William S. Wilkinson; Ann L. Nevins and Amy L. Perkins as Personal Representatives for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, Trustee of 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 and Appellees v. The Board of University and School Lands of the State of North Dakota, Brigham Oil & Gas, LLP; Statoil Oil & Gas LP; and EOG Resources, Inc.; and XTO Energy Inc.; Petrogulf Corporation, and all other persons unknown who have or claim an interest in the property described in the Complaint, Defendants and North Dakota State Engineer, Intervener and Appellant
No. 20190354
IN THE SUPREME COURT STATE OF NORTH DAKOTA
August 27, 2020
2020 ND 183
Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, ND, for plaintiffs and appellees.
David P. Garner, Bismarck, ND, for defendant and appellant the Board of University and School Lands of the State of North Dakota.
John E. Ward, Bismarck, ND, for defendant and appellant Brigham Oil & Gas, LLP and Statoil Oil & Gas, LP.
Lawrence Bender, Bismarck, ND, for defendant and appellee EOG Resources, Inc.
Jennifer L. Verleger, Bismarck, ND, for intervener and appellant North Dakota State Engineer.
Craig C. Smith and Paul J. Forster, Bismarck, ND, amicus curiae North Dakota Petroleum Council.
Wilkinson, et al. v. Board of University and School Lands of the State of N.D.
No. 20190354
¶ 1 The Board of University and School Lands of the State of North Dakota, the State Engineer, and Statoil Oil & Gas LP appeal from a judgment determining William Wilkinson and the other plaintiffs own mineral interests in certain land. Although the judgment is not appealable because it did not dispose of all claims against all parties, we exercise our supervisory jurisdiction to review the summary judgment. We conclude the district court did not err in concluding
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
Section 13: 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, gas, and other minerals 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. In an amended complaint the plaintiffs sought damages for claims of unconstitutional takings under the state and federal constitutions by the state defendants, and conversion and civil conspiracy by all defendants. The plaintiffs also sought to impose a constructive trust on monies received by others, and for injunctive relief. After answers by the defendants and extensive counterclaims and crossclaims among the parties, the district court determined ownership of the property below the ordinary high water mark (“OHWM“) in favor of the Land Board.
¶ 4 This Court reviewed the district court‘s summary judgment determining the State owned the minerals below the OHWM of the Missouri River as part of its sovereign lands. See Wilkinson v. Bd. of Univ. and Sch. Lands, 2017 ND 231, 903 N.W.2d 51. The facts underlying this dispute were stated in the prior appeal and we will not repeat them here except as necessary to resolve the issues raised in the present appeal. Id. at ¶¶ 2-9.
¶ 5 In the prior appeal we reversed the judgment. Wilkinson, 2017 ND 231, ¶ 29, 903 N.W.2d 51. We remanded for the district court to determine whether
¶ 6 On remand the plaintiffs moved for summary judgment. The plaintiffs argued
¶ 7 Statoil, the Land Board, and the State Engineer opposed the plaintiffs’ motion. EOG opposed the State‘s claim to the Wilkinson property but did not take a position on whether the summary judgment motion should be granted.
¶ 8 XTO Energy, Inc., filed a stipulated motion to be dismissed from the action. XTO admitted it does not hold an ownership interest in or a claim to any of the disputed mineral interests. The district court granted the motion and dismissed XTO from the action.
¶ 9 After a hearing, the district court granted the plaintiffs’ motion, determining
II
¶ 10 Statoil argues the district court erred in entering judgment because the remaining causes of action were not dismissed and
¶ 11 The right to appeal is statutory and if no statutory basis for appeal exists, we must take notice of the lack of jurisdiction and dismiss the appeal. Nygaard v. Taylor, 2017 ND 206, ¶ 8, 900 N.W.2d 833. We have a two-step process for evaluating appealability:
“First, the order appealed from must meet one of the statutory criteria of appealability set forth in
NDCC § 28-27-02 . If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then [N.D.R.Civ.P. 54(b) ], [if applicable,] must be complied with. If it is not, we are without jurisdiction.”
Nygaard, at ¶ 9 (quoting Holverson v. Lundberg, 2015 ND 225, ¶ 9, 869 N.W.2d 146).
¶ 12 “[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”
¶ 13 The Land Board, State Engineer, and Statoil appealed from the judgment entered after the district court granted summary judgment and quieted title to the property in the plaintiffs’ favor. Generally, an order granting summary judgment and the subsequently entered judgment are appealable. Greer, 2018 ND 206, ¶ 9, 917 N.W.2d 1.
¶ 14 The plaintiffs’ amended complaint alleged multiple claims for relief. They requested declaratory relief and sought damages for unconstitutional taking of property under the state and federal constitutions, conversion, unjust enrichment, and civil conspiracy. Their complaint was dismissed with prejudice before the prior appeal. The decision in the prior appeal did not specifically address any claims other than the plaintiffs’ request for declaratory judgment deciding ownership of the disputed minerals and the takings claim. See Wilkinson, 2017 ND 231, 903 N.W.2d 51. The Court reversed the prior judgment without affirming any part of the judgment. Id. at ¶ 29.
¶ 15 On remand the district court granted summary judgment in favor of the plaintiffs, but only explicitly addressed the declaratory judgment claim by determining the plaintiffs own the Wilkinson property. The district court stated no other issues needed to be addressed. The court did not dismiss the other claims, including the takings claims which were explicitly reversed in the prior appeal.
¶ 16 Under the status of this case, the question of plaintiffs’ damages remains unresolved. Even if we were to fully affirm the district court‘s decision and conclude the court correctly applied
¶ 17 Although this appeal is not authorized, we may exercise supervisory jurisdiction to review the judgment.
“Under
N.D. Const. art. VI, § 2 , andN.D.C.C. § 27-02-04 , this Court may examine a district court decision by invoking our supervisory authority. We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases when no adequate alternative remedy exists. Our authority to issue a supervisory writ is ‘purely discretionary,’ and we determine whether to exercise supervisory jurisdiction on a case-by-case basis, considering the unique circumstances of each case. Exercise of supervisory jurisdiction may be warranted when issues of vital concern regarding matters of important public interest are presented.”
Nygaard, 2017 ND 206, ¶ 11, 900 N.W.2d 833 (quoting State ex rel. Harris v. Lee, 2010 ND 88, ¶ 6, 782 N.W.2d 626) (cleaned up).
¶ 18 This case presents a significant issue regarding the interpretation and application of
¶ 20 Because of the large number of affected landowners, the urgency with which the legislation was adopted, and the large sums of money at stake, this is an appropriate case to exercise our discretionary supervisory jurisdiction.
III
¶ 21 The issues here involve the interpretation and application of
¶ 22 “Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Wilkinson, 2017 ND 231, ¶ 10, 903 N.W.2d 51 (quoting THR Minerals, LLC v. Robinson, 2017 ND 78, ¶ 6, 892 N.W.2d 193). The movant has the burden of showing there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Wilkinson, at ¶ 10. In reviewing a district court‘s summary judgment decision, we view the evidence in the light most favorable to the party opposing the motion and give the party opposing the
¶ 23 The district court granted the plaintiffs’ motion for summary judgment, determining
“The interpretation of Chpt. 61-33.1, N.D.C.C., is a question of law. As a matter of law, Chpt. 61-33.1, N.D.C.C., applies to the Wilkinsons’ property, and the Industrial Commission‘s determination that the Wilkinsons’ minerals are above the OHWM of the historical Missouri riverbed channel is conclusive.”
“Pursuant to the definitions established by the legislature in
N.D.C.C. § 61-33.1-01 , the Wilkinsons’ property falls inside the area under the control of Chpt. 61-33.1, N.D.C.C., for determining the OHWM of the historical Missouri riverbed channel. As a matter of law, the State has no claim to any of the minerals, including the Wilkinsons‘, that the Industrial Commission determined are above the OHWM of the historical Missouri riverbed channel. . . . The Wilkinsons’ property is in Township 153 North, Range 102 West, Section 12: SW/4, S/2NW/4, and Section 13: Farm Unit No. 312 in the Buford-Trenton Project. This is within the area the legislature included as part of the process for delineating the OHWM of the historical Missouri riverbed channel controlled by Chpt. 61-33.1, N.D.C.C.”“Further, the Wilkinsons’ property in Sections 12 and 13 is located between river mile 1554.0 and 1554.5. This also indisputably shows that the Wilkinsons’ property is within the statutory area set by Chpt. 61-33.1, N.D.C.C., for determining the OHWM of the historical Missouri riverbed channel under North Dakota law. The area for determining the OHWM pursuant to Chpt. 61-33.1, N.D.C.C., continues further southwest of the Wilkinsons’ property for approximately another 11 river miles to river mile 1,565 under the clear and unambiguous language in
N.D.C.C. § 61-33.1-01 .”“As required by
N.D.C.C. § 61-33.1-03 , the Industrial Commission issued its Order that determined the OHWM of the historical Missouri riverbed channel, and set the limit on the State‘s interests. The Industrial Commission adopted the Wenck Study after the public comment period required by law pursuant toN.D.C.C. § 61-33.1-03 . The Wenck Study concluded the Wilkinsons’ property was above the OHWM of the historical Missouri riverbed channel. The fact that the Wilkinsons’ minerals are above the OHWM, and thus not owned by the State, is clearly visible in the Wenck Study maps adopted by the Industrial Commission in its Order.”“. . . .”
“The State‘s interest is statutorily-limited to the historical Missouri riverbed channel as determined by Chpt. 61-33.1, N.D.C.C. This cannot be disputed by the State. . . . The Industrial Commission determined that the Wilkinsons’ property was above the OHWM of the historical Missouri riverbed channel. This is not a question of fact. It was established as a matter of law under Chpt. 61-33.1, N.D.C.C. The State is required to follow the Industrial Commission‘s Order. The State has no basis to continue claiming that it owns the Wilkinsons’ property, and summary judgment in the Wilkinsons’ favor is thus appropriate.
” “. . . .”
“The Court does not need to go any further than deciding the first question remanded by the Supreme Court. As a matter of law,
N.D.C.C. ch. 61-33.1 applies and controls the ownership of the property at issue. The Industrial Commission determined that the Wilkinsons’ minerals are above the OHWM of the historic Missouri riverbed channel, and therefore, the Wilkinsons are entitled to those minerals. That concludes the statutory process as applied to the Wilkinsons and their claims in the Amended Complaint. The Wilkinsons are not required to pursue a separate lawsuit underN.D.C.C. § 61-33.1-05 , as argued by Statoil Oil and Gas LP. The State is bound, as a matter of law, by the Industrial Commission‘s Order issued pursuant to Chpt. 61-33.1, N.D.C.C., and has no basis to continue claiming ownership of these minerals.”
¶ 24 The interpretation of a statute is a question of law, which is fully reviewable on appeal. Rocky Mountain Steel Founds., Inc. v. Brockett Co., LLC, 2018 ND 96, ¶ 5, 909 N.W.2d 671. Our primary objective in interpreting statutes is to determine the legislature‘s intent. Baker, 2019 ND 82, ¶ 10, 924 N.W.2d 441. When a statute is unambiguous, we look at the plain language of the statute to determine its meaning. Schulke v. Panos, 2020 ND 53, ¶ 8, 940 N.W.2d 303. A statute is ambiguous if it is susceptible to different, but rational, meanings. PHI Fin. Servs., Inc. v. Johnston Law Office, P.C., 2020 ND 22, ¶ 10, 937 N.W.2d 885. We give words in a statute their plain, ordinary, and commonly understood meaning, unless specifically defined or a contrary intention plainly appears.
¶ 25 Section 61-33.1-02,
“The state sovereign land mineral ownership of the riverbed segments subject to inundation by Pick-Sloan Missouri basin project dams extends only to the historical Missouri riverbed channel up to the ordinary high water mark. The state holds no claim or title to any minerals above the ordinary high water mark of the historical Missouri riverbed channel subject to inundation by Pick-Sloan Missouri basin project dams, except for original grant lands acquired by the state under federal law and any minerals acquired by the state through purchase, foreclosure, or other written conveyance.”
Section 61-33.1-01(2),
“[T]he Missouri riverbed channel as it existed upon the closure of the Pick-Sloan Missouri basin project dams, and extends from the Garrison Dam to the southern border of sections 33 and 34, township 153 North, range 102 West which is the approximate location of river mile marker 1,565, and from the South Dakota border to river mile marker 1,303.”
¶ 26 The plain language of
¶ 27 In this case, the disputed property is located in sections 12 and 13 of township 153 North, range 102 West in Williams County, which is within the geographic area included in the definition of the “historical Missouri riverbed channel.” Because the Wilkinson property is located within the defined geographic area, as a matter of law
¶ 28 Chapter 61-33.1,
¶ 29 After a public hearing, the department was required to make a final recommendation to the Industrial Commission on each of the review findings.
¶ 30 After the Industrial Commission‘s adoption of the final review findings, the statutory process states the Land Board may contract with an engineering and surveying firm to analyze the findings and determine the acreage above and below the OHWM as delineated by the Industrial Commission‘s final findings.
¶ 31 The district court concluded the property is above the OHWM of the
¶ 32 We affirm the district court‘s conclusions that
IV
¶ 33 The State Engineer argues the district court misapplied the law and did not properly determine whether
¶ 34 “When engaging in statutory interpretation, this Court has consistently recognized that it must be presumed the legislature intended all that it said, said all that it intended to say, and meant what it has plainly expressed.” Estate of Christeson v. Gilstad, 2013 ND 50, ¶ 12, 829 N.W.2d 453. See also Brossart v. Janke, 2020 ND 98, ¶ 12, 942 N.W.2d 856. (“We presume the legislature did not intend an absurd or ludicrous result or unjust consequences, and we construe statutes in a practical manner, giving consideration to the context of the statutes and the purpose for which they were enacted.” (internal citation omitted).) As is explained above,
¶ 35 Chapter 61-33.1,
V
¶ 36 The Land Board argues ownership cannot be determined until after the periods to challenge the Industrial Commission‘s order and the final acreage determinations have been exhausted because the OHWM of the historical Missouri riverbed channel is not final until then. It contends
¶ 37 Section 61-33.1-05,
“Notwithstanding any other provision of law, an action brought in district court under this section is the sole remedy for challenging the final review, recommendations, determination of the ordinary high water mark, and final acreage determination under this chapter, and preempts any right to rehearing, reconsideration, administrative appeal, or other form of civil action provided under law.”
¶ 38 Reading the chapter as a whole, individual ownership may be determined before all challenges are exhausted under
¶ 39 The Land Board claims “any interested party may still have an action challenging the Wenck Study or the acreage determinations that impact” the disputed property. Under
VI
¶ 41 We have considered the parties’ remaining issues and arguments and conclude they are either unnecessary to our decision or are without merit. The judgment is affirmed in part, reversed in part, and the case is remanded.
¶ 42 Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Gerald W. VandeWalle
Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Gerald W. VandeWalle
Jon J. Jensen, C.J.