“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