Northwest Landowners Association calls on landowners to stand up and defend the land
Bismarck, ND — Northwest Landowners Association last year filed another lawsuit against the state of North Dakota, asking a court to strike down certain laws as unconstitutional takings of private property rights. Northwest Landowners Association has been engaged in a fight to protect the pore space of private landowners in North Dakota since Senate Bill 2344 was introduced during the 2019 legislative session. Through lobbying, public outreach and education, and direct litigation, Northwest Landowners Association took on this fight to protect the rights of the people North Dakota. NWLA was successful in that previous fight and filed a new lawsuit to address other laws that take private property in violation of the constitution similar to those struck down by the North Dakota Supreme Court in Nw. Landowners Assn v. State, 2022 ND 150, 978 N.W.2d 679.
The Bottineau County District Court today 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. “This means that individual landowners will be forced to defend their land in amalgamation proceedings before the North Dakota Industrial Commission and appeals in the courts,” said Troy Coons, NWLA chairman. “It is unfortunate because this ruling only creates greater uncertainty for both industry and landowners. The issue will still be resolved by the courts, but the burden will be on individual landowners rather than allowing our organization to stand as their representative” he said.
The North Dakota 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.
“We will stand beside and behind these landowners, but we are calling on the landowners of North Dakota to stand up and defend their land, and refuse to allow private interests to dictate decisions on their land” said Troy Coons.
“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.