A saltwater disposal well that has a hole in it and may be leaking out into pore spaces is among examples listed in a lawsuit filed by Northwest Landowners Association against the state’s new pore space bill, Senate Bill 2344.
The suit, which is a first for the organization that represents 500 landowners in the northwestern North Dakota region, lays out six examples from its members of how the state’s new bill is unconstitutional and/or violates due process and clauses of equal protection.
The saltwater well with a hole in it is on property owned by Ronald Stead in Bottineau county. The well on his property used the Dakota formation to dispose of produced water. But, according to a Jan. 1, 2019 sundry notice, the well has since developed a hole in the casing that cannot be repaired and needs to be plugged.
The company operating the well, Vast Operating, meanwhile, doesn’t have the funds to plug the well, and likely never will, the notice says.
Stead has noticed land around the disposal well becoming less productive, Northwest’s suit says, and electro-conductivity tests show elevated chloride levels consistent with contamination by produced water.
Stead also has a freshwater well for use by his cattle, but they have begun to shy away from it. Stead fears that his well is also being contaminated by material that is migrating into his pore space.
Under Senate Bill 2344, phrases like “subsurface geologic formation” and “subsurface sedimentary stratum” would include the glacial till in Bottineau County below the A and B horizons. These, however, are not confined merely to deep subterranean pore spaces. They are in the top few feet of land in Stead’s case.
Stead, under the law, is being stripped of any legal means to pursue claims for trespass into his pore space and the nuisance that has been created on his property.
It’s just one of six examples laid out in Northwest’s suit, which was filed Monday morning in Bottineau County.
Troy Coons is president of the Northwest Landowners Association. In a press release, he stressed that the organization is not opposed to the storage of gas or to CO2 injection, or even to saltwater disposal in general.
“Almost all of the saltwater disposals in the state are operated through voluntary contracts with landowners,” he said. “As an organization, we have always tried to work with industry and regulators to address our concerns. Unfortunately, we were not at the table when this bill was drafted, and we are opposed to this unprecedented taking of private property rights. We remain committed to working cooperatively with industry, and our invitation to sit down and address the concerns raised by this bill is an open offer. But this bill remains offensive to what we stand for.”
Derrick Braaten is the attorney for Northwest Landowners Association. In a press conference Monday afternoon, he said the six cases in the suit were just a handful of the many cases he encountered.
“We quite frankly ran out of time, because almost every landowner we talked to had an issue cause by the passage of this law,” he said. “So we picked six and walked through their factual situation.”
Each case illustrates concerns that were raised prior to passage of Senate Bill 2344, Braaten added. While those concerns were minimized at the time, examples of each were numerous.
“We were overwhelmed with the amount of landowners impacted negatively by this,” Braaten said.
In addition to the unconstitutional taking of private land, Braaten said the law is also violating due process clauses at the state and federal level, and the equal protections clause by treating mineral owners and pore space owners differently.
The North Dakota Petroleum Council, meanwhile, said that the bill had overwhelming support in the legislature.
“It provided critical clarifications for landowners, mineral owners, and mineral developers on the use of pore space under the surface,” NDPC President Ron Ness said. “Not only was this legislation supported by the North Dakota Petroleum Council and many landowners, but also by the city and county of Bowman, the Bowman County Development Corporation, the Lignite Energy Council and the North Dakota Farm Bureau.”
Ness added that the legislature’s bill was not unprecedented, with bills of similar nature and tort reform having already been passed by the legislature.
“SB 2344 garnered a wide array of support from landowners, communities, and others, who saw this as a chance to clarify existing law and reduce future lawsuits to ensure mineral development can continue in the Bakken and make it possible to utilize carbon dioxide for enhanced oil recovery in our mature oil fields,” Ness said.