We don't usually hear much from the North Dakota Supreme Court. But here's one that may have some interest. In Reep v. North Dakota, No. 20130110 (Dec. 26, 2013), the court held that the state owned the minerals up to the ordinary high water mark on navigable rivers, and always has, since statehood, under the Equal Footing Doctrine. The court also concluded that state statute did not give the state's ownership interest in this property to private owners.
By itself, these rulings are not of particular interest. But read this article from the Bismarck Tribune ("State owns minerals to river high-water mark"), where one of the lawyers in the case is noted as saying, "Jan Conlin, the lead attorneyfor those individuals, said the ruling is disappointing and turns North Dakota’s own state law dating back to 1889 upside down."
Now we don't know anything about the state of North Dakota law before the Reep opinion, but it sounds like Ms. Conlin is suggesting that there's a long history under North Dakota law of private ownership of these minerals (see also this article about the case, which notes, "Conlin says South Dakota has been taking mineral rights only for land that falls below the normal low-water mark. And she says the laws in both states stem from a common set of laws in place before the Dakotas entered the union.").
If so, this reminds us of the infamous Hawaii water law cases (in which the Hawaii Surpeme Court sua sponte rewrote a century's worth of water law, and avoided the takings issue by asserting Hawaii law had always been that way), and maybe we're seeing the next judicial takings case for the U.S. Supreme Court to take up.
Reep v. North Dakota, No. 20130110 (N.D. Dec. 26, 2013)
