Wilkinson v. Bd. of Univ.

947 N.W.2d 910

William S. WILKINSON; Ann L. Nevins and Amy L. Perkins as Personal Representatives for the Estate of Dorothy A. Wilkinson; Barbara Caryl Materne, Trustee of the Petty Living Trust; Charlie R. Blaine and Vanessa E. Blaine, as Co-Trustees of the Charlie R. Blaine and Vanessa E. Blaine Revocable Trust; Lois Jean Patch, life tenant; and Lana J. Sundahl, Linda Joy Weigel, Deborah J. Goetz, Marva J. Will, Ronald J. Patch, Michael Larry Patch, and Jon Charles Patch, Remaindermen, Plaintiffs and Appellees

v. The BOARD OF UNIVERSITY and School Lands of the State of North Dakota, Brigham Oil & Gas, LLP; StatoilOil & Gas LP; Defendants and AppellantsandEOG Resources, Inc.; Defendant and AppelleeandXTO Energy Inc.; Petrogulf Corporation, and all other persons unknown who have or claim an interest in the property described in the Complaint, DefendantsandNorth Dakota State Engineer, Intervener and Appellant

No. 20190354

Supreme Court of North Dakota.

Filed August 27, 2020

Joshua A. Swanson (argued) and Robert B. Stock (appeared), Fargo, ND, for plaintiffs and appellees.

David P. Garner, Bismarck, ND, for defendant and appellant the Board of University and School Lands of the State of North Dakota.

John E. Ward, Bismarck, ND, for defendant and appellant Brigham Oil & Gas, LLP and Statoil Oil & Gas, LP.

Lawrence Bender, Bismarck, ND, for defendant and appellee EOG Resources, Inc.

Jennifer L. Verleger, Bismarck, ND, for intervener and appellant North Dakota State Engineer.

Craig C. Smith and Paul J. Forster, Bismarck, ND, amicus curiae North Dakota Petroleum Council.

Crothers, Justice.

[¶1] The Board of University and School Lands of the State of North Dakota, the State Engineer, and Statoil Oil & Gas LP appeal from a judgment determining William Wilkinson and the other plaintiffs own mineral interests in certain land. Although the judgment is not appealable because it did not dispose of all claims against all parties, we exercise our supervisory jurisdiction to review the summary judgment. We conclude the district court did not err in concluding N.D.C.C. ch. 61-33.1 applies and the disputed mineral interests are above the ordinary high water mark of the historical Missouri riverbed channel, but the court erred in quieting title and failing to comply with the statutory process. We affirm in part, reverse in part, and remand.

I

[¶2] J.T. Wilkinson and Evelyn M. Wilkinson acquired title to property located in Williams County described as:

Township 153 North, Range 102 West

Section 12: SW1/4

Section 12: S1/2NW1/4, excepting that portion which constitutes the right-of-way of the BNSF Railway Company

Section 13: Farm Unit No. 312 in the Buford-Trenton Project

In 1958, the Wilkinsons conveyed the property to the United States for construction and operation of the Garrison Dam and Reservoir, but they reserved the oil, gas, and other minerals in and under the property. The plaintiffs are the Wilkinsons’ successors in interest.

[¶3] In 2012, the plaintiffs sued the Land Board to determine ownership of the minerals in and under the property, alleging they own the mineral interests. The plaintiffs also sued Brigham Oil & Gas, LLP and EOG Resources, Inc., to determine their rights, alleging Brigham received an oil and gas lease from the State and EOG received an oil and gas lease from the plaintiffs. In an amended complaint the plaintiffs sought damages for claims of unconstitutional takings under the state and federal constitutions by the state defendants, and conversion and civil conspiracy by all defendants. The plaintiffs also sought to impose a constructive trust on monies received by others, and for injunctive relief. After answers by the defendants and extensive counterclaims and crossclaims among the parties, the district court determined ownership of the property below the ordinary high water mark ("OHWM") in favor of the Land Board.

[¶4] This Court reviewed the district court's summary judgment determining the State owned the minerals below the OHWM of the Missouri River as part of its sovereign lands. See Wilkinson v. Bd. of Univ. and Sch. Lands , 2017 ND 231, 903 N.W.2d 51. The facts underlying this dispute were stated in the prior appeal and we will not repeat them here except as necessary to resolve the issues raised in the present appeal. Id. at ¶¶ 2-9.

[¶5] In the prior appeal we reversed the judgment. Wilkinson , 2017 ND 231, ¶ 29, 903 N.W.2d 51. We remanded for the district court to determine whether N.D.C.C. ch. 61-33.1, governing State ownership of the Missouri riverbed, applies and governs ownership of the minerals at issue in this case. Id. at ¶ 20. We also directed the court to reconsider the plaintiffs’ takings claim if the court decided the State owns the minerals. Id. at ¶ 25.

[¶6] On remand the plaintiffs moved for summary judgment. The plaintiffs argued N.D.C.C. ch. 61-33.1 applies, the Industrial Commission determined under N.D.C.C. ch. 61-33.1 that the Wilkinson property is above the OHWM of the historical Missouri riverbed channel, that the State is bound by its admission in a separate action that N.D.C.C. ch. 61-33.1 applies, and that the State does not own the minerals. The plaintiffs also argued any outcome in which they are deprived of the property is an unconstitutional taking under the United States and North Dakota constitutions requiring just compensation. The plaintiffs requested the district court enter summary judgment in their favor and hold that they own the disputed minerals as a matter of law.

[¶7] Statoil, the Land Board, and the State Engineer opposed the plaintiffs’ motion. EOG opposed the State's claim to the Wilkinson property but did not take a position on whether the summary judgment motion should be granted.

[¶8] XTO Energy, Inc., filed a stipulated motion to be dismissed from the action. XTO admitted it does not hold an ownership interest in or a claim to any of the disputed mineral interests. The district court granted the motion and dismissed XTO from the action.

[¶9] After a hearing, the district court granted the plaintiffs’ motion, determining N.D.C.C. ch. 61-33.1 applies and the plaintiffs own the disputed minerals. The court concluded the State's interest is statutorily limited to the historical Missouri riverbed channel as determined by N.D.C.C. ch. 61-33.1, the Industrial Commission determined under N.D.C.C. § 61-33.1-03 that the Wilkinson property is above the OHWM of the historical Missouri riverbed channel, and therefore the State's claim to the property failed as a matter of law. The court held it did not need to go any further than deciding the first issue remanded, N.D.C.C. ch. 61-33.1 applies and controls the ownership, the Wilkinson property is above the OHWM of the historic Missouri riverbed channel, and therefore the plaintiffs own the property. The court further stated, "That concludes the statutory process as applied to the Wilkinsons and their claims in the Amended Complaint." The district court entered judgment quieting title to the mineral interests in the plaintiffs.

II

[¶10] Statoil argues the district court erred in entering judgment because the remaining causes of action were not dismissed and N.D.R.Civ.P. 54(b) was not complied with.

[¶11] The right to appeal is statutory and if no statutory basis for appeal exists, we must take notice of the lack of jurisdiction and dismiss the appeal. Nygaard v. Taylor , 2017 ND 206, ¶ 8, 900 N.W.2d 833. We have a two-step process for evaluating appealability:

"First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then [ N.D.R.Civ.P. 54(b) ], [if applicable,] must be complied with. If it is not, we are without jurisdiction."

Nygaard , at ¶ 9 (quoting Holverson v. Lundberg , 2015 ND 225, ¶ 9, 869 N.W.2d 146 ).

[¶12] "[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities." N.D.R.Civ.P. 54(b). "We will not consider an appeal in a multi-claim or multi-party case which disposes of fewer than all claims against all parties unless the trial court has first independently assessed the case and determined that a Rule 54(b) certification is appropriate." Greer v. Global Indus., Inc. , 2018 ND 206, ¶ 10, 917 N.W.2d 1 (quoting Baker v. Autos, Inc. , 2017 ND 229, ¶ 6, 902 N.W.2d 508 ).

[¶13] The Land Board, State Engineer, and Statoil appealed from the judgment entered after the district court granted summary judgment and quieted title to the property in the plaintiffs’ favor. Generally, an order granting summary judgment and the subsequently entered judgment are appealable. Greer , 2018 ND 206, ¶ 9, 917 N.W.2d 1.

[¶14] The plaintiffs’ amended complaint alleged multiple claims for relief. They requested declaratory relief and sought damages for unconstitutional taking of property under the state and federal constitutions, conversion, unjust enrichment, and civil conspiracy. Their complaint was dismissed with prejudice before the prior appeal. The decision in the prior appeal did not specifically address any claims other than the plaintiffs’ request for declaratory judgment deciding ownership of the disputed minerals and the takings claim. See Wilkinson , 2017 ND 231, 903 N.W.2d 51. The Court reversed the prior judgment without affirming any part of the judgment. Id. at ¶ 29.

[¶15] On remand the district court granted summary judgment in favor of the plaintiffs, but only explicitly addressed the declaratory judgment claim by determining the plaintiffs own the Wilkinson property. The district court stated no other issues needed to be addressed. The court did not dismiss the other claims, including...