March 6, 2019


By Neal A. Shipman
Farmer Editor

The North Dakota Legislature is tackling a very touchy issue when it comes to trying to redefine the definition of land.
While most people would assume that the definition of land is pretty straight forward, it apparently isn’t when it comes to determining what is considered private land when it lies under the surface of the ground. Under the law, the surface owner of the land, unless they have sold or leased the mineral rights under the surface, owns what lies underground.
But SB2344, which had a hearing before the North Dakota House Energy and Natural Resources Committee last week, could change that ownership. And the prospect of the landowner losing the rights to that land rightfully raised concerns of many western North Dakota landowners.
At issue is who owns the pore space, which is a cavity or void in an underground formation. Does it belong to the surface owner? Or does it belong to the mineral owner?
The reason that the state is trying to clarify the definition is so that those spaces underground can be used to temporarily store natural gas rather than to see this resource flared off, or to use it to store carbon dioxide, which at some time could be used to enhance oil and natural gas production from wells in the Bakken.
The state’s goals of using underground storage as a means of reducing natural gas flaring until the industry is able to build the much-needed new pipelines and processing plants is a sound practice. And so is the concept of being able to store carbon dioxide underground.
But the legislators, who drafted SB2344, and the state forgot to involve some very important people in the discussion when they drafted this legislation. They apparently forget to consult with the landowners, who could be losing control over who can use their land if this bill is enacted. And more importantly, they would not be able to receive payment for use of the pore space.
As hard as it is to explain, the drafters of SB2344 specifically defined land as being only the solid material of the earth, regardless of the ingredients, and excludes the pore space.
Landowners in western North Dakota have every right to be concerned about SB2344. And so should every other landowner in North Dakota. If the North Dakota Legislature can enact legislation that effectively carves out what the state believes shouldn’t be considered as a landowner’s private property, something is terribly wrong in Bismarck.
Yes, the state needs to encourage the oil and gas industry’s use of underground storage of natural gas and carbon dioxide. But as written, SB2344 tramples all over private landowner rights and needs to be rewritten to respect the rights of private landowners. And if the Legislature doesn’t believe that it has the time to make the needed changes, then the bill should be killed by the House of Representatives.
There is nothing more sacred in North Dakota than landowner rights. And the Legislature miss-stepped in a big way when it came to drafting SB2344.