf of a board that Burgum himself heads.

That is unacceptable. Oral arguments in the Wilkinson case are scheduled for the middle of next month. One would hope, though, that the Land Board would act before then.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and the host of the Rob (Re)Port on Fargo-based WDAY AM970 from noon-2pm weekdays.

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