EEE Minerals, LLC v. North Dakota

• Docket Number: 22-2159
• Decision Date: 30 August 2023
• Parties: EEE Minerals, LLC; Suzanne Vohs, as Trustee for the Vohs Family Revocable Living Trust, Plaintiffs-Appellants, v. State of North Dakota; Board of University and School Lands of the State of North Dakota; Joseph A. Heringer, Commissioner for the Board of University and School Lands of the State of North Dakota, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

1

EEE Minerals, LLC; Suzanne Vohs, as Trustee for the Vohs Family Revocable Living Trust, Plaintiffs-Appellants,
v.
State of North Dakota; Board of University and School Lands of the State of North Dakota; Joseph A. Heringer, Commissioner for the Board of University and School Lands of the State of North Dakota, Defendants-Appellees.

No. 22-2159

United States Court of Appeals, Eighth Circuit

August 30, 2023

Submitted: March 16, 2023

Appeal from United States District Court for the District of North Dakota - Western

Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.

COLLOTON, CIRCUIT JUDGE.

EEE Minerals, LLC, and Suzanne Vohs, as Trustee for The Vohs Family Revocable Living Trust, sued the State of North Dakota, the Board of University and School Lands, and the Board's commissioner in a dispute over mineral interests in

2

McKenzie County, North Dakota. EEE Minerals and Vohs alleged that state law related to mineral ownership was preempted by federal law, and that the defendants had engaged in an unconstitutional taking of the plaintiffs' mineral interests. The plaintiffs sought damages, an injunction, and declaratory relief. The district court^[*] dismissed the action, and we affirm.

I.

This dispute revolves around mineral interests reserved by the predecessors of EEE Minerals and Vohs in a warranty deed that conveyed surface land to the United States under the Flood Control Act of 1944. EEE Minerals and Vohs claim that North Dakota and its Lands Board have leased and claimed ownership of certain mineral interests that belong to the company and the Vohs Trust. EEE Minerals and the Vohs Trust are successors-in-interest to members of the Vohs family who entered into the warranty deed with the United States.

The Flood Control Act authorized the acquisition of land by the United States for dam and reservoir projects needed for flood control. Pub. L. No. 78-534, § 3, 58 Stat. 887, 889 (1944); 33 U.S.C. § 701c-1 (1938). This included the Garrison Dam and reservoir in North Dakota. S. Doc. No. 247, 78th Cong. 2d Sess., at 3 (1944). Closure of the Garrison Dam resulted in the reservoir now known as Lake Sakakawea. See Sorum v. State, 947 N.W.2d 382, 386 (N.D. 2020).

Before closing the Garrison Dam, the United States Army Corps of Engineers surveyed the area that would be inundated by the resulting reservoir. The Corps sought to determine the upland acreage that the government would need to acquire

3

for the project. The results of this survey were reflected in segment maps. The Corps used those maps to acquire, by purchase or condemnation, land that now makes up the bed of Lake Sakakawea.

On July 24, 1957, the United States acquired 276.8 acres of surface property from members of the Vohs family under a warranty deed. Under the deed, the Vohses reserved their oil and gas interests in the property, subject to the right of the United States to flood and submerge the land in the construction, operation, and maintenance of the Garrison Dam and reservoir. EEE Minerals and the Vohs Trust have since entered into several oil and gas leases for the property.

North Dakota's ownership of mineral interests stems from title that it acquired at the time of statehood in 1889 under the equal-footing doctrine. The State gained title to the bed of the Missouri River up to the river's ordinary high water mark. See Oregon ex rel. State Land Bd. v. Corvallis Sand &Gravel Co., 429 U.S. 363, 370-78, 376 (1977); Shively v. Bowlby, 152 U.S. 1, 57-58 (1894); Sorum, 947 N.W.2d at 39697. After statehood, the ordinary high water mark migrated over time through accretion and avulsion. See Corvallis, 429 U.S. at 376-77; Sorum, 947 N.W.2d at 396-97.

In 2008, the Lands Board commissioned a "Phase 1" survey to determine the current ordinary high water mark of the Missouri River. Another survey, "Phase 2," followed in 2010 to determine the historical ordinary high water mark as it existed before the closing of the Garrison Dam. Sorum, 947 N.W.2d at 387. Based on the results of these surveys, North Dakota leased oil and gas interests that the appellants allege are within the property described in the 1957 warranty deed that conveyed surface lands to the United States and reserved mineral interests to the...