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North Dakota lawmakers approve 'pore space' bill, but opponents warn it may lead to lawsuits

Listening to a conference committee discuss legislation related to pore space are, front row from left, Brady Pelton and Ron Ness of the North Dakota Petroleum Council, and Troy Coons of the Northwest Landowners Association. Listening in back, from left, are Sen. Dale Patten, R-Watford City, Rep. Denton Zubke, R-Watford City, Reice Haase, policy adviser for Gov. Doug Burgum, and Mike Humann of the Department of Trust Lands. Tom Stromme / Bismarck Tribune

BISMARCK — North Dakota lawmakers have approved a complex energy bill related to “pore space,” but some who opposed the property rights legislation say it will end up in court or referred to voters.

House members voted 66-24 Wednesday, April 17, to approve Senate Bill 2344, which seeks to clear up issues related to pore space, which describes the cavity or void in underground rock formations.

“We think that with this bill, we have the opportunity to protect surface owners as well as the operators,” said Rep. George Keiser, R-Bismarck.

But Rep. Marvin Nelson, D-Rolla, said the bill that was recently amended by a House-Senate conference committee is still an unconstitutional taking of private property rights. Pore space belongs to the surface owner, not the mineral owner.

Nelson urged members to defeat the bill and avoid court cases or a potential referral to voters.

“Let’s just defeat this because this doesn’t solve anything,” Nelson said. “This doesn’t move us forward. We're just going to be tied up in court or in the ballot.”

The Northwest Landowners Association called Wednesday for Gov. Doug Burgum to veto the bill. In a statement, the group said the legislation takes property from landowners and gives it to oil and gas operators to use free of charge.

“This is offensive to the landowners of North Dakota and we ask that Gov. Burgum stands with us and stands up for landowners and private property rights,” Chairman Troy Coons said.

The latest version of the bill removes all references to the temporary storage of natural gas underground, a technology the North Dakota Industrial Commission is researching as an alternative to flaring.

Sen. Jessica Unruh, R-Beulah, the primary sponsor of the bill, said legislators should wait to set policy on temporary natural gas storage until after a pilot study is conducted to test the technology.

Unruh said a House subcommittee met for nearly 15 hours to develop amendments to the bill and the conference committee met several times to further address landowner concerns.

“Clearly, we now have a much better bill because of all the work put into it,” she said on Tuesday as Senate members discussed the bill.

The bill has implications for saltwater disposal wells and enhanced oil recovery operations.

The legislation does not change a landowner’s right to get compensated for surface damages for a saltwater disposal well.

Landowners with saltwater disposal wells within a unitized field would no longer get compensated for the injection of oilfield wastewater under the bill unless they had an existing contract. The bill also prevents landowners from making claims that oilfield wastewater injected into a disposal well on adjacent land is migrating into their pore space.

Assistant Senate Minority Leader Joan Heckaman, D-New Rockford, said she doesn't believe the bill solves uncertainty related to pore space.

“Do we really understand what’s in this bill? Do we really understand what property rights are available for landowners in this bill?” Rockford asked, urging members to vote no.

Members of the Senate voted 34-12 on Tuesday in favor of the bill.

The legislation now goes to Gov. Burgum for his signature. Burgum has previously voiced support for the bill, but it has since been amended. Burgum’s spokesman said the governor would likely not comment on the bill until he takes action.