Paul Sorum, et al. v. North Dakota, et al.

In 2017, the North Dakota legislature directed transfer to private interests of 96,000 acres in the sovereign bed of the Missouri River and payment of $187 million. The bed was submerged by the Federal Garrison Dam Project. Petitioners, taxpayers of the State, challenged the statute as violating the Public Trust Doctrine and the State Constitution’s Anti-Gift Clause and Flowing Waters Clause. Employing principles of “conflict preemption,” the North Dakota Supreme Court held the Federal Flood Control Act of 1944 (33 U.S.C. 701-1) and Submerged Lands Act (43 U.S.C. § 1301) preempt all state law determining ownership of submerged lands. However, “After statehood, the extent of ownership of lands under navigable waters is decided solely as a matter of State law.” Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 378, 97 S. Ct. 582, 591, 50 L. Ed. 2d 550 (1977). The question presented is: Does Federal law preempt State law for the purpose of determining ownership of the bed of navigable waters within a State?

The Court held that the broad grant made by the Submerged Lands Act excluded all land acquired by eminent domain, whereas the plain language of the statute excludes only land acquired in the Government’s “proprietary capacity.” (43 U.S.C. § 1313(b)). The question presented is: After it is permanently submerged, is land acquired by the Federal Government as part of Federal dam projects included in the broad grant to the states made by the Submerged Land Act?