North Dakota’s State Engineer has filed a notice of appeal in the Lake Sakakawea minerals case, questioning whether a Williams County judge erred in ruling that Senate Bill 2134 applies to the property, and also questioning whether the judge erred in granting summary judgment.
The Wilkinson case is potentially precedent setting. Hundreds of mineral owners living along Lake Sakakawea will be affected by the outcome of the decades-old mineral dispute.
The notice of appeal was filed in the Supreme Court of the state of North Dakota at 4:30 p.m. on Nov. 15 — just before the deadline to file an appeal in the Williams County case.
Northwest District Judge Paul W. Jacobson ruled in September that the state no longer has any legal basis to continue claiming it owns the Wilkinson family minerals. That was after the North Dakota Supreme Court sent the case back to him, ordering him to reconsider the matter in light of 2017 legislation that restricted state mineral ownership to the historical ordinary high water mark for the Missouri River.
The ruling would mean hundreds of families along Lake Sakakawea are owed millions in back royalties, including Ed Lynch, formerly of Williston, whose mineral acres lie right across from the Wilkinson’s.
In his filing, the State Engineer said the judge had erred in finding that the Wilkinson property is covered by Senate Bill 2134. He also said that plaintiffs had not responded to, and therefore waived objections to, the State Engineer’s arguments and factual assertions. Material factual questions also exist that affect the ability to quiet title to the disputed property.
The latter two items would mean Jacobson erred in granting summary judgement, the filing suggests.
The State Engineer was not available on Wednesday to answer questions about the notice he filed.
Josh Swanson, an attorney who represents the Wilkinson family, said the state’s 11th-hour appeal is frivolous, and the claim that the Wilkinsons did not reply to the State Engineer is patently false.
“We responded in full,” Swanson said. “Part of our claim that the state’s appeal is frivolous under NDRAppP 38 is tied to their wrongful assertion that the Wilkinsons didn’t respond to the state’s argument.”
Swanson also challenged Attorney General Wayne Stenehjem to come and argue the case himself, and explain his justification for what he has been putting disputed Lake Sakakawea mineral owners through.
“I don’t expect that he will, and it is his decision to send whoever he wants to argue the case, but I’d love for him to show up and justify this position and the absolute hell his office is putting these private owners through,” Swanson said. “Families like Ed Lynch and others haven’t been paid a dime of production for about 10 years and it is having some very serious hardships on many families. That money is tied up. They cannot get what is rightfully theirs.”
Royalty payments were part of people’s retirement plans, their college funds, and their mortgage payments.
“Several of these people have died,” Swanson added. “Several members of the Wilkinson family were never able to enjoy the proceeds of the production they were owed because they have died during the litigation. I think the state should have to answer for that.”
Lynch himself said he had counted on the royalty payments both for making house payments and for putting his children through college. As the litigation drug on and on, he was ultimately forced to sell his home in South Carolina.
“I’m renting, and can barely afford to keep my kids in college,” he said. “It is ridiculous the pain and suffering they’ve put my family through.”
Lynch is owed in excess of $500,000 in royalties, and his attorney fees also exceed that amount.
“It’s frustrating,” Swanson said, “because these are hard-working salt-of-the-earth North Dakotans their entire lives. They are getting into their retirement and golden years and they are not only not getting the income from that oil and gas production that they should be, but they are having to pay attorney fees for the better part of a decade to keep fighting this.”
Swanson said he is particularly disappointed in the Attorney General’s office because it has taken disparate positions in separate cases involving the disputed Sakakawea minerals.
In the Soren case, for example, Swanson said the state argues that Senate Bill 2134 is constitutional and sets out the ordinary high water mark.
Yet, in the Wilkinson case, they appear to be arguing that private minerals not in the historic river bed still belong to the state.
“The Attorney General was part of the Industrial Commission that approved the study that determined where the high water mark was under the statute,” Swanson said. “I’m curious how the state justifies taking these opposed positions.”