Reep ex rel. Irwin v. State

Decision Date24 February 2014
Docket Number20130111.,Nos. 20130110,s. 20130110
Citation841 N.W.2d 664,2013 ND 253
CourtNorth Dakota Supreme Court
PartiesStanford A. REEP and Amy Reep, the Stockman Family Trust, the Charles and Ruth Patch Trust, Heidi Mcgillivray, Julie Streich, Mary Beth Ferguson, Florence Irwin ex rel. Loren Irwin, her guardian and conservator, and Loren Irwin, Individually, Thomas Selby, and Sogard Davidson Mineral LLLP, and on Behalf of All Others Similarly Situated, Plaintiffs and Appellants v. STATE of North Dakota, North Dakota Board of University and School Lands; and North Dakota Trust Lands Commissioner Lance D. Gaebe, in his official and personal capacities, Defendants and Appellees. Brigham Oil & Gas, L.P. n/k/a/ Statoil Oil & Gas L.P., Plaintiff and Appellee v. North Dakota Board of University & School Lands; City of Williston; Williams County, North Dakota; Geraldine Loder; Virgil A. Bloechl; Theresa Sitzmann; Michaele M. Gran; Robert James McDonald; Richard R. McDonald; Mary Ellen Smith; Carole J. McDonald; Thomas T. McDonald; Rose Marie Dokken; Elaine McDonald; John C. McDonald, Jr.; Josephine Swenson; Jacque N. Masog; Kay L. Dodge; William R. Mueller; Elvira C. Fulton; Doreen Fern McDonald; Goergia Carol Hausauer; Margaret Cecelia Gott; Marlyne Myrtle Loomis; Lesley Louise Neary; Virginia A. Venti; Eileen Eugenia Ehrler; BNSF Railway Company; Joseph Patrick Wodnik and Loraine Ann Wodnik, as joint tenants; Sherrill Myers; Viola DeTienne; Theresa Cogswell; Beulah Clawson; Norman Bratcher; Nancy Ann Bower–Pryor; Brian Jay Bower and Thomas Adrian Bower, as joint tenants; Stephen A. Messenger; Sandra Lee Messenger; Jacqueline Mech; Orville M. Erickson; Kerry P. Hoffman; Ardean O. Aafedt; Robert K. Torgerson; Jerome Bakke; Curtis Bakke; Sherrie Dee Bakke, Trustee of the Lowell G. Bakken Mineral Trust; Cynthia Jo Weldon; Jane Sanders Galt; Leah Pearce Bond; Charles E. Pearce and Gabriele Pearce as joint tenants; B.C. Harris and Ann Harris, Co–Trustees of the Harris Revocable Trust executed July 25, 1996; James R. Goins; Wayne Smith; Michael Brooks; Bill Como; Christi Breithaupt; Chris Smith; Kelly Smith; Mark Lemley; Beverly Sundet; Ricky Vance; Linda Kirkland; First National Bank and Trust Co. of Williston, Trustee of Hilda Noe Grandchildren Trust; Lois C. Zeigler, Trustee under the Last Will and Testament of Frederick H. Zeigler, Deceased; Shirley L. Schwab Trustee under Trust Agreement dated March 5, 1999; Gary S. Schwab; American State Bank & Trust Company of Williston, Trustee of Frank W. Moran and Mary Joan Moran Family Minerals Trust; American State Bank and Trust Company of Williston, Trustee of the Harris and Louise Anderson Family Minerals Trust U/A dated February 10, 2006; United States of America; Leroy Clapper; Energy One, LLC; Powers Energy Corporation; GeoFocus Corporation; Golden Eye Resources, LLC; Golden Eye Royalties, LLC; Upstream Innovations, Inc.; The Dublin Company; Petroleum Land Services; Huston Energy Corporation; Harvest Oil Company, LLC; and all unknown persons claiming an interest in, or lien or encumbrance upon, the proceeds from the production of the mineral estate described in the complaint herein, Defendants Kerry Hoffman, City of Williston, Williams County, North Dakota, Harvest Oil Company LLC, Beverly Sundet, Ricky Vance, Linda Kirkland, First National Bank & Trust Co. of Williston, Trustee of the Hilda Noe Grandchildren Trust, American State Bank and Trust Company of Williston, Trustee of the Frank W. Moran and Mary Joan Moran Family Minerals Trust, American State Bank and Trust Company of Williston, Trustee of the Harris and Louise Anderson Family Minerals Trust U/A dated February 10, 2006, Upstream Innovations, Inc., Shirley L. Schwab Trustee under Trust Agreement dated March 5, 1999, Lois C. Zeigler, Trustee under the Last Will and Testament of Frederick H. Zeigler, Deceased, and Gary S. Schwab, Jerome Bakke; Curtis Bakke; Sherrie Dee Bakke, Trustee of the Lowell G. Bakken Mineral Trust, Appellants State of North Dakota, North Dakota Board of University and School Lands; and North Dakota Trust Lands Commissioner Lance D. Gaebe, in his official and personal capacities, Appellees.

OPINION TEXT STARTS HERE

Jan M. Conlin (argued), Richard B. Allyn (appeared), Aaron R. Fahrenkrog (appeared), Sara A. Poulos (on brief), Minneapolis, MN, David R. Bossart (appeared), Thomas J. Conlin (appeared), Minneapolis, MN, Charles L. Neff (appeared), Williston, N.D. and John W. Morrison, Jr. (appeared), Bismarck, N.D., for plaintiffs and appellants. Stanford A. Reep and Amy Reep, the Stockman Family Trust, the Charles and Ruth Patch Trust, Florence Irwin ex rel. Loren Irwin, her guardian and conservator, and Loren Irwin, Individually, Thomas Selby, and Sogard Davidson Mineral LLLP, and on Behalf of All Others Similarly Situated.

Charles L. Neff (appeared), Williston, N.D., and Sara A. Poulos (on brief), Minneapolis, MN, for plaintiffs and appellants Heidi Mcgillivray, Julie Streich, Mary Beth Ferguson, Thomas Selby, and Sogard Davidson Mineral LLLP, and on Behalf of All Others Similarly Situated.

Charles M. Carvell (argued), Bismarck, N.D., Hope L. Hogan (appeared), Bismarck, N.D., Jennifer L. Verleger (appeared) and Thomas L. Trenbeath (appeared), Bismarck, N.D., for defendants and appellees State of North Dakota, North Dakota Board of University and School Lands; and North Dakota Trust Lands Commissioner Lance D. Gaebe, in his official and personal capacities.

Lawrence Bender (appeared) and Michael D. Schoepf (on brief), Bismarck, N.D., for plaintiff and appellee Brigham Oil & Gas, L.P. n/k/a Statoil Oil & Gas L.P.

Jan M. Conlin (argued), Richard B. Allyn (appeared), Aaron R. Fahrenkrog (appeared), Sara A. Poulos (on brief), Minneapolis, MN, and Charles L. Neff (appeared), Williston, N.D., for appellant Kerry Hoffman.

Kent A. Reierson (on brief), Williston, N.D., for appellant City of Williston, North Dakota.

Marlyce A. Wilder (on brief), Williston, N.D., for appellant Williams County, North Dakota.

Randall T. Cox (appeared), Gillette, WY, for appellant Harvest Oil Company, LLC.

Greg W. Hennessy (on brief), Williston, ND, for appellants Beverly Sundet, Ricky Vance, and Linda Kirkland.

Scott M. Knudsvig (appeared), Minot, N.D., for appellants First National Bank & Trust Co. of Williston, Trustee of the Hilda Noe Grandchildren Trust, American State Bank and Trust Company of Williston, Trustee of the Frank W. Moran and Mary Joan Moran Family Minerals Trust, American State Bank and Trust Company of Williston, Trustee of the Harris and Louise Anderson Family Minerals Trust U/A dated February 10, 2006.

Dennis E. Johnson (on brief), Watford City, N.D., for appellant Upstream Innovations, Inc.

Shirley L. Schwab (on brief) Trustee under Trust Agreement dated March 5, 1999, 805 West Fairmont Drive, Peoria, IL, appellant.

Lois C. Zeigler (on brief), Trustee under the Last Will and Testament of Frederick H. Ziegler, Deceased, East Peoria, IL, appellant.

Gary S. Schwab (on brief), Springfield, IL, appellant.

Jerome Bakke (appeared), Grand Forks, N.D., appellant.

Curtis Bakke (on brief) and Sherrie Dee Bakke, (on brief) Trustee of the Lowell G. Bakken Mineral Trust, Sandy, UT, appellants.

SANDSTROM, Justice.

[¶ 1] Several owners of land next to navigable waters in North Dakota appeal from summary judgments determining the State owns the mineral interests under the land in the shore zone, the area between the ordinary high and low watermarks of the navigable waters. We conclude that the State owned the mineral interests under the shore zone of navigable waters upon statehood in 1889 under the equal footing doctrine and that the enduring language of the anti-gift clause now found in N.D. Const. art. X, § 18, precludes construing the language now codified in N.D.C.C. § 47–01–15 as a gift of the State's mineral interests under the shore zone to the upland owners. Thus, ownership of mineral interests under the shore zone may be different for individual upland owners. If the chain of title reflects the State granted its equal footing interests to upland owners, those upland owners take to the low watermark, subject to the public trust doctrine and except where the deed provides otherwise. If the State is not in the chain of title for the upland owner's property, the anti-gift clause precludes construing N.D.C.C. § 47–01–15 as a gift of the State's equal footing interests to upland owners. We affirm but our decision does not preclude an upland owner from taking to the low watermark if the chain of title establishes the State has granted its equal footing interest to an upland owner.

I

[¶ 2] Eleven named owners of land next to navigable waters in North Dakota (“Reep upland owners”) sued the State, the North Dakota Board of University and School Lands, and the North Dakota Trust Lands Commissioner (State), seeking a declaration the Reep upland owners own the mineral interests under the shore zone of the navigable waters. In a separate action, well operator Brigham Oil and Gas, now known as Statoil Oil & Gas, named several upland owners as defendants in an interpleader action to determine adverse claims to proceeds from mineral interests under the shore zone of navigable waters in North Dakota. The actions were consolidated in the district court to determine the parties' rights to the mineral interests under the shore zone. On cross-motions for partial summary judgment, the court granted the State partial summary judgment, concluding that “it is the State of North Dakota—as part of its title to the beds of navigable waterways—that owns the minerals in the [shore zone] and that this public title excludes ownership and any proprietary interest by riparian landowners.”

[¶ 3] In the Reep upland owners' action, the parties stipulated the partial summary judgment resolved the issues raised in the pleadings but did not delineate the ordinary high watermark for any parcel of land and agreed a final judgment would not preclude contesting...

To continue reading

Request your trial
2 cases
  • Sorum v. State
    • United States
    • North Dakota Supreme Court
    • July 30, 2020
    ... ... constitutional provisions, "we apply general principles of statutory construction." State ex rel. Heitkamp v. Hagerty , 1998 ND 122, 13, 580 N.W.2d 139 (quoting Comm'n on Med. Competency v ... Reep v. State , 2013 ND 253, 14, 841 N.W.2d 664. Citing Oregon ex rel. State Land Bd. v. Corvallis ... ...
  • State v. Holbach
    • United States
    • North Dakota Supreme Court
    • March 10, 2014
    ... ... N.D.C.C. § 1–02–38(1);         [842 N.W.2d 334]Reep v. State, 2013 ND 253, ¶ 24, 841 N.W.2d 664;State ex rel. Sprynczynatyk v. Mills, 523 N.W.2d 537, ... ...
2 books & journal articles
  • LEGAL DEVELOPMENTS IN 2014 AFFECTING THE OIL AND GAS EXPLORATION AND PRODUCTION INDUSTRY
    • United States
    • FNREL - Journals Legal Developments in 2014 Affecting the Oil and Gas Exploration and Production Industry (FNREL)
    • Invalid date
    ...2014). [107] Complaint, Oklahoma Independent Petroleum Ass'n v. Dep't of Interior, No. 14-cv-307-jhp-pjc (N.D. Okla. June 8, 2014). [108] 2013 ND 253, 841 N.W.2d 664. [109] 2013 WL 3766526 (D.N.D. July 16, 2013). [110] 2014 ND 201, 855 N.W.2d 637. [111] 2014 ND 40, 824 N.W.2d 920. [112] 201......
  • LEASE MAINTENANCE AND TITLE ISSUES ACROSS THE SHALE BASINS: THE BAKKEN FORMATION
    • United States
    • FNREL - Special Institute Development Issues in Major Shale Plays (FNREL)
    • Invalid date
    ...Inc., 832 N.W.2d 49 (N.D. 2013). [106] Id. [107] Id. at 52, citing Hild v. Johnson, 723 N.W.2d 389, [108] Id. at 53. [109] Reep v. State, 841 N.W.2d 664 (N.D. 2013). For a detailed analysis of mineral ownership in riparian lands, see Bjella, Brian R. and Smith, Craig C., "Riparian Rights - ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT