Porous Space Act Overturned by Supreme Court



NORTH DAKOTA (KXNETName) – The North Dakota Supreme Court struck down key parts of Senate Bill 2344 that allowed oil and gas operators to use pore space without compensation or landowner consent.

North Dakota law has long established that surface owners have direct ownership of interstitial space.

But in 2019, the state legislature passed a law stating that landowners will no longer be compensated for the use of their porous space.

After this law was passed, members of the Northwest Landowner’s Association fought the decision in the state high courts.

“We have North Dakota trust land in this state, and it belongs to the citizens of the state of North Dakota. And about half, with a small difference, of the financing of the schools comes from this country. So that
is a multi-million dollar deal that would affect all citizens of the state of North Dakota,” said Troy Coons, president of the Northwest Landowners Association.

Porous spaces are cavities in rock or soil that are used when gas industries inject salt water underground for storage or for enhanced oil recovery.

A state district judge declared the law unconstitutional because it gives landowners the value of pore space for the oil and gas industry for free.

While the decision does not preclude the use of pore space by oil and gas operators, the decision underscores the need to accommodate landowners and compensate them for the use of their land.

“It’s very, very reaffirming that the checks and balances in our system can work. Because it was very disheartening to see all those rights taken away from you when generations of your family worked for it,” Coons said. .

Members of the Northwest Landowner’s Association fought for porous space law revision from the district court all the way to the state supreme court.

On August 4, the unanimous opinion of the High Court said, citing “Government authorized physical invasions of property constitute the ‘clearest type of taking’.”

Coons said, “This will affect farmers, ranchers, landowners and all citizens of the state.”

Members of the Landowners Association consider this a great victory for all parties involved.

Coons says the group will continue to be involved in state legislation and to fight for the citizens of North Dakota.

The North Dakota Industrial Commission, headed by Governor Burgum, said in a statement Thursday that it is “committed to ensuring that underground saltwater injection wells are managed for the benefit of landowners as well as oil and gas industry”.

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