Wilkinson v. Bd. of Univ. & Sch. Lands of N.D.
| Decision Date | 28 September 2017 |
| Docket Number | No. 20160199,20160199 |
| Citation | 903 N.W.2d 51 |
| Parties | William S. WILKINSON; Ann L. Nevins and Amy L. Perkins as Personal Representative for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, l Trusted 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, Appellants and Cross-Appellees v. The BOARD OF UNIVERSITY AND SCHOOL LANDS of the State of North Dakota; EOG Resources, Inc., XTO Energy Inc., Defendants and Appellees and Petrogulf Corporation, and all other persons unknown who have or claim an interest in the property described in the Complaint, Defendants and Brigham Oil & Gas, LLP and Statoil Oil & Gas LP, and EOG Resources, Inc., Defendants, Appellees and Cross-Appellants and North Dakota State Engineer Intervenor and Appellee |
| Court | North Dakota Supreme Court |
Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, N.D., for plaintiffs, appellants and cross-appellees William S. Wilkinson; Ann L. Nevins and Amy L. Perkins as Personal Representative for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, l Trusted 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.
Jennifer L. Verleger (argued) and Hope L. Hogan (on brief), Bismarck, N.D., for defendants and appellees The Board of University and School Lands of the State of North Dakota; and North Dakota State Engineer, intervenor and appellee.
Lyle W. Kirmis (argued), Bismarck, N.D., for defendant and appellee Brigham Oil & Gas, LLP n/k/a Statoil Oil & Gas LP.
Michael D. Schoepf (argued) and Lawrence Bender (on brief), Bismarck, N.D., for defendant and appellee EOG Resources, Inc.
Michael J. Mazzone (on brief), Houston, TX, for defendant and appellee XTO Energy, Inc.
Craig C. Smith (on brief) and Paul J. Forster (on brief), Bismarck, N.D., amicus curiae North Dakota Petroleum Council.
Uriah J. Price (on brief), Bozeman, MT, amicus curiae North Dakota Petroleum Council.
[¶ 1] William Wilkinson and the other plaintiffs appeal and Statoil & Gas, LP and EOG Resources, Inc. cross-appeal from a summary judgment determining the Board of University and School Lands of the State of North Dakota ("Land Board") owns certain property below the ordinary high watermark of the Missouri River. Wilkinson argues the district court erred in determining ownership of the mineral interests. We reverse and remand.
[¶ 2] J.T. Wilkinson and Evelyn M. Wilkinson acquired title to property located in Williams County described as:
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 and gas rights 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 gas lease from the State and EOG received an oil and gas lease from the plaintiffs.
[¶ 4] The Land Board answered and counterclaimed, requesting the district court determine ownership of the property below the ordinary high watermark in its favor. The Land Board also claimed the plaintiffs were required to join XTO Energy, Inc. as a party because it holds an oil and gas lease issued by the Land Board.
[¶ 5] EOG answered and filed a cross-claim against the Land Board and Brigham, requesting the district court determine the plaintiffs own the disputed minerals and EOG owns a leasehold estate. Brigham answered and filed a counterclaim and cross-claim against EOG, requesting the court decide the Land Board owns the minerals and Brigham has rights to lease oil and gas.
[¶ 6] The plaintiffs moved for leave to amend the pleadings to add additional defendants and claims. The district court granted the motion. The plaintiffs filed an amended complaint adding Statoil Oil & Gas LP and XTO Energy, Inc. as defendants. They alleged Statoil acquired Brigham and held an oil and gas lease from the Land Board. They also added several new claims against the defendants, including a takings claim against the Land Board; a claim under 42 U.S.C. § 1983 against the Land Board for depriving them of their constitutional rights; and claims for conversion, unjust enrichment, civil conspiracy, and injunctive relief against all of the defendants. Statoil and XTO answered and counterclaimed. The State Engineer moved to intervene as a defendant, the court granted the motion, and the State Engineer filed an answer.
[¶ 7] The Land Board and State Engineer (collectively "State") moved for summary judgment, requesting the court determine that the State holds title to the bed of the Missouri River up to the current ordinary high watermark and that the disputed property is located below the current ordinary high watermark. The State also argued the court does not have subject matter jurisdiction because the plaintiffs failed to exhaust their administrative remedies, no taking occurred, and the 42 U.S.C. § 1983 claim was improper.
[¶ 8] The plaintiffs responded, arguing the motion should be denied because the property is not part of the State's sovereign lands, there was no navigable body of water on the property at the time of statehood, the surface property was purchased by the United States as part of the Garrison Project, the property was flooded by Lake Sakakawea, the property is located above the historical ordinary high watermark, and they alleged sufficient facts to support their takings claim. Statoil also responded to the summary judgment motion, arguing that property under Lake Sakakawea is not sovereign land owned by the State because the lake is man-made and was not navigable at the time of statehood and that the disputed property is located outside Lake Sakakawea and below the current ordinary high watermark of the Missouri River. XTO responded and joined the State's request that the court decide the State holds title to the disputed minerals.
[¶ 9] After a hearing, the district court granted the State's motion for summary judgment. The court decided the State owns the minerals and surface of the disputed property and dismissed all of the plaintiffs' claims. The court explained the State owns sovereign lands, which are defined as those areas within the ordinary high watermark of navigable lakes and streams; the Missouri River is not distinguishable from Lake Sakakawea; the Missouri River was navigable at the time of statehood; and the disputed property is located west of the Highway 85 bridge and therefore is within the Missouri River and not a part of Lake Sakakawea. The court concluded the State holds the title of beds of navigable waters up to the current ordinary high watermark; the property is currently below the ordinary high watermark; the State's title to oil and gas below the ordinary high watermark shifts with changing conditions, whether naturally or artificially occurring; and therefore both the surface and minerals of the property are sovereign land belonging to the State. The court dismissed the plaintiffs takings claims, concluding no uncompensated taking occurred because the plaintiffs were not denied the right to lease and produce minerals in the past. Judgment was entered.
[¶ 10] Our standard of review for a district court's decision to grant summary judgment is well established:
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. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides 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. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
THR Minerals, LLC v. Robinson, 2017 ND 78, ¶ 6, 892 N.W.2d 193 (quoting Markgraf v. Welker, 2015 ND 303, ¶ 10, 873 N.W.2d 26 ).
[¶ 11] The district court granted summary judgment concluding "the Property, both surface and mineral interests, is determined to be sovereign land of the State of North Dakota."
The plaintiffs sued to quiet title to the minerals underlying the property. They requested declaratory relief, including "a declaration by the Court that the State of North Dakota does not own title to the minerals [sic] interests in the Property owned by the Plaintiffs[.]" The plaintiffs did not claim they have a property interest in the surface estate. The Land Board counterclaimed and requested a judgment "ruling that neither the...
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