Before the advancement of horizontal drilling, determining who owned land along the Missouri River in North Dakota wasn’t a big concern.
But once operators found the key to unlocking the plentiful crude beneath that waterway, it opened the door to great debate. So from courtrooms to board rooms, a complex line is causing quite a stir. That line is the ordinary high watermark, and it delineates the state’s sovereign land.
Under the federal Equal Footing Doctrine, the state of North Dakota owns all the mineral rights that lie between the high watermarks of all navigable waters at the time of statehood in 1889. Prior to Bakken development, the state’s Department of Trust Lands would approach each river tract up for lease individually. The department would take an aerial photo and draw the lines to separate acreage, which was fairly simple dealing with so few leases. However, by 2007, it was becoming evident that the case-by-case method was not as efficient as the department needed it to be. As a result, Trust Lands hired the engineering firm Bartlett & West to survey the river and develop maps that show ordinary high watermarks according to State Water Commission guidelines which differentiate it as “that line below which the action of the water is frequent enough either to prevent the growth of vegetation or to restrict its growth to predominantly wetland species.” With that definition as the basis, the survey began with a study of the river from the Montana border to the Highway 85 bridge near Williston.
“That was an on-the-ground survey where they went out in a boat, jumped off onshore, walked up to the high lands until the vegetation changed and made marks in the ground, plotting all that in the summer of 2009,” said Trust Lands senior land professional Keith Bayley. Additional field work was conducted the following summer in questionable areas along that same stretch of the river. Bartlett & West were again contracted to delineate the high watermark from Williston to New Town and then on to the Garrison Dam. Since the state only owns up to the high watermark of the river, it took additional research to determine the boundaries under Lake Sakakawea (see map). Some 1958 aerial photographs were used to outline the original river channel before the dam was built. The same process was involved when working near the Garrison Dam when Bartlett & West utilized photographs of the river from the 1940s before the dam existed. The survey fulfilled Trust Lands’ responsibility to the people of North Dakota so that mineral leases could be nominated for sale.
Drew Combs of the Minerals Management Division of Trust Lands said it is important for people to understand the state’s position. “This wasn’t a big land grab on the state’s part,” Combs said. “We had to do the survey because it was obvious people were drilling, and … we had to get modern with it to tell what we owned.”
While these new maps helped the state determine its boundaries based on state statute, the Bartlett & West survey is just one of many surveys available causing conflict between parties battling over ownership. One of the biggest rubs is with the federal government. Bayley said the federal definition of the ordinary high watermark is based on cadastral standards and an administrative rule, but it also takes into account hundreds of years of case law.
“So it seems to me like it’s a much more complex definition, but one of BLM’s surveyors said ‘It’s pretty easy, you just walk down to the water and you can tell where it is,’” Bayley said in describing a conversation at a recent meeting with Bureau of Land Management officials. “So that seems to be something of a definition that doesn’t reflect reality.”
A series of court cases
To complicate matters, a statute written prior to statehood said the upland or riparian landowner on a navigable waterway owns the mineral rights down to the low watermark. So with two contradictory statutes, a court case eventually emerged. Petroleum News Bakken has reported on the case of Reep v. State from 2013 which challenged the issue of who owns the minerals between the high and low watermarks on the Missouri River. The court, in a unanimous decision, found in favor of the state of North Dakota declaring that the state owns up to the ordinary high watermark. The court also pointed out that the Bartlett & West survey conducted for the state is not the only legitimate survey. In fact, Bayley said two of three pending lawsuits against the state are due to survey methods. Combs said it will take a series of court cases to determine how the riverbed ownership will be completely resolved, and due to backlogs in the court system, the decisions will take years. For instance, Wilkinson v. State is a case that challenges the use of the Highway 85 bridge as the starting point for Bartlett & West’s survey and depending on the court’s judgment, it could dictate the validity of that survey. However, the court case won’t be heard for more than a year.
“You can’t start asking the next set of questions until you get an answer (from the first case),” Bayley said. “Some of it depends on whether we get good decisions - not whether the state wins or loses,” he continued, “but whether we get substantive decisions from the Supreme Court so they weigh heavily on everybody and really describe what things are supposed to look like. But if we get decisions that don’t say much, or only address one single issue, it will depend on the decision as to how many more you get.”
A moving target
In order to hold a lease and begin drilling for oil, operators need to determine whom to pay. Since the boundaries are conflicting, Combs said operators will sometimes pay the wrong entity and then the money needs to be returned once proper determinations are made.
“If we’re wrong, we’ll pay you back. We do it all the time,” Combs said.
However, he said many private fee owners will insist they have title to a particular parcel of land when they really don’t.
“Unfortunately, rivers move. And therefore, so does your title. You lose some, you gain some. It’s almost the only circumstance in the U.S. (where) that happens,” Combs said. “Normally it wasn’t a big deal until you put oil below it … and now it’s become a big deal.”
The state is eager to obtain answers to the many territorial questions and develop a standard to work with into the future.
“This is not about us getting more acreage for the state,” Bayley said. “This is about finding out what the law is and applying the law. We just want to find out how to do it, just like everybody else.”
