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FARGO — The state of North Dakota is seeking to intervene in a lawsuit to determine ownership of the bed of the historic Missouri River flowing inside the boundaries of the Fort Berthold Reservation.
At stake in the legal dispute is who has legal rights to oil and gas revenues worth “well over a hundred million dollars” — the state of North Dakota or the Mandan, Hidatsa and Arikara Nation, which occupies Fort Berthold Reservation.
The tribes filed the lawsuit in 2020 in U.S. District Court in Washington, D.C., seeking to establish that they are the rightful owner of the riverbed and the mineral wealth beneath it. The legal move came after the Trump administration, at the urging of the state of North Dakota, reversed decades of administrative decisions and concluded that the state was the owner.
The solicitor for the Department of the Interior in the Biden administration reversed the Trump administration's decision, however, restoring the government’s long-held position that the riverbed and minerals beneath it were held in trust by the U.S. government for the Mandan, Hidatsa and Arikara Nation.
The state of North Dakota filed its motion to intervene in the lawsuit on Friday, April 29.
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“The State has never relinquished its claim to the historical riverbed, which it acquired at statehood in 1889 under the equal footing doctrine, which provides that a state entering the Union retains title to the beds of navigable rivers and lakes within the state, unless Congress has expressly designated otherwise,” the office of Attorney General Drew Wrigley said in a statement.
The claim applies to the historical bed of the Missouri River — the river as it was before construction of the Garrison Dam created Lake Sakakawea in the 1950s — not “the entirety of the bed of Lake Sakakawea,” the statement said.
By the state’s estimate, the area of the land disputed in the lawsuit includes about 255 oil and gas wells, with mineral leases covering about 18,523 acres. Through horizontal drilling, wells on land bordering Lake Sakakawea can extend far beneath the lake.
All of the state leases require a royalty be paid on oil and gas production on the leased acres.
“Because of the title dispute with the Mandan, Hidatsa and Arikara Nation over title to the riverbed, royalty payments to which the Land Board is entitled under the state leases have not been paid pending resolution of the dispute,” the state said in a court filing.
In making its case for intervening in the lawsuit, which would make it a part of the case, the state said its “sovereign interests” were at stake, along with royalties estimated in August 2020 to exceed $116 million.
Early last month, on April 4, the Department of the Interior, a defendant in the tribes’ lawsuit, filed notice in the case that it had recorded title to the tribes for 123 tracts of land at issue in the dispute, action that apparently hadn’t been taken before.
Mark Fox, chairman of Mandan, Hidatsa and Arikara Nation, said the state’s motion to intervene in the lawsuit was “not unexpected."
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“The MHA nation intends to oppose North Dakota’s motion to intervene because they have no legitimate claim to the MHA Nation’s riverbed minerals, which are held in trust by the United States for the MHA Nation’s benefit,” he said.
In a separate lawsuit, filed with the U.S. Court of Claims, the tribes are seeking to force the Department of the Interior to make an accounting of the revenues the tribes are entitled to from the oil and gas beneath the riverbed — and to pay money the tribes are owed.
