845 F. Supp. 2d 995
D.N.D.2012Background
- Kartchs own surface rights to land in Mountrail County, ND; Iversons retained mineral rights and leased them; EOG later acquired the mineral lease.
- EOG drilled Crowfoot 1-17H on Section 17, despite Kartchs not consenting to certain surface uses; a reserve pit was used with a synthetic liner.
- Liner tear occurred in 2009; EOG reclaimed the pit and purportedly complied with reclamation standards; parties dispute potential contamination.
- Kartchs sued in state court; case removed and remanded, then federal court case structure evolved; discovery disputes arose.
- ND IC rules authorize reserve pits and regulate their construction, reclamation, and related activities; evidence presented on noise, odor, litter, and equipment storage at the site.
- Court grants in part and denies in part EOG’s summary judgment, allowing limited discovery on contamination while ruling other issues as a matter of law
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reserve-pit use was reasonably necessary | Kartchs contend pit was unnecessary and alternatives exist | EOG relies on accommodation doctrine and IC regulation permitting pits | Reserve-pit use not unreasonable as a matter of law |
| Scope of damages under ND § 38-11.1-04 | Damages not capped by fair market value; annual installments possible | Damages capped by FMV and paid in lump sum only for exploration | Damages not capped by FMV; annual installments possible for non-exploration harms |
| Whether alleged nuisances (noise, odors, litter, equipment storage) rise to nuisance | Noise, odors, litter, and storage constitute nuisances and harms | Activities were reasonable and allowed; not nuisances under law | Noise, litter, and certain storage not nuisances; other contamination issues may be nuisance if proven |
| Notice sufficiency under 38-11.1-05 (2005 version) | Notice was inadequate (no plat map, etc.) and hindered negotiation | Notice was sufficient to evaluate effects; strict verbiage not required | August 2008 notice sufficient under 2005 statute |
| Trespass status of burying waste and liner in reserve pit | Burying waste constitutes trespass and contamination | Use of reserve pit and liner is permitted; not a trespass | Burying waste and liner not trespass as a matter of law; discovery needed on contamination |
Key Cases Cited
- Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131 (N.D. 1979) (accommodation doctrine; reasonable surface use with alternatives)
- Getty Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971) (reasonableness measured by usual, customary industry practices)
- Murphy v. Amoco Prod. Co., 729 F.2d 552 (8th Cir. 1984) (negotiation for damages; success of surface owners under ND statute)
- Duncan Energy Co. v. U.S. Forest Serv., 50 F.3d 584 (8th Cir. 1995) (non-injunctive relief framework; discovery implications)
- City of Belfield v. Kilkenny, 729 N.W.2d 120 (N.D. 2007) (definition of excessive noise and nuisance standards)
- Slope County Board of County Commissioners v. Consolidation Coal Co., 277 N.W.2d 124 (N.D. 1979) (burden on servient owner to prove unreasonableness of surface use)