Rice v. Burlington Resources Oil & Gas Company LP

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

SALLY E. RICE, as Trustee for the

Winston Lawrence Rice Trust, on behalf of

herself and all others similarly situated,

Plaintiff,

v. Case No. 20-cv-00431-GKF-CDL

BURLINGTON RESOURCES OIL & GAS

COMPANY LP,

Defendant.

OPINION AND ORDER

Before the court is defendant Burlington Resources Oil & Gas Company LP’s Motion for

Judgment on the Pleadings [Doc. 31]. For the reasons set forth below, the motion is denied.

I. Background

This is a putative class action relating to interest owed on untimely payments of oil-and-

gas royalties. On August 25, 2020, plaintiff Sally E. Rice brought this action against Burlington

Resources Oil & Gas Company LP (Burlington), the operator of a well in which she has an

ownership interest. Rice alleges a single claim under North Dakota law for Breach of Statutory

Obligation to Pay Interest, pursuant to N. D. C. C. § 47-16-39.1. [Doc. 2, pp. 8-9, ¶¶ 40-47].

Burlington moves for judgment on the pleadings, arguing that Rice’s claim is barred by the

applicable statute of limitations.

II. Allegations of the Complaint

Rice alleges the following:

North Dakota law requires operators like Burlington to pay royalties to mineral owners

within 150 days of marketing the oil or gas. When an operator like Burlington fails to pay

royalties to a mineral owner within 150 days after the oil or gas is sold, the operator owes 18%

interest on the unpaid royalty. The statute expressly states there is no demand requirement

before a mineral owner is entitled to statutory interest. Despite this, Burlington does not

automatically pay interest on untimely payments.

Instead, through its agent ConocoPhillips, Burlington has adopted a policy of requiring

mineral owners to first demand statutory interest before it will pay what is owed. ConocoPhillips

directs mineral owners to contact its Bartlesville, Oklahoma, office when they have questions

about their payments. Decisions on whether Burlington owes interest on late payments, and

whether Burlington will pay interest on those late payments, are made there by ConocoPhillips.

Rice serves as trustee for the Winston Lawrence Rice Trust (the “Trust”). The Trust owns

an interest in oil and gas produced from the Haydon 44-22TFH-ULW well operated by

Burlington in McKenzie County, North Dakota. ConocoPhillips remits royalty payments from

this well on behalf of Burlington. Burlington failed to pay the Trust royalties to which it is

entitled within 150 days of marketing the Trust’s mineral interests. This included, for example,

that for oil Burlington marketed from the Haydon 44-22TFH-ULW well in December 2014, the

Trust did not receive payment until February 29, 2016. When Burlington finally paid the

royalties owed to the Trust in February 2016, Burlington did not include the 18% interest

required by North Dakota statute.

Rice brings this putative class action on behalf of “[a]ll non-excluded persons or entities

owning mineral interests in North Dakota wells who: (1) received untimely payments from

Burlington for royalties in North Dakota wells; and (2) whose payments did not include the 18%

interest required by law.”

III. Legal Standard

Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not

to delay trial—a party may move for judgment on the pleadings.” “A motion for judgment on

the pleadings ‘should not be granted unless the moving party has clearly established that no

material issue of fact remains to be resolved and the party is entitled to judgment as a matter of

law.’” Colony Ins. Co. v. Burke, 698 F.3d 1222, 1228 (10th Cir. 2012) (quoting Park Univ.

Enters. v. Am. Cas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)). The standard for dismissal

under Fed. R. Civ. P. 12(c) is the same as for a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6). Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.

2000).

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court must determine

whether the plaintiff has stated a claim upon which relief can be granted. A complaint must

contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “does not impose a

probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of the conduct necessary to establish the claim.

Id. at 556. The court must “accept all facts pleaded by the non-moving party as true and grant all

reasonable inferences from the pleadings in favor of the same.” Colony Ins. Co., 698 F.3d at

1228.

IV. Analysis

Burlington argues the court should grant judgment on the pleadings because plaintiff’s

claim for Breach of Statutory Obligation to Pay Interest, N.D.C.C. § 47-16-39.1, is barred by

North Dakota’s statute of limitations for penalties and forfeitures, which requires an action to be

brought within three years after it accrues. Plaintiff does not dispute that her action would be

untimely under the three-year statute of limitations. Thus, the issue presented is whether North

Dakota’s general six-year statute of limitations for statutory actions, N.D.C.C. § 28-01-16(2), or

North Dakota’s three-year statute of limitations for penalties and forfeitures, N.D.C.C. § 28-01-

17(2), governs plaintiff’s claim.

A. General Principles of Statutory Interpretation of North Dakota Law

When a federal case contemplates a question of state law not settled by the courts of that

state, it becomes the responsibility of the federal court to “attempt to predict how [that state’s]

highest court would interpret [the issue].” Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 852 (10th

Cir. 2015) (quoting Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 875 (10th Cir.

2013)). The court may “ ‘consider all resources available’ in doing so, ‘including decisions of

[the relevant state’s] courts, other state courts[,] and federal courts, in addition to the general

weight and trend of authority.’ ” Id. at 852 (quoting In re Dittmar, 618 F.3d 1199, 1204 (10th

Cir. 2010)).

As the North Dakota Supreme Court has explained, the “primary objective in interpreting

a statute is to determine the legislature’s intent, and [the court should] initially look to the

language of the statute to determine intent.” Locken v. Locken, 797 N.W.2d 301, 304 (N.D.

2011). The court must “construe[] [the statute] as a whole and []harmonize[e] [it] to give

meaning to relevant provisions.” Van Sickle v. Hallmark & Assocs., Inc., 840 N.W.2d 92, 108

(N.D. 2013). “Words used in any statute are to be understood in their ordinary sense, unless a

contrary intention plainly appears, but any words explained in this code are to be understood as

thus explained.” Id. (citing N.D.C.C. § 1–02–02). “The letter of a statute cannot be disregarded

under the pretext of pursuing its spirit when the language of the statute is clear and

unambiguous.” Locken, 797 N.W.2d at 305. Under North Dakota’s rules of statutory

interpretation, “a specific statute prevails over a general statute.” Kittleson v. Grynberg

Petroleum Co., 876 N.W.2d 443, 448 (N.D. 2016). “Another rule of construction relating to

statutes of limitation is that the longer statute of limitations generally applies if there is a

question about applicability.” Id.

If “the language of a statute is ambiguous or of doubtful meaning or if adherence to the

strict letter of the statute would lead to an absurd or ludicrous result, the court may resort to

extrinsic aids to interpret the statute.” Stutsman Cnty. v. State Hist. Soc'y, 371 N.W.2d 321, 325

(N.D.1985). “A statute is ambiguous if it is susceptible to different, rational meanings.” Locken,

797 N.W.2d at 305 (internal quotation marks omitted). In such cases, the court may consider,

among other factors, (1) the object sought to be attained by the statute; (2) the circumstances

under which the statute was enacted; (3) the legislative history; (4) the common law or former

statutory provisions, including laws upon the same or similar subjects; (5) the consequences of a

particular construction; (6) the administrative construction of a statute; and (7) the preamble. Id.;

N.D.C.C. § 1-02-39.

B. Statutory Provisions at Issue

As previously stated, Rice brings her claim pursuant to N.D.C.C. § 47-16-39.1, which

provides:

If the operator under an oil and gas lease fails to pay oil or gas

royalties to the mineral owner or the mineral owner’s assignee

within one hundred fifty days after oil or gas produced under the

lease is marketed . . . or if the operator fails to pay oil or gas

royalties to an unleased mineral interest owner within one hundred

fifty days after oil or gas production is marketed from the unleased

mineral interest owner’s mineral interest, the operator thereafter

shall pay interest on the unpaid royalties, without the

requirement that the mineral owner or the mineral owner’s

assignee request the payment of interest, at the rate of eighteen

percent per annum until paid[.]

N.D.C.C. § 47-16-39.1 (emphasis added).

The general statute of limitations under North Dakota law, N.D.C.C. § 28-01-16(2),

provides that an action upon liability created by statute, other than a penalty or forfeiture, must

be “commenced within six years after the claim for relief has accrued.” N.D.C.C. § 28-01-17(2)

provides that “an action upon a statute for penalty or forfeiture, if the action is given to the party

aggrieved, or to such party and the state, unless the statute imposing it prescribes a different

limitation,” must be brought “within three years after the claim . . . has accrued.” The issue of

which statute applies turns on whether the interest under N.D.C.C. § 47-16-39.1 constitutes a

penalty under North Dakota law. The parties agree that North Dakota courts have not addressed

this issue.

C. Distinguishing Between Penal and Remedial Statutes

“Delineation [between penal and remedial statutes] usually turns on the nature of the evil

to be remedied, with penal statutes redressing wrongs to the public and remedial statutes

remedying wrongs to individuals.” 3 Sutherland Statutory Construction § 60:3 (8th ed.);

Huntington v. Attrill, 146 U.S. 657, 668 (1892). However, the practical means of determining

this distinction has not been clearly established. Some courts give significant weight to whether

the alleged penalty is paid to the government or an individual who suffered wrong. See, e.g.,

Stone v. Travelers Corp., 58 F.3d 434, 438-39 (9th Cir. 1995) (holding the longer available

statute of limitations applied because the $100 per day recovery authorized by ERISA for failure

to disclose his records within thirty days was not a penalty since the “wrong seeme[ed]

substantially more private than public,” the private party bringing suit received the benefit of the

payment, and damages were difficult to ascertain). Others have held that the

“penal/compensatory distinction turns on whether statutory damages are tied to actual injury,

rather than who was harmed by the wrong.” See, e.g., Rucker v. Benesight, Inc., 2008 WL

11349789, at *5 (D. Idaho Sept. 22, 2008) (applying the reasoning of Prudential Home

Mortgage Co. v. Superior Court, 66 Cal. App. 4th 1236, 1245 (1998)); but see Porter v.

Household Finance Corp. of Columbus, 385 F. Supp. 336, 341 n.6 (S.D. Ohio 1974) (noting “a

right of action is not penal because it establishes a minimum recovery which does not reflect

actual damages” (citing Brady v. Daly, 175 U.S. 148, 154-57 (1899)).

Rice cites Amerada Hess Corp. v. Conrad, 410 N.W.2d 124 (N.D. 1987) for the

proposition that the North Dakota Supreme Court has given the term “interest” compensatory,

rather than penal, meaning. In Amerada Hess, the North Dakota Supreme Court held “that

interest on unpaid taxes after their due date does not constitute a penalty or forfeiture within the

meaning of the [tax] statute but is “intended to compensate the Government for the delay in

payment of the tax.” Id. at 137. Though Amerada Hess may, at first glance, appear helpful in

resolving the issue at bar, it is not. The holding in Amerada Hess is sui generis, in a class of its

own, because the North Dakota Supreme Court applied a principle specific to tax law:

Because a penalty which is created by statute for a failure to pay a

tax assessment becomes a part of the tax itself, courts construing

statutes of limitation similar to [North Dakota’s two-year statute of

limitations upon a statute for forfeiture or penalty to the state] have

concluded that the penalty arising upon delinquency of a statutory

liability to pay a tax does not constitute a penalty or forfeiture

within the meaning of the statute of limitations.

Id. Amerada Hess is therefore of no assistance here.

Almost a century ago, the United States Supreme Court described the difference between

penalty and interest in the bankruptcy context: “[a] penalty is a means of punishment; interest a

means of compensation.” United States v. Childs, 266 U.S. 304, 307 (1924). Elsewhere, the

Supreme Court explained the test for whether a statute is penal as “in the strict and primary

sense, . . . whether the wrong sought to be redressed is a wrong to the public or a wrong to the

individual.” Huntington, 146 U.S. at 668; see 82 C.J.S. Statutes § 529 (“The distinction between

a remedial and penal statute lies in the fact that the latter is designed solely to punish, while the

former is designed simply to enforce restitution to those specifically damaged.”); see also

Bracken v. Harris & Zide, L.L.P., 219 F.R.D. 481, 484 (N.D. Cal. 2004) (“If the purpose of the

statute is to redress an individual wrong it is more likely to have a remedial purpose” (citing

Riggs v. Gov’t Emps. Fin. Corp., 623 F.2d 68, 72 (9th Cir. 1980)). And the following state

supreme courts have looked to the statute’s primary purpose when distinguishing between penal

and remedial statutes. The Supreme Court of Florida stated that “[i]f the redress is remedial to

an individual and the public is indirectly affected thereby, the statute is not regarded as solely and

strictly penal in its nature.” Atl. Coast Line R. Co. v. State, 74 So. 595, 627-28 (Fla. 1917)

(quoting State v. Atl. Coast Line R. Co., 47 So. 969, 980 (Fla. 1908). The Supreme Court of Ohio

concluded that “[b]ecause ‘ “most modern social welfare legislation has a dual purpose of

remedying harm to the individual and deterring socially inimical business practices[,]” ’ what is

important in classifying a statute as remedial or penal is its primary purpose.” Rice v.

CertainTeed Corp., 704 N.E.2d 1217, 1220 (Ohio 1999). “[A] law is not penal merely because it

imposes an extraordinary liability on a wrongdoer in favor of a person wronged . . . [beyond]

damages suffered by him.” Id.

D. Interpretation of N.D.C.C. § 47-16-39.1

Burlington argues that N.D.C.C. § 47-16-39.1’s interest provision should be categorized

as a penalty because (1) decisions from the District of North Dakota repeatedly refer to that

provision as “penalty interest” and (2) the 18% statutory rate is a penalty when compared to

current North Dakota regulatory practice.

1. The Statutory Text

The court first looks to the text of the statute. As Rice notes, the statute does not use the

term penalty. And any notion that the legislature intended the 18% interest provision as a

penalty by implication is undercut by the fact that the legislature regularly uses “penalty” and

“interest” as distinct terms within the same statute. See [Doc. 35-1], wherein Rice lists 242

instances in which the North Dakota legislature used the term “penalty” or “penalties” in the

same sentence as the term “interest.”

Placing an emphasis on the association between the term “interest” and its compensatory

purpose is also consistent with the definition of “interest” in Black’s Legal Dictionary. See

Interest, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The compensation fixed by agreement or

allowed by law for the use or detention of money, or for the loss of money by one who is entitled

to its use.”); see also Interest, BLACK’S LAW DICTIONARY (5th ed. 1979) (“Interest is the

compensation allowed by law or fixed by the parties for the use or forbearance or detention of

money.”). In addition, the statutory text instructs that the interest be paid directly to the mineral

owner, thereby compensating the mineral owner for the late payment of the royalties.

Finally, the neighboring statutory provision—§ 47-16-39.2—shows that the North Dakota

legislature knows how to draft a statute imposing a penalty when it so chooses. The statute

imposes a civil penalty of $2,000.00 for every day a person obligated to pay royalties to the state

board of university and school lands fails to send the royalty payment and production records to

the board. The North Dakota legislature said nothing of penalties in § 47-16-39.1 but did so

expressly in the very next statutory section. Had the legislature intended the 18% interest to be

construed as a penalty, the neighboring statute evidences that the legislature was entirely capable

of doing so.

The court finds and concludes that the text of § 47-16-39.1 is clearly and unambiguously

remedial rather than penal. And to the extent a question remains about the appropriate statute of

limitations, the longer six-year statute of N.D.C.C. § 28-01-16(2) applies. Kittleson, 876 N.W.2d

at 448.

2. Caselaw

i. North Dakota Caselaw

Since the court has concluded that § 47-16-39.1 is unambiguous, this analysis could end

here. However, for the reasons stated below, the court concludes the case law cited by the parties

supports the same conclusion.

In Kittleson, supra, the North Dakota Supreme Court considered whether a four-year, six-

year, or ten-year statute of limitations applied to an action for underpayment of royalties and held

that the ten-year limitation period applies. 876 N.W.2d at 450. In reaching that decision, the

court applied the rule of construction relating to statutes of limitations that the longer statute of

limitations generally applies if there is a question about applicability. Id. at 448. The instant

case is distinguishable because Rice’s claim is for interest owed on untimely royalty payments,

not for underpayment of royalties. However, as in Kittleson, if there is a question about which

statute of limitations applies, the longer limitation period will be applied.

Burlington cites five unpublished orders entered by a Magistrate Judge in the U.S.

District Court for the District of North Dakota, Northwestern Division. Three of the orders were

issued in a single case; the other two orders were also issued in another single case. Two of the

five orders relate to motions for attorney’s fees and costs; the other three address motions for

summary judgment. The orders refer to the interest provision in § 47-16-39.1 as “penalty

interest.” None of the orders address the statute of limitations issue raised in this case.

This court concludes that the Magistrate Judge’s use of the term “penalty interest” is not

instructive. In both cases, the Magistrate Judge recognized that the purpose of § 47-16-39.1 is

remedial. See, e.g., Greggory G. v. Burlington Resources Oil & Gas Co., LP, 2013 WL 6150783,

at *7-9 (D.N.D. Nov. 22, 2013); Tank v. Burlington Res. Oil & Gas Co., LP, 2013 WL 3766526,

at *12 (D.N.D. July 16, 2013);1 Renbarger v. Zavanna, LLC, 2014 WL 791853, at *2 (D.N.D.

Feb. 25, 2014). Thus, the use of the term “penalty interest” in orders pertaining to other issues

carries no weight in deciding the issue before this court. Indeed, the Magistrate Judge’s

recognition of the statute’s remedial purpose is more significant to the analysis here.

ii. Out-of-State Caselaw

Wyoming’s statute governing interest on late-paid oil-and-gas proceeds is WYO. STAT. §

30-5-303(a). It provides for 18% interest and was enacted only a year after the 18% interest

provision was added to North Dakota’s statute. Just as in North Dakota, the overall purpose of

the Wyoming statute has most often been construed as remedial; however, the interest provision

has been discussed generally as a “penalty.” Nucor, Inc. v. Petrohawk Energy Corp., 2015 WL

7009114, at *5 (D. Wyo. Nov. 12, 2015). Though the Wyoming federal court recognized that

Wyoming’s Supreme Court had called the 18% interest provision a penalty multiple times, it

noted the Supreme Court had never attempted to discern which statute of limitations applied. Id.

at *6. The court construed the statute prescribing a relatively short period for suit narrowly and

applied the longer statute of limitations. Id.; see also Town of Moorcroft v. Enron Oil Trading &

Transp. Co., 986 F.2d 1429, 1993 WL 34700, at *2 (10th Cir. Feb. 8, 1993) (unpublished) (18%

interest in Wyoming statute was not a penalty for statute of limitations purposes, though courts

have referred to the interest as a “penalty,” because overall purpose of the act was to “stop

producers from using owners’ money for their own benefit,” “the eighteen percent interest was

compensation for that use,” and another section of the act specifically addressed penalties).

1 Greggory G. and Tommy S. Tank were plaintiffs in the same action. See Greggory G., 2013 WL 6150783; Tank,

2013 WL 3766526.

Burlington points to Alabama Department of Conservation & Natural Resources v. Exxon

Mobil Corp., 11 So.3d 194, 200-01 (Ala. 2008), in which the Alabama Supreme Court addressed

Alabama’s statute imposing interest for non-payment of royalties. However, the issue there was

whether the statutory interest rate for failure to pay royalties should be applied as the

postjudgment interest rate in a final judgment in favor of the state. The decision does not appear

to be applicable to the issue at bar.

3. Legislative History

Both parties discuss the statute’s legislative history in support of their respective

positions. It is a longstanding principle that absent ambiguity a court cannot rely on legislative

history to interpret a statute. United States v. Husted, 545 F.3d 1240, 1247 (10th Cir. 2008). As

set forth above, the court finds that the text of § 47-16-39.1 to be clear and unambiguous,

therefore a review of legislative history is unnecessary. In addition, this court is distrustful of

legislative history “as the equivalent of entering a crowded cocktail party and looking over the

heads of the guests for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J.,

concurring). However, insofar as the parties have briefed the legislative history, and mindful of

the possibility that another jurist might find an ambiguity in the statute, the court will consider

the legislative history of the statute as set forth by the United States District Court for the District

of North Dakota in Tank, 2013 WL 3766526, and in the public records of which this court may

take judicial notice.

Section 47–16–39.1 was originally enacted in 1961 and authorized a court to cancel a

lease for untimely payment of royalties. Tank, 2013 WL 3766526, at *8. “The legislative history

for the 1961 law suggests it was enacted because mineral owners were complaining about what

they perceived to be unreasonable delays in the payments of royalty and that their only apparent

remedy was to sue to recover the amount of royalty due.” Id.

In 1981, the North Dakota legislature amended § 47–16–39.1 to provide that, if an

operator under an oil and gas lease failed to pay royalties due the mineral owner or its assignee

within 150 days of when oil and gas was first produced and marketed, the unpaid royalties would

thereafter bear interest at the rate of 18%. Tank, 2013 WL 3766526, at *8. The reasons for

requiring interest to be paid after 150 days were twofold: (1) “mineral owners were complaining

that well operators were continuing to delay payments of royalty without good excuse so that

they could use the suspense money ‘interest free’ ” and (2) the remedy of lease cancellation

enacted in 1961 “proved to be ineffective because the courts were reluctant to do so.” Id.

Section 47–16–39.1 has been amended five more times since—in 1995, 2007, 2009, 2011, and

2021. Id. at *9-12; N.D.C.C. § 47–16–39.1 (2021). Though the substance of these amendments

had no impact on the applicable statute of limitations for a claim pursuant to § 47–16–39.1, the

legislative history for the 2009 amendment offers useful insight. 2

Both parties include remarks made by Representative David Drovdal in a 2009 hearing

before the House Natural Resources Committee. Drovdal referred to the 18% as a “penalty” but

then stated that “the purpose was not to collect penalty but to give payment to the royalty owner

in a reasonable time.” H.B. 1071 Legislative History, supra, at 3.

Another representative, Shirley Meyer, gave her opinion on the provision’s purpose and

its evolution:

What brought this [statute] about in the eighties were operators

delaying payment to royalty owners up to three years with the only

remedy being District Court. The beneficiary of the use of this

money should be the royalty owner because upon the sale of the

2 In response to Burlington’s motion, Rice includes as Exhibit 3 a 59-page exhibit pertaining to the legislative

history of § 47–16–39.1. The exhibit is a copy of the publicly available Legislative History for the 2009 amendment

to § 47–16–39.1. See H.B. 1071, 61st Assembly – 2009: House Bill and Resolution Histories, N.D. LEGIS. BRANCH,

available at https://www.legis.nd.gov/files/resource/61-2009/library/hb1071.pdf [hereinafter H.B. 1071 Legislative

History]. Accordingly, the court takes judicial notice of these materials as documents within the public record and

may consider them in connection with defendant’s Rule 12(c) motion.

oil, those monies are his. While oil companies may see this as

punitive, remember this does give the operator five months of

using the money interest free.

Id. at 25 (emphasis added); see Tank, 2013 WL 3766526, at *11.

Both parties argue the legislative history supports their view. Although some legislators

refer to the 18% as a penalty, their statements characterize the purpose of the provision as

remedial—as the North Dakota Magistrate Judge did in his orders. In light of the statute’s initial

purpose and the legislature’s reasons for amending it in 1981 to benefit mineral owners with the

timely payment of royalties, the legislative history lends support to the position that the statute’s

purpose is remedial.3

V. Conclusion

For the reasons stated above, the court finds and concludes that the North Dakota

Supreme Court would likely find the 18% interest amount in N.D.C.C. § 47–16–39.1 to be

remedial rather than penal. The six-year statute of limitations contained in N.D.C.C. § 28-01-

16(2) applies.

Burlington concedes for purposes of the motion that Rice’s cause of action accrued on

May 31, 2015. Rice filed this case on August 25, 2020. Thus, Rice’s claim was timely filed

within six years of its accrual.

3 Burlington contends the 18% interest is clearly a penalty “when compared to North Dakota regulatory practice.”

[Doc. 31, p. 5]. It points to the state’s published usury rate, which changes monthly, and provides the maximum rate

of interest which may be charged for loans of money by nonregulated lenders. [Id.]. Burlington argues that because

18% is two and a half times the current usury rate, the statutory rate is a penalty. But the usury limitation in 1981,

when the 18% interest amount was added by the North Dakota legislature, was 18%, the same rate as the late-

payment statute. N.D. Att’y Gen. Op. 81-79 (July 31, 1981). Burlington cites no authority to support the

proposition that whether a statutory interest rate is remedial or penal may switch back and forth over time depending

on market conditions.

WHEREFORE, defendant’s Motion for Judgment on the Pleadings [Doc. 31] is denied.

IT IS SO ORDERED this 21st day of January, 2022.