Reep v. State

Reep v. State, 2013 WL 6835003 (N.D. 2013) (holding the anti-gift clause of North Dakota’s constitution precludes construing a state statute as a grant of the State’s equal footing mineral interests under the shore zone to private upland landowners).

Eleven named owners of land next to navigable waters in North Dakota (“upland owners”) sued the State of North Dakota (“State”), seeking declaratory judgment that they, not the State, owned the minerals under the shore zone.  The landowners appealed to the Supreme Court of North Dakota (“Court”) from the district court’s grant of summary judgment in favor of the State.

When North Dakota joined the Union in 1889, the equal footing conferred onto the State constitutional rights to the land and mineral interests under its navigable waters from high watermark to high watermark.  Although this conferral included the right to allocate its property interests, the equal footing doctrine required North Dakota, by virtue of its sovereignty, to hold its shore zone interests in trust for the public.  The anti-gift clause found in N.D. Const. art. X, § 18 further protected the public trust by precluding the State from gifting its mineral interests to any private entity.

At issue in this case was N.D.C.C. § 47-01-15, which provides that private landowners next to navigable waters “take to the edge of the lake or stream at low watermark.”

The upland owners argued the district court’s holding was contrary to the Court’s decision in State ex rel. Sprynczynatyk v. Mills which they construed as holding that upland owners next to navigable waters have full interests in the shore zone under N.D.C.C. § 47-01-15.  The upland owners further contended that the State’s public trust and equal footing obligations did not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.  The upland owners further contended that the statute did not violate the anti-gift clause.

Conversely, the State argued that its rights to shore zone mineral interests extended from high watermark to high watermark under the equal footing doctrine.  The State claimed N.D.C.C. § 47-01-15 was a rule for construction, clarifying the extent of a grantor’s conveyance to the grantee, rather than granting public mineral interests to private entities.  The State further contended that a construction of the statute as a grant of the mineral interests to private entities would violate the equal footing doctrine and the anti-gift clause of N.D. Const. art. X, § 18.

The Court first examined Mills to determine whether N.D.C.C. § 47-01-15 is, as the upland owners contended, an absolute grant of shore zone interests to private landowners next to navigable waters.  In so doing, it reiterated the statutory interpretation in Mills, wherein the Court determined the word “takes” in N.D.C.C. § 47-01-15 was ambiguous statutory language for a rule of construction, and not a grant of ownership.  Examining the more specific use of the word “ownership” in Champlain v. Valentine, coupled with the introductory clause in N.D.C.C. § 47-01-15, the Court found a legislative intent that the statute does not grant a riparian landowner absolute ownership of the shore zone.  Rather, the Court agreed with the district court that N.D.C.C. § 47-01-15 is a rule of construction for determining the boundary for grants of riparian land.  The Court emphasized that its construction avoided an interpretation that would grant a private party a gift in violation of the state constitution’s anti-gift clause.

Having concluded that the upland owners’ reliance on Mills was misplaced, the Court turned to the law governing the State’s ownership of mineral interests under the shore zone.  Examining the public trust doctrine, the Court acknowledged a newly admitted state’s power to allocate its mineral interests but emphasized that power as subject to the public trust doctrine.  The Court discussed some states’ allocation of ownership of the shore zone to the upland owner to the ordinary low watermark, and other states’ decisions to extend an upland owner’s title only to the ordinary high watermark.  The State in this case claimed its mineral interests extended to the ordinary high watermark under the equal footing doctrine and that its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18.

The Court turned next to the adoption of the anti-gift clause in 1889 and its development through subsequent case law.  It determined that unlike previous cases, this case did not raise an issue about the State engaging in an industry, enterprise, or business.  It proceeded to examine a holding in Arizona Ctr. For Law v. Hassell, which determined statutory provisions substantially relinquishing Arizona’s equal footing interest in navigable riverbeds violated Arizona’s anti-gift clause.  It also cited Solberg v. State Treasurer, which held that a statute directing the State to release a reserved mineral interest to a prior owner violated the anti-gift clause because the statute had the effect of transferring State property as a gift.

The Court found that the precedent in Hassell and Solberg favors a determination that N.D.C.C. § 47-01-15 did not allocate the State’s equal footing mineral interests in the shore zone to upland owners.  The Court noted that this construction was in keeping with the Court’s presumption that statutes are written in compliance with state constitutions and in favor of public interests over private interests.  However, the Court further concluded that N.D.C.C. § 47-01-15 would allow an upland owner to take the State’s full interest to the low watermark if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed.  The Court underscored that receipt of grants or conveyances from the State is subject to the restrictions of the public trust doctrine and is invalid where the deed provides otherwise.

The Court finally examined whether the upland landowners presented any factual support to show a grant of mineral interests by the State or a successor to the State, and found that they had not.  It therefore concluded the district court did not err in concluding the State owns the mineral interests under the shore zone.

Consequently, the Court affirmed summary judgment for the State, but stressed that its decision does not preclude an upland owner from taking to the low watermark if it can establish a chain of title wherein the State granted its equal footing interest to the upland owner.


The title picture is of Wild Rice River in North Dakota licensed under the Creative Commons Attribution-Share Alike 2.5 Generic License to Tim Kiser, who in no way endorses this blog.


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

Park County Water Pres. Coalition v. Columbine Assoc.

“Subject-matter jurisdiction concerns ‘the court’s authority to deal with the class of cases in which it renders judgment.’. . . [W]e have held that subject-matter jurisdiction vests in the water court upon the timely filing of the application and publication of the resume notice.” Park County Water Pres. Coalition v. Columbine Assoc., 993 P.2d 483, 488 (Colo. 2002) (citations omitted).

“The reasonableness of the notice is determined by applying an inquiry standard-whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings.” Id. at 489-90 (citation omitted).

“‘Consequently, alleged deficiencies invalidate the resume only if the resume taken as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of the proposed diversion.”‘ Id. at 490 (citation omitted).


Click here for a PDF of the entire article: 6 U. Denv. Water L. Rev. 116 2002-2003.


View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111 2000-2001.


University Club Luncheon Series
Denver, Colorado    March 14, 2013

Tom Cech is the current Director of One World One Water (“OWOW”) Center for Urban Water Education and Stewardship at Metropolitan State University of Denver (“MSU”) in Denver, Colorado. Originally from Nebraska, Cech received his B.S. in Math Education and went on to receive his Masters in Community and Regional Planning from University of Nebraska.  Highlights in his accomplished career include serving as Executive Director of the Central Colorado Water Conservancy District and educating future water experts at the University of Northern Colorado and Colorado State University in various water resources courses.  Cech has also published articles and textbooks on water resource issues that have been translated into Portuguese, and he is in the process of completing a history of the Colorado Water Conservation Board and the Colorado State Engineer’s Office.

Cech’s presentation at the University Club Lecture Series included discussion of (i) the OWOW Center, (ii) water resource course offerings at MSU, (iii) historical cultural water issues, (iv) historical issues of Colorado water, and (v) potential water supply issues for Colorado in the future.

The OWOW Center and Water Resource Course Offerings

OWOW is a new program at MSU designed to educate students on how to protect and preserve limited water resources.  MSU undergraduates have the option of completing a minor in Water Studies  (known as the Pilot Water Studies Minor) by taking at least 21 credit hours of course work in water resources and stewardship.  Classes offered include: Water Essentials, Introduction to Water Law and Administration, Water Conflict Resolution, Limnology, Multicultural Water Issues, as well as other elective courses, internships, and capstone projects.

Historical Cultural Water Issues

After providing a brief introduction to the OWOW Center, Cech continued his presentation by discussing significant historical water issues.  Resolution of water disputes has been around since the beginning of time.  Some notable moments in cultural water appropriation began in Babylon when King Hammurabi created the “Code of Hammurabi.” These laws, created between 1795 B.C. and 1750 B.C., are the first examples of prior appropriation.  The Stele of Hammurabi, a large stone statute the size of an adult human with the Code of Hammurabi etched into it, tells us the law that, “if a man has released waters and so has let the water carry away the works on his neighbor’s field, he shall pay 10 gur of corn for every bur (of land) flooded.”  Many years after Hammurabi, farmers and villages in Iran and Iraq developed Qanats, whereby a massive aqueduct system was excavated underground to bring water from the mountainous regions to irrigate the farmland.

Cech further discussed resolution of historical water disputes in the years of Anno Domini, when Moorish farmers established the Water Court at the Cathedral of Valencia in Spain to settle disputes between local farmers.  Since its inception in 961 A.D., seven elected members have met every Thursday at eleven o’clock in the morning to render judgment.  The court is not a traditional western court, but holds hearing without oaths of affirmation, written records, or even lawyers.

In 1300 A.D., with the development of tin mining, England began using canals to divert water for mining operations.  This process would become very important more than 500 years later when the Gold Rush brought settlers to Colorado.

Historical Issues of Colorado Water and Supply

In 1876, Colorado became a state and adopted the Doctrine of Prior Appropriation to ease the burden of the limited supply of water.  In nineteenth century Colorado, miners constructed hundreds of canals along the South Platte River and throughout Colorado.  The Doctrine of Prior Appropriation gave priority dates for irrigation ditches, but set no dates for wells.  This doctrine plays a very important role in establishing water rights in Colorado and continues to evolve and be a source of guidance for the growing disputes.  Cech also briefly discussed Theodore C. Henry who was responsible for constructing numerous irrigation canals throughout Colorado in the 1880s and was appointed by the Colorado governor to review irrigation laws and recommend changes.

Colorado has a rich history involving water law, as the oldest operational ditch in Colorado, the San Luis People’s Ditch, was built in 1852. While the last 161 years of Colorado water law pales next to Hammurabi’s water laws, Coloradans have also developed their own water courts for dealing with quarrels over water rights.  Greeley, Colorado houses one of the many water courts have expanding throughout the United States.

Potential Water Supply Issues for Colorado in the Future

The common consensus in arid regions is that there is growing need with a limited supply of water.  With continued drought conditions and increasing population, water experts are working to find ways to prioritize various uses.  Without more quantities of water, supplying every growing need will not be possible.  There are an estimated 5 million people in Colorado with a 2030-projected growth to 7.1 million.  The Denver metropolitan area is home to approximately 2.4 million people and is estimatee to expand to 3.9 million by 2030.

While the South Platte River Basin supplies most of the water to the Front Range population, many communities have been forced to develop pipelines to bring much needed water to citizens.  Yet transportation of water is not enough, the effects of global warming have created conditions that require water users to adapt and reevaluate water uses in order to be more efficient.


Cech’s brief overview of the history of various water laws around the world and the development of Colorado’s water law was informative and well presented.  While there is constant controversy about where the water is going to come from and who gets to use it, if history dictates truth, then humanity will find the best possible outcome, even if it means sacrificing a lawn or two.


Cech can be reached at  For more information on OWOW please visit,