Northwest Landowners Association, Plaintiff and Appellee v. State of North Dakota, North Dakota Industrial Commission, Hon. Douglas Burgum in his official capacity as Governor of the State of North Dakota, and Hon. Drew H. Wrigley in his official capacity as Attorney General of North Dakota, Defendants and Appellants and Board of University and School Lands of the State of North Dakota, Defendant and Continental Resources, Inc., Intervenor-Defendant and Appellant
No. 20210148
IN THE SUPREME COURT STATE OF NORTH DAKOTA
AUGUST 4, 2022
2022 ND 150
Opinion of the Court by Tufte, Justice.
FILED IN THE OFFICE OF THE CLERK OF SUPREME COURT AUGUST 4, 2022 STATE OF NORTH DAKOTA
Northwest Landowners Association, Plaintiff and Appellee
v.
State of North Dakota, North Dakota Industrial Commission, Hon. Douglas Burgum in his official capacity as Governor of the State of North Dakota, and Hon. Drew H. Wrigley in his official capacity as Attorney General of North Dakota, Defendants and Appellants
and
Board of University and School Lands of the State of North Dakota, Defendant
and
Continental Resources, Inc., Intervenor-Defendant and Appellant
No. 20210148
Appeal from the District Court of Bottineau County, Northeast Judicial District, the Honorable Anthony S. Benson, Judge.
Opinion of the Court by Tufte, Justice.
Matthew A. Sagsveen, Solicitor General (argued), and Steven B. Nelson, Office of Attorney General, Bismarck, N.D., for defendants and appellants.
L. Poe Leggette (argued) and Alexander K. Obrecht (appeared), Denver, Colorado, for intervenor-defendant and appellant Continental Resources, Inc.
Lawrence Bender, Bismarck, N.D., for amicus curiae North Dakota Petroleum Council.
Northwest Landowners Association v. State
No. 20210148
Tufte, Justice.
[¶1] Northwest Landowners Association commenced this action, challenging the constitutionality of Senate Bill 2344, which relates to subsurface pore space. The district court granted the Association‘s cross-motion for summary judgment, concluding S.B. 2344 is unconstitutional under the state and federal takings clauses. The State and Continental Resources appeal from the district court‘s summary judgment order and amended judgment. On appeal, the State argues that S.B. 2344 does not violate the state or federal takings clauses and does not constitute an unconstitutional gift and that the district court misapplied
I
[¶2] In 2019, the Legislative Assembly enacted S.B. 2344, relating to pore space, which is defined as “a cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum.”
[¶3] Section 1 of S.B. 2344, amending
Notwithstanding any other provision of law, a person conducting unit operations for enhanced oil recovery, utilization of carbon dioxide for enhanced recovery of oil, gas, and other minerals, disposal operations, or any other operation authorized by the commission under this chapter may utilize subsurface geologic formations in the state for such operations or any other permissible purpose under this chapter. Any other provision of law may not be construed to entitle the owner of a subsurface geologic formation to prohibit or demand payment for the use of the subsurface
geologic formation for unit operations for enhanced oil recovery, utilization of carbon dioxide for enhanced recovery of oil, gas, and other minerals, disposal operations, or any other operation conducted under this chapter. As used in this section, “subsurface geologic formation” means any cavity or void, whether natural or artificially created, in a subsurface sedimentary stratum.
[¶4] Section 2 of S.B. 2344, amending
[¶5] Section 3 of S.B. 2344, amending
[¶6] Lastly, section 4 of S.B. 2344 enacted a new section barring tort claims for injection or migration of substances into pore space.
Injection or migration of substances into pore space for disposal operations, for secondary or tertiary oil recovery operations, or otherwise to facilitate production of oil, gas, or other minerals is not unlawful and, by itself, does not constitute trespass, nuisance, or other tort.
[¶7] The Association filed a complaint against the State, challenging the constitutionality of S.B. 2344 on its face. The Association argued S.B. 2344 constituted a taking because it “strips landowners of their right to possess and use the pore space within their lands and allows the State of North Dakota to directly redistribute that right to others without the consent of or compensation to the landowners.” Continental Resources intervened and became an additional defendant to the suit. The State and Continental Resources collectively moved for judgment on the pleadings. The Association responded by filing a cross-motion for summary judgment.
[¶8] A status conference was held during which the State argued it needed further discovery before it could respond to the Association‘s summary judgment motion. The State filed a
[¶9] The district court granted summary judgment in favor of the Association. In its order, the court denied the State‘s motion to conduct discovery, concluding pore space has value as a matter of law and further discovery was not necessary to decide the summary judgment motions. First, the court concluded that landowners have a property right in the underlying pore space and a right to compensation for use of their pore space. Second, the court rejected the Appellants’ argument that S.B. 2344 could be constitutionally applied in some scenarios and for that reason is not facially invalid. Third, the district court concluded S.B. 2344 was enacted for the
[¶10] After the district court granted its motion for summary judgment, the Association moved for attorney‘s fees under
II
[¶11] We first address Continental Resources’ argument that the district court erred in analyzing a threshold question to the Association‘s facial challenge to S.B. 2344. Continental argues that because it can identify constitutional applications of S.B. 2344, the court erred in continuing on to analyze the Association‘s takings challenge.
[¶12] The Association‘s complaint sought a declaration that S.B. 2344 is unconstitutional and should be declared void, therefore making a facial challenge rather than an as-applied challenge. “A claim that a statute on its face violates the constitution is a claim that the Legislative Assembly exceeded a constitutional limitation in enacting it, and the practical result of a judgment declaring a statute unconstitutional is to treat it ‘as if it never were enacted.‘” Sorum v. State, 2020 ND 175, ¶ 21, 947 N.W.2d 382 (citing Hoff v. Berg, 1999 ND 115, ¶ 19, 595 N.W.2d 285). A facial challenge is a question of law and fully reviewable on appeal because a “violation that occurs at the time of enactment does not depend on any facts or circumstances arising later.” Sorum, at ¶ 21.
[¶13] Continental Resources argues it has identified constitutional applications of S.B. 2344 which it contends defeat the facial challenge at the outset under the “no set of circumstances” standard we applied in Larimore Pub. Sch. Dist. No. 44 v. Aamodt, 2018 ND 71, ¶ 38, 908 N.W.2d 442 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Specifically, Continental Resources argues S.B. 2344 can be constitutionally applied to units, pre-2009 conveyances of pore space, and situations where there is a disposal contract in place. The district court considered these scenarios and rejected them, holding it “does not conclude a scenario has been shown which causes [the Association]‘s facial challenge to fail the Salerno test.”
[¶14] This facial challenge asserts a violation of the constitution by the Legislative Assembly when it enacted S.B. 2344. In Aamodt, we applied the Salerno “no set of circumstances” standard to a facial constitutional challenge. 2018 ND 71, ¶ 38. However, since Salerno, other courts have declined to apply that standard to facial challenges. Utah Pub. Emps. Ass‘n v. State, 2006 UT 9, ¶¶ 20-25, 131 P.3d 208 (rejecting application of Salerno in a facial takings challenge and collecting supporting cases). The Supreme Court has also declined to apply Salerno in subsequent decisions considering facial challenges. City of Chicago v. Morales, 527 U.S. 41, 55 (1999) (“To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno
[¶15] Here, the Association claims the enactment of S.B. 2344 by itself completed a taking of constitutionally protected property rights without compensation. As presented, the constitutional claim does not depend on future action by a government official or consideration of various factual circumstances to which the legislation may be applied. To resolve the claim, we need only interpret the enacted language of S.B. 2344 and the relevant constitutional provisions to determine whether there is a conflict. We conclude that Sorum provides the correct framework for this facial challenge.
III
A
[¶16] We now turn to the Association‘s takings challenge. The Fifth Amendment guarantees that private property shall not “be taken for public use, without just compensation.”
[¶17] When this Court interprets constitutional provisions, “we apply general principles of statutory construction.” State v. Strom, 2019 ND 9, ¶ 6, 921 N.W.2d 660. We aim to give meaning to every word, phrase, and sentence in a statute. Id. Statutory provisions “are given their plain, ordinary, and commonly understood meaning, unless they are specifically defined or a contrary intention plainly appears.” Mosser v. Denbury Res., Inc., 2017 ND 169, ¶ 13, 898 N.W.2d 406. “Words and phrases are construed according to the context in which they are used and technical words defined by statute must be construed according to the appropriate definition.” Id. Statutes are construed as a whole and are harmonized to give meaning to related provisions. Id. We construe statutes to give effect “to all of their provisions so no part of the statute is rendered inoperative or superfluous.” Id.
[¶18] “Whether a statute is unconstitutional is a question of law, which is fully reviewable on appeal.” Teigen v. State, 2008 ND 88, ¶ 7, 749 N.W.2d 505. Under
B
[¶19] To establish a violation under the Takings Clause, challengers must demonstrate they have a property interest that is constitutionally protected. Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998). “Because the Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.‘” Id. Therefore, we must first look to state law to determine whether the surface owners have a property interest in subsurface pore space.
[¶20] The Association argues that S.B. 2344 strips surface owners of their rights to exclude others from pore space, demand compensation for its use, and bring actions in tort to secure these rights. We now examine the historical scope of a surface owner‘s rights to the underlying pore space. In 1979, the Legislature provided a statutory remedy for surface owners in enacting the Oil and Gas Production Damage Compensation Act.
[¶21] Additionally, prior to the enactment of S.B. 2344, surface owners could sue for trespass for the use of their surface estate that was not “reasonably necessary” to develop the mineral estate. See Mosser v. Denbury Res., Inc., 112 F. Supp. 3d 906, 918–19 (D.N.D. 2015). When mineral rights are severed from the surface, an implied easement is created whereby the mineral owner may use the surface estate for reasonably necessary operations to “explore, develop, and transport the minerals.” Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 135-36 (N.D. 1979). For operations within a spacing unit or a unitized field, the implied easement is expanded to operations that are “reasonably necessary” for the production of minerals within the spacing unit or unitized
do not authorize [the mineral owner] to dispose of salt water generated from outside the Unit.“).
[¶22] Thus, North Dakota law has long established that surface owners have a property interest in pore space. “[T]he owner of a surface estate owns the underlying pore space.” Mosser, 2017 ND 169, ¶ 17. It has been in our law since before statehood that an “owner of land in fee has the right to the surface and to everything permanently situated beneath or above it.” Id. at ¶ 16. The 2009 enactment of chapter 47-31, N.D.C.C., simply “confirm[ed] that surface owners own the pore space under their surface estate.” Mosser, at ¶ 16; see also
C
[¶23] We now address the merits of the Association‘s takings challenge under the federal and state constitutions. We analyze the federal and state claims together because no party has argued the text or history of the state constitutional provision requires us to apply a different standard for per se takings. We have recognized two categories of regulations as per se takings. Wild Rice River, 2005 ND 193, ¶¶ 13, 16 (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005)). The first category is “where government requires an owner to suffer a permanent physical invasion of her property—however minor—it must provide just compensation.” Id. at ¶ 13; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Because physical takings “eviscerate[] the owner‘s right to exclude others from entering and using her property,” compensation is required. Wild Rice River, at ¶ 13. The second category applies to regulations that completely deprive an owner of all economically beneficial use of her property. Id. at ¶ 18 (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)). “The complete elimination of a property‘s value is the determinative factor in this category because the total deprivation of beneficial use is, from the landowner‘s point of view, the equivalent of a physical appropriation.” Id. at ¶ 13. Outside of
[¶24] The district court found S.B. 2344 to be a per se taking under the first category: a physical invasion. It found that S.B. 2344 “allows for physical intrusion of a land owner‘s property.” Further, the Association argues that S.B. 2344 is a per se taking because it “authorizes a physical invasion” and therefore “should be decided under Loretto.” We have cited Loretto favorably for its treatment of physical occupation takings when considering state law claims, Sauvageau v. Bailey, 2022 ND 86, ¶ 24, 973 N.W.2d 207, and the parties do not argue that our state constitution requires different analysis for physical occupations. Because the Association neither argues it is a per se taking under the second category nor directs us to use the standards set forth in Penn Central, we analyze the Association‘s physical occupation takings claims using the Loretto physical occupation framework.
[¶25] Government-authorized physical invasions of property constitute the “clearest sort of taking” and therefore are a per se taking. Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2071 (2021). “[A]n owner suffers a special kind of injury when a stranger directly invades and occupies the owner‘s property.” Loretto, 458 U.S. at 436. A physical invasion “is qualitatively more severe than a regulation of the use of property . . . since the owner may have no control over the timing, extent, or nature of the invasion.” Id. Further, regardless of whether the physical occupation is permanent or temporary, just compensation is required. Cedar Point Nursery, 141 S. Ct. at 2074. Even if the physical invasion has only minimal economic impact on the owner, compensation is required because when there is a physical occupation of property, it effectively destroys the owner‘s rights to possess, use, and dispose of the property. Loretto, 458 U.S. at 435–36; Cass Co. Joint Water Res. Dist. v. Aaland, 2021 ND 57, ¶¶ 13-14, 956 N.W.2d 395. Further, because government-authorized physical invasions take away the landowner‘s right to exclude—“one of the most treasured” rights of property ownership—they are a per se taking. Cedar Point Nursery, 141 S. Ct. at 2072, 2074; Wild Rice River, 2005 ND 193, ¶ 13 (stating a “permanent physical invasion” is a per se taking because “the owner‘s right to exclude others from entering and using her property [is] perhaps the most fundamental of all property interests“).
[¶26] Senate Bill 2344 constitutes a per se taking. It allows third-party oil and gas operators to physically invade a landowner‘s property by injecting substances into the landowner‘s pore space. As demonstrated in Arkansas Game & Fish Comm‘n v. United States, 568 U.S. 23, 34 (2012), physical invasion by water, even for a limited duration, results in a per se taking. Furthermore, because S.B. 2344 permits oil and gas operators to use pore space to temporarily or permanently store or dispose of gases and wastes, the bill authorizes an occupation of the landowners’ property. Similar to the unconstitutional regulation in Cedar Point Nursery, S.B. 2344 grants oil and gas operators a right of access to the landowners’ private property. Further, as in Loretto, 458 U.S. at 436, S.B. 2344 restricts landowners from having any control over the “timing, extent, or nature of the invasion.” As amended, the statutes would allow
[¶27] Surface owners have a right to compensation for the use of their pore space for disposal and storage operations. Mosser, 2017 ND 169, ¶ 24. Although an oil and gas operator has a right under the implied easement to dispose of waste water within the same unit or pool, the operator must compensate the surface owner for the disposal of waste. Id.; see also Fisher, 49 F. Supp. 3d at 646-47. By prohibiting the right to compensation for use of the surface owner‘s pore space and eliminating the right to exclude, S.B. 2344 removes all rights that make ownership of pore space valuable. Furthermore, although the use of pore space may not seriously interfere with a landowner‘s use of the rest of his land because the pore space is deep beneath the surface, Loretto held that compensation is required for physical invasions even if the owner suffers only a “minimal economic impact.” 458 U.S. at 434–35. Therefore, because S.B. 2344 deprives surface owners from demanding compensation for physical occupation of their property, S.B. 2344 is an unconstitutional taking on its face in violation of the state and federal constitutions.
[¶28] However, because the implied easement authorizes the mineral owner to use the surface estate as “reasonably necessary” to find and develop minerals when the surface and mineral estates are severed, the State argues the dominant mineral estate principle saves S.B. 2344 from a constitutional challenge. The circumstances of this case are unlike the Loretto line of cases in that here a third party may already have a right to access and use a landowner‘s pore space. Because the dominant mineral estate principle grants specific usage rights to the mineral estate owner, an additional layer of analysis is required.
[¶29] To determine whether the dominant mineral estate principle saves S.B. 2344 from a takings violation, we first must determine whether S.B. 2344 applies only to unit operations. The district court concluded in the negative, stating, “While the language in
[¶30] Even when a severance of minerals has created an implied easement permitting use of the surface estate by the owner of the severed minerals, S.B. 2344 constitutes a taking. We begin by recognizing that the implied easement allows the mineral developer to conduct disposal operations within a pooled spacing unit or unitized field for saltwater produced from wells located within that particular unit or field. These disposal operations are “reasonably necessary” for the production of minerals within that unit or field. Fisher, 49 F. Supp. 3d at 646–47; Hunt Oil Co., 283 N.W.2d at 135. However, if a disposal well is used to dispose of saltwater produced outside the unit or field, the disposal operations are not “reasonably necessary” for production of the relevant dominant estate—the minerals within that unit or field. Mosser, 112 F. Supp. 3d at 918 (“The express or implied rights . . . do not authorize [the mineral owner] to dispose of salt water generated from outside the Unit.“); see also Krenz v. XTO Energy, Inc., 2017 ND 19, ¶ 42, 890 N.W.2d 222 (“[A] lessee generally cannot, in the absence of contractual permission, use the surface of one lease to benefit mining operations on adjacent land.“). Although disposal operations beyond the scope of the implied easement would be otherwise considered a trespass, S.B. 2344 bars landowners from bringing such a tort action. Senate Bill 2344 declares that such disposal operations “by [themselves], do[] not constitute trespass.” Thus, the dominant mineral estate principle does not save S.B. 2344 from this takings claim.
D
[¶31] The State also argues that S.B. 2344 is not an unconstitutional taking because it is a proper exercise of its police power. The State argues the United States Supreme Court has recognized “exceptions to its tests for determining whether a government regulation constitutes a taking” and courts “must consider and evaluate state law to determine whether property owners have an expectation that their title is limited by state law.” Relying primarily on Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992), the State argues there are existing state law limitations on landowners’ rights associated with pore space, including the state‘s police power. According to the State, S.B. 2344 is not a taking, because the landowners took title to pore space with an expectation that their title is limited by the police power.
[¶32] The State‘s argument is misplaced because our cases make clear that the takings clause limits the state‘s exercise of its police power. “The police power is the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society.” State ex rel. City of Minot v. Gronna, 79 N.D. 673, 699, 59 N.W.2d 514, 532 (1953) (cleaned up). Under the police power “the legislature may, within constitutional limitations, not only prohibit all things hurtful to the comfort, safety, and welfare of society, but prescribe regulations to promote the public health, morals, and safety, and add to the general public convenience, prosperity, and welfare.” State v. Cromwell, 72 N.D. 565, 576, 9 N.W.2d 914 (1943) (emphasis added). When an action is determined
[¶33] Furthermore, the State‘s argument that landowners took title with the expectation that their pore space would be limited by state law applies only to regulatory takings under the Lucas line of cases, which is the second per se category. The Association challenged S.B. 2344 only as a Loretto physical invasion, which is the analysis under which the district court found a per se taking. As the Supreme Court explained, ”Lucas, however, was about regulatory takings, not direct appropriations. Whatever Lucas had to say about reasonable expectations with regard to regulations, people still do not expect their property, real or personal, to be actually occupied or taken away.” Horne v. Dep‘t of Agric., 576 U.S. 350, 361 (2015). The Supreme Court‘s cases have “stressed the ‘longstanding distinction’ between government acquisitions of property and regulations,” and therefore “[i]t is ‘inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a “regulatory taking,” and vice versa.‘” Id. Here, the takings claim is not premised on a regulation of what the surface owners may do with their property, but rather on the State‘s granting a broad authorization to third parties to physically occupy the surface owners’ pore space. This is an exercise of the State‘s police power that is limited by the takings clause. Property owners necessarily expect their use of property may be regulated through the exercise of a State‘s police powers, but they do not take title subject to the possibility that their property can be “actually occupied or taken away” without just compensation. Id.
E
[¶34] In summary, we conclude that several parts of S.B. 2344 have been shown to be unconstitutional on their face. Specifically, we declare the following part of section 1 codified at
Notwithstanding any other provision of law, a person conducting . . . disposal operations, or any other operation authorized by the commission under this chapter may utilize subsurface geologic formations in the state for such operations or any other permissible purpose under this chapter. Any other provision of law may not be construed to entitle the owner of a subsurface geologic formation to prohibit or demand payment for the use of the subsurface geologic formation for . . . any other operation conducted under this chapter.
[¶35] We further conclude that the newly-enacted definition of “land” in section 3 of S.B. 2344 is unconstitutional in that it defines “land” to exclude “pore space” for purposes of
IV
[¶36] Having concluded parts of S.B. 2344 are unconstitutional, we now must determine whether the district court erred by declaring the entirety of S.B. 2344 invalid. The State and Continental Resources argue the court erred in striking down the entirety of S.B. 2344, because the legislative findings, public interest statements, and certain other provisions can stand alone and do not constitute a taking. The district court found S.B. 2344 invalid in its entirety because “the Legislature intended the law to take effect in its entirety, based on the intertwined provisions both changing definitions and treatment under various laws, and because the challenged sections make up a large, substantive portion of the bill‘s entirety.”
[¶37] Severability is a question of statutory and constitutional interpretation by which we seek to determine legislative intent first and foremost by reference to the ordinary meaning of the enacted text. Kelsh v. Jaeger, 2002 ND 53, ¶¶ 7, 20, 641 N.W.2d 100. When legislation conflicts with the constitution, the enacted text cannot be taken at face value because it is “without effect.” Home of Econ. v. Burlington N. Santa Fe R.R., 2005 ND 74, ¶ 5, 694 N.W.2d 840. If a statute conflicts with the constitution, the constitution, as higher law, displaces the statute to the extent of the conflict. See generally, Kevin C. Walsh, Partial Unconstitutionality, 85 N.Y.U. L. Rev. 738, 756-57 (2010). “It is a fundamental principle that a statute may be constitutional in one part and unconstitutional in another part and that if the valid part is severable from the rest, the portion which is constitutional may stand.” Kessler v. Thompson, 75 N.W.2d 172, 189 (N.D. 1956); State v. Strom, 2019 ND 9, ¶ 9, 921 N.W.2d 660. But if the constitutional and the unconstitutional portions are interdependent, such that the valid portion cannot be given effect without the invalid portion, we must declare the entire law invalid. Montana-Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414, 424 (N.D. 1967). “[W]hen legislation that is enacted to repeal, amend or otherwise modify an existing statute, is declared unconstitutional, it is a nullity and . . . the extant statute remains operative without regard to the unsuccessful and invalid legislation.” State v. Clark, 367 N.W.2d 168, 169 (N.D. 1985).
[¶38] We have described severability analysis as one of determining what the Legislative Assembly would have intended. State v. Fischer, 349 N.W.2d 16, 18 (N.D. 1984); Arneson v. Olson, 270 N.W.2d 125, 138 (N.D. 1978). However, our role is not to speculate as to whether there would have been a majority in each house for the bill without the unconstitutional provisions. Instead, we have explained:
It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional. Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected
together in meaning, that it cannot be presumed the legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall.
Tooz v. State, 38 N.W.2d 285, 291–92 (N.D. 1949). An important consideration weighing severability is whether provisions of the legislation contain “matters that were not interdependent and which might appropriately have been embodied in separate legislative enactments.” Id. at 295.
[¶39] Our review is aided by a generally applicable severability instruction the Legislative Assembly has provided. It states:
In the event that any clause, sentence, paragraph, chapter, or other part of any title, is adjudged by any court of competent or final jurisdiction to be invalid, such judgment does not affect, impair, nor invalidate any other clause, sentence, paragraph, chapter, section, or part of such title, but is confined in its operation to the clause, sentence, paragraph, section, or part thereof directly involved in the controversy in which such judgment has been rendered.
[¶40] The remaining provisions of S.B. 2344 are sufficiently distinct to operate independently from the invalid provisions. Section 1 contains amendments to
[¶41] Similarly, S.B. 2344 section 2 amends legislative findings in
V
[¶42] We now address Continental Resources’ argument that the district court erred in denying the State‘s
[¶43] Although Continental Resources disputed the calculated value of pore space the Association offered, further discovery was not needed because calculating the exact value of pore space was not essential to resolve the Association‘s facial challenge. It is undisputed that pore space has a variety of uses, including carbon dioxide storage, natural gas storage, and wastewater disposal. Relying on Mosser v. Denbury Resources, Inc., 2017 ND 169, and Mosser v. Denbury Resources, Inc., 112 F. Supp. 3d 906, the district court concluded as a matter of law that pore space has value. We conclude that the district court did not err in determining pore space has value as a matter of law. Mosser, 2017 ND 169, ¶¶ 18, 24. It was unnecessary to establish the exact value of pore space to conclude that a taking had been completed. Loretto, 458 U.S at 441. We conclude the district court did not abuse its discretion in denying further discovery.
VI
[¶44] After the court granted summary judgment and requested relief in favor of the Association, it awarded attorney‘s fees under
[¶45] We begin by recognizing that North Dakota follows the American Rule for awarding attorney‘s fees by which successful litigants are not allowed to recover attorney‘s fees unless authorized by contract or statute. Sorum, 2020 ND 175, ¶ 58. The court found that
[¶46] The State first argues that the court erred in awarding fees to the Association because it failed to expressly plead
[¶47] Next, the State argues the attorney‘s fees award should be reversed because state officials sued in their official capacity are not “persons” under
[¶48] Finally, the State argues the Association lacks standing to assert its members’ rights under
VII
[¶49] The amended judgment is affirmed to the extent it declared the same provisions we identified above as unconstitutional and reversed to the extent it declared the remainder of the bill inseverable and invalid. We affirm the court‘s order awarding attorney‘s fees to the Association.
[¶50] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
William A. Herauf, D.J.
[¶51] The Honorable William A. Herauf, District Judge, sitting in place of VandeWalle, J., disqualified.
Jerod E. Tufte
Justice