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Mineral rights court case won't affect Missouri River survey review

A drilling rig is pictured near Lake Sakakawea near New Town, N.D., on Thursday, Sept. 8, 2016. A lawsuit has been filed about who owns the minerals under the lake. Forum News Service file photo

BISMARCK—North Dakota's top oil regulator says a recent court ruling won't affect the public's ability to comment on a Missouri River survey required by a new law that aims to resolve disputes over mineral ownership.

Director of Mineral Resources Lynn Helms said his office has received several inquiries from people confused about the impact of a lawsuit that challenges a state law approved last year.

The law required the North Dakota Industrial Commission to hire a consultant to review the historical channel of the Missouri River as it existed before the construction of Garrison Dam, which created Lake Sakakawea.

A lawsuit against the state challenges the constitutionality of the law, known as Senate Bill 2134.

Helms said he wants to emphasize to the public that the lawsuit has not changed the public's ability to comment on the consultant's report through June 20 or a public hearing set for June 26 in Bismarck.

"We didn't want people to get confused and not get their comments in," Helms said. "We want to hear from everybody."

The lawsuit filed by Rep. Marvin Nelson, D-Rolla, former Republican governor candidate Paul Sorum and others argues the state attempts to "give away" nearly $2 billion in state-owned mineral rights beneath Lake Sakakawea.

East Central Judicial District Judge John Irby heard arguments on May 21 in Fargo related to the plaintiffs' motion for preliminary injunction.

According to a transcript from the hearing, Irby granted a narrow portion of the motion, preventing the state from distributing oil and gas bonus and rent payments and royalties that the state collected or escrowed prior to April 21, 2017, while the case continues.

A written ruling from the judge was not filed in court as of Tuesday.

During the hearing, Irby said he was not convinced the lawsuit against the state of North Dakota would be successful "given the tough sledding you have for a constitutional challenge."

"But what seems to me pretty reasonable is the amount of funds that the state has already collected. They didn't steal it. They had a right to it and they put it in the bank, or various funds, and said this is ours," Irby said. "And to go back to 2006 and give that up seems to me to be pretty violative of the anti-gift clause in the constitution."

Irby denied other portions of the request for a preliminary injunction, which allows the Industrial Commission's review process to move forward. The next hearing in the lawsuit is scheduled for Aug. 27.

The public can view the survey of the ordinary high water mark of the Missouri River by consultant Wenck Associates at www.dmr.nd.gov. Written comments can be emailed to brkadrmas@nd.gov. Comments will be posted to the website after June 20 to allow people to respond during the public hearing.

The commission has received three sets of public comments so far, Helms said.

The Industrial Commission will then review the public input and make a decision about whether to adopt the consultant's survey or modify the findings. Commissioners could take action as early as August, Helms said.

The hearing is set for 9 a.m. June 26 in the Heritage Center Auditorium and is expected to last all day. Audio from the hearing will be streamed online at www.dmr.nd.gov.

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