Bismarck, ND — In a lawsuit filed by Northwest Landowners Association, the Bottineau County District Court recently ruled that the facial challenge to the laws cannot move forward due to a procedural issue. The Court ruled that a statute of limitations bars the challenge by NWLA. The ruling did not, however, address the merits of the legal challenge or the constitutional issues. Those issues will now be brought before the North Dakota Supreme Court for review. The ND Supreme Court agreed with the landowners regarding prior attempts to take their pore space, stating that the law struck down in the prior NWLA lawsuit “constitutes a per see taking. It allows third party oil and gas operators to physically invade a landowner’s property by injecting substances into the landowner’s pore space….Allowing such usage takes away one of the most treasured property rights because it takes away landowners’ right to exclude … operators from trespassing and disposing waste into their pore space. Surface owners have a right to compensation for the use of their pore space for disposal and storage operations.”
The laws at issue in the new lawsuit filed by NWLA are largely related to the injection of carbon dioxide into the pore space to sequester it, and the storage of gas. Carbon sequestration projects are focusing in on North Dakota as tax incentives from the federal government’s Green New Deal flow toward these carbon sequestration projects. The specific laws at issue give the North Dakota Industrial Commission authority to “amalgamate” the pore space to create a storage facility, but this is really just a made-up word for taking property. The statute takes the property from the surface owner and gives it to the storage facility operator to use, and this is precisely the type of taking the courts ruled was unconstitutional in the Landowners’ prior lawsuit.
“Our government will only work as long as the majority understands it is their responsibility to protect the rights of all” said Bob Grant, founding board member.
“Northwest Landowners Association will never stand down when it comes to the Constitution. Our private property rights are protected by the North Dakota and the United States Constitutions and we are confident that our North Dakota Supreme Court will not hesitate to strike down a law that violates the Constitution.” said Troy Coons.
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