Dog, The problem is corrupt judges leaning towards the State in any case. This Legislative action just produced LAW that the judges, State Land Trust and the NDIC must follow. There was nothing in law that guided any judicial case even up to the ND Supreme Court. SB2134 now sets precedent and provides guidance to return the minerals. I also noted the wording to soften the States culpability but that will be another case once the minerals are properly returned. I will personally revisit that question once the 2 year time table has run out. SB2134 is the political roadmap installed by the Legislature and signed into law by Governor Burgum that puts the return of the minerals to the original owners within 2 years into a well worded very clear mandate. Hoveon orchestrated this criminal taking and should answer for it. He violated our civil rights by this taking. This new law returns those minerals. The Legislative intent to return these minerals is pretty evident. Poppi V was referring to one of the arguments that was used in the Class Action suit brought against the State that the minerals could not be “gifted” to citizens if they originally were sovereign property of the State, the reason they did the OHWM “survey”. This was one of the bogus answers to the class action suit. This and the OHWM question have been answered by this new law. There isn’t any wiggle room to fight this. It’s the law. Steve
“This was one of the bogus answers to the class action suit.”>>
My point exactly… The state attorneys and the NDIC can make up any bogus argument they want, knowing that the courts will always back them up and “interpret” the law so the state wins. The state has never obeyed the laws where oil money is concerned. First they changed the Century Code definition of the shoreline that had stood for decades, after they saw a chance to make some easy money when the shale boom started. Then in 2015 when the oil price fell from the 100’s to 50, the mineral owners were supposed to get a severance tax reduction from 11.5% down to 6% according to the “trigger” clause in the existing ND law. Instead, the state eliminated the trigger clause, changed the tax rate to 10%, made up a bunch of crap about providing stability for the future, called it a tax cut and pocketed a $500 million dollar tax windfall. They stole more than two and a half times the amount of the total OHWM theft, in ONE YEAR, just by changing the law when it suited them. They called it “Saving the state half a billion dollars.” Sound familiar? Here is the link dated Feb 21, 2017: http://www.nd.gov/tax/news/326/
Those are just two examples. There is no rule of law when the government can simply change the laws whenever it wants, interpret the laws in its own favor or dismiss any cases where the state would lose if it followed the law.
The only reason we haven’t already been stripped of every mineral acre up to the current shoreline of Lake Sakakawea is that the OHWM perps were so full of hubris that they robbed the federal government too. The resulting federal lawsuits protected us up to this point and that is why there is a short paragraph in SB2134 that agrees to honor the COE surveys but only for federal lands. Why else would the feds get a free pass with no lengthy “process” to return their rights, while the private owners get OHWM 2.0? Because the state knows it can't beat the feds and they want the federal lawsuits to go away so the state can turn around and take the private rights without hindrance. If the legislature was serious about returning all of the mineral rights, they could have said we will use the COE surveys for everyone and been done. No games, no BS, nothing left open to interpretation by self-serving cronies. If the COE surveys are valid for the feds then they should be valid for everyone involved.
I agree that the original Legislative intent was to return the minerals to the rightful owners. The chamber videos convinced me that some of the legislators truly understand and believe that overturning the OHWM is a moral issue. They wanted to do what was right and seem to think that SB2134 will accomplish that goal. I truly hope that is the case but I have learned through experience not to trust anything that the state does.
The bill doesn’t say that the process will be complete within two years. It says they have 90 days to select a consulting firm, six months to do the study (which can be extended at the whim of “the department”), 60 days for public comment, then a hearing, then another review, after which the NDIC in its sole discretion gets to decide if it wants to adopt or modify each segment in the study. If the NDIC wants to overturn the study recommendation for any given tract, it also gets to decide what constitutes “clear and convincing evidence” to overturn the findings. That doesn’t sound like law to me. It sounds like a dictatorship. And THEN, after all this, the state and the operators begin the two year time period to return the money and update division orders, etc. Something tells me the land board ain’t gonna be in any big hurry to process the claims and return all of that money. The bottom line is that for the next year at minimum, the oil companies will continue to stay away from the river and we will continue to collect nothing.
The part of the bill that concerns me most is this little gem:
Any royalty proceeds held by the board of university and school lands attributable
to oil and gas mineral tracts lying entirely above the ordinary high water mark of
the historical Missouri riverbed channel on both the corps survey and the state
phase two survey must be released to the relevant operators…
I see two major problems with this wording. First, it reintroduces the bogus OHWM phase two study as a deciding factor in the law and sets a precedent that the corps survey can never overrule the OHWM P2, since both surveys must agree before the royalties will be released. It’s a Catch-22 trick because there are ZERO cases where both surveys will ever agree in favor of the mineral owner on a disputed tract where the OWHM already claimed that parcel for the state. They might as well have said “we are going to uphold the OHWM and if you don’t like it, see you in court”.
The second problem is the “lying entirely above” qualification. Does it mean that if you own a 600 acre tract and the OHWM already found that 100 acres lie below the high watermark, the state gets to laugh and keep all of the money because all 600 acres do not lie “entirely” above the shoreline? Why did they keep repeating the “lying entirely above” language over and over?
Steve, as someone with experience as a legislator, could you please explain to me why they worded it this way and what you think it means? I simply cannot imagine why they included all of this tricky language if they weren’t planning to deal themselves some outs that allow them to steal our mineral rights all over again.
Db
Dog,
I think you are trying to read more into what is written than there really is intended. I read the Legislative intent to make unequivocally clear that the original and current interpretation of the OHWM is to be the "high watermark of the original Missouri river bed as of the last photo survey completed by the US Corps of Engineers in 1952-53, prior to inundation by Lake Sakakawea upon closing of the Garrison dam." By using aerial photo survey maps, there is no way there can be any other "interpretation" of the OHWM.
Using my "super powers" as a MT Legislator, I read this to be a carefully crafted very precise interpretation of what the OHWM is and has been since 1952-53. I think the use of "tricky language" is off base. When read as legal legislative intent, I think the ND lawmakers did a very good job of defining what the OHWM was, is and will be to the end of time.
I have watched to progression of SB2134 from the time it was introduced through all of the committee hearings, amendments and final tweaks on the Senate and House floors and the return to the Senate prior to Governor Burgum signing it into law. I feel the legislative intent was to permanently fix the issue so that it could NOT be misinterpreted.
I'm not alone in this interpretation, I just negotiated (4-26-2017/4-29-17) a new lease based on the return of my families minerals that is quite generous and the company filled all of my requests and edits to the lease language. I was quite impressed with the ease of negotiating once the "Fix" was signed into law by Governor Burgum.
I hope this puts a little more strength in your faith that the ND Legislation did indeed FIX the wrong done us by the State Trust lands and other State officials that are no longer in public office within the State. There are a few that I will be chatting with once the title is fully cured on my family's minerals. There are still a few matters to clean up when this happens; but for now I'm happy with the results so far. In 30 days, I'll be REALLY happy when the first draft matures. I'll probably go out and have a few...... drinks when the remainder is in the bank.
I'll keep you posted!
Steve
I don't think Dogbert is totally out of line here about the politicians in North Dakota and the NDIC. From what dealings I have personally had with them, it sounds appropriate. As E. E. Smith used to say, "I like a skunk but they suit me a little too well".
Steve,
Thank you for your thoughts on the bill as a legislator. The news about your lease is encouraging because it shows that the company has faith that the new law will return the private mineral rights. If we start to see more examples of the oil companies buying leases or drilling in disputed areas of the river then it will be easier to adjust my attitude accordingly. After years of being cheated by the state, I tend to view the proceedings through a negative filter and expect skullduggery that maybe isn't there this time. We will know in about a year.
Good luck to you and please let me know how it turns out.
Dog
Dog,
I think I got Poppi and a relative pointed in the right direction. Don't know if they are in the same situation as my family but they are going to contact my landman and see if there is any way they can move forward. Drilling in disputed areas has been ongoing so that is going to just raise the amount of reimbursement for some mineral owners. I'll keep you posted on the first draft which matures in 30 calendar days. That one is large enough that if it is good then 120 days after the title is cured we should be sitting pretty good for many, many years and I can fully retire and not worry about anything. The next event will be the reimbursement of the production royalties from the Brangus and Charolais wells which should be huge and the third will be the makeup production royalties from the underwater acres from the Jersey wells which will be nice but not quite so impressive.
I'll keep you posted on event status. Should get interesting from here on out!
Steve
How do we find out if we had Mineral rights that were affected? We currently have several Mineral leases in ND. Most were purchased in the 50’s. How would we research? Thank you, Kay
Just joined this forum, so hope you get emailed since it's been a while.
You'd need to identify location (Township, range, section, possibly down to lot) and identify if your location with mineral rights was above ground before and below water now. That's your starting point.