Judge dismisses landowner lawsuit against state, citing procedural issues

The Bottineau County Courthouse is pictured June 28, 2024. (Jacob Orledge/North Dakota Monitor)

A judge on Tuesday dismissed a landowner group’s lawsuit challenging state laws related to underground carbon dioxide storage, but individual landowners are likely to bring future challenges.

Northeast Judicial District Judge Anthony Swain Benson sided with the state of North Dakota, ruling that claims brought by the Northwest Landowners Association are barred by the statute of limitations.

The landowner group, joined by the North Dakota Farm Bureau and others, argues that the state law approved in 2009 regulating the use of pore space for underground storage is unconstitutional.

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The challenge was filed as North Dakota regulators consider permit applications from Summit Carbon Solutions, which seeks to lease pore space —  the voids or cavities in underground rock formations — to permanently store CO2 captured from ethanol plants. The lawsuit challenged the process, referred to as amalgamation, used by the North Dakota Industrial Commission related to landowners who do not consent to leasing their pore space.

Benson, who heard arguments in the case in June in Bottineau, ruled that it’s too late to bring a blanket challenge of that state statute. However, individual landowners who believe they are harmed by those statutes could bring future claims. Benson’s ruling does not comment on the viability of challenges that could arise in the future.

“It is unfortunate because this ruling only creates greater uncertainty for both industry and landowners,” Northwest Landowners Association Chairman Troy Coons said in a statement. “The issue will still be resolved by the courts, but the burden will be on individual landowners rather than allowing our organization to stand as their representative.”

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Attorney Derrick Braaten, who represented the Northwest Landowners Association, said the group had not decided whether to appeal the decision to the North Dakota Supreme Court.

“Given that there’s no real established law on the issue, and it’s an open issue, there’s a good chance we would appeal,” Braaten said.

Summit Carbon Solutions and other energy companies with CO2 projects in the works intervened in the case in support of North Dakota law.

North Dakota Solicitor General Philip Axt gave members of the North Dakota Industrial Commission a brief summary of the ruling during the board’s Tuesday meeting. Axt told commissioners he anticipated a future challenge but that it was a win for the state “as of now.”

The ruling also dismissed the landowner group’s other claims, including one related to survey access.

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