North Dakota Ordered to Pay Landowners Nearly $700,000 in Fees After Losing Property Rights Fights Twice

BISMARCK, N.D. — For the second time in eight months, a North Dakota district court judge has ruled that a state law allowing companies to store carbon dioxide underground without landowners' consent is unconstitutional — and ordered the state to cover the winning landowners' legal bills.

South Central Judicial District Judge Jackson Lofgren ruled this month that landowners who challenged permits granted to Summit Carbon Solutions can recover roughly $429,000 in attorney fees and costs from the state. Lofgren had already found the underlying law unconstitutional earlier this year, ruling it failed to guarantee landowners "just compensation," determined by a jury, for the use of their underground pore space.

Kurt Swenson, a landowner in Oliver and Mercer counties who is the lead plaintiff, said in a statement that the ruling recognized both the merits of the case and the burden of fighting it. Attorney Derrick Braaten, who represents Swenson and other landowners, said Lofgren's finding that the state Industrial Commission wasn't "substantially justified" in issuing the permits underscored how one-sided the constitutional question was.

The ruling follows a nearly identical one in December, when Northeast Judicial District Judge Anthony Swain Benson found the same law unconstitutional in a separate case brought by the Northwest Landowners Association and North Dakota Farm Bureau, and ordered the state to pay about $278,000 in fees in that case. Unlike Lofgren's case, which challenged specific permits issued to Summit, Benson's case challenged the underlying law itself.

Combined with a related 2022 fee award, the state has now been ordered to pay landowners' groups roughly $975,000 across three related challenges dating back to 2019. Both of the more recent rulings are being appealed to the North Dakota Supreme Court, and the state's attorney general's office said it plans to challenge the fee awards as part of that broader appeal; if the state prevails, the fee awards would be reversed along with the underlying rulings.

The law at issue lets the state Industrial Commission authorize use of landowners' "pore space" — the underground cavities used to store injected carbon dioxide — without their consent, a practice tied to companies' eligibility for federal tax credits. Lofgren's fee ruling noted that the Legislature had opportunities to fix the law's constitutional problems and didn't. State Rep. Todd Porter said lawmakers likely won't revisit the law until the Supreme Court rules, a timeline that could push any legislative fix to 2029.

The cases are The Swenson Living Trust, et al. v. North Dakota Industrial Commission, et al., Burleigh County District Court case 08-2025-CV-00095, and Northwest Landowners Association, et al. v. State of North Dakota, et al., Bottineau County District Court case 05-2023-CV-00065. Case dockets: https://trellis.law/case/38015/08-2025-cv-00095/swenson-living-trust-et-al-vs-north-dakota-industrial-commission-et-al and https://trellis.law/case/38009/05-2023-cv-00065/northwest-landowners-association-et-al-vs-state-north-dakota-et-al