Law Commons^™

The Lihtc Program, Racially/Ethnically Concentrated Areas Of Poverty, And High-Opportunity Neighborhoods, Kirk Mcclure, Anne R. Williamson, Hye-Sung Han, Brandon Weiss

Texas A&M Journal of Property Law

The Low-Income Housing Tax Credit (“LIHTC”) program remains the na- tion’s largest affordable housing production program. LIHTC units are under-represented in the neighborhoods that both promote movement to high- opportunity neighborhoods and affirmatively further fair housing. State and local officials should play an active role in guiding site selection decisions and ensuring that LIHTC developments are located in a manner that affirmatively furthers fair housing. Planners can use newly available data discussed herein to identify high-opportunity tracts.

Louisiana, Keith B. Hall

Texas A&M Journal of Property Law

In Guilbeau v. BEPCO, L.P., a landowner filed suit seeking remediation of contamination arising from oil and gas activities prior to his purchase of the property. The landowner previously had filed a suit seeking a clean-up based on the defendants’ obligations under the Louisiana Mineral Code. That earlier suit was dismissed based on the subsequent purchaser doctrine. The subsequent purchaser doctrine states that private claims for damages to property belong to the person who owned the property at the time of the damages and absent that person’s assignment of his claims to a subsequent purchaser of the property, the subsequent …

Ohio, Gregory W. Watts

Texas A&M Journal of Property Law

In recent years, as a result of Ohio’s Utica shale boom, Ohio courts have confronted the issue of how to apply the Ohio Marketable Title Act. As with many statutes, there are generally two questions to answer: (1) does the particular statute apply to the particular facts of the case? and (2) if the statute applies in the first instance, how does a court apply the statute to the particular facts of the case?

Oregon, Eric L. Martin

Texas A&M Journal of Property Law

Even though no oil and only a small quantity of natural gas is produced in Oregon, the Oregon Legislature enacted bans in 2019 on hydraulic fracturing until 2025 and on using Oregon’s territorial sea for oil and gas activities. Beyond that legislation, though, legal developments in Oregon this year concerning the oil and gas industry focused on downstream issues.

Survey Of Selected 2019 Texas Oil And Gas Cases And Statutes, William D. Farrar

Texas A&M Journal of Property Law

Texas courts and the legislature were quite active in 2019 concerning oil and gas issues. Texas courts decided many cases involving everything from deed interpretation to lease repudiation to farmout interpretation. The Texas Supreme Court has granted several petitions for review from the courts of appeal. The legislature enacted or amended statutes concerning so called “royalty leases,” the Mineral Interest Pooling Act, and others. The following are summaries of some selected cases and statutes that will be of interest to those involved with Texas oil and gas law.

Alabama, Brandt Hill

Texas A&M Journal of Property Law

This case reviewed and conclusively determined the proper venue in which to file appeals from decisions by the Alabama Surface Mining Commission (the “Commission”). The Commission issued a surface-coal-mining permit to Black Warrior Minerals, Inc. (“Black Warrior”), allowing Black Warrior to mine land in northern Jefferson County, Alabama. In response, three. individuals who owned property nearby appealed the permit’s issuance with the Commission’s Department of Hearings and Appeals, and a hearing officer affirmed the issuance. The property owners then petitioned the Commission for review of the officer’s decision, but their petition was never taken up and thus was denied by …

Colorado--The Changing Landscape Of Land Use Law And Regulations Impacting The Colorado Oil And Gas Industry: From The Colorado Oil And Gas Conservation Act Of 1951 To Senate Bill 181 Of 2019, Ralph A. Cantafio

Texas A&M Journal of Property Law

When Colorado Democratic Governor Jared Polis approved Senate Bill 181, this new law significantly redirected the historical focus of Colorado oil and gas regulation. This provided a significant delegation of land use related authority to local government for the first time since the passage of this Act in 1951. This new law moved away from the traditional notion of statewide regulation based upon exclusive jurisdiction by the Colorado Oil and Gas Conservation Commission (“COGCC”). While this change of legislative focus is significant, this latest direction is probably a natural continuation of a general trend that has been emerging in Colorado …

Montana, Stephen R. Brown

Texas A&M Journal of Property Law

In 2018, Montana produced 21.5 million barrels of crude oil and 93.2 million cubic feet of natural gas. Nationally, Montana ranked thirteenth in crude oil production. Through August 2019, crude oil production declined by 587,000 barrels, and natural gas production increased by 5.5 million cubic feet when compared to the same period in 2018.

Alaska, Traci N. Bunkers

Texas A&M Journal of Property Law

The First Regular Session of the thirty-first Alaska Legislature began on January 15, 2019, and ended on May 15, 2019. A First Special Session was held from May 16, 2019, through June 13, 2019, with a Second Special Session following from July 8, 2019, through August 6, 2019. The 2019 legislative session resulted in virtually no oil and gas legislation being passed, as the Alaska Legislature focused primarily on legislation regarding the State budget and the funding of the Permanent Fund Dividend. Despite the uncharacteristic lack of oil and gas legislation, the Legislature addressed the prevalent issue of oil and …

Arkansas, J. Mark Robinette

Texas A&M Journal of Property Law

There is very little to report in Arkansas this year. The 92nd General Assembly made no substantive changes to the law of oil and gas in Arkansas. In addition, the federal courts produced no significant developments In state court, there were two notable cases.

Kansas, Jeff M. Pike

Texas A&M Journal of Property Law

2019 provided no shortage of excitement, as there were more oil and gas opinions issued by the Kansas Supreme Court than in a usual year. These cases will be the main focus of this Survey, as there are no major legislative developments to report for this year. The first case decided whether the common-law rule against perpetuities should be applied to exceptions of defeasible term mineral interests. The second case is “yet another round in [a] high-dollar subsurface prize fight” about who has the right to gas that has escaped from an under- ground natural gas storage facility. The third …

California, Joshua L. Baker

Texas A&M Journal of Property Law

Although California continues to transition away from its historical status as one of the nation’s most important oil and gas-producing states, California is still among the top-ten states in oil production and produces a significant amount of natural gas. California has a long history of oil and gas exploration, production, refinement, and marketing, and as a result, well-established common law principles and statutory and regulatory laws are in place that govern all facets of the industry. The following update summarizes key changes in California oil and gas law for the survey period from January 1, 2019 to October 15, 2019.

Michigan Oil And Gas Update, Joshua D. Beard

Texas A&M Journal of Property Law

The Michigan Department of Environment, Great Lakes, and Energy (“EGLE”), formerly the Michigan Department of Environmental Quality, is in the process of seeking primary enforcement responsibility from the United States Environmental Protection Agency (“EPA”) for its Underground Injection Control (“UIC”) program for Class II wells pursuant to Part C of the Safe Drinking Water Act (“SDWA”).

New Mexico, Sharon T. Shaheen

Texas A&M Journal of Property Law

Under the Produced Water Act (“Act”) enacted in the 2019 regular legislative session, the New Mexico Legislature authorized the New Mexico Oil Conservation Division (“OCD”) and the New Mexico Water Quality Control Commission (“WQCC”) to regulate produced water resulting from oil and gas drilling or production. The Act governs the transportation and sale of produced water, recycled water (also referred to as recycled produced water), and treated water (also referred to as treated produced water).

Pennsylvania--Recent Developments In Pennsylvania Jurisprudence Related To Oil And Gas Leasing And Conveyancing, Ross Pifer

Texas A&M Journal of Property Law

Pennsylvania is the largest producer of shale gas in the United States and is the second-largest natural gas-producing state overall. Owing to its strategic location atop the Marcellus and Utica Shale Formations, Pennsylvania’s position as a major natural gas producer is relatively new. Just a little over a decade ago, Pennsylvania ranked sixteenth among states in total natural gas production. With this rapid rise in the amount of natural gas development, there has been a corresponding increase in activity in courtrooms across Pennsylvania—both in state and federal courts. As a result, Pennsylvania oil and gas law has evolved within a …

Utah, Mark Burghardt

Texas A&M Journal of Property Law

Oil and gas production continues to be an important sector of Utah’s economy. Following a 25% loss in production between 2014 and 2015, Utah’s production continues to slowly rebound. Crude oil production in 2019 appears to be slightly ahead of 2018 production. Monthly production averages slightly over three million barrels, placing Utah among the top ten states in crude oil production. Along with the continuing increase in production, the state’s legal framework governing oil and gas continues to develop.

This Article examines recent changes in Utah statutes and regulations along with new case law developments involving the oil and gas …

North Dakota--Dealing With Dubious Contracts For Conveying Land Statute Of Limitations Or Reformation For Mutual Mistake?, William P. Pearce

Texas A&M Journal of Property Law

The topic of this Article arose from a recent opinion by the North Dakota Supreme Court: Western Energy Corporation v. Stauffer. The case dealt with how the law handles changes in ownership of property, specifically land including underlying mineral interests, that come into dispute after substantial periods of time have passed, resulting in a need for the parties involved in the dispute to turn to the courts for a solution. The passing of a substantial amount of time often becomes the issue in resolving the dispute in these types of situations.

The opening paragraph in the Court’s opinion in Western …

Oklahoma, Mark D. Christiansen

Texas A&M Journal of Property Law

In Naylor Farms, Inc. v. Chaparral Energy, LLC, the plaintiff royalty owners (collectively, Naylor Farms) contended that Chaparral systematically underpaid royalties on production from approximately 2,500 Oklahoma oil and gas wells by improperly deducting from royalty payments certain costs that the plaintiffs contended should have been borne solely by Chaparral under Oklahoma law. The district court granted Naylor Farms’ motion seeking certification of a class of royalty owners under Rule 23 of the Federal Rules of Civil Procedure. In the present proceedings, Chaparral has appealed the district court’s order granting class certification.

Drone Delivery And The Takings Clause, Brian M. Miller

Texas A&M Journal of Property Law

Amazon, Inc.’s fledgling drone shipping service, “Prime Air,” and similar services, may pose a new threat to private property rights. Companies that ship by drone would likely have to fly the drones over private land. But who owns the low-altitude airspace above private land? That issue is unsettled, but the common law supports the view that low-altitude airspace belongs to the landowners beneath. If that is correct, companies like Amazon have two main options to get drone shipping off the ground: (1) pay the landowners on the intended routes for an easement through their low-altitude airspace, or (2) count on …

Can The Penalties For Treason Co-Exist With The Concept Of Private Property? A Book Review Of Charles Yorke's "Some Considerations On The Law Of Forfeiture, For High Treason", Christopher Guzelian

Texas A&M Journal of Property Law

Charles Yorke’s book, Some Considerations on the Law of Forfei- ture, for High Treason, is 274 years old. Nevertheless, it has modern relevance. President Trump,2 prominent members of Congress (e.g., Senator Kamala Harris3), and Justice Brett Kavanaugh during his con- firmation hearing (in an exchange with Senator Lindsey Graham4) have recently discussed law related to treason.

Calibrating Intellectual Property And Innovation In Newspace, Jesse L. Silvernail

Texas A&M Journal of Property Law

The commercial space industry is soon expected to explode into a trillion- dollar industry, but patent protection in NewSpace has been largely ignored by an industry that is driven by technological innovation and rapid develop- ment. There has been little disclosure of inventions as large commercial space companies rely on trade secrets that are almost impossible to independently invent or reverse engineer. The benefits of both invention disclosure and se- crecy are well known, but there has not been analysis on inventions in the space industry. This paper fills the gap in the literature by analyzing common intellectual property practices …

The Fight For Footprint: Energy Development And Competing Surface Use Issues, James D. Bradbury

Texas A&M Journal of Property Law

The laws surrounding energy development in Texas have evolved over the past century, as Texas has been at the epicenter of the energy industry—and thereby, the center of energy law—since oil was discovered in Corsicana in 1894. Domestic, and even some international choice-of-law clauses, choose Texas law due to the Lone Star State’s dominance in the energy sector.

While Texas is often closely tied to oil and gas, its strong position in the energy market is not limited just to this industry. Texas is now the largest producer of wind energy and the seventh largest producer of solar energy in …

Enforcing The Ada And Stopping Serial Litigants: How The Commercial Real Estate Industry Can Play This Key Role, R. Cameron Saenz

Texas A&M Journal of Property Law

This comment explores the evolution of Title III of the Americans with Disabilities Act (“ADA”) and argues for a new and more effective implementation of this important anti-discrimination law through the real estate industry. First, this comment discusses the intricacies of the ADA, including its revisions over time and impactful legislation it has spawned. Second, this comment addresses current practical and legal challenges to enforcement of Title III of the ADA, including commercial property owners’ lack of understanding ADA responsibilities, serial litigation, and standing in courts. Finally, this comment proposes a new emphasis on ADA enforcement within the real estate …

Wyoming, Walter F. Eggers, Iii

Texas A&M Journal of Property Law

Wyoming currently ranks eighth nationally in both crude oil and natural gas production. In 2018, Wyoming produced 87.9 million barrels of crude oil, up from 75.7 million barrels in 2017. Wyoming produced 1.81 billion MCF (thousand cubic feet) of natural gas, increasing from 1.80 billion MCF produced in 2017.

A Comparative Analysis Of Texas And New Mexico Oil And Gas Laws From A Title Examiner's Perspective, Carly Hewett

Texas A&M Journal of Property Law

The statutory framework surrounding oil and gas law and the related title issues in Texas and New Mexico, while similar in many instances, do have some notable differences. New Mexico case law is very limited, which could be due to a variety of reasons, including a smaller state population and the fact that New Mexico and the United States own much of New Mexico’s oil and gas productive acreage. Therefore, practitioners often look to other jurisdictions, including Texas, for guidance. Texas’s secondary authority is also better developed with its own adopted title standards. New Mexico does not have such guidance. …

Experience Is A Dear Teacher--The Texas Wind Decommissioning Statute, Rod Wetsel

Texas A&M Journal of Property Law

As is well known among both my students and colleagues, my professional life as a lawyer (and later as a law professor) took a monumental turn in 1999 when I reviewed and drafted my first wind lease in Nolan County, Texas. That lease, as well as all of the other wind leases at the time, contained contractional “clean up and restoration” clauses similar to many oil and gas leases then in use. Simply put, the leases provided that upon expiration or termination of the lease (which for a wind lease, unlike an oil and gas lease, might be fifty or …

Virginia, Mason Heidt

Texas A&M Journal of Property Law

This Article addresses developments in Virginia oil and gas law for the period from July 31, 2014 to July 31, 2019. This period is longer than normally addressed by this journal to capture important developments in the law between this update and the last Virginia update published in 2015. At the state level, in Swords Creek Land Partnership v. Belcher, the Supreme Court of Virginia concluded coalbed methane (“CBM”) is a separate and distinct mineral estate from coal. It held that the meaning of “coal” within an 1887 severance deed was unambiguous and did not intend to convey ownership rights …

Oil & Gas Survey: West Virginia, Josh Fershee

Texas A&M Journal of Property Law

This Article summarizes and discusses important recent developments in West Virginia’s oil and gas law as determined by recent West Virginia Supreme Court of Appeals cases. There were no substantial legislative changes in the current period.

Come And Charge It: The Rise Of Utility-Scale Battery Energy Storage In Texas, Matthew A. Arth

Texas A&M Journal of Property Law

Affordable, reliable battery energy storage has long been the holy grail of the electric grid. From avoiding expensive transmission build-out to smoothing out fluctuations inherent to wind and solar resource output, batteries hold the promise of providing the solution to an ever more intermittent and distributed grid. Across the United States and particularly in Texas, that futuristic vision is beginning to approach reality as battery costs decline and favorable regulatory policy is implemented. This Article addresses the current state of battery energy storage system development and notes recent contributory policy developments at both the national and state level.

Pop-Up Potential: The Effect Of Regulatory Laws On The Innovation Of Pop-Up Restaurants, Alexandra Lizano

Texas A&M Journal of Property Law

Pop-up restaurants have risen in popularity over the past decade in the United States. As used in this Comment, a pop-up restaurant is when an existing restaurant space temporarily loans that space to another chef or restaurant for a limited period of time. This Comment seeks to explore the potential benefits and exploit the drawbacks of pop-up restaurants as property solutions in large cities. Pop-up restaurants thrive in the landscape of the sharing economy, and as such, legal scholars pose that it is imperative to understand this new type of economic scheme to efficiently regulate the entities within it. The …