SHALE Magazine Sept/Oct 2019

Page 46


In the Bakken, a Lawsuit on “Pore Space” Draws Attention By: Bette Grande

been protected and entitled to reasonable compensation for the use of their property in oil and gas development since a law was passed in 1979 for that purpose. Even before oil was discovered in North Dakota in the early 1950s, the severance of mineral rights from the surface rights resulted in split estates to the point that many of the current surface owners do not own the mineral rights under their

Background But first, some history — you have probably heard that whiskey is for drinking, water is for fighting. Well, pore space is water’s little brother, and he’s growing up. It is settled law in North Dakota, and a majority of states, that subsurface pore space is owned by the surface estate owner. And, surface owners in North Dakota have



property. This has caused tension and worsened from time to time as mineral development has ramped up. Further, the mineral estate is dominant to the surface, meaning that it carries certain rights to the use of the surface as reasonably required to access the underground minerals. The importance of pore space has been known for some time, and a statute passed by the North Dakota

it is unlikely that the uncertainties and questions over pore space can be addressed through litigation

About the author: Bette Grande is a Research Fellow for energy and environment issues at The Heartland Institute. She served as a North Dakota state Representative from 1996–2014. Grande was a member of the House Appropriations Committee, Education and Environment Division. She was born and raised in Williston, North Dakota.



he Bakken formation in North Dakota has been a laboratory of sorts as drilling techniques, materials and equipment have been developed and refined to efficiently develop the oil and gas resource. The next “discovery” in the Bakken may be related to property rights and something called “pore space,” subsurface voids or cavities. Specifically, how can pore space be used, and is the owner of the pore space entitled to compensation? Northwest Landowners Association has filed a civil lawsuit against the state of North Dakota, the governor and attorney general, challenging legislation that was passed during the 2019 legislative session and signed by the governor. The Complaint alleges the statute is an unlawful taking of property, and the issues raised both by the statute and the lawsuit will have far-reaching implications.