Josh Swanson, an attorney representing several families with mineral rights under Lake Sakakawea, testifies at an Industrial Commission public hearing in Bismarck in June involving the ordinary high water mark of the Missouri River before the construction of Garrison Dam and Lake Sakakawea.

A North Dakota Supreme Court decision has given mineral rights owners in and around Lake Sakakawea hope for a similar decision in their case.

Josh Swanson, an attorney representing the Wilkinson family, said he was pleased to see the reasoning the North Dakota Supreme Court used in its decision in Sorum v. State, which was announced Thursday, July 30. In that case, several legislators and other residents sued the state, claiming a law that repudiated the state’s claim to some of the mineral rights violated the state constitution.

Swanson said part of the basis for the court’s decision — the idea that the state wasn’t giving the mineral rights as a gift because it never owned the rights — was the same as his clients argue.

“That reasoning is what we’ve been arguing going back to 2014 when we took that case,” Swanson told the Williston Herald.

In an opinion written by Justice Jerod Tufte, the court reasons a section of the law where the state is required to return some money doesn’t violate the state constitution’s prohibition on gifts from the government.

“We reject the Plaintiffs’ argument that the gift clause requires the State to rely on the statute of limitations and keep money it was paid for leasing minerals it now acknowledges it does not own and should not have leased,” the opinion reads. “Although the State may have a legal defense under the statute of limitations, it also has a moral obligation to pay its just debts and deal fairly with the people. These funds have accrued since 2006 and have been held separately from other funds, so no new revenue will have to be raised to pay these claims. We conclude the State may through legislation recognize this obligation and return funds from the SIIF without making a prohibited ‘donation’ under the gift clause.”

The underlying idea makes Swanson hopeful the Wilkinson family’s case, which is also before the court right now, will get a similar decision. In 2017, the Supreme Court ordered a Williams County judge to reconsider his dismissal of a suit by the Wilkinsons.

The judge subsequently ruled the Wilkinson’s own the disputed minerals and are owed royalties. Both the state and Statoil have appealed that ruling, and a decision is expected soon from the Supreme Court.

The argument that the state never actually owned the mineral rights at issue lines up with the arguments the Wilkinson family’s attorneys have made — that the family has owned the mineral rights since before WWI and nothing could deprive them of that.

“That was really great to see from the Sorum decision,” Swanson said. “From a legal perspective, I think the same reasoning and the same legal authorities they cited in Sorum have to apply (in the Wilkinson case).

State officials also praised the ruling.

Attorney General Wayne Stenehjem, who was named in the suit, said this ruling should mean some mineral rights owners will get their money.

“We expect this will resolve various disputes over mineral ownership under the lake, and mineral royalties that have been held in suspense by companies for years now can be distributed to their rightful owners,” he said.

Gov. Doug Burgum, another defendant in the case, issued a statement praising the ruling.

“Today’s Supreme Court opinion resolves a longstanding dispute over mineral ownership under Lake Sakakawea and provides certainty for the state, mineral owners and the oil and gas industry,” Burgum said. “The state collected revenue from oil and gas leases where it later recognized it held no rights to the minerals. The remedy provided under Senate Bill 2134, affirmed by the Supreme Court, allows the state to right this wrong by returning funds to thousands of mineral owners that it never should have collected in the first place, and to do so without violating the anti-gift clause in the North Dakota Constitution. We’re grateful for the efforts of the Legislature to carefully draft this remedy, treat thousands of North Dakota mineral acre owners fairly and bring this matter to resolution.”

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