Parts of North Dakota’s pore space law are unconstitutional on their face, and conflict with both state and federal takings clauses, according to a decision from the North Dakota Supreme Court.
The higher court did not toss the entire pore space law, however, and said that a lower court had erred in doing so. The ruling leaves intact legislative findings that certain activities involving pore space are in the public’s best interest, as well as NDIC authority to adopt and enforce rules intended to carry those interests out.
The state’s definition of pore space and surface owner also stand, the court said, because they do not conflict with the takings clause on their face.
But the state’s newly enacted definition of land, which had sought to exclude pore space, does not pass muster, the judges said. Nor can the state prohibit landowners from seeking just compensation when substances are injected or migrate into pore spaces for disposal operations.
“These provisions, being in conflict with the higher law of the state and federal constitutions, are unenforceable,” the judges wrote.
North Dakota law has long established that surface owners have a property interest in pore space, the judges added, citing as case law Mosser 2017, as well as a state law enacted in 2009, that confirmed surface owners own the pore space under their surface estate.
The judges also allowed attorney fees to stand. Deprivation of property rights counts as a civil rights violation, as outlined under the Fifth and Fourteenth Amendments, the justices wrote.
Ron Ness, President of the North Dakota Petroleum Council, was among those disappointed by the decision.
“It seems like the court missed some of the key issues, like landowners with disposal wells having to share with landowners who chose not to have a salt water disposal well,” Ness said. “The state (also) owns the water in the pore space. We are still assessing the decision.”
North West Landowners, meanwhile, reiterated that the association is not against storage of gas or carbon dioxide injection, as they testified to the North Dakota Legislative Assembly about Senate Bill 2344.
“Almost all of the saltwater disposals in this state are operated through voluntary contracts with landowners,” a media release states. “As an organization we hav always trie to work with industry and regulators to address our concerns. We remain committed to working cooperatively with industry, and our invitation to sit down and address the concerns raised by this bill is an open offer.”
NWLA Attorney Derrick Braaten said the case shows America’s system of checks and balances still works.
“Landowners can rely on the protections of the United States and North Dakota constitutions when other efforts fail to protect private property rights,” he said. “In the end, it is the landowners of North Dakota who won.”