OIL AND GAS PRODUCTION DAMAGE COMPENSATION CHAPTER 38-11.1 38-11.1-01. Legislative findings

The legislative assembly finds the following: 1

It is incumbent on the state to protect the public welfare of North Dakota which is largely dependent on agriculture and to protect the economic well-being of individuals engaged in agricultural production, while at the same time preserving and facilitating exploration through the utilization of subsurface pore space in accordance with an approved unitization or similar agreement, an oil and gas lease, or as otherwise permitted by law

Exploration for and development of oil and gas reserves in this state interferes with the use, agricultural or otherwise, of the surface of certain land

3. Owners of the surface estate and other persons should be justly compensated for injury to their persons or property and interference with the use of their property occasioned by oil and gas development

This chapter may not be construed to alter, amend, repeal, or modify the law concerning title to pore space under section 47-31-03

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38-11.1-02. Purpose and interpretation

It is the purpose of this chapter to provide the maximum amount of constitutionally permissible protection to surface owners and other persons from the undesirable effects of development of minerals. This chapter is to be interpreted in light of the legislative intent expressed herein. Sections 38-11.1-04 and 38-11.1-04.1 must be interpreted to benefit surface owners, regardless of whether the mineral estate was separated from the surface estate and regardless of who executed the document which gave the mineral developer the right to conduct drilling operations on the land. Sections 38-11.1-06 through 38-11.1-10 must be interpreted to benefit all persons

38-11.1-03. Definitions

In this chapter, unless the context or subject matter otherwise requires: 1

"Agricultural production" means the production of any growing grass or crop attached to the surface of the land, whether or not the grass or crop is to be sold commercially, and the production of any farm animals, including farmed elk, whether or not the animals are to be sold commercially

"Drilling operations" means the drilling of an oil and gas well and the production and completion operations ensuing from the drilling which require entry upon the surface estate and which were commenced after June 30, 1979, and oil and gas geophysical and seismograph exploration activities commenced after June 30, 1983

"Land" means the solid material of earth, regardless of ingredients, but excludes pore space

"Mineral developer" means the person who acquires the mineral estate or lease for the purpose of extracting or using the minerals for nonagricultural purposes

"Mineral estate" means an estate in or ownership of all or part of the minerals underlying a specified tract of land

"Minerals" means oil and gas

"Pore space" means a cavity or void, naturally or artificially created, in a subsurface sedimentary stratum

"Surface estate" means an estate in or ownership of the surface of a particular tract of land

"Surface owner" means any person who holds record title to the surface estate on which a drilling operation occurs or is conducted

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Page No. 1 38-11.1-03.1. Inspection of well site

Upon request of the surface owner or adjacent landowner, the department of environmental quality shall inspect and monitor the well site on the surface owner's land for the presence of hydrogen sulfide. If the presence of hydrogen sulfide is indicated, the department of environmental quality shall issue appropriate orders under chapter 23.1-06 to protect the health and safety of the surface owner's health, welfare, and property

38-11.1-04. Damage and disruption payments

The mineral developer shall pay the surface owner a sum of money equal to the amount of damages sustained by the surface owner and the surface owner's tenant, if any, for lost land value, lost use of and access to the surface owner's land, and lost value of improvements caused by drilling operations. The amount of damages may be determined by any formula mutually agreeable between the surface owner and the mineral developer. When determining damage and disruption payments, consideration must be given to the period of time during which the loss occurs and the surface owner must be compensated for harm caused by exploration only by a single sum payment. The payments contemplated by this section only cover land directly affected by drilling operations. Payments under this section are intended to compensate the surface owner for damage and disruption; any reservation or assignment of such compensation apart from the surface estate except to a tenant of the surface estate is prohibited. In the absence of an agreement between the surface owner and a tenant as to the division of compensation payable under this section, the tenant is entitled to recover from the surface owner that portion of the compensation attributable to the tenant's share of the damages sustained

38-11.1-04.1. Notice of operations

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Before the initial entry upon the land for activities that do not disturb the surface, including inspections, staking, surveys, measurements, and general evaluation of proposed routes and sites for oil and gas drilling operations, the mineral developer shall provide at least seven days' notice by registered mail or hand delivery to the surface owner unless waived by mutual agreement of both parties. The notice must include: a

The name, address, telephone number, and, if available, the electronic mail address of the mineral developer or the mineral developer's designee; An offer to discuss and agree to consider accommodating any proposed changes to the proposed plan of work and oil and gas operations before commencement of oil and gas operations; and A sketch of the approximate location of the proposed drilling site

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Except for exploration activities governed by chapter 38-08.1, the mineral developer shall give the surface owner written notice by registered mail or hand delivery of the oil and gas drilling operations contemplated at least twenty days before commencement of drilling operations unless mutually waived by agreement of both parties. If the mineral developer plans to commence drilling operations within twenty days of the termination date of the mineral lease, the required notice under this section may be given at any time before commencement of drilling operations. The notice must include: a

Sufficient disclosure of the plan of work and operations to enable the surface owner to evaluate the effect of drilling operations on the surface owner's use of the property; A plat map showing the location of the proposed well; and A form prepared by the director of the oil and gas division advising the surface owner of the surface owner's rights and options under this chapter, including the right to request the department of environmental quality to inspect and monitor the well site for the presence of hydrogen sulfide

The notice required by this section must be given to the surface owner at the address shown by the records of the county treasurer's office at the time the notice is given and b

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is deemed to have been received seven days after mailing by registered mail or immediately upon hand delivery

If a mineral developer fails to give notice as provided in this section, the surface owner may seek appropriate relief in the court of proper jurisdiction and may receive punitive as well as actual damages

38-11.1-05. Notice of drilling operations

Repealed by S.L. 2011, ch. 265, ยง 7

38-11.1-06. Protection of surface and ground water - Other responsibilities of mineral developer

If the domestic, livestock, or irrigation water supply of any person who owns an interest in real property within one-half mile [804.67 meters] of where geophysical or seismograph activities are or have been conducted or within one mile [1.61 kilometers] of an oil or gas well site has been disrupted, or diminished in quality or quantity by the drilling operations and a certified water quality and quantity test has been performed by the person who owns an interest in real property within one year preceding the commencement of drilling operations, the person who owns an interest in real property is entitled to recover the cost of making such repairs, alterations, or construction that will ensure the delivery to the surface owner of that quality and quantity of water available to the surface owner prior to the commencement of drilling operations. Any person who owns an interest in real property who obtains all or a part of that person's water supply for domestic, agricultural, industrial, or other beneficial use from an underground source has a claim for relief against a mineral developer to recover damages for disruption or diminution in quality or quantity of that person's water supply proximately caused from drilling operations conducted by the mineral developer. Prima facie evidence of injury under this section may be established by a showing that the mineral developer's drilling operations penetrated or disrupted an aquifer in such a manner as to cause a diminution in water quality or quantity within the distance limits imposed by this section. An action brought under this section when not otherwise specifically provided by law must be brought within six years of the time the action has accrued. For purposes of this section, the claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence

A tract of land is not bound to receive water contaminated by drilling operations on another tract of land, and the owner of a tract has a claim for relief against a mineral developer to recover the damages proximately resulting from natural drainage of waters contaminated by drilling operations

The mineral developer is also responsible for all damages to person or property resulting from the lack of ordinary care by the mineral developer or resulting from a nuisance caused by drilling operations. This section does not create a cause of action if an appropriator of water can reasonably acquire the water under the changed conditions and if the changed conditions are a result of the legal appropriation of water by the mineral developer

38-11.1-07. Notification of injury - Statute of limitations

Any person, to receive compensation, under sections 38-11.1-08 and 38-11.1-09, shall notify the mineral developer of the damages sustained by the person within two years after the injury occurs or would become apparent to a reasonable person. Any claim for relief for compensation brought under this chapter must be commenced within the limitations period provided in section 28-01-16

38-11.1-08. Agreement - Offer of settlement

Unless both parties provide otherwise by written agreement, at the time the notice required by subsection 2 of section 38-11.1-04.1 is given, the mineral developer shall make a written offer of settlement to the person seeking compensation for damages when the notice required by subsection 2 of section 38-11.1-04.1 is given. The person seeking compensation may accept or reject any offer so made

Page No. 3 38-11.1-08.1. Loss of production payments

The mineral developer shall pay the surface owner a sum of money equal to the amount of damages sustained by the surface owner and the surface owner's tenant, if any, for loss of agricultural production and income caused by oil and gas production and completion operations. The amount of damages may be determined by any formula mutually agreeable between the surface owner and the mineral developer. When determining damages for loss of production, consideration must be given to the period of time during which the loss occurs and the damages for loss of production must be paid annually unless the surface owner elects to receive a single lump sum payment. Payments under this section are intended to compensate the surface owner for loss of production. Any reservation or assignment of such compensation apart from the surface estate, except to a tenant of the surface estate, is prohibited. In the absence of an agreement between the surface owner and a tenant as to the division of compensation payable under this section, the tenant is entitled to recover from the surface owner that portion of the compensation attributable to the tenant's share of the damages sustained

38-11.1-09. Rejection - Legal action - Fees and costs

If the person seeking compensation rejects the offer of the mineral developer, that person may bring an action for compensation in the court of proper jurisdiction. If the amount of compensation awarded by the court is greater than that which had been offered by the mineral developer, the court shall award the person seeking compensation reasonable attorney's fees, any costs assessed by the court, and interest on the amount of the final compensation awarded by the court from the day drilling is commenced. The rate of interest awarded must be the prime rate charged by the Bank of North Dakota on the date of the judgment

38-11.1-09.1. Mediation of disputes

Within one year after a compensation offer made under section 38-11.1-08 is rejected, either the mineral developer or surface owner may involve the North Dakota mediation service or other civil mediator. Involvement of a mediator may comply with Rule 8.8 of the North Dakota Rules of Court for purposes of alternative dispute resolution compliance. The cost of the mediator must be mediated between the parties. If the parties are unable to reach an agreement regarding the cost of the mediator through mediation, each party shall pay an equal portion of the mediator's compensation. If the mediation is provided by the North Dakota mediation service, compensation of the mediator must be the actual cost of the mediator to the North Dakota mediation service

38-11.1-09.2. Mediation service

The North Dakota mediation service may mediate disputes related to easements for oil and gas-related pipelines and associated facilities

38-11.1-10. Application of chapter

The remedies provided by this chapter do not preclude any person from seeking other remedies allowed by law. This chapter does not apply to the operation, maintenance, or use of a motor vehicle upon the highways of this state as these terms are defined in section 39-01-01

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