Saturday, December 28, 2013

Riparian Justice! North Dakota Is A Low-Water Mark State


November 23, 2015: like North Dakota, Missouri is a "low-water state." From a pdf at this link
Missouri is a riparian water law state. This means that each individual landowner is entitled to make use of the water found on his property.

The laws that address riparian rights are therefore restrictive, in that the landowner cannot make unlimited or unrestricted use of that water in any way that he chooses. The right of a private individual to use and manage the water on or beneath his land is a “natural right,” which arises from land ownership and coincides with “riparian rights.”

“Riparian lands,”as defined by the courts, include all lands above underground waters and beside surface waters.

The riparian owner is free to use the water flowing across or under  his land so long as his usage does not interfere with the rights of other riparians.

To fully grasp the riparian concept, one must understand that the act of merely using water does not in itself constitute the ownership of that water. The limits on permissible usage and what specifically constitutes unreasonable use of water or land are generally the common focus in court cases.

To the extent that Missouri courts have addressed water use, they have generally followed the approach that all uses are allowable unless specifically prohibited, restricted, unreasonable, infringe upon the rights of others, markedly decrease the quality or diminish the quantity of water, or conflict with existing treaties, statutes or case law precedents. The riparian’s right to use the water in the future is not invalidated by disuse.
On the other hand, Florida is a "high-water state."

New Jersey is a "high-water state" and has an excellent handbook on the subject.  

Original Post
For background,
The Bismarck Tribune is reporting:
A North Dakota Supreme Court decision releases millions in oil bonuses and royalties into the state coffers.
The high court said Thursday that the state owns minerals up to the ordinary high water mark on both sides of navigable rivers. Unless appealed to the U.S. Supreme Court, this ends a years’ long dispute while oil revenue that would normally have been paid out was withheld in special accounts.
The loser in this opinion are dozens of individuals, the city of Williston and Williams County who claimed minerals between the low- and high-water marks along the Missouri River in the Williston region, or what’s called the “shore zone” of the river.
Jan Conlin, the lead attorney for those individuals, said the ruling is disappointing and turns North Dakota’s own state law dating back to 1889 upside down.
She said at statehood states could choose to set themselves up as low- or high-water mark states and North Dakota, in a state law written 125 years ago, chose the low-water mark option.
“This sets North Dakota apart from all other states that set themselves up as a low-water state,” Conlin said.
I don't understand why Conlin would say this "turns North Dakota's own state law dating back to 1889 upside down." It sounds like she admits that at statehood, states could choose, and North Dakota chose to "think different."

I don't have a dog in this fight.
The decision means the state can allocate $135 million in lease bonuses that were set aside on the state Department of Trust Lands’ books and another $6.5 million in royalties that oil companies have been putting into escrow in the Bank of North Dakota since 2010.
Trust lands' director Lance Gaebe said prior to 2010, oil companies suspended royalty payments on river shore minerals claimed by both the state and private individuals rather than deposit them in escrow. He said companies weren’t required to report suspended payments so the total of those isn’t known.
He said the department will send notice to companies that the suspension ends with court’s ruling and the payments can be released to the department.
The dispute involves 150 wells so far.
A Very Short Note to the Granddaughters

With the original story, posted back almost a year ago, our 10-year-old granddaughter learned about a new biome, the riparian biome. She wants to become a marine biologist. This is right up her alley creek.


  1. Did the article not state that ND is a low water state; pardon the pun. I don't see how the state went back on its original intent. Personally, as a resident of Williston, I would have liked our fair city to have been able to reap the benefits of the Bakken. The ironic fact is now Williston can start begging along with Watford City, Tioga, Stanley, and all the other impact- zero cities for more of our fair share of the monies now tied up in the beaurocracy of a government entity that thinks they know best how to distribute funds.

    1. I have no dog in this fight. I think the whole thing is ludicrous -- the part about the state saying this is not a "land grab." That's exactly what it was.

      My comments / posts (this one and an earlier one) are tongue-in-cheek / sarcastic. The riparian issue is among the very few issues about the Bakken that bother me.

      The judges have ruled, but, I agree with you, there were ways for the state and the courts to do the "right" thing.

      On another note, I am confused by the phrase "low-water state" or "high-water state" --- all I know is that the states had their choice when being granted statehood, and North Dakota, according to the article was the "lone man" out -- the only state that went the way it did (but I remain confused by the quote in the article).

      From the article: "She said at statehood states could choose to set themselves up as low- or high-water mark states and North Dakota, in a state law written 125 years ago, chose the low-water mark option.

      “This sets North Dakota apart from all other states that set themselves up as a low-water state,” Conlin said."

      So that confuses me.

      On a positive note, because of this issue, our granddaughter learned about the riparian biome, something I did not even know about, and I taught middle school and high school ecology / biology (including biomes) as recently as a couple of years ago.

      Thank you for taking time to write.