IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 8

Vic Christensen Mineral Trust, Plaintiff

v.

Enerplus Resources (USA) 

Corporation, Defendant, Cross-Claim

Defendant, and Appellant

and

Meyer Family Mineral Trust, 

Joann Deryce Struthers Trust, 

and Steven J. Reed Living Trust, Defendants, Cross-Claim

Plaintiffs, and Appellees

No. 20210050

Appeal from the District Court of Dunn County, Southwest Judicial District, 

the Honorable William A. Herauf, Judge.

REVERSED.

Opinion of the Court by Tufte, Justice.

Jacob F. Fischer (argued) and John P. Streelman (appeared), Denver, Colorado, 

and Zachary E. Pelham (appeared), Bismarck, North Dakota, for defendant, 

cross-claim defendant, and appellant Enerplus Resources (USA) Corporation.

Jon Bogner (argued) and Jordan L. Selinger (on brief), Dickinson, North 

Dakota, for defendants, cross-claim plaintiffs, and appellees Meyer Family 

Mineral Trust, Joann Deryce Struthers Trust, and Steven J. Reed Living Trust.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 6, 2022 

STATE OF NORTH DAKOTA
1

Vic Christensen Mineral Trust v. Enerplus Resources Corp.

No. 20210050

Tufte, Justice.

[¶1] Enerplus Resources (USA) Corporation (“Enerplus”) appeals from the 

second amended judgment and adverse summary judgment orders holding it 

liable for suspending royalty payments to Meyer Family Mineral Trust, Joann 

Deryce Struthers Trust, and Steven J. Reed Living Trust (collectively, “Trust 

Defendants”). Enerplus argues it was justified in suspending payments under 

N.D.C.C. § 47-16-39.1, which allows for suspending payments in the event of a 

dispute of title. We reverse, concluding Enerplus was justified in suspending 

royalty payments to the Trust Defendants.

I

[¶2] Victor Christensen owned certain land in Dunn County, including an 

area referred to as the “W1/2.” In 1952, he deeded a 5/128 royalty interest1 to 

Henry Roquette for all of the oil and gas produced from the W1/2 (“Roquette 

Deed”). Thereafter, Victor Christensen transferred his remaining interest in 

the W1/2 to his wife, Mildred Christensen.

[¶3] In 1957, Mildred Christensen deeded the W1/2 to Joe Reed and Deryce 

Reed (the “Reeds”), reserving a 4/5 mineral interest, and thereby conveying a 

1/5 mineral interest to the Reeds. In 1968, Henry Roquette conveyed the 5/128 

royalty interest to Mildred Christensen.

[¶4] The Vic Christensen Mineral Trust (“VCMT”) now owns the 4/5 mineral 

interest in the W1/2 that was formerly owned by Mildred Christensen. The 

Trust Defendants collectively own the 1/5 mineral interest previously conveyed 

to the Reeds.

[¶5] Enerplus, an oil and gas producer, operates wells within the W1/2. Prior 

to production, Enerplus hired a title examiner to provide a drilling title 

1 Enerplus disputes the size of the royalty interest on appeal. Because this issue is immaterial to our 

decision, we assume without deciding that Victor Christensen deeded a 5/128 royalty interest.
2

opinion. The title opinion states the royalty interest, now held by VCMT,

burdens the Trust Defendants’ interest in the W1/2; and there is a discrepancy 

with the land acreage in the Roquette Deed, which affects the size of the royalty 

interest. In October 2017, Enerplus informed VCMT and the Trust Defendants 

of these issues, required they enter into a stipulation clarifying their ownership 

interests, and suspended royalty payments to VCMT and the Trust 

Defendants. VCMT and the Trust Defendants did not stipulate to the royalty 

interest at that time.

[¶6] In January 2019, VCMT sued the Trust Defendants to quiet title, 

alleging it owns the royalty interest on the Trust Defendants’ 1/5 mineral 

interest in the W1/2, and the royalty interest is larger than 5/128 based on the 

Roquette Deed. The Trust Defendants counterclaimed to quiet title, alleging 

their 1/5 mineral interest has no royalty burden. In April 2019, VCMT and the 

Trust Defendants stipulated to their interests with VCMT agreeing to forgo 

any rights to the royalty interest. Enerplus then paid VCMT and the Trust 

Defendants their suspended royalty payments.

[¶7] The Trust Defendants sought statutory interest from Enerplus for 

suspending their royalty payments. After cross-motions, the district court 

granted summary judgment in favor of the Trust Defendants and against 

Enerplus. Enerplus appeals the orders granting summary judgment holding it 

liable for suspending payments to the Trust Defendants.

II

[¶8] Our summary judgment standard of review is well established:

Summary judgment under N.D.R.Civ.P. 56 is a procedural 

device for the prompt resolution of a controversy on the merits if 

there are no genuine issues of material fact or inferences that can 

reasonably be drawn from undisputed facts, or if the only issues to 

be resolved are questions of law. Summary judgment is 

appropriate if the issues in the case are such that the resolution of 

any factual disputes will not alter the result. Whether the district 

court properly granted summary judgment is a question of law 

that we review de novo on the entire record. On appeal, this Court 
3

decides whether the information available to the district court 

precluded the existence of a genuine issue of material fact and 

entitled the moving party to judgment as a matter of law.

Hild v. Johnson, 2006 ND 217, ¶ 6, 723 N.W.2d 389 (citations omitted).

A

[¶9] Enerplus argues the “safe harbor” provision of N.D.C.C. § 47-16-39.1 

applies, rendering its suspension of royalty payments to the Trust Defendants 

lawful. Section 47-16-39.1, N.D.C.C., provides that an operator’s obligation 

under an oil and gas lease to pay oil and gas royalties to the mineral owner is 

“of the essence.” A breach of the obligation may constitute grounds for 

cancellation, but if cancellation is not sought, failure by the operator to pay 

within 150 days after oil or gas produced is marketed shall accrue interest on 

the unpaid royalties at the rate of 18 percent per annum until paid. Id. The 

safe harbor provision provides, “This section does not apply . . . in the event of 

a dispute of title existing that would affect distribution of royalty payments, . . . 

however, the operator shall make royalty payments to those mineral owners 

whose title and ownership interest is not in dispute.” Id. (emphasis added). The 

district court concluded the safe harbor provision did not apply, stating:

The dispute of title between VCMT and the Trust Defendants 

comes solely as a result of the actions of Enerplus and its title 

attorney. Had the title opinion been correct in the first place and 

had there been no erroneous suggestions that the 5/128ths Royalty 

burdened the 1/5 ownership of the Trust Defendants, there would 

have been no dispute.

[¶10] Enerplus contends a dispute of title existed that would have affected 

distribution of royalty payments; specifically, its title examiner’s 

determination that the Trust Defendants’ 1/5 mineral interest was burdened 

by VCMT’s royalty interest, and that burden was more than 5/128 interest due 

to the acreage discrepancy. As a result, Enerplus informed VCMT and the 

Trust Defendants of these issues, required a stipulation of interest concerning 

the royalty, and suspended all payments to VCMT and the Trust Defendants. 

Subsequently, VCMT sued the Trust Defendants to quiet title to the royalty 
4

interest, and the Trust Defendants counterclaimed to quiet title to 1/5 of the 

mineral interest unburdened by any outstanding royalty. Thus, there was a 

dispute of title existing that would affect distribution of royalty payments. 

Applying the plain language of N.D.C.C. § 47-16-39.1, we conclude Enerplus’ 

suspension of royalty payments to the Trust Defendants was lawful.

[¶11] The district court and the Trust Defendants read a heightened standard

into the safe harbor provision, requiring a successful title claim to be advanced 

by Enerplus, as opposed to merely a dispute of title existing. But see Leavitt v. 

Ballard Expl. Co., 540 S.W.3d 164, 174 n.9 (Tex. App. 2017) (noting, “[W]e 

observe that nothing in [the Texas statute] requires a payor like [the operator] 

to evaluate the legal merit of a dispute, only that such a dispute exists.”). Even 

if Enerplus’ alleged title dispute was ultimately unsuccessful, or the dispute 

was “manufactured” by Enerplus as the Trust Defendants assert, VCMT and 

the Trust Defendants sued each other to quiet title, undoubtedly creating a 

“dispute of title” that would affect their royalty payments from Enerplus.

Accordingly, Enerplus lawfully suspended royalty payments to the Trust 

Defendants.

B

[¶12] Enerplus argues the district court erred by concluding Enerplus 

wrongfully withheld payment on the undisputed 123/128 royalty interest held 

by the Trust Defendants, which was not potentially subject to the 5/128 royalty 

interest. The last provision of N.D.C.C. § 47-16-39.1 provides that when there 

is a dispute of title, “the operator shall make royalty payments to those mineral 

owners whose title and ownership interest is not in dispute.” Because the Trust 

Defendants are mineral owners whose title and ownership interest was in 

dispute, this provision, by its plain language, does not apply. Thus, the court 

erred in concluding Enerplus acted unjustifiably in suspending more than 

5/128 of its payments to the Trust Defendants. Under N.D.C.C. § 47-16-39.1, 

Enerplus was entitled to suspend all royalty payments to the Trust Defendants 

derived from their 1/5 mineral interest in the W1/2.
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III

[¶13] We conclude a dispute of title existed allowing Enerplus to lawfully 

suspend royalty payments to the Trust Defendants. Because there are no 

genuine issues of material fact, Enerplus is entitled to judgment as a matter 

of law. We reverse the district court’s second amended judgment and summary 

judgment orders holding Enerplus liable for suspending royalty payments to 

the Trust Defendants.

[¶14] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte