ND Atty. General Pushes For Lake Sakakawea Mineral Ownership
While not mentioning Lake Sakakawea by name, a new brief sent to the ND Supreme Court this month from the North Dakota Attorney General continues to assert state mineral ownership under the lake.
“The state’s title to oil and gas under a navigable water body shifts with changing conditions, whether those changes result from natural or artificial processes,” said Deputy Atty. Gen. Jennifer Verleger. It was Verleger who frequently argued in mineral dispute cases before district courts that Lake Sakakawea “was just an extension of the Missouri River”.
She also strongly backed the notion that the State Engineer is the final arbitrator of the Ordinary High Water Mark (OHWM).
The brief came in response to the Wilkinson family’s appeal to the high court in their request for mineral payment on their land near Williston, which is located west of the Hwy. 85 bridge, where the state has claimed mineral ownership.
The contested area is in excess of 250 acres. The area being contested is around a single producing well, Lippert 1-12-1H in the SW¼ of Sec. 12, as well as the S½ NW¼ in Williams County.
Attorneys for the Wilkinson family and the oil and gas industry maintain the OHWM should follow the original Missouri River before it was flooded by lake water from Garrison Dam.
In testimony before the House Energy and Natural Resources Committee earlier this month, attorney Josh Swanson, representing the Wilkinsons, disclosed the ND Dept. of Trust Lands put thousands of acres up for auction—including minerals owned by Wilkinson and other mineral owners—without telling them.
At the time, Brigham Oil & Gas landman Heath Flowers wrote to the Dept. of Trust Lands. “It appears that the state is claiming and is now leasing more acreage than previously leased and/or claimed,” he said.
Verleger argued that the OHWM must be determined by the current condition of the river. “The state’s title, wandering and uncertain as it may sometimes be, is required to move with the river despite the natural and artificial forces acting upon it,” she said. “Artificial changes—bridge abutments, dams and dam operations, and dredging projects, to name a few—can influence boundaries and the course of rivers and lakes.”