Justia Environmental Law Opinion SummariesArticles Posted in North Dakota Supreme Court
Nat’l Parks Conservation Assn., et al. v. ND Dept. of Env. Quality, et al.
National Parks Conservation Association (“NPCA”) appealed a judgment affirming a final permit decision by the North Dakota Department of Environmental Quality, formerly the Department of Health Environmental Health Section, to issue Meridian Energy Group, Inc. an air quality permit to construct a refinery. In October 2016, Meridian submitted its initial application and supporting documentation to the Department for a permit to construct the Davis Refinery, as required under North Dakota’s air pollution control rules implementing the federal Clean Air Act. The Department received over 10,000 comments, with most of the substantive comments coming from NPCA, the National Park Service, and the Environmental Protection Agency. NPCA filed comments with the Department supported by its two experts’ opinions, asserting that Meridian’s oil refinery would be a “major source,” rather than a “minor source,” of air pollution and that the permit does not contain “practically enforceable” emissions limits under the federal Clean Air Act and North Dakota’s air pollution control rules implementing the Clean Air Act. After considering public comments and Meridian’s responses, the Department’s Air Quality Division recommended to the State Health Officer that the Department issue a final permit because the Davis Refinery’s emissions are expected to comply with the applicable North Dakota air pollution control rules. The North Dakota Supreme Court concluded the Department did not act arbitrarily, capriciously, or unreasonably in issuing the permit. View "Nat'l Parks Conservation Assn., et al. v. ND Dept. of Env. Quality, et al." on Justia Law
Continental Resources v. N.D. Dept. of Environmental Quality
Continental Resources, Inc. appealed a district court judgment dismissing its declaratory judgment action against the North Dakota Department of Environmental Quality (“Department”). Continental’s action for declaratory judgment requested the district court find “that if an approved control device is installed and operating at an oil and gas production facility, the mere presence of an emission from a closed tank hatch or control device does not, in and of itself, establish a violation of N.D. Admin. Code 33-15-07-2(1).” The district court dismissed Continental’s declaratory judgment action after finding the Environmental Protection Agency was an indispensable party, the district court lacked subject matter jurisdiction, and the matter was not ripe for judicial review. While this appeal was pending, the Department moved to dismiss the appeal as moot. The North Dakota Supreme Court affirmed the judgment dismissing Continental’s request for declaratory judgment as not ripe for judicial review. View "Continental Resources v. N.D. Dept. of Environmental Quality" on Justia Law
Pennington, et al. v. Continental Resources, Inc.
In 2011, Plaintiffs Rhonda Pennington, Steven Nelson, Donald Nelson, and Charlene Bjornson executed oil and gas leases for property in McKenzie County, North Dakota. Each lease term was three years with a lessee option to extend for an additional year. The leases were assigned to Continental Resources in September 2014, and it exercised an extension option. The leases included a provision that the leases would not terminate if drilling operations were delayed by an inability to obtain permits. In May 2012, Continental applied for a drilling permit on a 2,560-acre spacing unit that included the lands covered by the leases. The 2,560 acres included lands inhabited by the Dakota Skipper butterfly, which was listed as threatened under the Endangered Species Act. Continental could not begin drilling operations until receiving federal approval. In August 2015, the U.S. Fish and Wildlife Service issued a biological opinion relating to the impact of Continental’s proposed drilling on the Dakota Skipper. On October 1, 2015, Continental proposed measures to minimize the impact of its operations on the Dakota Skipper. On October 21, 2015, Continental recorded an affidavit of regulation and delay, stating it had not yet obtained federal regulatory approval to drill, and the primary term of the leases was extended under the “regulation and delay” paragraph of the leases. The following day, Continental applied to terminate the 2,560-acre spacing unit and create a 1,920-acre spacing unit to remove the Dakota Skipper habitat. In November 2015, the Industrial Commission approved the 1,920-acre spacing unit. In January 2016, the commission pooled all of the oil and gas interests in the 1,920-acre spacing unit for the development and operation of the spacing unit. Following the January 2016 order, Continental began drilling operations. In August 2017, the Plaintiffs sued Continental, alleging the leases expired on October 25, 2015, and Continental’s delay in obtaining regulatory approval to drill did not extend the leases. Plaintiffs appealed a district court ruling the “regulation and delay” provision in their oil and gas leases with Continental Resources extended the term of the leases. The North Dakota Supreme Court determined the district court concluded the delay in obtaining drilling permits for the 2,560-acre spacing unit was beyond Continental’s control and was not because of Continental’s fault or negligence. However, the court did not address whether Continental acted diligently and in good faith in pursuing a permit to drill the 2,560-acre spacing unit for more than three years. Viewing the evidence and inferences to be drawn from the evidence in a light favorable to the Plaintiffs, a genuine issue of material fact existed as to whether Continental acted diligently and in good faith. The Supreme Court therefore reversed the district court’s judgment and remanded for further proceedings on that issue. View "Pennington, et al. v. Continental Resources, Inc." on Justia Law
Black Hills Trucking, Inc. v. N.D. Industrial Commission
Black Hills Trucking, Inc. appealed a judgment affirming a North Dakota Industrial Commission order assessing a $950,000 civil penalty and costs and expenses against it for illegally dumping saltwater on roads in Williams County, North Dakota. Black Hills was a Wyoming corporation in the business of transporting crude oil, produced saltwater, petroleum products, oilfield equipment and other materials. In 2014, Black Hills owned and operated trucks in North Dakota for the purpose of transporting oilfield waste. The Commission received a report from a security officer for Continental Resources, Inc., that he had photos and video of a Black Hills truck dumping substantial amounts of fluids onto roads near a saltwater disposal well. Commission staff examined the affected roads and collected a soil sample. The Commission also collected logs from the well which indicated a Black Hills driver had transported saltwater to the well on February 8, 2014. Black Hills challenged the penalty, arguing the Commission lacked jurisdiction over a discharge of produced saltwater on a public road occurring away from an oil and gas well site, disposal site, treatment plant, or other facility. The North Dakota Supreme Court concluded the Commission regularly pursued its authority and its findings and conclusions were sustained by the law and by substantial and credible evidence, and affirmed. View "Black Hills Trucking, Inc. v. N.D. Industrial Commission" on Justia Law
Coon v. N.D. Dep’t of Health
Landowners from the Buffalo area appealed a district court judgment affirming the Department of Health's decision to issue Rolling Green Family Farms an animal feeding operation (AFO) permit. The landowners argued the Department erred by issuing Rolling Green an AFO permit and by failing to reopen the public comment period after Rolling Green provided further information to supplement its permit application. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Coon v. N.D. Dep't of Health" on Justia Law
Environmental Driven Solutions v. Dunn County
Dunn County appealed a judgment declaring the Industrial Commission had exclusive jurisdiction to determine the location of oil and gas waste treating plants. The Supreme Court affirmed, concluding the County lacked the power to veto the Commission's approval of the location for an oil and gas waste treating plant. View "Environmental Driven Solutions v. Dunn County" on Justia Law
Miller v. Walsh County Water Resource District
John Miller and J.D. Miller Farming Association (collectively "Miller") appealed an order that affirmed the Walsh County Water Resource District's decision requiring Miller to remove unpermitted dikes from his property located in Forest River Township. Upon review of the matter, the Supreme Court affirmed, concluding Miller failed to establish that the District acted arbitrarily, capriciously or unreasonably, that there was not substantial evidence to support its decision, or that the District was estopped from requiring removal of the dikes. View "Miller v. Walsh County Water Resource District" on Justia Law
Dakota Resource Council v. N.D. Public Service Comm’n
The Dakota Resource Council (DRC) appealed a district court judgment that affirmed a North Dakota Public Service Commission (PSC) order. DRC argued: (1) the PSC's decision was not in accordance with the law; and, (2) the PSC's conclusions of law and order were not supported by its findings of fact. In 2008, Falkirk Mining Company filed an application with the PSC requesting revision of a surface mining permit. Falkirk proposed changing the postmining use of 428 acres of land from agricultural and industrial use to recreational use. The purpose of the revision was to facilitate the transfer of approximately 730 acres of land from Falkirk to the North Dakota Department of Transportation (NDDOT). NDDOT planned to use the land as mitigation acres to eliminate "no mow" areas within the rights-of-way of the state highway system in McLean County. PSC granted the revision subject to the right of adversely affected parties to request a formal hearing. DRC asserted 86 acres located in noncontiguous parcels throughout the proposed wildlife management area should remain designated for agricultural use. Game and Fish planned to allow local farmers to grow crops on the 86 acres, harvesting 70 percent and leaving the remaining 30 percent standing as food for wildlife. McLean County, NDDOT and Game and Fish petitioned to intervene. The PSC then held a public hearing. The PSC affirmed its conditional approval of the revision to Falkirk's permit. DRC appealed to the district court. The district court affirmed the PSC's decision. Upon review, the Supreme Court affirmed: “[w]hen considered together, the PSC's findings of fact do not indicate its decision to grant the revision was based on the desire to facilitate the land transfer agreement rather than on consideration of the higher and better use of the land. ... The PSC's conclusions and order affirming its decision granting the revision to recreational use were supported by its findings of fact.” View "Dakota Resource Council v. N.D. Public Service Comm'n" on Justia Law
North Dakota v. Mittleider
Defendants Andrew and Ricky Mittleider appealed a district court's judgment entered on their conditional guilty pleas relating to to illegal hunting, taking (or attempting to take) possession of big game, and hunting in a closed or restricted area. The Mittleiders moved to suppress all evidence entered against them at trial, arguing that the Game Warden and other law enforcement officials violated their reasonable expectation of privacy by entering their property to confiscate the weapon used to shoot the deer, photos taken of the deer and the deer itself because they had "no trespassing" signs posted. Defendants also filed a motion in limine to offer an affirmative defense of "mistake of fact": that they reasonably believed they were not hunting on a refuge because signs were not properly posted. The district court denied their motions, and Defendants appealed. Upon review, the Supreme Court concluded that Defendants' "no trespassing" signs did not created a reasonable expectation of privacy in the entrance of their property. As such, their right to a reasonable expectation of privacy was not violated. The Court affirmed the district court in all other respects. View "North Dakota v. Mittleider" on Justia Law
Peterson v. Sando
Petitioner Alvin Peterson appealed and the State Engineer, Todd Sando, cross-appealed a district court judgment affirming in part and reversing in part a State Engineer order that determined there was an unauthorized dam on Petitioner's property in Walsh County and required Petitioner to construct a drainage ditch to maintain water impounded by the dam at a level of 1543.5 feet mean sea level. The primary issue in this case involved the determination of the natural elevation of land at the site of the dam for purposes of deciding if the land impounded sufficient water to necessitate a water or construction permit. Petitioner owned land in Walsh County, which, along with other land in the area, contains a slough in a closed basin. Sometime before 1973, Petitioner dug a ditch to drain the slough. In 1973, the United States Department of Interior, Fish and Wildlife Service, the holder of wetland conservation easement for the slough, required Petitioner to restore the drained wetland. In 2009, Petitioner's neighbor filed a complaint with the State Engineer alleging an unauthorized dam existed on Petitioner's land. The neighbor claimed Petitioner had raised the height of the ditch plug above the slough's natural overflow elevation, which resulted in the impoundment of additional water in the slough without necessary water or construction permits. Upon review, the Supreme Court affirmed the district court's judgment in part, and reversed in part, and affirmed the State Engineer's order. Specifically, the Court found that the district court's decision pertaining to costs was "a boilerplate, conclusory statement awarding the State Engineer 'costs as allowed by law,' and the State thereafter caused entry of a judgment that awarded [the Engineer] costs" without any delineation of those costs, or discussion of whether costs are allowed. "Under our jurisprudence disfavoring piecemeal appeals, [the Supreme Court] conclude[d] the State Engineer's failure to include any further delineation for costs in the final judgment constitutes a waiver of any costs it may have been entitled to in a proceeding before a district court acting as an appellate court in an administrative proceeding." Accordingly, the Court reversed the district court's order pertaining to costs, and declined the State Engineer's request to remand for a determination of the costs, if any, to which it may be entitled in the Engineer's cross-appeal. The Court affirmed the district court's order in all other respects.