Landowners seek $275K after ND law found not constitutional

August 9, 2022 GMT

BISMARCK, N.D. (AP) — A landowners group will seek more than $275,000 in lawyers’ fees and other costs after North Dakota’s Supreme Court found a state law pushed by the energy industry amounted to the unconstitutional taking of private property rights.

In a ruling last week, the state’s high court said key portions of the so-called pore space law passed in 2019 “have been shown to be unconstitutional on their face.”

“Government-authorized physical invasions of property constitute the ‘clearest sort of taking,’” the high court’s unanimous opinion said.

Pore spaces are cavities in rock or soil and are used when the petroleum industry injects saltwater from oil and gas production underground for permanent storage or for enhanced oil recovery.

The Northwest Landowners Association sued the state arguing the law was a giveaway to the energy industry, and denied landowners of their right to be compensated for the use of their pore space.

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Under the law, landowners couldn’t be compensated for pore space when it is used for saltwater disposal or enhanced oil recovery, unless they had an existing contract. Landowners adjacent to a disposal well also could not make a claim that saltwater, a byproduct of oil production, had migrated into their pore space, nor could they sue for trespassing.

The Supreme Court struck down those provisions.

“Government-authorized physical invasions of property constitute the ‘clearest sort of taking,’” the high court’s unanimous opinion said.

A state district judge last year ruled the law unconstitutional because it gives the landowners’ value from pore space to the oil and gas industry for free.

The judge allowed the landowners group to seek legal fees it accrued while fighting the legislation. The state Supreme Court said the lower court did not “abuse its discretion” in awarding those costs.

The law got wide support in the Republican-led Legislature and was signed by GOP Gov. Doug Burgum, despite strong objections from landowners in western North Dakota’s oil patch.

It was one of the most controversial measures of the 2019 Legislative session.