North Dakota Supreme Court Highlights
By Scott O . Diamond , Joshua A . Swanson , and Ian McLean
Authors ’ Note and Caveat : The following cases of interest were recently decided by the North Dakota Supreme Court . Because the following contains the authors ’ summary of the decisions , the reader is encouraged to read the entire published decision to determine its precedential value , if any , in any given case .
Asiama v . Asumeng , 2023 ND 114 . Filed 6 / 21 / 23 .
Asumeng appealed a judgment dividing the parties ’ marital estate and awarding Asiama primary residential responsibility of their children . While the Court affirmed the decision awarding Asiama primary residential responsibility , it held the district court erred in its distribution of the marital estate . The district court valued the marital estate ’ s property as of July 21 , 2019 , the date the parties separated , except the marital home , ordering the sale of the home in Grand Forks with the proceeds split evenly . The district court held it lacked sufficient information to calculate Asiama ’ s share of equity in the home at the time of the valuation .
The district court was required to value the marital estate on the separation date . The Court held the district court ’ s failure to value the marital home as of July 21 , 2019 , was induced by an erroneous view of the law . The home was purchased only three months before the valuation date , with a down payment of $ 80,000 . That was the parties ’ equity in the home as of the separation according to the Court . The Court held the district court had all the information it needed to equitably divide the shared value of the home , and reversed the distribution of marital property and remanded for an equitable distribution .
Blue Steel Oil & Gas , LLC v . N . Dakota Indus . Comm ’ n , 2023 ND 101 . Filed 5 / 30 / 23 .
Blue Steel appealed the district court ’ s judgment affirming an Industrial Commission order subjecting it to a statutory risk penalty under N . D . C . C . § 38-08-08 ( 3 )( c ). The Court affirmed the commission ’ s order , finding Slawson made a good-faith invitation to Blue Steel lease or participate .
Blue Steel owned an unleased oil and gas interest in McKenzie County . In August and October of 2019 , Slawson sent Blue Steel proposals to participate in a total of six wells . Blue Steel did not return an election to participate in any of the wells . Blue Steel applied to the commission for an order finding they were not subject to a risk penalty because Slawson failed to make a good-faith attempt to lease . The commission denied Blue Steel ’ s application , finding Slawson met the good-faith attempt to lease requirement . Blue Steel appealed to the district court , which affirmed the commission ’ s decision .
Commission regulations , specifically , N . D . Admin . Code § 43-02- 03-16.3 ( 1 ), detail how an operator may impose a risk penalty on a mineral owner . However , what constitutes a good-faith attempt to lease , one of the regulatory requirements , is not defined by statute or regulation . The commission rejected Blue Steel ’ s claim a proposed lease was required in all situations as part of a good-faith attempt to lease , instead using a fact-intensive inquiry of the specific situation . Based on the facts of Slawson ’ s proposals and discussions with Blue Steel , and the Court ’ s deference to commission decisions under N . D . C . C . § 38-08-14 ( 3 ), the Court affirmed the commission ’ s decision , finding Slawson made Blue Steel a good-faith attempt to lease or participate in the wells .
State v . Sanchez , 2023 ND 106 . Filed 5 / 30 / 23 .
Sanchez was charged with a sex crime . During trial , the defense ’ s theory was the victim fabricated her statements against Sanchez . The state wanted to call other witnesses to testify about the victim ’ s statements , before calling the victim . Sanchez objected to the order of witnesses , arguing the victim must first testify and be subject to cross-examination before other witnesses can testify as to the victim ’ s previous statements . Rule 801 ( d )( 1 ) provides a statement is not hearsay if the declarant testifies and is subject to cross-examination about a prior statement , and the statement is inconsistent or consistent and offered to rebut a charge that the declarant recently fabricated it or offered to rehabilitate the declarant ’ s credibility . Sanchez argued unless the victim testifies first , there is no way to determine whether the victim ’ s testimony is consistent or inconsistent with the victim ’ s prior statements . The district court allowed the state to call other witnesses first , to testify about the victim ’ s statements , prior to the victim testifying .
The Court ruled the plain language of the rule shows the declarant
Scott O . Diamond is the owner of Diamond Law Firm in Fargo where he practices municipal law , criminal law , and general litigation .
Joshua A . Swanson is a shareholder at Vogel Law Firm in Fargo where he practices energy law , construction and property law , and general litigation .
Ian McLean is a shareholder at Serkland Law Firm in Fargo where he practices in commercial litigation , municipal and education law , and criminal law .
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