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Wilkinson v. Board of University

Supreme Court of North Dakota

September 28, 2017

v.
v.
The Board of University and School Lands of the State of North Dakota; EOG Resources, Inc., XTO Energy Inc., Defendants and Appellees William S. Wilkinson; Ann L. Nevins and Amy L. Perkins as Personal Representative for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, l Trusted the Petty Living Trust; Charlie R. Blaine and Vanessa E. Blaine, as Co-Trustees of the Charlie R. Blaine and Vanessa E. Blaine Revocable Trust; Lois Jean Patch, life tenant; and Lana J. Sundahl, Linda Joy Weigel, Deborah J. Goetz, Marva J. Will, Ronald J. Patch, Michael Larry Patch, and Jon Charles Patch, Remaindermen, Plaintiffs, Appellants and Cross-Appellees and Petrogulf Corporation, and all other persons unknown who have or claim an interest in the property described in the Complaint, Defendants and Brigham Oil & Gas, LLP and Statoil Oil & Gas LP, and EOG Resources, Inc., Defendants, Appellees and Cross-Appellants and North Dakota State Engineer, Intervenor and Appellee

         Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge. REVERSED AND REMANDED.

          Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, N.D., for plaintiffs, appellants and cross-appellees William S. Wilkinson; Ann L. Nevins and Amy L. Perkins as Personal Representative for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, l Trusted the Petty Living Trust; Charlie R. Blaine and Vanessa E. Blaine, as Co-Trustees of the Charlie R. Blaine and Vanessa E. Blaine Revocable Trust; Lois Jean Patch, life tenant; and Lana J. Sundahl, Linda Joy Weigel, Deborah J. Goetz, Marva J. Will, Ronald J. Patch, Michael Larry Patch, and Jon Charles Patch, Remaindermen.

          Jennifer L. Verleger (argued) and Hope L. Hogan (on brief), Bismarck, N.D., for defendants and appellees The Board of University and School Lands of the State of North Dakota; and North Dakota State Engineer, intervenor and appellee. Lyle W. Kirmis (argued), Bismarck, N.D., for

          defendant and appellee Brigham Oil & Gas, LLP n/k/a Statoil Oil & Gas LP. Michael D. Schoepf (argued) and Lawrence Bender (on brief), Bismarck, N.D., for defendant and appellee EOG Resources, Inc. Michael J. Mazzone (on brief), Houston, TX, for defendant and appellee XTO Energy, Inc. Craig C. Smith (on brief) and Paul J. Forster (on brief), Bismarck, N.D., amicus curiae North Dakota Petroleum Council. Uriah J. Price (on brief), Bozeman, MT, amicus curiae North Dakota Petroleum Council.

          OPINION

          MCEVERS, JUSTICE.

         [¶ 1] William Wilkinson and the other plaintiffs appeal and Statoil & Gas, LP and EOG Resources, Inc. cross-appeal from a summary judgment determining the Board of University and School Lands of the State of North Dakota ("Land Board") owns certain property below the ordinary high watermark of the Missouri River. Wilkinson argues the district court erred in determining ownership of the mineral interests. We reverse and remand.

         I

         [¶ 2] J.T. Wilkinson and Evelyn M. Wilkinson acquired title to property located in Williams County described as:

Township 153 North, Range 102 West
Section 12: SW1/4
Section 12: S1/2NW1/4, excepting that portion which constitutes the right-of-way of the BNSF Railway Company
Section13: Farm Unit No. 312 in the Buford-Trenton Project

         In 1958, the Wilkinsons conveyed the property to the United States for construction and operation of the Garrison Dam and Reservoir, but they reserved the oil and gas rights in and under the property. The plaintiffs are the Wilkinsons' successors in interest.

         [¶ 3] In 2012, the plaintiffs sued the Land Board to determine ownership of the minerals in and under the property, alleging they own the mineral interests. The plaintiffs also sued Brigham Oil & Gas, LLP and EOG Resources, Inc. to determine their rights, alleging Brigham received an oil and gas lease from the State and EOG received an oil and gas lease from the plaintiffs.

         [¶ 4] The Land Board answered and counterclaimed, requesting the district court determine ownership of the property below the ordinary high watermark in its favor. The Land Board also claimed the plaintiffs were required to join XTO Energy, Inc. as a party because it holds an oil and gas lease issued by the Land Board.

         [¶ 5] EOG answered and filed a cross-claim against the Land Board and Brigham, requesting the district court determine the plaintiffs own the disputed minerals and EOG owns a leasehold estate. Brigham answered and filed a counterclaim and cross-claim against EOG, requesting the court decide the Land Board owns the minerals and Brigham has rights to lease oil and gas.

         [¶ 6] The plaintiffs moved for leave to amend the pleadings to add additional defendants and claims. The district court granted the motion. The plaintiffs filed an amended complaint adding Statoil Oil & Gas LP and XTO Energy, Inc. as defendants. They alleged Statoil acquired Brigham and held an oil and gas lease from the Land Board. They also added several new claims against the defendants, including a takings claim against the Land Board; a claim under 42 U.S.C. § 1983 against the Land Board for depriving them of their constitutional rights; and claims for conversion, unjust enrichment, civil conspiracy, and injunctive relief against all of the ...


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