Petition for Writ of Certiorari — Paul Sorum, et al., Petitioners v. North Dakota, et al.

Supreme Court briefDec 18, 2020

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No.

In the

Supreme Court

of the United States

______________

Paul Sorum, Marvin Nelson, Michael Coachman,

Charles Tuttle and Lisa Marie Omlid, each on behalf

of themselves and all other similarly situated tax

payers of the State of North Dakota,

Petitioners,

vs.

The State of North Dakota, The Board of University

and School Lands of the State of North Dakota, The

North Dakota Industrial Commission, The Hon.

Douglas Burgum, in his official capacity as Governor

of the State of North Dakota, and the Hon. Wayne

Stenehjem, in his official capacity as Attorney

General of North Dakota,

Respondents.

______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NORTH DAKOTA

______________

PETITION FOR A WRIT OF CERTIORARI

______________

Terrance W. Moore

Counsel of Record

J. Robert Keena

Joseph M. Barnett

HELLMUTH & JOHNSON, PLLC

8050 West 78th Street

Edina, MN 55439

Tel: (952) 941-4005

Fax: (952) 941-2337

tmoore@hjlawfirm.com

jkeena@hjlawfirm.com

jbarnett@hjlawfirm.com

Counsel for Petitioners

2020 ! Bachman Legal Printing ! (612) 339-9518 ! 1-800-715-3582 ! Fax (612) 337-8053

Questions Presented

In 2017, the North Dakota legislature directed

transfer to private interests of 96,000 acres in the

sovereign bed of the Missouri River and payment of

$187 million. The bed was submerged by the Federal

Garrison Dam Project. Petitioners, taxpayers of the

State, challenged the statute as violating the Public

Trust Doctrine and the State Constitution’s Anti-Gift

Clause and Flowing Waters Clause.

Employing

principles of “conflict preemption,” the North Dakota

Supreme Court held the Federal Flood Control Act of

1944 (33 U.S.C. 701-1) and Submerged Lands Act (43

U.S.C. § 1301) preempt all state law determining

ownership of submerged lands. However, “After

statehood, the extent of ownership of lands under

navigable waters is decided solely as a matter of State

law.” Oregon ex rel. State Land Bd. v. Corvallis Sand

& Gravel Co., 429 U.S. 363, 378, 97 S. Ct. 582, 591, 50

L. Ed. 2d 550 (1977). The question presented is: Does

Federal law preempt State law for the purpose of

determining ownership of the bed of navigable waters

within a State?

The Court held that the broad grant made by

the Submerged Lands Act excluded all land acquired

by eminent domain, whereas the plain language of the

statute excludes only land acquired in the

Government’s “proprietary capacity.” (43 U.S.C.

§ 1313(b)). The question presented is: After it

is permanently submerged, is land acquired by the

Federal Government as part of Federal dam projects

included in the broad grant to the states made by the

Submerged Land Act?

RELATED PROCEEDINGS

Cass County North Dakota District Court – East

Central Division:

Paul Sorum, et al v. The State of North Dakota,

et al, No. 09-2018-CV-00089 (July 13, 2019)

Supreme Court of the State of North Dakota:

Paul Sorum, et al v. The State of North Dakota,

et al, No. 20190203 (July 30, 2020), Petition for

rehearing denied Sept. 21, 2020.

Corporate Disclosure Statement

Not applicable to these Plaintiffs, who are not

corporations.

iii

TABLE OF CONTENTS

OPINIONS BELOW ........................................................ 1

JURISDICTION ............................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED. ... 1

STATEMENT OF THE CASE ....................................... 3

WHY THE COURT SHOULD HEAR THIS CASE .. 6

The Questions Presented Constitute a Superior

Vehicle for this Court to Provide Guidance to

the Lower Courts on the Application of the

Submerged Land Act to Lands Submerged by

Federal Dam Projects. ....................................... 6

II. The Questions Presented are of Exceptional

Importance to the National Economy and

Federal Policy. ................................................... 7

III. This Case is a Superior Vehicle for Addressing

the Question Presented ..................................... 7

IV. The North Dakota Supreme Court’s Decision is

Incorrect. ............................................................ 9

The Court Erred in Applying Federal Law to

Determine the Ownership of the Riverbed. . 10

1. After Statehood, State Law Determines the

Extent to Which Ownership of Riverbed Passed to

the State by the Equal Footing Doctrine. ........... 10

Legal Standard of Conflict Preemption ....... 11

3. Under State Law, the State Owns the Land

Submerged by the Garrison Dam. ...................... 12

4. The Flood Control Act of 1944 and the

Submerged Land Act Do Not Preempt State Law

in Determining Ownership of Navigable Waters

Within the State. .................................................. 14

i. There is no conflict between the Flood Control

Act of 1944 and the North Dakota body of law

establishing that the State owns the 96,000

mineral acres at issue........................................ 15

a. It is not impossible to comply with both

the Flood Control Act of 1944 and the North

Dakota law....................................................... 15

b. The State law does not frustrate the

purpose of the Flood Control Act of 1944...... 16

ii. There is no confict between the Submerged

Land Act and the North Dakota body of law

establishing that the State owns the 96,000

mineral acres at issue........................................ 16

a. It is not impossible to comply with both the

Submerged Lands Act and the North Dakota

law. ................................................................... 16

b. The State law does not frustrate the

purpose of the Submerged Land Act. ............ 18

The North Dakota Supreme Court Erred in

Applying the § 1313 Exception of the

Submerged Lands Act Because the Land Was

Not Acquired in a Proprietary Capacity. ..... 19

1. The 96,000 Acres Were Not Acquired in the

Government’s Proprietary Capacity........... 20

Once State Ownership is Established, the

Invalidity of the Act is Undisputed. ............. 22

1. The State Assets Given Away by The Act. 22

D. The Act Violates the Anti-Gift Clause of the

North Dakota State Constitution. ............... 24

E. The Act Violates The Public Trust Doctrine in

North Dakota. ............................................... 25

1. The Public Trust Doctrine ......................... 25

2. The Assets Given Away are all Sovereign

Lands of the State of North Dakota. ......... 27

V. The Act Violates the Flowing Waters Clause of

the North Dakota State Constitution. ............ 28

CONCLUSION ................................................................ 28

APPENDIX

Opinion of the Supreme Court of North Dakota........ A-1

Order of the Supreme Court of North Dakota on

Petition for Rehearing ................................................ A-37

Order from the Cass County District Court on Cross

Motions for Summary Judgment .............................. A-39

Order from the Cass County District Court for

Preliminary Injunction............................................... A-73

Judgment of the Supreme Court of North Dakota .. A-76

N.D.C.C. Chapter 61-33 ............................................. A-78

N.D.C.C. Chapter 61-33.1 .......................................... A-87

43 U.S.C.A. § 1311 ...................................................... A-97

43 U.S.C.A. § 1313 .................................................... A-101

43 U.S.C.A. § 1314 .................................................... A-103

43 U.S.C.A. § 701-1 ................................................... A-104

vii

TABLE OF AUTHORITIES

Page(s)

Cases

California v. ARC America Corp.,

490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989)

................................................................................. 11

Eckroth v. Borge,

69 N.D. 1, 283 N.W. 521 (1939) .............................. 17

English v. General Elec. Co.,

496 U.S. 72, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990)

................................................................................. 11

Geier v. Am. Honda Motor Co.,

529 U.S. 861, 120 S. Ct. 1913, 146 L. Ed. 2d 914

(2000) ................................................................. 15, 16

Gripentrog v. City of Wahpeton,

126 N.W.2d 230 (N.D. 1964)................................... 24

Herr v. Rudolf,

25 N.W.2d 916 (N.D. 1947)..................................... 25

Hogue v. Bourgois,

71 N.W.2d 47 (N.D. 1955)....................................... 13

Illinois Cent. R. Co. v. Illinois,

146 U.S. 387 (1892) ..................................... 25, 26, 27

In re Ownership of Bed of Devils Lake,

423 N.W.2d 141 (N.D. 1988)....................... 12, 13, 14

J.P. Furlong Enter., Inc. v. Sun Explor. & Prod. Co.,

423 N.W.2d 130 (N.D. 1988)....................... 12, 13, 27

viii

Jennings v. Shipp,

115 N.W.2d 12 (N.D. 1962)..................................... 13

John Pollard et al., Lessee, v. John Hagan et al.,

44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845) ... 3, 10

Murphy v. Dep't of Nat.,

Res., 837 F. Supp. 1217 (S.D. Fla. 1993) ............... 21

North Dakota v. U.S. Army Corps of Engineers,

264 F. Supp. 2d 871 (D.N.D. 2003) .......................... 3

Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373, 135 S. Ct. 1591, 191 L. Ed. 2d 511

(2015) ................................................................. 11, 14

Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel Co.,

429 U.S. 363, 97 S. Ct. 582, 50 L. Ed. 2d 550 (1977)

......................................................................... passim

Petters & Co v. Nelson County,

281 N.W. 61 (N.D. 1938) ......................................... 24

PPL Montana, LLC v. State of Montana,

565 U.S. 576 (U.S. 2012) .................................. 26, 27

Reep v. State,

2013 ND 253, 841 N.W.2d 664, 841 N.W.2d . passim

Solberg v. State Treasurer,

78 N.D. 806, 53 N.W.2d 49 (1952).......................... 25

Sorum v. State,,

947 N.W.2d 382 (N.D. 2020)........................... passim

State ex rel. Sprynczynatyk v. Mills,

1999 ND 75, 592 N.W.2d 591 (“Mills II”) ...... passim

State ex rel. Sprynczynatyk v. Mills,

523 N.W.2d 537 (N.D. 1994)........... 13, 23, 24, 27, 28

United Plainsmen Ass'n v. North Dakota State Water

Conservation Commission,

247 N.W.2d 457 (N.D. 1976)............................. 25, 26

United States v. Louisiana,

363 U.S. 1, 80 S.Ct. 961, 4 L.Ed.2d 1025 (1960) ... 17

United States v. Louisiana,

394 U.S. 11, 89 S. Ct. 773, 22 L. Ed. 2d 44 (1969) 16

Statutes

28 U.S.C. § 1257 ........................................................... 1

33 U.S.C. 701-1 .............................................. i, 3, 16, 21

43 U.S.C. § 1301 ............................................................ i

43 U.S.C. § 1311 ...................................... 3, 4, 8, 18, 19

43 U.S.C. § 1313 (a) ...................... 5, 8, 9, 18, 19, 20, 22

43 U.S.C. § 1313 (b) ....................................................... i

43 U.S.C. § 1314 ............................................... 6, 20, 22

43 U.S.C.A. § 1311 ........................................................ 4

N.D.C.C. 61-33 .............................................. 4, 5, 12, 27

N.D.C.C. 61-33.1 ........................................................... 3

N.D.C.C. 61-33-01 .................................... 13, 24, 27, 28

N.D.C.C. 61-33-05 ...................................................... 17

N.D.C.C. 61-33-03 ................................................ 13, 27

North Dakota State Const., Art. X, § 18 ........... passim

North Dakota State Const., Art. XI, § 3 ............ passim

U.S. Const., Art. IV, § 3................................................ 2

U.S. Const., Art VI, Cl. 2.............................................. 1

Other Authorities

1953 U.S.C.C.A.N. 1385 ............................................. 21

H.R.Rep. No. 215, 83d Cong., 1st Sess. (1953)........... 21

Marvin Nelson, Michael Coachman, Charles

Tuttle and Lisa Marie Omlid, each on behalf of

themselves and all other similarly situated tax payers

of the State of North Dakota respectfully petition this

Court for a Writ of Certiorari to review the Judgement

of the North Dakota Supreme Court.

OPINIONS BELOW

The decision by the North Dakota Supreme

Court dismissing Taxpayers’ claims was reported at

Sorum v. State, 947 N.W.2d 382 (N.D. 2020). The

North Dakota Supreme Court denied Taxpayers’

Petition for Rehearing on September 21, 2020. That

Order is attached at Appendix pages A-37-A38.

JURISDICTION

Taxpayers’ Petition for Rehearing to the North

Dakota Supreme Court was denied on September 21,

2020. Taxpayers invoke this Court’s jurisdiction

under 28 U.S.C. § 1257, having timely filed this

Petition for a Writ of Certiorari within 90 days of the

denial of its Petition for Rehearing.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., Art VI, Cl. 2

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

U.S. Const., Art. IV, § 3

New States may be admitted by the Congress

into this Union; but no new State shall be formed or

erected within the Jurisdiction of any other State; nor

any State be formed by the Junction of two or more

States, or Parts of States, without the Consent of the

Legislatures of the States concerned as well as of the

Congress.

The Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting the

Territory or other Property belonging to the United

States; and nothing in this Constitution shall be so

construed as to Prejudice any Claims of the United

States, or of any particular State.

North Dakota State Const., Art. X, § 18

The state, any county or city may make internal

improvements and may engage in any industry,

enterprise or business, not prohibited by article XX of

the constitution, but neither the state nor any political

subdivision thereof shall otherwise loan or give its

credit or make donations to or in aid of any individual,

association or corporation except for reasonable

support of the poor, not subscribe to or become the

owner of capital stock in any association or

corporation.

North Dakota State Const., Art. XI, § 3

All flowing streams and natural watercourses

shall forever remain the property of the state for

mining, irrigation and manufacturing purposes.

STATEMENT OF THE CASE

Congress authorized construction of the

Garrison Dam Project on the Missouri River in the

Flood Control Act of 1944. (33 U.S.C. 701-1). The

Garrison Dam was constructed between Fort Berthold

and the Montana border from 1947-1954. See also

North Dakota v. U.S. Army Corps of Engineers, 264 F.

Supp. 2d 871, 874-75 (D.N.D. 2003). The Garrison

Dam Project added 96,000 acres to the Missouri River

bed. N.D.C.C. 61-33.1 (the “Act”) unlawfully grants

these sovereign acres to private interests. (Cass

County, ND, Ct. Doc. 455, Stipulated Facts).

Under the Equal Footing Doctrine, upon North

Dakota’s admission to the Union in 1889, the new

State took title to the lands under navigable waters

within the State. State Land Bd. v. Corvallis Sand &

Gravel Co., 429 U.S. 363 at 370 (1977), supra (citing

John Pollard et al., Lessee, v. John Hagan et al., 44

U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845); Reep v.

State, 2013 ND 253, 841 N.W.2d 664 at ¶ 14, 841

N.W.2d at 671. After statehood, State law determines

the extent of that boundary. Id. Here, State law

establishes that North Dakota owns 96,000 mineral

acres in the expanded bed of the Missouri River, given

away by the Act, in violation of the North Dakota State

Constitution and Public Trust Doctrine. This title is

absolute. Corvallis, supra, 429 U.S. at 374.

The Equal Footing Doctrine was codified by

Congress in the Submerged Lands Act, 43 U.S.C.

§ 1311 (a), which granted “. . . (1) title to and ownership

of the lands beneath navigable waters within the

boundaries of the respective States, and the natural

resources within such lands and waters, and (2) the

right and power to manage, administer, lease, develop,

and use the said lands and natural resources all in

accordance with applicable State law…” (43 U.S.C.A.

§ 1311), to the states, except those acquired by the

Federal Government in its proprietary capacity. Id. §

1313. Thus, the State of North Dakota has absolute

title to beds of its navigable waterways, including the

Missouri River. (ND Supreme Court Doc. 59, January

3, 2005 Attorney General Opinion, at p. 2; Cass

County, ND, Ct. Doc. 455, Stipulated Facts, ¶ 7).

Effective April 21, 2017, the North Dakota State

Legislature passed the Act, transferring away the

State’s interest in the 96,000 mineral acres of the

Missouri River submerged by the Garrison Dam

Project and their proceeds. The Act donates to private

interests (oil producers) nearly $2 billion of the State’s

sovereign lands and funds, without receiving return

consideration. At the time of the Act, the 96,000 acres

consisted of 710 mineral leases (“Leases”) covering

25,000 Leased Mineral Acres owned by the State

(“LMA”) (ND Supreme Ct. Doc. 59, P. App. 137; ND

Supreme Ct. Doc. 44, D. App. 51); and approximately

71,000 Unleased Mineral Acres (“UMA”). These are

sovereign lands. The Act also gave the oil producers

$187 Million in the form of oil lease royalty refunds

from North Dakota’s Strategic Investment and

Initiative Fund (the “SIIF”) and forfeited its claim to

another $18 million escrowed due to royalty disputes.

The case below turned on the ownership of the

bed of the Missouri River and its proceeds. If the State

owns these assets, the Act violates the Public Trust

Doctrine (prohibiting divestiture of sovereign trust

land) and the North Dakota State Constitution,

including the Anti-Gift clause (Art. X., § 18)

(prohibiting gifts of State assets to private interests)

and the Flowing Waters Clause (Art. XI, § 3)

(prohibiting divestiture of lands under navigable

waters).

The North Dakota Supreme Court determined

that the expanded bed of the Missouri River did not

belong to the State. The North Dakota Supreme Court

erroneously held: “[The Flood Control Act of 1944 and

the Submerged Land Act] preempt operation of any

state law that would otherwise vest ownership in the

State, including chapter 61-33 and the Public Trust

Doctrine.” Sorum v. State, 947 N.W.2d. at 397-98.

The Court then applied Federal law and held

that the State did not own any of the assets, and so

“could not give away what it never owned in the first

instance,” upholding the Act. Id. at 398.

Under binding precedent of this Court, the

North Dakota Supreme Court should have applied

State law to determine ownership of navigable waters

after statehood. (e.g. See State Land Bd. v. Corvallis

Sand & Gravel Co., 429 U.S. 363 (1977). Under North

Dakota law, including N.D.C.C. 61-33 and forty years

of unbroken precedent of the North Dakota Supreme

Court, the bed of the Missouri River, the leases, and

the proceeds therefrom are owned by the State of

North Dakota.

Further, the North Dakota Supreme Court

erred in its application of the Submerged Land Act,

finding the broad grant of that statute excluded all

lands acquired by eminent domain. Sorum, 947

N.W.2d at 397. However, the limited exception relied

on by the Court only excludes lands acquired “. . . by

eminent domain [or other means] in a proprietary

capacity.” (43 U.S.C. § 1313). The Submerged Land

Act then distinguishes between the Government’s

paramount capacity (e.g. control of navigation) from

its proprietary capacity (e.g. ownership and

management of mineral rights) (43 U.S.C. § 1314).

The land acquired by the Federal Government as part

of the Garrison Dam Project was not acquired in its

proprietary capacity, so was not excluded from the

grant.

The land acquired under the Flood Control Act

of 1944 had a paramount purpose—a dam project to

control navigation. Congress did not intend to develop

or manage mineral rights. The acquisition was

authorized by Congress in 1944, but oil was not even

discovered until 1951. Sorum, 947 N.W.2d at 387.

Having erroneously determined that the State

did not own the 96,000 acres, the North Dakota

Supreme Court held that the Act was constitutional.

WHY THE COURT SHOULD HEAR THIS CASE

The Questions Presented Constitute a

Superior Vehicle for this Court to Provide

Guidance to the Lower Courts on the

Application of the Submerged Land Act to

Lands Submerged by Federal Dam Projects.

The Act gives away 96,000 mineral acres of

riverbed under navigable waters1 submerged as part

of the Federal Garrison Dam Project. This Court will

be able to clarify, for the first time, whether the

Submerged Lands Act preempts State law in

determining the boundary of State ownership of the

land under navigable waterways.

It is undisputed that the Missouri River is navigable. (Cass

County, ND, Ct. Doc. 455, Stipulated Facts, ¶ 7).

II.

The Questions Presented are of Exceptional

Importance to the National Economy and

Federal Policy.

The core question here is: Does a State own the

mineral rights under navigable waterways submerged

by Federal dams and diversion projects within its

borders? This answer will affect the ownership of

mineral lease royalties worth billions of dollars and

regulation of millions of acres of land submerged by

Federal projects.

This question impacts 96,000 mineral acres

worth about $2 billion in just the section of North

Dakota affected by the Act. One set of national

estimates stated that water development projects in

the United States resulted in 58,000,000 acres of

irrigated land,2 determination of ownership of lands

flooded by these projects affects far more than oil

royalties, extending to fishing rights, dredging rights

and aquaculture.

It also implicates regulatory

authority and overall management of the riverbed.

Modern technology permits access to submerged beds

under navigable waters. States use this access for

mining, farming and tourism. It is critical to clarify

who owns, controls and regulates all lands submerged

by Federal dam projects.

III.

This Case is a Superior Vehicle

Addressing the Question Presented

for

It is difficult to conceive of a better case for

determining the questions presented. The facts are

See, e.g. https://www.usbr.gov/history/HistoryofLargeDams/

LargeFederalDams.pdf (citing Arnold, Evolution of the 1936

Flood Control Act 6-7).

undisputed.

Both questions emit clear results,

depending on how the Court answers them.

The first question—Whether State law or

Federal law should be employed to determine

ownership of lands flooded by a Federal dam project—

is cleanly presented by the facts of this case. State law

clearly establishes State ownership, dictated by a 1989

State law transferring all submerged mineral rights to

the State, followed by 40 years of unbroken North

Dakota Supreme Court precedent. Relying on conflict

preemption, the Court below held that the Federal law

preempted State law. As a question of law, either

preemption was proper or not. This case presents this

question clearly.

The second question, if Federal law is to be

applied, is whether lands acquired by eminent domain

for a dam project were granted to the states by the

Submerged Land Act. This question is squarely posed

by the facts of this case. The Act is not ambiguous. It

directs the giveaway of mineral rights and their

proceeds in the land flooded by the Garrison Dam,

keeping for the State the river as it existed before

closure of the dam. The core undisputed facts are that

the Federal Government acquired the land by

purchase or eminent domain as part of the Garrison

Dam Project. Sorum, 947 N.W.2d at 397. The

expanded river bed was undeniably granted to the

State in 43 U.S.C. § 1311, unless it is part of the

“proprietary capacity” exception in 43 U.S.C. § 1313.

Is land acquired by the Federal Government as part of

a Federal dam project part of the Submerged Land Act

grant? Again, this question of law is clearly presented

by the facts of this case.

IV.

The North Dakota Supreme Court’s Decision

is Incorrect.

The North Dakota Supreme Court decision

below is the result of two material errors. First, the

Court erroneously held that the Flood Control Act of

1944 and the Submerged Land Act preempt State law

in determining ownership of navigable waters within

the State. The Court should have applied State law,

not Federal law, in determining the ownership of the

land submerged by the Garrison Dam. See State Land

Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363

(1977). Under North Dakota State law, the land

submerged by the Garrison Dam is owned by the State.

Second, in applying the Submerged Land Act,

the Court erred by finding that the grant excluded all

land acquired by eminent domain. To the contrary, the

Submerged Land Act grant only excludes “land

acquired by eminent domain [or other means] in a

proprietary capacity.” (43 U.S.C. § 1313). Correct

application of the Submerged Land Act determines

that the exception does not apply and that the lands

submerged by the Garrison Dam Project are owned by

the State.

Determination of ownership determines the fate

of the Act. If the State owns the submerged riverbed

as sovereign land, giving it away to private interests

clearly violates the North Dakota State Constitution

and Public Trust Doctrine.

The Court Erred in Applying Federal Law

to Determine the Ownership of the

Riverbed.

After

Statehood,

State

Law

Determines the Extent to Which

Ownership of Riverbed Passed to the

State by the Equal Footing Doctrine.

The disputed ownership of the riverbed lands

should be decided solely as a matter of State law.

Upon admission to the union, each state receives

absolute title to the beds of navigable waterways

within its boundaries. See Pollard’s Lessee v. Hagan,

44 U.S. 212, 3 How. 212, 11 L.Ed. 565 (1845). “Once

the equal-footing doctrine vests title to the riverbed in

[the State] as of the time of its admission to the Union,

the force of that doctrine was spent; it did not operate

after that date to determine what effect on titles the

movement of the river might have.” Corvallis, 429

U.S. at 374. After the boundary of the equal footing

grant is determined, “The role of the Equal-Footing

Doctrine is ended and the land is subject to the laws of

the State.” Corvallis, 429 U.S. at 376. “A similar result

obtains in the case of riparian lands which did not pass

under that doctrine; state law governs issues relating

to such property, like other real property.” Id. at 377.

“Under Pollard's Lessee, the State's title to

lands underlying navigable waters within its

boundaries is conferred not by Congress, but by the

Constitution itself. The rule laid down in Pollard's

Lessee has been followed in an unbroken line of cases

which make it clear that the title thus acquired by the

State is absolute so far as any federal principle of land

titles is concerned.” Corvallis, 429 U.S. at 376.

The North Dakota Supreme Court erred by

holding that, under “conflict preemption” principles,

State law does not apply. Because there is no conflict

between Federal and State law here, the lower Court’s

decision cannot be permitted to stand.

Legal

Standard

Preemption

Conflict

The Court below misapplied the Supremacy

Clause of the United States Constitution, invoking

“conflict preemption” to hold that [The Flood Control

Act of 1944 and the Submerged Land Act] “preempt

operation of any state law that would otherwise vest

ownership in the state, including chapter 61-33 and

the Public Trust Doctrine. Sorum, 947 N.W.2d at

397.

Conflict preemption exists where “compliance

with both state and federal law is impossible,” or

where “the state law ‘stands as an obstacle to the

accomplishment and execution of the full purposes and

objectives of Congress.’” Oneok, Inc. v. Learjet, Inc.,

575 U.S. 373, 377, 135 S. Ct. 1591, 1595, 191 L. Ed. 2d

511 (2015) (citing California v. ARC America Corp.,

490 U.S. 93, 100, 101, 109 S.Ct. 1661, 104 L.Ed.2d 86

(1989). “Preemption fundamentally is a question of

congressional intent.” English v. General Elec. Co.,

496 U.S. 72, 78, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).

Conflict preemption only applies where

compliance with both the State and Federal laws is

impossible or the State law interferes with the purpose

of the Federal law. Neither is the case here, so conflict

preemption should not have been applied.

Under State Law, the State Owns the

Land Submerged by the Garrison

Dam.

In conducting conflict preemption analysis, it is

necessary to understand the extensive body of North

Dakota law that establishes State ownership of the

96,000 mineral acres. Under North Dakota law, the

State’s mineral interest in the beds of navigable

waters extends to the current Ordinary High Water

Mark (“OHWM”). The Sovereign Lands Management

Act (N.D.C.C. 61-33) and the North Dakota Supreme

Court specifically confirm the State’s ownership to the

current OHWM, even as affected by the Garrison Dam.

See Reep, 2013 ND 253, ¶ 24, 841 N.W.2d 664, 675;

State ex rel. Sprynczynatyk v. Mills, 1999 ND 75, ¶ 1,

592 N.W.2d 591, 592 (“Mills II”); In re Ownership of

Bed of Devils Lake, 423 N.W.2d 141, 145 (N.D. 1988)

(“Devils Lake”); and J.P. Furlong Enter., Inc. v. Sun

Explor. & Prod. Co., 423 N.W.2d 130, 132 (N.D. 1988).

It is undisputed that the State owned the $187 million

appropriated from SIIF, the Leases on 25,000 LMA

(ND Supreme Court Doc. 59, P. App 137; ND Supreme

Court Doc. 44, D. App 51), the 71,000 UMA and the

Disputed Claims (ND Supreme Court Doc. 44, D. App

370) and that these assets are lands under navigable

waters within North Dakota or proceeds therefrom.

In 1989, North Dakota confirmed its ownership

of the beds of navigable waters in the State, passing

the Sovereign Lands Management Act. (N.D.C.C. 6133).

The Sovereign Lands Management Act

transferred to the state the mineral rights in “all

areas, including beds and islands, lying within the

ordinary high water mark” in lands “owned or

controlled by the State” conclusively affirming the

State’s title to the beds of “navigable lakes and

streams” up to the OHWM. (N.D.C.C. § 61-33-01 and

§ 61-33-03). This title includes mineral title. Reep,

2013 ND 253, 841 N.W.2d at 664.

North Dakota Chief Justice VandeWalle

succinctly summarized North Dakota law regarding

State ownership in Mills II, 1999 N.D. 75, ¶ 5, 592

N.W.2d. at 593:

The state owns the beds of all navigable

waters within the state. E.g., J.P.

Furlong Enterprises, Inc. v. Sun

Exploration and Production Co., 423

N.W.2d 130, 132 (N.D. 1988). As

established in Mills I, the state has

rights in the property up to the ordinary

high watermark. The ordinary high

watermark is ambulatory, and is not

determined as of a fixed date. See In re

Ownership of the Bed of Devils Lake, 423

N.W.2d 141, 143-44 (N.D. 1988). Thus,

the state’s ownership of land along the

Missouri River is determined by ‘the bed

of the stream as it may exist from time to

time.’ Hogue v. Bourgois, 71 N.W.2d 47,

52 (N.D. 1955); see also Devils Lake, 423

N.W.2d at 144; Jennings v. Shipp, 115

N.W.2d 12, 13 (N.D. 1962).

In Mills II, the North Dakota Supreme Court

rejected the argument that the OHWM of navigable

water bodies should be “determined by river levels in

their natural, pre-dam state, rather than on the

artificial conditions created by the Missouri River dam

system.” 523 N.W.2d at 593, holding the OHWM “is

ambulatory, and is not determined as of a fixed date,”

and the State owns the bed “as it may exist from time

to time.” Id.3

Under a plain application of State law, the State

owns the 96,000 acres of navigable riverbed

submerged by closing of the Garrison Dam, and its

proceeds. These assets include the $187 million

appropriation from SIIF, the Leases, 25,000 LMA, the

71,000 UMA and the $18 million of disputed claims.

The North Dakota Supreme Court erroneously

held that the Flood Control Act of 1944 and Submerged

Land Act preempted State law, so it ignored the State

law of North Dakota. Had the Court applied State law,

as it should have, it would have found the Act

unconstitutional.

The Flood Control Act of 1944 and

the Submerged Land Act Do Not

Preempt State Law in Determining

Ownership of Navigable Waters

Within the State.

The North Dakota Supreme Court erred in

holding that the Flood Control Act of 1944 and the

Submerged Land Act preempt State law. Conflict

preemption only applies if it is impossible to comply

with both State and Federal law or the State law

frustrates the purpose of the Federal law. Oneok, Inc.,

The same principles apply to navigable lakes, so it is legally

immaterial whether Lake Sakakawea is a part of the Missouri

River or a lake. Devils Lake decided that the current OHWM

defines the boundary of State ownership of a navigable lake; that

the OHWM is not fixed, but ambulatory; and that title to

submerged lands reverts to the State. 423 N.W.2d 141, 145. Just

as with a river, the State’s title to the beds of navigable lakes

fluctuates as the OHWM changes. Id. at 143-44.

575 U.S. at 377. Neither of these conditions exists, so

preemption does not apply.

There is no conflict between the

Flood Control Act of 1944 and the

North

Dakota

body

law

establishing that the State owns the

96,000 mineral acres at issue.

It is not impossible to comply

with both the Flood Control

Act of 1944 and the North

Dakota law.

Conflict preemption turns on the identification

of “actual conflict,” Geier v. Am. Honda Motor Co., 529

U.S. 861, 884, 120 S. Ct. 1913, 1927, 146 L. Ed. 2d 914

(2000) (citations omitted). Here, there is no actual

conflict between the Flood Control Act of 1944. The

North Dakota Supreme Court identified none. The

Flood Control Act authorized the Garrison Dam

Project, including, inter alia, authorizing the Federal

Government to acquire land to be submerged when the

Dam closed. This law was complied with and the

Federal Government acquired the land. North Dakota

law includes the Sovereign Lands Management Act

and 40 years of North Dakota Supreme

Court decisions (Furlong, Mills I, Mills II and Reep,

supra) establishing that the State owns the bed of

navigable waters up to the current OHWM. It is not

impossible for the Federal Government to acquire land

riparian to navigable waters and then transfer it or

lose it later under State law, as the body of water shifts

or expands. State law governs issues related to

riparian property. Corvallis, 429 U.S. at 378. Under

this test, conflict preemption does not apply.

The State law does not

frustrate the purpose of the

Flood Control Act of 1944.

The body of North Dakota law establishing State

ownership does not interfere or frustrate the Flood

Control Act of 1944 in any way. To the

contrary, Congress stated its policy in passing the

Flood Control Act as “. . . it is hereby declared to be the

policy of the Congress to recognize the interests and

rights of the States in determining the development of

the watersheds within their borders and likewise their

interests and rights in water utilization and

control….” (33 U.S.C. § 701-1). The purpose of the

Flood Control Act was to recognize the rights of States

to development of the waters within their

states. Congress’s stated purpose is promoted, not

frustrated, by State ownership of the mineral rights at

issue. Under this test, conflict preemption does not

apply.

ii.

There is no conflict between the

Submerged Land Act and the North

Dakota body of law establishing that

the State owns the 96,000 mineral

acres at issue.

It is not impossible to comply

with both the Submerged Land

Act and the North Dakota law.

Conflict preemption turns on the identification

of “actual conflict,” Geier v. Am. Honda Motor Co.,

supra at 884. There is no actual conflict between the

Submerged Land Act and State law. It is not

impossible to comply with both. The Submerged Land

Act granted to each state all land beneath navigable

water in the state, except for land acquired by the

Federal Government in its proprietary capacity (i.e.

land acquired to use or manage as a private owner

would). This grant is a quitclaim to the States of any

federal interest in the land granted. See United States

v. Louisiana, 394 U.S. 11, 14, 89 S. Ct. 773, 776, 22 L.

Ed. 2d 44, decision supplemented, 394 U.S. 836, 89 S.

Ct. 1614, 23 L. Ed. 2d 22 (1969), decision

supplemented sub nom. United States v. State of La.,

525 U.S. 1, 119 S. Ct. 313, 142 L. Ed. 2d 1 (1998) (citing

United States v. Louisiana, 363 U.S. 1, 80 S.Ct. 961, 4

L.Ed.2d 1025 (1960)).

At its essence, the Submerged Land Act gave to

the states whatever rights it had in the river bed,

except for lands held in a proprietary capacity. The

North Dakota Sovereign Lands Management Act also

recognizes this exception, transferring all mineral

rights under navigable waters to the state, “subject to

existing

contracts,

rights,

easements

and

encumbrances made or recognized by the state.”

(N.D.C.C. 61-33-05). Thus, the two bodies of law are

harmonious and it is possible to comply with

both. Any mineral rights owned by the Federal

Government in a proprietary capacity were not

granted to the State by the Submerged Land Act, and

those rights are excepted from the North Dakota

law. As the North Dakota Supreme Court recognized,

these exceptions would not save the constitutionality

of the Act. “A taxpayer's burden in a facial challenge

under the gift clause is satisfied if the statute requires

some transfers that would be unconstitutional

donations regardless of whether other transfers under

the statute would not constitute unconstitutional

donations.” Sorum, 947 N.W.2d at 391 (citing Eckroth

v. Borge, 69 N.D. 1, 12, 283 N.W. 521, 526 (1939)).

The State Law does not

frustrate the purpose of the

Submerged Land Act.

The body of North Dakota law establishing

State ownership does not interfere with or frustrate

the

purpose

Submerged

Land

Act. Rather, establishing the extent of ownership by

State law is the explicitly stated purpose of the

Submerged Land Act. The Submerged Land Act

declares:

It is determined and declared to be in the

public interest that (1) title to and

ownership of the lands beneath navigable

waters within the boundaries of the

respective States, and the natural

resources within such lands and waters,

and (2) the right and power to manage,

administer, lease, develop, and use the

said lands and natural resources all in

accordance with applicable State law be,

and they are, subject to the provisions

hereof,

recognized,

confirmed,

established, and vested in and assigned to

the respective States or the persons who

were on June 5, 1950, entitled thereto

under the law of the respective States or

the persons who were on June 5, 1950,

entitled thereto under the law of the

respective States in which the land is

located, and the respective grantees,

lessees, or successors in interest thereof.

43 U.S.C.A. § 1311(a) (emphasis added).

By expressing its intent that ownership is to be

determined by State law, Congress was effectively also

expressing its intent that the Submerged Land Act

would not preempt State law in determining

ownership. Determining ownership using State law

does not frustrate, but rather promotes, the stated

purpose of the Submerged Land Act, that State law

shall apply. Under this test, conflict preemption does

not apply.

In sum, the North Dakota Supreme Court erred

by concluding that these Federal laws preempt

operation of any state law that would otherwise vest

ownership in the State, including chapter 61-33 and

the Public Trust Doctrine. This finding is contrary to

this Court’s precedent requiring State law be used to

determine ownership of lands under navigable waters.

Corvallis, supra.

The North Dakota Supreme Court Erred in

Applying the § 1313 Exception of the

Submerged Lands Act Because the Land

Was Not Acquired in a Proprietary

Capacity.

All beds of navigable lakes and streams,

including “the natural resources . . .” were granted to

the State by the Submerged Lands Act (43 U.S.C. §

1311), except “lands acquired by the United States by

eminent domain [or otherwise] in a proprietary

capacity.” (43 U.S.C. § 1313(a)). The North Dakota

Supreme Court misapplied this exception. The 96,000

acres were not acquired in a proprietary capacity so

the exception should not have applied.

The 96,000 Acres Were Not Acquired

in the Government’s Proprietary

Capacity.

The Court erred in finding that the Submerged

Lands Act excepts from its broad grant all land

acquired through eminent domain.

Sorum, 947

N.W.2d at 397. This is the wrong test. The correct test

is whether the mineral rights were acquired in a

“proprietary capacity” as defined in § 1314(a) of the

Submerged Lands Act.

The Submerged Lands Act distinguishes

between those rights which are “paramount” and those

which are “proprietary”:

The United States retains all its

navigational servitude and rights in and

powers of regulation and control of said

lands and navigable waters for the

constitutional purposes of commerce,

navigation,

national

defense,

and

international affairs, all of which shall

be paramount to, but shall not be deemed

include,

proprietary

rights

ownership, or the rights of management,

administration,

leasing,

use,

and

development of the lands and natural

resources

which

are

specifically

recognized, confirmed, established, and

vested in and assigned to the respective

States . . . . 43 U.S.C. § 1314.

In § 1314(a), the Federal Government defined

its “paramount capacity” and its “proprietary”

capacity. “Paramount rights” include “navigational

servitude and rights in and powers of regulation and

control of said lands and navigable waters . . .

.” “Proprietary rights” include “the rights of

management, administration, leasing, use, and

development of the lands and natural resources. . . .”

Id. Because the Federal Government undertook the

Garrison Dam project in its “paramount,” not

“proprietary,” capacity, the § 1313 exception does not

apply.

The key question is whether the Federal

Government undertook the Garrison Dam project to

control navigation and flooding (Paramount

capacity) or to develop the mineral rights at issue

(Proprietary capacity). In passing the Submerged

Lands Act the Federal Government did not intend to

manage the mineral rights which are specifically

“vested in and assigned to the respective states.” Id.

The intent of the Submerged Lands Act was to

foster management more adapted to the prevailing

needs of the local area. See Murphy v. Dep't of Nat.

Res., 837 F. Supp. 1217, 1221 (S.D. Fla. 1993), aff'd, 56

F.3d 1389 (11th Cir. 1995).4

The land was acquired in the State’s

“paramount capacity”—to control navigation and

flooding. The Garrison Dam project was authorized by

The Flood Control Act of 1944, which declares its

purpose to be “In connection with the exercise of

jurisdiction over the rivers of the Nation through the

construction of works of improvement, for navigation

or flood control….” (33 U.S.C.A. § 701-1).

This

Citing Submerged Lands Act, H.R.Rep. No. 215, 83d Cong., 1st

Sess. (1953), reprinted in 1953 U.S.C.C.A.N. 1385, 1436–37

“(indicating that States should control submerged lands because

their interests are “so intimately connected with local activities”;

and stating that, “[a]ny conflict of interest arising from the use of

the submerged lands should be and can best be solved by local

authorities”).” Id.

purpose is the government’s “paramount” capacity, not

its “proprietary” capacity. (See 43 U.S.C. § 1314(a)).

The Federal Government undertook the Garrison Dam

project to control navigation and flooding, not to

develop minerals.

When the Garrison Dam project was authorized

in 1944, there was no technology available to develop

submerged minerals. Further, oil was not even

discovered in the area until 1951. Sorum, 947 N.W.2d

at 387. In acquiring the land for the Garrison Dam

project, the government stopped acquiring mineral

rights when oil was discovered. (ND Supreme Court

Doc. 59, P. App 126, ¶10). The absence of any mineral

development possibility means Congress did not

intend to manage, lease or develop the mineral rights,

and so it was not acquired in a proprietary capacity.

In the Submerged Lands Act, The Federal

Government transferred all submerged minerals to

the States except those acquired in a “proprietary

capacity” § 1313(a). The 96,000 acres were not

acquired in a “proprietary capacity,” so the

§ 1313 exception does not apply and the 96,000 acres

were granted to the State.

Once State Ownership is Established, the

Invalidity of the Act is Undisputed.

The State Assets Given Away by The

Act.

Once State ownership is established, it is clear

that the Act violates the North Dakota Constitution

and Public Trust Doctrine. Assuming ownership, it

cannot be disputed that the Act gives away State

sovereign land in the form of:

a. Leases and Leased Acres (“LMA”):

§§ 04(2)(a) and (b) of the Act mandate forfeiture

of the Leases, LMA and future revenue. The Act

requires the State to forfeit its interest in and

future royalties from 710 existing State-owned

mineral leases and the related 25,000 Stateowned mineral acres. (ND Supreme Court Doc.

59, P. App 137; ND Supreme Court Doc. 44, D.

App 51). The State has owned the Leases for

decades, “with the oldest of these leases having

been issued in 1965.” (ND Supreme Court Doc.

59, P. App 171; P. App 13-14, ¶¶ 4, 7). The Act

forfeits a projected $30 million every two years

in future income from the Leases. (ND Supreme

Court Doc. 44, D. App 51). This transfer

violates the Anti-Gift clause (N.D. Const. Art. X,

§ 18), the Public Trust Doctrine and Flowing

Waters Clause (N.D. Const. Art. XI, § 3).

b. Unleased Mineral Acres (“UMA”):

Section 02 of the Act disclaims the State’s “claim

or title” to the UMA. Of the 96,000 mineral

acres given away, about 71,000 mineral are not

yet leased. This is sovereign land, subject to

exceptions set forth in the Sovereign Lands

Management Act (61-33-01, Subd. 5). This

transfer violates the Anti-Gift clause (N.D.

Const. Art. X, § 18), the Public Trust Doctrine

and Flowing Waters Clause (N.D. Const. Art.

XI, § 3).

c. $187 Million from North Dakota SIIF:

Sec. 04(1)(b) of the Act gives away $187 million

from SIIF. (ND Supreme Court Doc. 59, P. App

130, ¶ 21; 190-91; ND Supreme Court Doc. 44,

D. App 51). These are vested State funds,

collected since 2006. This transfer violates the

Anti-Gift clause (N.D. Const. Art. X, § 18), the

Public Trust Doctrine and Flowing Waters

Clause (N.D. Const. Art. XI, § 3).

d. $18 Million in Escrow for Disputed Claims:

Sec 04(1) of the Act requires forfeiture of the

State’s claims to $18 million escrowed because

of title disputes. (ND Supreme Court Doc. 44,

D. App 52). The State previously asserted

claims for these royalties as owner of each lease

at issue. (ND Supreme Court Doc. 59, P. App

13-14). This transfer violates the Anti-Gift

clause (N.D. Const. Art. X, § 18), the Public

Trust Doctrine and Flowing Waters Clause

(N.D. Const. Art. XI, § 3).

D. The Act Violates the Anti-Gift Clause of

the North Dakota State Constitution.

Article X, § 18 of the Constitution (“The AntiGift clause”) prohibits gifts of State assets, stating

“…[n]either the state nor any political subdivision . . .

shall otherwise loan or give its credit or make

donations to or in aid of any individual, association or

corporation except for reasonable support of the poor.”

(N.D. Const., Art. X, § 18). The Act unconstitutionally

gives away, without return consideration, $187

million, 710 State issued leases on 25,000 State-owned

acres, 71,000 UMA and $18 million in claims made by

the State.

The Anti-Gift clause prohibits the State from

transferring any public assets into private hands

without receiving like value in return. Gripentrog v.

City of Wahpeton, 126 N.W.2d 230, 237-38 (N.D. 1964);

Petters & Co v. Nelson County, 281 N.W. 61, 64-65

(N.D. 1938); Solberg v. State Treasurer, 78 N.D. 806,

814, 53 N.W.2d 49, 53-55 (1952) (State mineral rights);

Herr v. Rudolf, 25 N.W.2d 916, 922 (N.D. 1947) (state

land); N.D.A.G. 2000-F-13 (books); N.D.A.G 2014-L-09

(royalties from trust land).

Further, the Anti-Gift clause specifically

prohibits the transfer of sovereign riverbed and

mineral interests to private parties without

consideration. State ex rel. Sprynczynatyk v. Mills, 523

N.W.2d 537, 539 (N.D. 1994); Solberg, 78 N.D. at 817,

53 N.W.2d at 55; see also Reep v. State, 2013 ND 253,

¶ 24, 841 N.W.2d 664.

Section 02 of the Act gives away all the mineral

rights the State owns within the UMA, disclaiming all

title thereto. Section 04 gives away leases, leased

mineral acres and royalties. The State receives no

return consideration for these mineral rights and

royalties. Therefore, giving away these mineral rights

is an unconstitutional gift.

E. The Act Violates The Public

Doctrine in North Dakota.

Trust

The Public Trust Doctrine

In North Dakota, the Public Trust Doctrine

applies to estop legislation or executive branch agency

actions when: (1) the land subject to the legislation or

action is sovereign trust corpus; and (2) the legislation

or agency action alienates the public’s interest in the

corpus. Cf. United Plainsmen Ass'n v. North Dakota

State Water Conservation Commission, 247 N.W.2d

457 at 460-61 (N.D. 1976) (citing Illinois Cent. R. Co. v.

Illinois, 146 U.S. 387, 453 (1892)).

The Public Trust Doctrine requires that the

State hold its sovereign resources in trust for the

benefit of all people of North Dakota. The State holds

as sovereign all riverbeds up to the current OHWM of

the Missouri River and the proceeds derived from

those lands. This includes the 96,000 mineral acres

and $205 million in related royalties that are given

away by the Act. The Act violates the Public Trust

Doctrine because it separates these sovereign

resources from the Public Trust.

The State “could not totally abdicate its interest

‘in the bed of navigable waters’ to private parties

because it held that interest, by virtue of its

sovereignty, in trust for the public.” Mills I, 523

N.W.2d at 540. The fiduciary duty imposed by the

Public Trust Doctrine is so sweeping that a legislature

may never abdicate its trust over property in which the

whole people are interested, like navigable waters and

soils underneath them. Illinois Cent. R. Co., 146 U.S.

at 453–54; Oregon, 295 U.S. at 14. Courts must

enforce the Public Trust Doctrine to safeguard the

Public Trust corpus from improper dispensation or use

by the legislature and executive branches.

The United States Supreme Court's decision

in Illinois Central is the seminal case discussing the

strict Public Trust interests in submerged lands.

Illinois Cent. R. Co., 146 U.S. at 452. “A grant of all

the lands under the navigable waters of a state has

never been adjudged to be within the legislative power;

and any attempted grant of the kind would be held, if

not absolutely void on its face, as subject to

revocation.” Id. at 453. Illinois Central held that the

State legislature lacked the power to grant submerged

lands under Lake Michigan to a railroad and

invalidated the statute doing so. Id. at 463-64. North

Dakota has followed Illinois Central. See United

Plainsmen, 247 N.W.2d at 461 (quoting Illinois

Central, 146 U.S. at 453); see also PPL Montana, LLC

v. State of Montana, 565 U.S. 576, 603 (U.S. 2012)

(citing Illinois Central, 146 U.S. at 453).

The Assets Given Away are all

Sovereign Lands of the State of

North Dakota.

The UMA and the LMA as the bed of navigable

waters, are sovereign lands of the State. Mills II, 592

N.W.2d at 593-94; N.D.C.C. 61-33. Minerals below the

OHWM of navigable lakes and streams became

sovereign lands of the State by 1989, except where the

State had sanctioned an existing encumbrance at that

time. (N.D.C.C. 61-33-03; -04). This includes the

mineral rights “lying within the ordinary high water

mark of navigable lakes and streams.” (N.D.C.C. § 6133-01). “No evidence other than the provisions of this

chapter is required to establish the fact of transfer of

title to the state of North Dakota.” (N.D.C.C. § 61-3303). The North Dakota Supreme Court has confirmed

the State’s ownership of these minerals on multiple

occasions. See Furlong, 423 N.W.2d at 140; Reep, 2013

ND 253, ¶ 26, 841 N.W.2d at 675; Mills I, 523 N.W.2d

at 543; Mills II, 1999 ND 75, ¶¶ 5, 10, 592 N.W.2d at

593.

When land is submerged under navigable

waters—specifically including land submerged by

Garrison Dam—it becomes the State’s sovereign

property. See Mills II, 592 N.W.2d at 593-94; N.D.C.C.

61-33. No party disputes the 96,000 acres are among

the State’s navigable lakes and streams. It is part of

the Missouri River, a navigable water body. (ND

Supreme Court Doc. 59, P. App 159; ND Supreme

Court Doc. 44, D. App 214, ¶ 13; 219). It is undisputed

that by 1989 the 96,000 acres were “lying within the

ordinary high water mark” and so the related mineral

rights were transferred to the State under the

Sovereign Lands Management Act.

The 96,000 acres and $205 million are part of

the public trust corpus. The Act alienates them from

the public interest. (See pp. 21-22, supra). The Act

thus violates the Public Trust Doctrine.

The Act Violates the Flowing Waters Clause

of the North Dakota State Constitution.

The Act also violates North Dakota’s

constitutional “Flowing Waters Clause,” which

provides: “All flowing streams and natural

watercourses shall forever remain the property of the

State for mining, irrigation and manufacturing

purposes.” N.D. Const., Art. XI, § 3. This provision

protects economic interests of the State in its rivers

and lakes. See Mills I, 523 N.W.2d at 543 (citing N.D.

Const., Art. XI, § 3). In conformity with this clause, the

Legislature has confirmed that sovereign lands

include “those areas, including beds and islands, lying

within the ordinary high water mark of navigable

lakes and streams.” (N.D.C.C. § 61-33-01) (emphasis

added). Sections 04 (2)(a) and (b) of the Act violate the

Flowing Waters Clause by abdicating the State’s

mineral rights in the bed of a state water course—the

Missouri River—thus depriving the State of its

benefits for the purpose of mining.

CONCLUSION

For all the foregoing reasons, the Taxpayers of

the State of North Dakota respectively petition the

Court for a Writ of Certiorari to review the Judgment

of the North Dakota Supreme Court.

Respectfully submitted.

Terrance W. Moore

Counsel of Record

J. Robert Keena

Attorney at Law

Joseph M. Barnett

Attorney at Law

HELLMUTH & JOHNSON, PLLC

8050 West 78th Street

Edina, MN 55439

Tel: (952) 941-4995

Fax: (952) 941-2337

DECEMBER 2020

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.