Pore space Supreme Court Hearing
Northwest Landowners Association, Plaintiff and Appellee
v. State of North Dakota, North Dakota
Northwest Landowners Association (“Appellees”) filed a complaint against the State of North Dakota, challenging the constitutionality of S.B. 2344.
The court further found that pore space is a vested right for surface owners and surface owners have a right to compensation for use of their pore space. It concluded that S.B. 2344 constitutes a taking under both the federal and state constitutions because S.B. 2344 prohibits surface owners from obtaining any compensation for the oil and gas operators’ use of their pore space and also bars the surface owners from seeking tort remedies, including trespass or nuisance, or other torts.
2022 Information Expo
Food For Thought:
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It is not our intent to offer legal advice but rather to start a conversation, to educate, to share, and hopefully we learn from each other. A good place to always start is the beginning, in our minds that is the North Dakota Century Code, here are some chapters relevant to site reclamation.
The North Dakota Century Code
CHAPTER 38-08 CONTROL OF GAS AND OIL RESOURCES
Definition: “Commission” means the industrial commission.
38-08-04.2. Director of mineral resources – Director of oil and gas – Delegation to director of oil and gas. The industrial commission is authorized to appoint a director of mineral resources who shall serve at the pleasure of the commission. The director of mineral resources shall carry out the duties of the director of oil and gas along with the duties of director of mineral resources. The commission may set the salary of the director of mineral resources. The commission may delegate to the director of oil and gas all powers the commission has under this title and under rules enacted under this title.
38-08-01. Declaration of policy. It is hereby declared to be in the public interest to foster, to encourage, and to promote the development, production, and utilization of natural resources of oil and gas in the state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas be had and that the correlative rights of all owners be fully protected; and to encourage and to authorize cycling, recycling, pressure maintenance, and secondary recovery operations in order that the greatest possible economic recovery of oil and gas be obtained within the state to the end that the landowners, the royalty owners, the producers, and the general public realize and enjoy the greatest possible good from these vital natural resources.
38-08-04.12. Reclamation of land disturbed by oil and gas activity.
- Any land disturbed by construction of well sites, treating plants, saltwater handling facilities, access roads, underground gathering pipelines and associated facilities, and from remediation of leaks or spills within the jurisdiction of the commission shall be reclaimed as close as practicable to its original condition as it existed before the construction of the well site or other disturbance. The commission, with the consent of the appropriate government land manager or surface owner, may waive the requirement of reclamation of the site and access road after a well is plugged or treating plant or saltwater handling facility is decommissioned. The commission shall record documentation of the waiver with the recorder of the county in which the site or road is located.
- This section may not be construed to require removal of a properly reclaimed reserve pit or a properly abandoned underground gathering pipeline.
- A person may not bring a legal proceeding under this section, unless the person has exhausted all administrative remedies.
38-08-04.2 said: “The commission may delegate to the director of oil and gas all powers the commission has under this title and under rules enacted under this title.” This is done through the rules and regulations of the Oil and Gas Division. Here is a link and some relevant rules: https://www.dmr.nd.gov/oilgas/rules/rulebook.pdf
43-02-03-34.1. RECLAMATION OF SURFACE.
1. Within a reasonable time, but not more than one year, after a well is plugged, or if a permit expires, has been canceled or revoked, or a treating plant or saltwater handling facility is decommissioned, the site, access road, and other associated facilities constructed shall be reclaimed as closely as practicable to original condition pursuant to North Dakota Century Code section 38-08-04.12. Prior to site reclamation, the operator or the operator’s agent shall file a sundry notice (form 4) with the director and obtain approval of a reclamation plan. The operator or operator’s agent shall provide a copy of the proposed reclamation plan to the surface owner at least ten days prior to commencing the work unless waived by the surface owner. Verbal approval to reclaim the site may be given. The notice shall include:
- The name and address of the reclamation contractor;
- The name and address of the surface owner and the date when a copy of the proposed reclamation plan was provided to the surface owner;
- A description of the proposed work, including topsoil redistribution and reclamation plans for the access road and other associated facilities; and
- Reseeding plans, if applicable.
The commission will mail a copy of the approved notice to the surface owner. All equipment, waste, and debris shall be removed from the site. Flow lines shall be purged pursuant to section 43-02-03-29.
- Flow lines shall be removed if buried less than three feet [91.44 centimeters] below final contour.
- Gravel or other surfacing material shall be removed, stabilized soil shall be remediated, and the site, access road, and other associated facilities constructed for the well, treating plant, or saltwater handling facility shall be reshaped as near as is practicable to original contour.
- The stockpiled topsoil shall be evenly distributed over the disturbed area and, where applicable, the area revegetated with native species or according to the reasonable specifications of the appropriate government land manager or surface owner.
- A site assessment may be required by the director, before and after reclamation of the site.
- Within thirty days after completing any reclamation, the operator shall file a sundry notice with the director reporting the work performed.
- The director, with the consent of the appropriate government land manager or surface owner, may waive the requirement of reclamation of the site and access road after a well is plugged or treating plant or saltwater handling facility is decommissioned and shall record documentation of the waiver with the recorder of the county in which the site or road is located.
- When is the bond released?
- What does it mean to have the bond released?
- Who determines the level of contamination that is removed?
- Is someone checking the hydrocarbon levels?
- What about salt contamination? What EC levels are acceptable? How deep do they need to remove contamination?
- Salt contamination will work its way back to the surface over time.
Is subsoil and topsoil going to be needed to be brought in? Where is it coming from? They could potentially bring in contaminated soil. Will weeds be introduced that you have never had? Could you possible provide the subsoil and topsoil? Are rocks to be picked? Will they watch for compaction? Will flow lines be purged and capped? See 43-02-03-29.1 What about any lines that may go off location, will they be purged and cut and capped on both ends?
If you are not happy with the reclamation plan contact the commission.
Here is a rule that all should be aware of pertaining to pipelines, I have not inserted it all here as it is very lengthy but ask yourself if the underlined pertains to your pipelines, if so they are not regulated. No one is watching out for you.
43-02-03-29.1. CRUDE OIL AND PRODUCED WATER UNDERGROUND GATHERING PIPELINES.
1. Application of section. This section is applicable to all underground gathering pipelines designed for or capable of transporting crude oil or produced water from an oil and gas production facility for the purpose of disposal, storage, or for sale purposes. If these rules differ from the pipeline manufacturer’s prescribed installation and operation practices, the pipeline manufacturer’s prescribed installation and operation practices take precedence.
The requirements in this section are not applicable to flow lines, injection pipelines, pipelines operated by an enhanced recovery unit for enhanced recovery unit operations, or on piping utilized to connect wells, tanks, treaters, flares, or other equipment on the production facility.