Fracking the Bakken: Interpreting the Public Trust Doctrine and State Constitutional Law to Restrict Fracking Under Beneficial Use Principles

This Note tackles the intersection of state constitutional law, the Public Trust Doctrine, prior appropriation case law, and insufficient safeguards around fracking’s water-intensive practices. Typically operating with lax state oversight, modern day fracking depletes needed water resources from water-scarce regions while simultaneously contaminating public water resources that remain. Conservationists should, and must, turn to state constitutional law and common law public trust doctrine developments to achieve judicial intervention of a poorly regulated industry. By advancing modern understandings of beneficial use and anti-waste principles under western states’ prior appropriation systems of water ownership, courts can ensure greater protections of public water resources while building upon precedent.

This Note uses the Bakken Formation as a case study to highlight the stark differences among states’ constitutional case law surrounding water resource protections. Contrasting Montana’s robust constitutional protections for natural resources with North Dakota’s more limited case law, this Note seeks to spark a conversation among conservationists on harnessing state-specific constitutional law to protect water resources from insufficient fracking regulations.