Wilkinson v. Board of University and School Lands of the State of N.D. , 2020 ND 183 ( 2020 )

Filed 8/27/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 183William S. Wilkinson; Ann L. Nevins and
Amy L. Perkins as Personal Representatives for the
Estate of Dorothy A. Wilkinson; Barbara Caryl Materne,
Trustee of the Petty Living Trust;
Charlie R. Blaine and Vanessa E. Blaine, as
Co-Trustees of the Charlie R. Blaine and
Vanessa E. Blaine Revocable Trust; Lois Jean Patch,
life tenant; and Lana J. Sundahl, Linda Joy Weigel,
Deborah J. Goetz, Marva J. Will, Ronald J. Patch,
Michael Larry Patch, and Jon Charles Patch,
Remaindermen, Plaintiffs and Appellees
v.
The Board of University and School Lands of the
State of North Dakota, Brigham Oil & Gas, LLP;
StatoilOil & Gas LP; Defendants and Appellants
and
EOG Resources, Inc.; Defendant and Appellee
and
XTO Energy Inc.; Petrogulf Corporation, and all other
persons unknown who have or claim an interest in
the property described in the Complaint, Defendants
and
North Dakota State Engineer, Intervener and Appellant
No. 20190354
Appeal from the District Court of Williams County, Northwest Judicial
District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, ND, for
plaintiffs and appellees.
David P. Garner, Bismarck, ND, for defendant and appellant the Board of
University and School Lands of the State of North Dakota.
John E. Ward, Bismarck, ND, for defendant and appellant Brigham Oil & Gas,
LLP and Statoil Oil & Gas, LP.
Lawrence Bender, Bismarck, ND, for defendant and appellee EOG Resources,
Inc.
Jennifer L. Verleger, Bismarck, ND, for intervener and appellant North
Dakota State Engineer.
Craig C. Smith and Paul J. Forster, Bismarck, ND, amicus curiae North
Dakota Petroleum Council.
Wilkinson, et al. v. Board of University and School Lands of the State
of N.D.
No. 20190354
Crothers, Justice.
[¶1] The Board of University and School Lands of the State of North Dakota,
the State Engineer, and Statoil Oil & Gas LP appeal from a judgment
determining William Wilkinson and the other plaintiffs own mineral interests
in certain land. Although the judgment is not appealable because it did not
dispose of all claims against all parties, we exercise our supervisory
jurisdiction to review the summary judgment. We conclude the district court
did not err in concluding N.D.C.C. ch. 61-33.1 applies and the disputed mineral
interests are above the ordinary high water mark of the historical Missouri
riverbed channel, but the court erred in quieting title and failing to comply
with the statutory process. We affirm in part, reverse in part, and remand.
I
[¶2] J.T. Wilkinson and Evelyn M. Wilkinson acquired title to property
located in Williams County described as:
Township 153 North, Range 102 West
Section 12: SW1/4
Section 12: S1/2NW1/4, excepting that portion which constitutes
the right-of-way of the BNSF Railway Company
Section 13: Farm Unit No. 312 in the Buford-Trenton Project
In 1958, the Wilkinsons conveyed the property to the United States for
construction and operation of the Garrison Dam and Reservoir, but they
reserved the oil, gas, and other minerals in and under the property. The
plaintiffs are the Wilkinsons’ successors in interest.
[¶3] In 2012, the plaintiffs sued the Land Board to determine ownership of
the minerals in and under the property, alleging they own the mineral
interests. The plaintiffs also sued Brigham Oil & Gas, LLP and EOG
Resources, Inc., to determine their rights, alleging Brigham received an oil and
1
gas lease from the State and EOG received an oil and gas lease from the
plaintiffs. In an amended complaint the plaintiffs sought damages for claims
of unconstitutional takings under the state and federal constitutions by the
state defendants, and conversion and civil conspiracy by all defendants. The
plaintiffs also sought to impose a constructive trust on monies received by
others, and for injunctive relief. After answers by the defendants and extensive
counterclaims and crossclaims among the parties, the district court
determined ownership of the property below the ordinary high water mark
(“OHWM”) in favor of the Land Board.
[¶4] This Court reviewed the district court’s summary judgment determining
the State owned the minerals below the OHWM of the Missouri River as part
of its sovereign lands. See Wilkinson v. Bd. of Univ. and Sch. Lands, 2017 ND
231, 903 N.W.2d 51. The facts underlying this dispute were stated in the prior
appeal and we will not repeat them here except as necessary to resolve the
issues raised in the present appeal. Id. at ¶¶ 2-9.
[¶5] In the prior appeal we reversed the judgment. Wilkinson, 2017 ND 231,
¶ 29, 903 N.W.2d 51. We remanded for the district court to determine whether
N.D.C.C. ch. 61-33.1, governing State ownership of the Missouri riverbed,
applies and governs ownership of the minerals at issue in this case. Id. at ¶ 20.
We also directed the court to reconsider the plaintiffs’ takings claim if the court
decided the State owns the minerals. Id. at ¶ 25.
[¶6] On remand the plaintiffs moved for summary judgment. The plaintiffs
argued N.D.C.C. ch. 61-33.1 applies, the Industrial Commission determined
under N.D.C.C. ch. 61-33.1 that the Wilkinson property is above the OHWM of
the historical Missouri riverbed channel, that the State is bound by its
admission in a separate action that N.D.C.C. ch. 61-33.1 applies, and that the
State does not own the minerals. The plaintiffs also argued any outcome in
which they are deprived of the property is an unconstitutional taking under
the United States and North Dakota constitutions requiring just
compensation. The plaintiffs requested the district court enter summary
2
judgment in their favor and hold that they own the disputed minerals as a
matter of law.
[¶7] Statoil, the Land Board, and the State Engineer opposed the plaintiffs’
motion. EOG opposed the State’s claim to the Wilkinson property but did not
take a position on whether the summary judgment motion should be granted.
[¶8] XTO Energy, Inc., filed a stipulated motion to be dismissed from the
action. XTO admitted it does not hold an ownership interest in or a claim to
any of the disputed mineral interests. The district court granted the motion
and dismissed XTO from the action.
[¶9] After a hearing, the district court granted the plaintiffs’ motion,
determining N.D.C.C. ch. 61-33.1 applies and the plaintiffs own the disputed
minerals. The court concluded the State’s interest is statutorily limited to the
historical Missouri riverbed channel as determined by N.D.C.C. ch. 61-33.1,
the Industrial Commission determined under N.D.C.C. § 61-33.1-03 that the
Wilkinson property is above the OHWM of the historical Missouri riverbed
channel, and therefore the State’s claim to the property failed as a matter of
law. The court held it did not need to go any further than deciding the first
issue remanded, N.D.C.C. ch. 61-33.1 applies and controls the ownership, the
Wilkinson property is above the OHWM of the historic Missouri riverbed
channel, and therefore the plaintiffs own the property. The court further
stated, “That concludes the statutory process as applied to the Wilkinsons and
their claims in the Amended Complaint.” The district court entered judgment
quieting title to the mineral interests in the plaintiffs.
II
[¶10] Statoil argues the district court erred in entering judgment because the
remaining causes of action were not dismissed and N.D.R.Civ.P. 54(b) was not
complied with.
[¶11] The right to appeal is statutory and if no statutory basis for appeal
exists, we must take notice of the lack of jurisdiction and dismiss the appeal.
3
Nygaard v. Taylor, 2017 ND 206, ¶ 8, 900 N.W.2d 833. We have a two-step
process for evaluating appealability:
“First, the order appealed from must meet one of the statutory
criteria of appealability set forth in NDCC § 28-27-02. If it does
not, our inquiry need go no further and the appeal must be
dismissed. If it does, then [N.D.R.Civ.P. 54(b)], [if applicable,] must
be complied with. If it is not, we are without jurisdiction.”
Nygaard, at ¶ 9 (quoting Holverson v. Lundberg, 2015 ND 225, ¶ 9, 869 N.W.2d
146).
[¶12] “[A]ny order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or parties and may be
revised at any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.” N.D.R.Civ.P. 54(b). “We will not
consider an appeal in a multi-claim or multi-party case which disposes of fewer
than all claims against all parties unless the trial court has first independently
assessed the case and determined that a Rule 54(b) certification is
appropriate.” Greer v. Global Indus., Inc., 2018 ND 206, ¶ 10, 917 N.W.2d 1(quoting Baker v. Autos, Inc., 2017 ND 229, ¶ 6, 902 N.W.2d 508).
[¶13] The Land Board, State Engineer, and Statoil appealed from the
judgment entered after the district court granted summary judgment and
quieted title to the property in the plaintiffs’ favor. Generally, an order
granting summary judgment and the subsequently entered judgment are
appealable. Greer, 2018 ND 206, ¶ 9, 917 N.W.2d 1.
[¶14] The plaintiffs’ amended complaint alleged multiple claims for relief.
They requested declaratory relief and sought damages for unconstitutional
taking of property under the state and federal constitutions, conversion, unjust
enrichment, and civil conspiracy. Their complaint was dismissed with
prejudice before the prior appeal. The decision in the prior appeal did not
specifically address any claims other than the plaintiffs’ request for declaratory
judgment deciding ownership of the disputed minerals and the takings claim.
4
See Wilkinson, 2017 ND 231, 903 N.W.2d 51. The Court reversed the prior
judgment without affirming any part of the judgment. Id. at ¶ 29.
[¶15] On remand the district court granted summary judgment in favor of the
plaintiffs, but only explicitly addressed the declaratory judgment claim by
determining the plaintiffs own the Wilkinson property. The district court
stated no other issues needed to be addressed. The court did not dismiss the
other claims, including the takings claims which were explicitly reversed in
the prior appeal.
[¶16] Under the status of this case, the question of plaintiffs’ damages remains
unresolved. Even if we were to fully affirm the district court’s decision and
conclude the court correctly applied N.D.C.C. ch. 61-33.1 and did not err in
quieting title, plaintiffs claim recovery of damages by taking or otherwise for
when the State claimed ownership of the property. Deciding ownership of the
mineral interests does not resolve all of the claims, and we therefore do not
have a final judgment disposing of all claims against all parties. Moreover,
none of the parties requested certification under N.D.R.Civ.P. 54(b) or
requested the court amend its judgment to dismiss the remaining claims. The
case does not comply with N.D.R.Civ.P. 54(b).
[¶17] Although this appeal is not authorized, we may exercise supervisory
jurisdiction to review the judgment.
“Under N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04, this
Court may examine a district court decision by invoking our
supervisory authority. We exercise our authority to issue
supervisory writs rarely and cautiously, and only to rectify errors
and prevent injustice in extraordinary cases when no adequate
alternative remedy exists. Our authority to issue a supervisory
writ is ‘purely discretionary,’ and we determine whether to
exercise supervisory jurisdiction on a case-by-case basis,
considering the unique circumstances of each case. Exercise of
supervisory jurisdiction may be warranted when issues of vital
concern regarding matters of important public interest are
presented.”
5
Nygaard, 2017 ND 206, ¶ 11, 900 N.W.2d 833 (quoting State ex rel. Harris v.
Lee, 2010 ND 88, ¶ 6, 782 N.W.2d 626) (cleaned up).
[¶18] This case presents a significant issue regarding the interpretation and
application of N.D.C.C. ch. 61-33.1, which is an issue of vital concern regarding
matters of important public interest and of which there is little guidance in our
case law. The important public interest is reflected in statements made during
adoption and amendment of N.D.C.C. ch. 61-33.1.
[¶19] The legislature created a process to efficiently determine ownership of
minerals in the defined geographic area and return any funds that were
incorrectly paid to the State. During committee hearings about changing
language in Ch. 61-33.1 from “inundated” to “subject to inundation,”
Representative Todd Porter testified, “If we don’t set in code, as the policy
makers in North Dakota, the definitions, then we’re leaving it up to an agency
to make those determinations. We’ve caught them twice, taking stuff that
wasn’t theirs. The other key component to this definition . . . is ‘subject to
inundation’. If you leave it as ‘inundated,’ you could have somebody’s hay land
that is flooded once every 30 years, the state of North Dakota would use that
and come in and take that property.” Hearing on S.B. 2211 Before the Senate
Energy and Nat. Res. Comm., 66th N.D. Legis. Sess. (April 22, 2019). There
also was testimony from Representative Bob Martinson about the Wilkinson
property stating, “In the case of the people who initiated the lawsuit, theirs is
basically settled, it’s a question of getting them paid subject to the Marvin
Nelson lawsuit.” Hearing on S.B. 2211 Before the Senate Energy and Nat. Res.
Comm., 66th N.D. Legis. Sess. (April 23, 2019). See also, Hearing on S.B. 2211
Before the House Approps. Comm., 66th N.D. Legis. Sess. (March 19, 2019)
(comments of Rep. Porter) (stating the 2019 amendments are necessary
because they determined it was impossible for the land department to send out
the money under the prior version of the statute, the process was not complete,
acreage must be determined, and “We also want to pay back the money right
away.”); Hearing on S.B. 2211 Before the Senate Energy and Nat. Res. Comm.,
66th N.D. Legis. Sess. (April 22, 2019) (comments of Rep. George Keiser)
(stating “For those individuals who went to court, and brought this case
6
forward; we assumed that they would be paid after the Wenck study. Now we
are at another two years, another study, to make that determination. . . . We
need to give them some compensation or give them their minerals, and
apparently we can’t, because the Wenck study did not provide adequate
information to make that determination by the land department.”).
[¶20] Because of the large number of affected landowners, the urgency with
which the legislation was adopted, and the large sums of money at stake, this
is an appropriate case to exercise our discretionary supervisory jurisdiction.
III
[¶21] The issues here involve the interpretation and application of N.D.C.C.
ch. 61-33.1. The State Engineer argues the district court misapplied the law
and did not properly determine whether N.D.C.C. ch. 61-33.1 applies to the
Wilkinson property. The Land Board and Statoil argue, for different reasons,
that the district court’s determination of ownership is premature under the
procedural requirements of N.D.C.C. ch. 61-33.1. Our analysis of these
arguments requires the review of N.D.C.C. ch. 61-33.1.
[¶22] “Summary judgment is a procedural device for the prompt resolution of
a controversy on the merits without a trial if there are no genuine issues of
material fact or inferences that can reasonably be drawn from undisputed
facts, or if the only issues to be resolved are questions of law.” Wilkinson, 2017
ND 231, ¶ 10, 903 N.W.2d 51 (quoting THR Minerals, LLC v. Robinson, 2017
ND 78, ¶ 6, 892 N.W.2d 193). The movant has the burden of showing there are
no genuine issues of material fact and he is entitled to judgment as a matter
of law. Wilkinson, at ¶ 10. In reviewing a district court’s summary judgment
decision, we view the evidence in the light most favorable to the party opposing
the motion and give the party opposing the motion the benefit of all favorable
inferences which can reasonably be drawn from the record. Id. We decide
whether “the information available to the district court precluded the existence
of a genuine issue of material fact and entitled the moving party to judgment
as a matter of law.” Id. (quoting THR Minerals, at ¶ 6). Whether summary
7
judgment was proper is a question of law, which is reviewed de novo on appeal.
Wilkinson, at ¶ 10.
[¶23] The district court granted the plaintiffs’ motion for summary judgment,
determining N.D.C.C. ch. 61-33.1 applies and the plaintiffs own the Wilkinson
property. The court concluded:
“The interpretation of Chpt. 61-33.1, N.D.C.C., is a question
of law. As a matter of law, Chpt. 61-33.1, N.D.C.C., applies to the
Wilkinsons’ property, and the Industrial Commission’s
determination that the Wilkinsons’ minerals are above the OHWM
of the historical Missouri riverbed channel is conclusive.
“Pursuant to the definitions established by the legislature in
N.D.C.C. § 61-33.1-01, the Wilkinsons’ property falls inside the
area under the control of Chpt. 61-33.1, N.D.C.C., for determining
the OHWM of the historical Missouri riverbed channel. As a
matter of law, the State has no claim to any of the minerals,
including the Wilkinsons’, that the Industrial Commission
determined are above the OHWM of the historical Missouri
riverbed channel. . . . The Wilkinsons’ property is in Township 153
North, Range 102 West, Section 12: SW/4, S/2NW/4, and Section
13: Farm Unit No. 312 in the Buford-Trenton Project. This is
within the area the legislature included as part of the process for
delineating the OHWM of the historical Missouri riverbed channel
controlled by Chpt. 61-33.1, N.D.C.C.
“Further, the Wilkinsons’ property in Sections 12 and 13 is
located between river mile 1554.0 and 1554.5. This also
indisputably shows that the Wilkinsons’ property is within the
statutory area set by Chpt. 61-33.1, N.D.C.C., for determining the
OHWM of the historical Missouri riverbed channel under North
Dakota law. The area for determining the OHWM pursuant to
Chpt. 61-33.1, N.D.C.C., continues further southwest of the
Wilkinsons’ property for approximately another 11 river miles to
river mile 1,565 under the clear and unambiguous language in
N.D.C.C. § 61-33.1-01.
“As required by N.D.C.C. § 61-33.1-03, the Industrial
Commission issued its Order that determined the OHWM of the
historical Missouri riverbed channel, and set the limit on the
State’s interests. The Industrial Commission adopted the Wenck
8
Study after the public comment period required by law pursuant
to N.D.C.C. § 61-33.1-03. The Wenck Study concluded the
Wilkinsons’ property was above the OHWM of the historical
Missouri riverbed channel. The fact that the Wilkinsons’ minerals
are above the OHWM, and thus not owned by the State, is clearly
visible in the Wenck Study maps adopted by the Industrial
Commission in its Order.
....
“The State’s interest is statutorily-limited to the historical
Missouri riverbed channel as determined by Chpt. 61-33.1,
N.D.C.C. This cannot be disputed by the State. . . . The Industrial
Commission determined that the Wilkinsons’ property was above
the OHWM of the historical Missouri riverbed channel. This is not
a question of fact. It was established as a matter of law under Chpt.
61-33.1, N.D.C.C. The State is required to follow the Industrial
Commission’s Order. The State has no basis to continue claiming
that it owns the Wilkinsons’ property, and summary judgment in
the Wilkinsons’ favor is thus appropriate.
....
“The Court does not need to go any further than deciding the
first question remanded by the Supreme Court. As a matter of law,
N.D.C.C. ch. 61-33.1 applies and controls the ownership of the
property at issue. The Industrial Commission determined that the
Wilkinsons’ minerals are above the OHWM of the historic Missouri
riverbed channel, and therefore, the Wilkinsons are entitled to
those minerals. That concludes the statutory process as applied to
the Wilkinsons and their claims in the Amended Complaint. The
Wilkinsons are not required to pursue a separate lawsuit under
N.D.C.C. § 61-33.1-05, as argued by Statoil Oil and Gas LP. The
State is bound, as a matter of law, by the Industrial Commission’s
Order issued pursuant to Chpt. 61-33.1, N.D.C.C., and has no basis
to continue claiming ownership of these minerals.”
[¶24] The interpretation of a statute is a question of law, which is fully
reviewable on appeal. Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC,
2018 ND 96, ¶ 5, 909 N.W.2d 671. Our primary objective in interpreting
statutes is to determine the legislature’s intent. Baker, 2019 ND 82, ¶ 10, 924
N.W.2d 441. When a statute is unambiguous, we look at the plain language of
the statute to determine its meaning. Schulke v. Panos, 2020 ND 53, ¶ 8, 940
9
N.W.2d 303. A statute is ambiguous if it is susceptible to different, but rational,
meanings. PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2020 ND 22, ¶ 10,
937 N.W.2d 885. We give words in a statute their plain, ordinary, and
commonly understood meaning, unless specifically defined or a contrary
intention plainly appears. N.D.C.C. § 1-02-02. “Statutes are construed together
to give effect to each word and phrase, and all parts of a statute must be
construed to have meaning.” Rocky Mountain, at ¶ 5 (quoting Schmidt v. City
of Minot, 2016 ND 175, ¶ 7, 883 N.W.2d 909); see also N.D.C.C. § 1-02-07.
“When statutes relate to the same subject matter, this Court makes every
effort to harmonize and give meaningful effect to each statute.” State v.
Marcum, 2020 ND 50, ¶ 21, 939 N.W.2d 840 (quoting State v. Kuruc, 2014 ND
95, ¶ 32, 846 N.W.2d 314).
[¶25] Section 61-33.1-02, N.D.C.C., states:
“The state sovereign land mineral ownership of the riverbed
segments subject to inundation by Pick-Sloan Missouri basin
project dams extends only to the historical Missouri riverbed
channel up to the ordinary high water mark. The state holds no
claim or title to any minerals above the ordinary high water mark
of the historical Missouri riverbed channel subject to inundation
by Pick-Sloan Missouri basin project dams, except for original
grant lands acquired by the state under federal law and any
minerals acquired by the state through purchase, foreclosure, or
other written conveyance.”
Section 61-33.1-01(2), N.D.C.C., defines “historical Missouri riverbed channel”
as:
“[T]he Missouri riverbed channel as it existed upon the closure of
the Pick-Sloan Missouri basin project dams, and extends from the
Garrison Dam to the southern border of sections 33 and 34,
township 153 North, range 102 West which is the approximate
location of river mile marker 1,565, and from the South Dakota
border to river mile marker 1,303.”
[¶26] The plain language of N.D.C.C. § 61-33.1-02 indicates the State does not
have any sovereign land ownership of any minerals above the ordinary high
10
water mark of the historical Missouri riverbed channel. Section 61-33.1-01(2),
N.D.C.C., specifically defines “historical Missouri riverbed channel” and limits
it to a specific geographical location, from the Garrison Dam to the southern
border of sections 33 and 34, township 153 North, range 102 West. Chapter 61-
33.1, N.D.C.C., governs the State’s ownership of mineral interests of the
riverbed segments within the defined geographic area and limits it to property
below the OHWM of the historical Missouri riverbed channel.
[¶27] In this case, the disputed property is located in sections 12 and 13 of
township 153 North, range 102 West in Williams County, which is within the
geographic area included in the definition of the “historical Missouri riverbed
channel.” Because the Wilkinson property is located within the defined
geographic area, as a matter of law N.D.C.C. ch. 61-33.1 applies and governs
the State’s claim of ownership of the property. The district court did not err in
determining N.D.C.C. ch. 61-33.1 applies.
[¶28] Chapter 61-33.1, N.D.C.C., provides a process for determining the State’s
sovereign land mineral ownership within this geographic area and the return
of royalties or other funds incorrectly paid to the State. Section 61-33.1-03,
N.D.C.C., provides a process to determine the OHWM of the historical Missouri
riverbed channel, which is used to determine whether the State has an
ownership interest. “The corps survey must be considered the presumptive
determination of the ordinary high water mark of the historical Missouri
riverbed channel, subject only to the review process under this section and
judicial review as provided in this chapter.” N.D.C.C. § 61-33.1-03(1). An
engineering and surveying firm selected by the Department of Mineral
Resources reviewed the delineation of the OHWM of the corps survey segments
to determine whether there was clear and convincing evidence that a portion
of the corps survey does not reasonably reflect the OHWM of the historical
Missouri riverbed channel and then provide its findings to the department.
N.D.C.C. § 61-33.1-03(2)-(5). The engineering and surveying firm completed a
report containing its findings about the OHWM, which is known as the Wenck
Study.
11
[¶29] After a public hearing, the department was required to make a final
recommendation to the Industrial Commission on each of the review findings.
N.D.C.C. § 61-33.1-03(7). Under N.D.C.C. § 61-33.1-03(7), the Industrial
Commission may adopt or modify the recommendations, but the Commission’s
“action on each finding will determine the delineation of the ordinary high
water mark for the segment of the river addressed by the finding.” On
September 27, 2018, the Industrial Commission issued Order No. 29129,
adopting in part and amending in part the Wenck Study’s recommendations,
and determining the OHWM of the historical Missouri riverbed channel.
[¶30] After the Industrial Commission’s adoption of the final review findings,
the statutory process states the Land Board may contract with an engineering
and surveying firm to analyze the findings and determine the acreage above
and below the OHWM as delineated by the Industrial Commission’s final
findings. N.D.C.C. § 61-33.1-03(8). “The acreage determination is final upon
approval by the board.” Id. After the Land Board adopts the final acreage
determinations, N.D.C.C. § 61-33.1-04(1) requires royalty proceeds
attributable to oil and gas mineral tracts lying entirely above the OHWM of
the historical Missouri riverbed channel to be released to the owners of the
tracts or to the relevant operators to distribute to the owners. The final acreage
determinations had not been made and approved by the Land Board at the
time the district court granted summary judgment in this case.
[¶31] The district court concluded the property is above the OHWM of the
historical Missouri riverbed channel, and therefore the disputed mineral
interests are not owned by the State. Undisputed evidence established the
Wenck Study determined the Wilkinson property is located above the OHWM
of the historical Missouri riverbed channel. The Industrial Commission’s order
adopted the Wenck Study’s determinations for the segments related to the
Wilkinson property. As a matter of law, the Wilkinson property is above the
OHWM and the State does not have a claim to that property outside of the
acreage determination under N.D.C.C. § 61-33.1-04(8).
12
[¶32] We affirm the district court’s conclusions that N.D.C.C. ch. 61-33.1
applies in this case and that the Wilkinson property is above the OHWM of the
historical Missouri riverbed channel and is not State sovereign lands.
However, the court erred by determining “That concludes the statutory process
as applied to the Wilkinsons and their claims in the Amended Complaint.”
Determining the property is above the OHWM of the historical Missouri
riverbed channel, does not end the statutory process. Chapter 61-33.1,
N.D.C.C., contains further processes that apply to this property. The final
acreage determinations have not been made and royalties and bonus payments
may need to be released to the plaintiffs as required by N.D.C.C. ch. 61-33.1.
The rest of the statutory process must be completed and the district court’s
decision to end this case before determining the plaintiffs’ damages was
premature.
IV
[¶33] The State Engineer argues the district court misapplied the law and did
not properly determine whether N.D.C.C. ch. 61-33.1 applies to the disputed
property because N.D.C.C. § 61-33.1-02 limits the chapter’s application to land
“subject to inundation by the Pick-Sloan Missouri basin project dams.” The
State Engineer contends the determination of whether any specific land is
“subject to inundation” is a factual determination that cannot be decided on
summary judgment. The State Engineer claims the water that inundates the
Wilkinson property is caused by the meandering Missouri River and not Lake
Sakakawea, and the statute would be unconstitutional if it is interpreted to
apply to those areas inundated by the Missouri River and not Lake Sakakawea.
[¶34] “When engaging in statutory interpretation, this Court has consistently
recognized that it must be presumed the legislature intended all that it said,
said all that it intended to say, and meant what it has plainly expressed.”
Estate of Christeson v. Gilstad, 2013 ND 50, ¶ 12, 829 N.W.2d 453. See also
Brossart v. Janke, 2020 ND 98, ¶ 12, 942 N.W.2d 856. (“We presume the
legislature did not intend an absurd or ludicrous result or unjust consequences,
and we construe statutes in a practical manner, giving consideration to the
context of the statutes and the purpose for which they were enacted.” (internal
13
citation omitted).) As is explained above, N.D.C.C. ch. 61-33.1 applies to
property located within the geographical area defined by statute. Chapter 61-
33.1 provides a process for determining what property is part of the historical
Missouri riverbed channel, which the State owns as sovereign lands, and for
determining whether money paid to the State in error should be returned to
the property owner. The State Engineer’s interpretation would dismantle the
statutory process and instead would require each mineral interest claimant to
sue and prove the property is subject to inundation by the Pick-Sloan Missouri
basin project dams, and not the Missouri River. Clearly, that was not the
legislature’s intent. See Sorum, et al. v. State, et. al., 2020 ND 175, ¶ 40
(holding the State no longer claims the minerals and, through N.D.C.C. ch. 61-
33.1, it recognized its obligation to pay its debts and deal fairly with people and
return the funds).
[¶35] Chapter 61-33.1, N.D.C.C., is not ambiguous. That chapter provides the
process for determining ownership of property within the geographical
boundary included in the definition of historical Missouri riverbed channel.
Individuals alleging ownership of mineral interests within that geographic
area are not required to also prove the property is subject to inundation by the
Pick-Sloan Missouri basin project dams. The district court did not err by failing
to accept the State Engineer’s interpretation of the chapter.
V
[¶36] The Land Board argues ownership cannot be determined until after the
periods to challenge the Industrial Commission’s order and the final acreage
determinations have been exhausted because the OHWM of the historical
Missouri riverbed channel is not final until then. It contends N.D.C.C. § 61-
33.1-05(3) is clear that title to property cannot be finalized until all challenges
are exhausted under the statute, because at that point the location of the
OHWM and the number of acres within each parcel will be permanently
established.
[¶37] Section 61-33.1-05, N.D.C.C., limits judicial actions related to this
chapter. An interested party seeking to challenge the review findings,
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recommendations, or the Industrial Commission’s actions under N.D.C.C. ch.
61-33.1 must bring suit within two years after adoption of the final review
findings by the Industrial Commission. N.D.C.C. § 61-33.1-05(1). A party
seeking to challenge the final acreage determinations must sue within two
years after the acreage determinations are approved by the Land Board.
N.D.C.C. § 61-33.1-05(2). The statute further provides:
“Notwithstanding any other provision of law, an action brought in
district court under this section is the sole remedy for challenging
the final review, recommendations, determination of the ordinary
high water mark, and final acreage determination under this
chapter, and preempts any right to rehearing, reconsideration,
administrative appeal, or other form of civil action provided under
law.”
N.D.C.C. § 61-33.1-05(3). The statute expressly limits a party’s remedy to the
process specified in the chapter.
[¶38] Reading the chapter as a whole, individual ownership may be
determined before all challenges are exhausted under N.D.C.C. § 61-33.1-05
and the limitation period expires. Under N.D.C.C. § 61-33.1-04(1), some royalty
proceeds are required to be released within six months after the adoption of
the acreage determination by the Land Board, absent a showing of other
defects affecting mineral title. For those payments to occur, ownership must
be determined before the two years for challenges has expired.
[¶39] The Land Board claims “any interested party may still have an action
challenging the Wenck Study or the acreage determinations that impact” the
disputed property. Under N.D.C.C. § 61-33.1-05 an interested party can only
challenge the review findings or acreage determination for the section of land
in which the interested person asserts an interest. They cannot challenge the
entire review findings or acreage determinations. Section 61-33.1-04(2)(b),
N.D.C.C., states, “The filing of an action under section 61-33.1-05 tolls the
deadline for any oil and gas well directly affected by the action challenging the
review finding or final acreage determination.” It only tolls the deadline for oil
and gas wells directly affected by the action.
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[¶40] Reading chapter 61-33.1 as a whole, we reject the Land Board’s
argument that all actions under N.D.C.C. § 61-33.1-05 must be exhausted
before title to any property can be finalized.
VI
[¶41] We have considered the parties’ remaining issues and arguments and
conclude they are either unnecessary to our decision or are without merit. The
judgment is affirmed in part, reversed in part, and the case is remanded.
[¶42] Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Gerald W. VandeWalle
Jon J. Jensen, C.J.
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