Trespass Decision Issued by Regional Director's Office on Federal Indian Allotted Lands Located on Fort Berthold by WPX Energy, Williston
Fort Berthold Indian Reservation sits in the heart of Bakken Oil Field in Western North Dakota. The lands are rich with resources such as oil and gas. Currently, there are 2,645 wells on the Fort Berthold Indian Reservation, and companies are expected to drill 3,907 more wells before the field is fully developed. The lands belong to the federally recognized tribes known as the Mandan, Hidatsa & Arikara Nation, also known as the Three Affiliated Tribes, and their members. The Tribe’s interest, the allotted interest, and the fee interest make up 980,000 acres, which are managed by the Bureau of Indian Affairs on Fort Berthold Indian Reservation.
Lands held by individual members are known as Allotted Lands or Allotments which were granted to individual Indian owners by the United States government. The owners of these lands are known as Allottees, and they own undivided interests which comprise 343,000 acres on the Fort Berthold Indian Reservation. In order to drill oil and gas wells or obtain a right of way for land use on these Allotted Lands, oil & gas companies must obtain consent from a majority (51% or more) of these landowners by signature from the Allottees and/or landowners. Pursuant to the Code of Federal Regulations (“CFR”) which governs these lands and their use, all rights of way and other encumbrances must identify the specific use and purpose for which they are granted. The specific use and purpose of the encumbrance must be spelled out in the consent forms provided to the landowners by the companies and in the encumbrance granted by the BIA. The Bureau of Indian Affairs and their offices are charged with reviewing the consent forms and the applications to determine if they should grant these rights of way and other encumbrances with the consent of a majority of the Allottees who own the tract on which the encumbrance will be granted, however, the oil and gas companies are responsible for providing Allottees with accurate information about what they intend to use their lands for and obtain consent forms from the owners to provide to the BIA with their request for a right of way or other encumbrance. When landowners feel those encumbrances have been violated or their lands have been trespassed upon, they ask the BIA to investigate the matter and the BIA is charged with investigation and issuing a decision regarding whether or not there has in fact been a trespass. The BIA has the power by law to make these determinations and to terminate the encumbrance/right of way if they feel a trespass has occurred or take other action as they see fit. Parties impacted by their decisions have the right to appeal such decisions through the process spelled out in the CFR.
Recently, one such decision has been handed down by the Great Plains Regional Director’s Office relating to the lands located on the Fort Indian Reservation that is pivotal for Allottee lands owners on the Fort Berthold Indian Reservation as well as those in Indian Country. An operator known as WPX Energy, Williston, which recently merged with Devon Energy obtained consent forms from allottees on the Fort Berthold Indian Reservation for the right of way to be used as “Well Pad, Access Road, Pipeline, Utilities, Fiber Optics, and Above Ground Appurtenances.” The decision stated that the language issued in the final right of way granted stated that it was “granted for the purpose of drilling an oil and gas well” and that “the said right of way shall exist as long as oil and gas are produced in paying quantities.” The operator WPX did not develop an oil and gas well pad but rather constructed a massive production facility called a Tri-Unit Production Pad on the lands where the right of way for the “well pad” was granted.
Picture: The Tri-Unit Production Facility comingles oil production from at least 21 different off-site wells
into the facility which is located on Fort Berthold Indian Reservation in Dunn County. No well has ever
been drilled on the site.
the Facilities operate by comingling at least 21 wells to the production facility. Then the sale of oil, gas, and water occurs on the property, curbing transportation costs for the oil & gas company.
The Great Plains Regional Office looked into the allegations of the landowners and on June 29, 2022, the office issued a determination that stated, “...the Tri-Unit Production Pad is in trespass...because it does not appear the requisite landowner consent was obtained.” The decision stated further, “In the absence of landowner consent to a production pad, the Superintendent lacked authority to grant a ROW for that purpose.”
Bonnie Good Bird a landowner of the property states: “If this was one of the initial super-pads developed of its kind done on our reservation, you would assume it would be scrutinized and diligently regulated with proper approval procedures.”
Wendi Wells, the owner of Maah Daah Hey & Associates, a student of the University of Oklahoma Master of Legal Studies Program for Energy Law helped to obtain the decision by representing the Allottees and bringing their complaints to the BIA. Ms. Wells is also an enrolled member of the MHA Nation and is a successor in interest to the lands at issue. She states: “This decision is a win for Indian country as we continue to fight for what little land, we have left to require transparency in their usage as well as just compensation for the Indian Landowners. Property rights are a fundamental right and a human right! Landowners should have the exclusive authority to determine how a resource is used and should be compensated for that use. The resources and lands need to be protected. If the resource is owned by the government, the agent who determines its use has to operate under a set of rules determined by the United States by Congress or by executive agencies. It has been said that when it comes to Indian Lands, the federal government is like a guardian to its ward bestowing a Trust Responsibility upon the government and its agencies who manage their lands. Property rights on Indian land such as those on the Fort Berthold Reservation require protection under this Trust Responsibility that the Federal Government has to their Indian Landowners. This win will continue to set precedents on how lands are managed on Fort Berthold. We thank our Trustee for upholding its obligation and we look forward to working with the BIA and all operators to be great stewards of our lands and resources and to develop them fairly.”
The company has appealed the decision to the Interior Board of Indian Appeals so the fight is not over for this particular tract of land or these owners yet, though they are hopeful the decision by the Agency will be upheld.