Members of the Northwest Landowners Association are concerned about the potential ramifications of Senate Bill 2344 which is now being heard in the House Energy and Natural Resources subcommittee before heading to the ND House floor after having passed through the Senate in the first half of the session.
They are concerned about how this affects all property owners, not just those in the oil patch, but anywhere in the state with what they see as potential unforeseen consequences.
SB 2334 had its first hearing in the subcommittee last week with a number of NWLA members turning out since the bill was still in the Senate be heard about their concerns. Their opposition to the bill relates to much of the bill, but especially when it comes to what is known as pore space.
Chairman Troy Coons says that the concerns begin with changes to what has been the long-standing definition of land in North Dakota law. It takes out the pore space from the definition of what has traditionally been owned by the surface owner. He says that it would allow industry or the state to use that space without compensation to the surface owner. It also removes the right to sue for trespass if a landowner is wronged, harmed or damaged. The changes would take liability away from the operator and put the responsibility on the State of North Dakota, meaning that landowners would essentially be suing themselves or the state if damaged.
Vice Chairman Dave King says that the pore space is being used in some cases and not in others. He says that contractors currently make an arrangement with the landowner who is then compensated for the use. This bill would take away the ability of the landowner to say no to someone using the pore space however they see fit.
Coons says, “If the legislature considers this acceptable, it is scary to think what else is next.”
According to Coons, industry is already using the pore space to put back salt water and CO2 into the formation in the Bakken. He says that the NWLA concerns come not with that use, but rather if they start using the space above the formation. They support the fact that the fluids are being used to enhance the oil recovery and also to reduce the flaring in the Bakken, but he compares pore space to a sponge and says that landowners should be compensated for what it will hold.
NWLA questions why the legislature would allow a change that would take away the rights for compensation and damages from landowners. They say that the ability for what is put into the pore space to migrate from its initial location is another concern they face.
They also question the constitutionality of the bill, saying that they believe it is the taking of personal property without compensation.
NWLA Attorney Derrick Braaten of the Braaten Law Firm in Bismarck said, “I have the same concerns. I view it as a taking of private property even with some amendments that have been proposed. I don’t see any possibility that the state will avoid a lot of law suits if this goes through.”
Braaten has concerns in the definition in land because of the obvious taking of pore space away from landowners, but also these definitions are long standing, having been around for over a century. To change that to address one issue is frightening because it has impacts well beyond the pore space issue. “From the legal perspective, I think there are better and more precise ways the concerns of industry and state could be addressed if we put more thought into it. There are much better ways this could be done,” said Braaten.
NWLA has been a present voice at the legislature this year speaking against the bill. They have offered alternatives to passing the bill at this point, but those have been rejected. They had looked at changing some of the points to set policy and asked for a study. This bill has been their biggest fight this season. They have also watched HB 1461, which they say contained some of the same language.
While they have been the voice at the hearings and at the forefront of the battle against the bill, they have had other agricultural groups sitting in on the hearings and working in the background.
At this point, they say that it is important to educate the public and engage other groups in the fight. They are reaching out to make people more aware and to make sure they understand the concerns as they continue the fight against the bill. They believe they will struggle in the subcommittee and committee hearings, but they hope that by getting information out they will be competitive when the bill comes to the floor of the house. For that to happen, they need people to get involved.
To get more information on the NWLA and their position on the bill, you can check out their website at www.nwlandowners.com. There is also contact information for the board of directors on the site.