University of Oklahoma College of Law

Riedel, Andreah

 319  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10                                                                                      NUMBER 3  ARKANSAS               Andreah Riedel*  Table of Contents I. Introduction ........................................................................................... 320 II. Statutory Law ....................................................................................... 320 A. New Final Rule D-23 ................................................................... 320 III. Administrative Law ............................................................................ 320   * Andreah Riedel is an Of Counsel Attorney at Steptoe & Johnson PLLC and is licensed in Ohio and West Virginia.  She proudly graduated from Duquesne University School of Law in 2018, and now focuses her practice on mineral title law in West Virginia, Ohio, and Pennsylvania.  Andreah would like to extend appreciation and thanks to Taylor Goldstrohm, a 2L at West Virginia University School of Law, for her assistance with this article. Published by University of Oklahoma College of Law Digital Commons, 2025320 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    IV. Common Law ..................................................................................... 320 A. Sufficient Notice found for Challenged AOGC Integration Orders ............................................................................................... 320 B. Deduction of Postproduction Expenses from Integrated Mineral Holder Interests found Improper ....................................................... 321 V. Other .................................................................................................... 323 A. ExxonMobil Drilled First Lithium Well in Southwest Arkansas .. 323 VI. Conclusion .......................................................................................... 323 I. Introduction For the period of August 1, 2023, through July 31, 2024, there was minimal activity in the courts and legislature of Arkansas leading to any significant updates in the oil and gas industry. Notably, however, the first lithium well was drilled in Southwest Arkansas, inevitably setting the table for legislative changes regarding the mining of lithium. II. Statutory Law A. New Final Rule D-23 As of July 4, 2024, amendments to Commission General Rule D-23, regarding the regulation of underground natural gas storage projects, were made effective, with the most notable amendment being the provision allowing for the underground storage of additional gases, such as carbon oxides, ammonia, hydrogen, nitrogen, and noble gas.1 III. Administrative Law There were no notable administrative developments in Arkansas during the time period of August 1, 2023, to July 31, 2024.  IV. Common Law A. Sufficient Notice found for Challenged AOGC Integration Orders In Cambiano v. Arkansas Oil & Gas Commission, the Arkansas Court of Appeals, 1st Division, affirmed the Conway County Circuit Court’s decision that the Arkansas Oil and Gas Commission (“AOGC”) was justified in finding proper notice having been given to holders of certain mineral rights prior to the pooling of all uncommitted and unleased mineral interest owners   1. 118.03.24 Ark. Code R. 002; See also 2023 Ark. Acts 140. https://digitalcommons.law.ou.edu/onej/vol10/iss3/32025]        Arkansas 321   in a unit in Van Buren County, Arkansas.2  In the circuit court case, certain holders of mineral interests sought to vacate 2007 and 2019 integration orders granted in favor of SEECO, Inc. (“SEECO”), arguing that their predecessors in interest were not provided sufficient notice and opportunity to negotiate their interests.3  The circuit court found in favor of SEECO, stating that there was substantial evidence regarding the efforts made prior to the grant of the 2019 integration order and, as royalties were being accepted pursuant to the 2007 order, the mineral holders were bound by the same.4  Upon appeal, the Appellants argued, in relevant part, that SEECO did not make reasonable efforts to negotiate a lease with certain heirs prior to the 2007 integration hearing and the integration application failed to list known heirs as unleased mineral owners.5  Alternatively, SEECO argued that the hearings on this issue complied with the agency’s rules and regulations.6  On appeal of a circuit court’s decision regarding an agency decision, the appellate court’s review is limited to the decision of the agency, rather than the decision of the circuit court.7  Pointing towards the efforts of SEECO, including the publication of notice by newspaper where the working interest holder had established due diligence to locate unleased mineral owners, the execution of a title examination including an eight-months search and opinion, and the obtainment of relevant information of record, the appellate court found that the AOGC’s orders were supported by sufficient evidence of sufficient notice having been provided.8  In large part, this decision serves as a reminder to mineral interest holders and oil and gas companies of the importance of the procedural and substantive factors that are key to the integration of mineral rights.   B. Deduction of Postproduction Expenses from Integrated Mineral Holder Interests found Improper  In Flywheel Energy Prod., LLC v. Arkansas Oil and Gas Commission, the Arkansas Court of Appeals, 2nd Division, was called upon to determine whether Flywheel Energy Production, LLC (“Flywheel”) properly deducted postproduction expenses from integrated royalty payments, as set forth in   2. Cambiano v. Arkansas Oil & Gas Comm’n, 2023 Ark. App. 581, 680 S.W.3d (2023), reh’g denied (Jan. 24, 2014).  3. Id. at 774.  4. Id. at 777.  5. Id. at 776.  6. Id.   7. Id. at 777.  8. Id. at 779. Published by University of Oklahoma College of Law Digital Commons, 2025322 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    Ark. Code Ann. § 15-72-305(A)(3) (Supp. 2023).9  Historically, the Arkansas Oil and Gas Commission (“AOGC”) and oil and gas producers have interpreted the phrase “net proceeds” in Ark. Code Ann. § 15-72-305(A)(3) to allow only the deduction of taxes, assessments, and true third-party expenses; however, Flywheel asserted that it interpreted the phase “net proceeds” to require that postproduction expenses, such as any expenses incurred between the wellhead and the place the sale occurs, are deducted when calculating the statutory royalty.10  Upon receiving complaints from royalty holders about the deductions taken by Flywheel, the AOGC set a letter to Flywheel requesting an explanation for the additional deductions.11  Upon escalation to an AOGC hearing, Flywheel contended that the term “net proceeds” in  Ark. Code Ann. § 15-72-305(A)(3) is plain and unambiguous, as it was common knowledge that “net proceeds” meant that expenses were to be deducted, and therefore the extrinsic evidence used by AOGC for its interpretation of the statute was a violation of separation-of-powers doctrine.12  Oppositely, the AOGC held that the term “net proceeds” was ambiguous, as it was not statutorily defined, and found a course of dealing that resulted in its model lease permitting royalty deductions only for taxes, assessments, and true third-party expenses.13  Upon appeal to the circuit court, the circuit court found in favor of the AOGC, holding that the term “net proceeds” is ambiguous, and the deduction of postproduction costs acts in opposition to the goal of ensuring protection to integrated mineral interest holders.14 Upon appeal to the Arkansas Court of Appeals, Flywheel argued, in most relevant part, that the unambiguous language of Ark. Code Ann. § 15-72-305(A)(3) allows the operator to pay one-eighth proceeds from net proceeds, including postproduction expenses, and that the AOGC’s examination of extrinsic evidence regarding the meaning of “net proceeds” was improper, as the legislation is plain and unambiguous.15  Alternatively, the court found that “net proceeds” is ambiguous and open to more than one interpretation, and therefore considered extrinsic evidence regarding its meaning.16  While   9. Flywheel Energy Prod., LLC v. Arkansas Oil & Gas Comm’n, 2023 Ark. App. 483, 678 S.W.3d 851 (2023), reh’g denied (Dec. 6, 2023), review denied (Jan. 25, 2024).  10. Id. at 854–57  11. Id. at 854.  12. Id. at 858.  13. Id.   14. Id. at 856–57.  15. Id. at 857.  16. Id. at 859–62. https://digitalcommons.law.ou.edu/onej/vol10/iss3/32025]        Arkansas 323   Flywheel’s arguments hinge on purported precedence, the court dismisses this argument, stating that none of the relied-upon cases even suggest that postproduction expenses are chargeable against integrated royalty interests.17  Instead, the court looks at the AOGC’s long-standing interpretation, explaining that “net proceeds” permitted only deductions for assessments, taxes, and transportation expenses.18 The decision of this court includes that substantial evidence supporting AOGC’s order that interprets “net proceeds,” and states that the rationale was based on “valid, legal, and persuasive evidence that a reasonable mind might accept as adequate to support a conclusion and force the mind to pass beyond conjecture.”19  V. Other A. ExxonMobil Drilled First Lithium Well in Southwest Arkansas ExxonMobil started to drill the first lithium well in Southwest Arkansas after it acquired the rights to 120,000 gross acres of the Smackover formation in 2023.20 The company is hoping for the first lithium production for 2027.21 After this news broke, the Department of Energy and Environment and the Oil and Gas Commission started to prepare for lithium oversight, inevitably setting the table for legislative changes regarding the mining of lithium.22  VI. Conclusion  During the period of August 1, 2023, to July 31, 2024, there was minimal activity in the courts and legislature of Arkansas leading to any significant updates in the oil and gas industry.  We look forward to following any developments relating to lithium production following the drilling of the first lithium well in Southwest Arkansas.   17. Id.  18. Id.   19. Id. at 862 (citing Ark. Pro. Bail Bondsman Licensing Bd. V. Oudin, 348 Ark. 48, 69 S.W.3d 855 (2002)).  20. ExxonMobil Drilling First Lithium Well in Arkansas, Aims To Be a Leading Supplier for Electric Vehicles by 2030, ExxonMobil, (Nov. 13, 2023), https://corporate.exxonmobil. com/news/news-releases/2023/1113_exxonmobil-drilling-first-lithium-well-in-arkansas (last visited June 27, 2024).  21. Id.   22. Aaron Gettinger, Department of Energy and Environment, Oil and Gas Commission preparing for lithium oversight, Arkansas Democrat Gazette, (Nov. 18, 2023, 1:51 AM), https://www.arkansasonline.com/news/2023/nov/18/department-of-energy-and-environment-oil-and-gas/ (last visited June 27, 2024). Published by University of Oklahoma College of Law Digital Commons, 2025

English

Arkansas

White, Alan M.

 465  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10                                                                                      NUMBER 3  UTAH   Alan M. White*  I. Introduction This Article summarizes and discusses important developments in Utah oil and gas law between August 1, 2023, and July 31, 2024. Part II of this article discusses legislative and regulatory updates; however, no relevant legislative enactments or regulatory changes concerning oil and gas were implemented in Utah during the specified timeframe. Part III focuses on   * Alan M. White is a Member with Steptoe & Johnson PLLC in Morgantown, West Virginia, where he focuses his practice in the areas of mineral title and energy law. He has experience in conducting oil and gas title opinions as well as in the preparation of title documents for energy companies. Published by University of Oklahoma College of Law Digital Commons, 2025466 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    judicial updates; however, there were no relevant oil and gas cases heard in Utah federal or state courts in the relevant timeframe. II. Legislative and Regulatory Developments A. Legislative Enactments No relevant legislative enactments were passed by Utah from August 1, 2023, through July 31, 2024. B. Regulatory Changes No relevant regulatory changes were made by Utah from August 1, 2023, through July 31, 2024. III. Judicial Developments A. Utah Supreme Court No relevant cases were heard by the Utah Supreme Court from August 1, 2023, through July 31, 2024.  B. United States District Court for the District of Utah No relevant cases were heard by the United States District Court for the District of Utah from August 1, 2023, through July 31, 2024.    https://digitalcommons.law.ou.edu/onej/vol10/iss3/23

Utah

Barissi, M. Vafa

Banks, Delainey

 365  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10                                                                                      NUMBER 3  MICHIGAN               M. Vafa Barissi & Delainey Banks*  Table of Contents I. Introduction ........................................................................................... 366 II. Statutory Law ....................................................................................... 366 A. Michigan Senate Bill No. 271 ......................................................... 366   * Vafa Barissi is a Member in the Wheeling, West Virginia office at Steptoe & Johnson, PLLC, where he focuses his practice in energy law throughout the Appalachian Basin, specializing in title, due diligence and mineral acquisitions and divestitures. Delainey Banks is an Associate in the Wheeling, West Virginia office, where she focuses her practice in the area of energy, title, and mineral law. The authors would like to thank and credit Abby Thomas, summer associate with Steptoe & Johnson PLLC, for her contributions to this survey. Published by University of Oklahoma College of Law Digital Commons, 2025366 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    B. Michigan Senate Bill No. 273 .......................................................... 366 C. Michigan Senate Bill No. 519 .......................................................... 366 D. Michigan House Bill No. 4826 ........................................................ 367 III. Administrative Law ............................................................................ 367 IV. Common Law ..................................................................................... 367 V. Conclusion ........................................................................................... 368 I. Introduction While there were no significant case law developments in Michigan during the period examined between August 1, 2023, to July 31, 2024, there were a few notable legislative updates that could impact the oil and gas sector. These changes address various aspects of regulatory oversight, environmental protection, and operational standards, signaling potential shifts in how the industry will be managed and regulated soon. II. Statutory Law A. Michigan Senate Bill No. 271 Approved by the governor on December 29, 2023, Senate Bill No. 271 amends the Clean and Renewable Energy and Energy Waste Reduction Act (“Act 295 of 2008”) and is part of a larger package of initiatives referred to as the “Clean Energy Future” bills.1 S.B. 271 requires fifty percent (50%) of Michigan’s energy to come from renewable sources by 2030, sixty percent (60%) by 2035, and one hundred percent (100%) by 2040. B. Michigan Senate Bill No. 273 Senate Bill No. 273 is another Clean Energy Future bill that requires certain providers of electric or natural gas service, whose rates are regulated by the Michigan Public Service Commission (“MPSC”), to establish and recover costs for energy waste reduction programs.2 The bill further intends to lower natural gas and electric utility costs for families by returning energy costs savings to customers and offering energy efficiency programs to low-income customers.  C. Michigan Senate Bill No. 519 Continuing with amendments to Act 295 of 2008, the governor approved Senate Bill No. 519, which creates the Office of Worker and Community   1. S.B. 271, 2023 Leg., Reg. Sess. (Mi. 2023).  2. S.B. 273, 2023 Leg., Reg. Sess. (Mi. 2023). https://digitalcommons.law.ou.edu/onej/vol10/iss3/102025] Michigan 367   Economic Transition in the Department of Labor and Economic Opportunity.3 The new department’s purpose is to streamline renewable energy projects and protect fossil fuel workers and communities impacted by the transition to clean energy.  D. Michigan House Bill No. 4826 Approved by the governor on February 27, 2024, House Bill No. 4826 repeals Sections 65 and 66 of the Administrative Procedures Act, 1969 PA 306.4 The law eliminates the Environmental Rules Committee, which was made up of representatives from the oil and gas industry, within the Natural Resources and Environmental Protection Act and the Department of Environment, Great Lakes, and Energy.  III. Administrative Law On December 1, 2023, the Department of Natural Resources, Forest Resources Division, published its amendment to the Michigan Administrative Code related commercial forests, being R 299.2601, R 299.2603, R 299.2603a, R 299.2604, R 299.2605, R 299.2605a, R 299.2605b, R 299.2606, R 299.2608, and R 299.2610 of the Michigan Administrative Code.5 These changes update definitions, standards, and requirements for forest management, conservation practices, and compliance monitoring. Although these amendments are focused on forestry and land management, portions of the rule aim to influence land use decisions of commercial lands, such that if commercial forests are located on or near land with potential oil and gas resources, the updated forest management rules might affect how those lands can be used or developed, which could subsequently impact how resource extraction activities are managed in proximity to commercial forests. Thus, the integration of sustainable practices and updated standards in forest management could influence how resource extraction activities are planned and conducted, particularly in areas where forestry and energy interests intersect in the future.  IV. Common Law No new developments for the period searched.   3. S.B. 519, 2023 Leg., Reg. Sess. (Mi. 2023).  4. H.B. 4826, 2024 Leg., Reg. Sess. (Mi. 2024).  5. 2023 MR 21, at 2-7. Published by University of Oklahoma College of Law Digital Commons, 2025368 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    V. Conclusion Although there were some developments to Michigan’s oil and gas law during the period searched, the proposed legislative measure discussed above could have a future substantial impact on the use and development of natural gas.  https://digitalcommons.law.ou.edu/onej/vol10/iss3/10

Michigan

Churchfield, Tia L.

 363  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10                                                                                      NUMBER 3  MARYLAND                 Tia L. Churchfield*  Introduction of Oil and Gas Development This article provides an update of the developments in oil and gas law in the State of Maryland from August 1, 2023, through July 31, 2024.  This article focuses on major legislative and regulatory enactments as well as developments in the common law.    * Tia L. Churchfield is a Member at Steptoe & Johnson PLLC and practices in the firm’s Southpointe, Pennsylvania office.  Tia is licensed in Pennsylvania and concentrates her practice in the area of energy law. Published by University of Oklahoma College of Law Digital Commons, 2025364 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    I. Legislative and Regulatory Developments During the relevant time period of this update, there were no notable Legislative and Regulatory Developments involving the oil and gas industry. II. Judicial Developments During the relevant time period of this update, there were no notable Judicial Developments involving the oil and gas industry.  https://digitalcommons.law.ou.edu/onej/vol10/iss3/9

Maryland

Tovino, Stacey A.

Artificial Intelligence and the HIPAA Privacy Rule: A Primer

McKeen, Tim

Grimes, Melissa

Ohio

Knox, Ryan P.

Sarpatwari, Ameet

The 340B Drug Pricing Program: Administration, Litigation, and Reform

Jury, Alexandra

   ONE J Oil and Gas, Natural Resources, and Energy Journal    V O L U M E  1 0 ,  N U M B E R  2  J A N U A R Y ,  2 0 2 5  Published by University of Oklahoma College of Law Digital Commons, 2025  Editor’s Inroduction  Welcome to the Second Edition of Volume 10 of the Oil and Gas, Natural Resources, and Energy Journal (ONE J). This edition features three articles, each written by dedicated authors who have invested significant effort to make them insightful. The first article, “Overview of Oil and Gas Activities in the Amazonian Territories,” explores the Amazon region’s complex dynamics, the coordination of multinational polices, energy development, and Brazil’s efforts to balance resource use with environmental protection. The second article, “Fixing the Last Frontier: How Law and Policy Governing Commerical Fishing have Failed Alaska’s Environment and Economy,” dives into Alaska’s fishing industry, highlighting its impact and environmental history and the current challenges it faces. The third article, “Infrastructure, Equity and Climate Change: The Promise of the Infrastructure Investment and Jobs Act (IIJA),” features a discussion on IIJA’s impact on climate justice. I want to thank all of the authors for their hard work and dedication they put into this edition, and Jason Kersey, our Submissions Editor, for all of the time and effort he poured into making this edition. ONE J presents to you the Second Edition of Volume 10 of the Oil and Gas, Natural Resources, & Energy Journal, and we hope you enjoy.     Best wishes,  Alexandra Jury Editor-in-Chief   https://digitalcommons.law.ou.edu/onej/vol10/iss2/1  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10 – 2024-2025  ALEXANDRA JURY Editor-in-Chief  MADELYN MUSSON Managing Editor  JASON KERSEY Submissions Editor  KOHL LESTER KARIM YEHIA MEREDITH GUNNER DIAMOND MAYBERRY ANDREW ILEMSKY Student Editors   LISA CAMPBELL MADISON TAYLOR LUCIA KEZELE Articles Editors  WINCHELL GALLARDO Symposium Editor  ALYSSA BIASATTI Outreach Editor  REESE CHARLES Media Editor  JOSEPH SCHREMMER Faculty Advisor  Published by University of Oklahoma College of Law Digital Commons, 2025  ONE J | Oil and Gas, Natural Resources, and Energy Journal  VOLUME 10, NUMBER 2  Overview of Oil and Gas Activities in the Amazonian Territories  Leonardo Costa da Fonseca & Marcio Pina Marques 229 Fixing the Last Frontier: How Law and Policy Governing Commercial Fishing Have Failed Alaska’s Environment and Economy  Andrew Ilemsky      255 Infrastructure, Equity and Climate Change: The Promise of the Infrastructure Investment And Jobs Act (IIJA)  Dante R. Gurule     289   https://digitalcommons.law.ou.edu/onej/vol10/iss2/1

Editor\u27s Introduction & Front Pages

Jones, Blake C.

 383  ONE J Oil and Gas, Natural Resources, and Energy Journal VOLUME 10                                                                                      NUMBER 3  NEW MEXICO  Blake C. Jones* I. Introduction As New Mexico attempts to strike the appropriate balance between being a petroleum powerhouse and crafting a regulatory scheme to protect the environment, the 2024 legislative session ended without any major reforms to the oil and gas industry despite the introduction of numerous bills.    * Blake C. Jones is a member of the Energy Transactions practice group at Steptoe & Johnson PLLC. He advises exploration and production companies through all phases of acquisitions and divestitures, and regularly manages large title due diligence projects for his clients. He is a graduate of The Ohio State University (BA), and Capital University (JD). Mr. Jones is licensed in New Mexico, Ohio, and Texas. Research assistance for this paper was provided by Kara Taylor, rising 3L at the University of Houston Law Center. Published by University of Oklahoma College of Law Digital Commons, 2025384 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    II. Legislative and Regulatory Developments A. State Legislative Developments Series of Bills Aimed at Reforming the Oil and Gas Industry Fail During Legislative Session “It was a very good year!” or “frustrating.”1 Two very different ways to describe the same New Mexico legislative session. The former being a statement by the New Mexico Oil and Gas Association, and the latter a description given by Democratic Representative Matthew McQueen, who co-sponsored two failing bills.2 Perhaps the most ambitious piece of legislation was House Bill 133, which started out as an attempt to overhaul the 1935 Oil and Gas Act.3 The initial bill proposed four main reforms: “restricting freshwater use by industry; setbacks from homes, schools and other sensitive areas for new wells; increases in fines and fees; and codification of the state’s 98% methane capture rule, which targets leaks in the production process.”4 The bill that eventually made its way to the house floor included codification of the gas capture rule, along with fee and fine increases.5 The bill passed its House committee hearings before being postponed indefinitely without a hearing before the full House.6  House Bill 48 sought to increase the royalty rate for oil and gas produced on state lands from twenty percent (20%) to twenty-five percent (25%).7 Supporters of the Bill argued that the increase was in line with royalties being   1. Jerry Redfern, Another New Mexico Legislative Session Ends, and Again—No New Oil and Gas Reforms, Capital & Main (Feb. 26, 2024), https://capitalandmain.com/another-new-mexico-legislative-session-ends-and-again-no-new-oil-and-gas-reforms (last visited August 18, 2024).  2. Id.  3. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis. gov/Legislation/Legislation?chamber=H&legType=B&legNo=133&year=24; see also N.M. STAT. ANN. § 70.  4. Jerry Redfern, Oil and gas regulatory bills still alive in New Mexico Legislature, Source NM (Feb. 6, 2024, 2:58 AM), https://sourcenm.com/2024/02/06/oil-and-gas-regulatory-bills-still-alive-in-new-mexico-legislature/ (last visited August 18, 2024); see also H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/24%20 Regular/bills/house/HB0133.pdf.  5. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/ 24%20Regular/bills/house/HB0133JCS.pdf.  6. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/ Legislation/Legislation?chamber=H&legType=B&legNo=133&year=24.  7. H.B. 48, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/ 24%20Regular/bills/house/HB0048.pdf. https://digitalcommons.law.ou.edu/onej/vol10/iss3/152025] New Mexico 385   paid to private landowners, and also the rates paid in Texas.8 State lands account for less than 1% of leasable land, but the increase would have accounted for between $1.5 billion and $2.5 billion in new revenue by 2050.9 The Bill met a similar fate to HB 133, passing two house committee hearings before the session ended without a vote.10 Senate Bill 64 was introduced to provide a severance tax exemption for low producing stripper wells.11 Opponents of the bill argued that the name, Severance Tax Exemption for Certain Projects, intentionally hid the tax break for the oil and gas industry. While stripper wells, wells producing less than 10 barrels of oil per day, account for 20% of the active wells in the state, they account for less than 1.5% of oil production, and less than 6% of gas production.12 A report issued by the Legislative Finance Committee said that the bill would cost the state $9.7 million in lost tax revenue, and $200,000 in enforcement costs.13 The industry friendly tax break would also ultimately die in chamber.14 House Bill 2, the state’s General Appropriation Act, funds all state expenditures, including the two oil and gas enforcement agencies, the Oil Conservation Division (“OCD”) and the New Mexico Environment Department. The OCD budget increased 4.8% from the prior year, compared to the 6.5% overall budget increase.15 Dylan Fuge, the acting director of the Energy Minerals and Natural Resources Department, said “the bill ‘provides additional resources to the OCD’ but it does not match what the division had asked for.” Still, he called it “a strong investment in OCD.”16 While Matt Maez, communications director at the Environment Department, said the bill underfunded the division by $4 million.17   8. See Redfern, supra note 1.  9. Id.  10. H.B. 48, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Legislation/ Legislation?Chamber=H&LegType=B&LegNo=48&year=24.  11. S.B. 64, 56th Leg., Second Sess. (N.M. 2024, https://www.nmlegis.gov/Sessions/24 %20Regular/bills/senate/SB0064.pdf.  12. See Redfern, supra note 1.  13. Id.  14. S.B. 64, 56th Leg., Second Sess. (N.M. 2024, https://www.nmlegis.gov/Legislation/ Legislation?chamber=S&legType=B&legNo=64&year=24.  15. See Redfern, supra note 4; see also H.B. 2, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/24%20Regular/final/HB0002.pdf, at 199 at 199.  16. See Redfern, supra note 4.  17. Id. Published by University of Oklahoma College of Law Digital Commons, 2025386 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    III. Judicial Developments A. Federal Court Cases Landowners Ejectment Claim Against Operator Failed Because It Did Not Allege That Defendant Possessed the Property at Commencement of the Case Landowner Plaintiff Merchant Livestock Company filed suit against Defendant Chevron U.S.A., Inc., and its contractor Tetra Technologies, Inc., alleging that Defendants improperly used its surface rights, “including driving on its roads, cutting fences, and placing produced water lines, in furtherance of their oil and gas operations.”18 In its complaint, Plaintiff asserted the following claims: trespass and trespass for mesne profits, ejectment, unjust enrichment, punitive damages, and equitable and injunctive relief.19 Defendant filed a motion to partially dismiss the ejectment claim, disgorgement of oil and gas profits, mesne profits, and restitution, and the unjust enrichment claim.20 The court first addressed the ejectment claim, holding that Plaintiff failed to state an ejectment claim because, “it does not allege that Defendants possessed the property at the commencement of the case. ‘An action at law for ejectment lies to recover possession of lands to which a plaintiff is legally entitled. In ejectment, the parties' rights to possession are primarily in issue.’”21 The court went on to explain that in order to bring an ejectment claim under N.M. STAT. ANN § 42-4-1 et al., “a Plaintiff must ‘declare in [its] complaint that on some day, named therein, [it] was entitled to the possession of the premises, describing them; and that the defendant, on a day named in the complaint, afterwards entered into such premises and unlawfully withheld from the plaintiff the possession thereof.’"22 Because Plaintiff did not allege Defendants possess the property, the court dismissed the ejectment claim. Next, the court addressed Defendants’ claim that Plaintiff cannot seek damages in the form of disgorgement of profits, mesne profits, and punitive damages.23 The court began by noting that, “[g]enerally, the appropriate form or amount of damages is not a proper subject for dismissal under Fed. R. Civ.   18. Merch. Livestock Co. v. Chevron U.S.A, Inc., 2023 U.S. Dist. LEXIS 194560, at 1–2 ((D.N.M. 2024).  19. Id. at 3.  20. Id. at 4.  21. Id. at 5–6, (quoting Pacheco v. Martinez, 97 N.M. 37 (N.M. App 1981)).  22. Id. at 6 (quoting N.M. STAT. ANN § 42-4-5).  23. Id. at 11. https://digitalcommons.law.ou.edu/onej/vol10/iss3/152025] New Mexico 387   P. 12(b)(6), as damages are not independent causes of action or claims.”24 With respect to punitive damages specifically, the court stated that, “"[a] Rule 12(b)(6) motion tests the sufficiency of a claim; it is not a proper mechanism for challenging a request for punitive damages."25 Defendants argued that Plaintiff did not plausibly allege corporate liability for punitive damages, but the court disagreed due to the fact that, “Chevron was provided notice (repeatedly), of the illegal trespasses and it knowingly condoned and/or failed to prevent the trespasses."26 The court also refused to declare whether disgorgement of profits or mesne profits were available to Plaintiff because their availability is a fact dependent issue, and they were not prohibited under Plaintiff's surviving claims.27 Finally, the court refused to dismiss Plaintiff’s unjust enrichment claim because Plaintiff is entitled to argue alternate or even inconsistent claims at the pleading stage, and it remained unclear whether Plaintiff would be able to obtain an adequate remedy at law.28 B. State Court Cases Appellate Court Holds That Void Instrument Could Convey Title to Bona Fide Purchaser In a dispute involving the ownership of an overriding royalty interest (“ORRI”), numerous parties claimed ownership of the ORRI after a series of long and complicated transactions, with the parties' competing claims starting with assignments from the separate estates of Robert and Anne Koch.29 As part of a divorce decree did not resolve the disposition of the ORRI, Robert Koch agreed to convey a five-eighths (5/8) interest to Anne Koch, and Robert executed an "Assignment of Overriding Royalty Affecting United States Oil and Gas Lease" which was not filed with the Bureau of Land Management, or recorded in the Eddy County Clerk’s Office.30 Robert died in 1975, with his Will being probated in Denver, Colorado probate court, and no ancillary probate being conducted in New Mexico. During the administration of his estate, Robert’s ORRI was sold to Robert W. David (“Mr. David”).   24. Id.  25. Id. at 11-12 (quoting Atlantis Car Care, Inc. v. Phoenix Ins. Co., 2019 U.S. Dist. LEXIS 140249 (W.D. Okla. 2019)).  26. Id. at 13 (quoting Complaint, Doc. 1-1 at ¶ 59).  27. Id. at 12.  28. Id. at 14–15.  29. Koch v. David Fam. Oil & Gas Ints. P'ship, 2024 N.M. App. Unpub. LEXIS 241, at 1–4. (N.M. App. 2024).  30. Id. at 5. Published by University of Oklahoma College of Law Digital Commons, 2025388 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10    Subsequently, Anne died testate in 2005, with the ORRI being passed to a family trust, and no ancillary probate being opened in New Mexico.31 At the district court, Anne’s successors in interest argued that Robert owned no interest in the ORRI at his death, and in the alternative, the ORRI passed to James Koch, his residuary heir under New Mexico law.32 Mr. David and Defendants argued that Colorado divorce and probate law controlled, that Mr. David was a bond fide purchaser for value (“BFP”) because there was nothing of record in Eddy County giving notice of Anne’s potential interest, and Plaintiffs’ claims were barred by laches, waiver, and estoppel because they approved of the ORRI sale by Robert’s estate.33 The district court issued an order granting Plaintiffs’ Motion for Summary Judgment, “though on grounds not argued by them.”34 Instead, the court reasoned that the assignment from Robert’s estate was void because there was no ancillary probate conducted in New Mexico, and that Mr. David was on notice as a BFP that the personal representative was only appointed in Colorado.35 The appellate court reversed and remanded based on two errors in the district court’s decision. “First, there is nothing in the record supporting the decision that Robert David was on ‘actual’ notice that Mr. Kumagai [Mr. David’s personal representative] was only appointed in Colorado.”36 Further, Plaintiffs did not argue that Mr. David knew he was dealing with the Colorado probate proceeding only. The second basis for reversal was the district court’s “interpretation and use of Allen, 1992-NMCA-054.”37 The court noted that the Allen case’s facts were distinguishable from the facts in the case at hand, and perhaps most importantly, the Plaintiffs in Allen did not argue that she should be considered a BFP “as a way to avoid the problem caused by the invalid executor's deed.”38 The appellate court went on to emphasize that, “New Mexico case law is clear that a ‘void’ or voidable deed can serve to convey title to a BFP,”39 and “to the extent that the district court   31. Id. at 5–6.  32. Id. at 7.  33. Id. at 7–8.  34. Id.  35. Id. (citing Allen v. Amoco Prod. Co.,1992-NMCA-054, 114 N.M. 18, 833 P.2d 1199).  36. Id. at 9–10 (noting that the assignment from the personal representative did not specify the jurisdiction or court handling the case).  37. Id. at 12.  38. Id. at 13–14.  39. Id. at 14–15 (citing State ex rel. State Tax Comm'n v. Garcia, 1967-NMSC-098, 77 N.M. 703, 427 P.2d 230 (discussing the difference between voidable and void instruments and holding that deeds not fraudulent on their face though cancellable by the state did not defeat a claim by a BFP); In re Last Will & Testament of Welch v. Welch, 2021-NMCA-028, 493 P.3d https://digitalcommons.law.ou.edu/onej/vol10/iss3/152025] New Mexico 389   relied on Allen to mean that an invalid personal representative's deed cannot convey anything that a BFP can rely on, it misread the case.”40  400 (holding that a void heirship proceeding did not invalidate a conveyance to a BFP third party); Jeffers v. Doel, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426 (noting that NMSA 1978, § 14-9-3 (1923, amended 1990) protects BFPs even if a conveyance was void under NMSA 1978, § 40-3-13(A) (1975, amended 1993))).  40. Id.  Published by University of Oklahoma College of Law Digital Commons, 2025

New Mexico

OKLAHOMA LAW REVIEWARTICLESThe 340B Drug Pricing Program: Administration,   Ryan P. Knox &Litigation, and Reform   Ameet SarpatwariFirst Amendment Rights on Trial: A Critique of the   Time, Place, and Manner Doctrine   Alec GrevenModularity, Licensing, and the NRC  Tara Righetti &   Madeleine LewisESSAY Oklahoma’s Constitutional Search and Seizure –    It’s Always Time for Enlightenment  Stephen E. HendersonCOMMENTS A Spoonful of Sugar Won’t Help This Medicine Go  Down: The Inflation Reduction Act’s Failure to Address    Pharmaceutical Evergreening  Megan E.A. DavisA Legal Black Hole: Private Entities Mining    Extraterrestrial Resources  Devin Lynn DoutazNOTE The Kids Aren’t Alright: Creating Greater Protections  for the Children of Family Vloggers   Annie Dunn  VOLUME 77000000000WINTER 2025000000000NUMBER 2Published by University of Oklahoma College of Law Digital Commons, 2025Except as otherwise expressly provided, the author of each article in thisvolume has granted permission for copies of that article to be made and usedby nonprofit educational institutions, provided that the author and theOklahoma Law Review are identified and that proper notice of the copyrightis affixed to each copy.  In all other cases, the author and the Oklahoma LawReview should be contacted directly.Cite as: 77 OKLA. L. REV. ____ (2025).The Oklahoma Law Review online edition, ISSN 2473-9111, is edited and compiled at theCollege of Law of the University of Oklahoma.  Copyright February 2025 by the Oklahoma LawReview.  Manufactured in the United States of America.  The Oklahoma Law Review ispublished quarterly and is available online via Digital Commons, Westlaw, Lexis, HeinOnline,and OLR’s  website, http://www.law.ou.edu/faculty-scholarship/journals/oklahoma-law-review.Selected back issues are available electronically free of charge via the Oklahoma LawReview’s Digital Commons page, at http://digitalcommons.law.ou.edu/olr/.Editorial office: All editorial communications should be directed by email tomwaters@ou.edu, or by regular mail to the Editor-in-Chief, Oklahoma Law Review, Universityof Oklahoma College of Law, 300 Timberdell Road, Norman, Oklahoma 73019.  https://digitalcommons.law.ou.edu/olr/vol77/iss2/1UNIVERSITY OF OKLAHOMA COLLEGE OF LAWDEANSAnna E. Carpenter, B.A., J.D., LL.M., Dean of the College of Law, Director of the Law Center, Fenelon Boesche Chair of Law.Jennifer Needham, B.A., J.D., Dean of Students.Jon J. Lee, B.A., J.D., Associate Dean for Faculty Development and Research, and Associate Professorof Law.Phyllis Taite, B.S., J.D., LL.M., Associate Dean for Academic Affairs and Professor of Law.EMERITUS / FORMER DEANSAndrew M. Coats, B.A., J.D., Dean Emeritus, Director Emeritus, and Samuel Roberts NobleFoundation Presidential Professor.Katheleen Guzman, B.A., J.D., LL.M., Former Dean, Professor of Law, and MAPCO/WilliamsPresidential Professor.David Swank, B.A., J.D., Dean Emeritus, and David Ross Boyd Professor of Law Emeritus.Stanley L. Evans, B.B.A., M.B.A., J.D., Assistant Dean Emeritus.DIRECTORSKenton Brice, B.B.A., J.D., M.S., L.S., Director of the Law Library and Associate Professor of Law.Erin Means DeWalt, B.S., J.D., Director of Legal Research and Writing and Assistant Professor ofLaw.Kayla Doiron, B.S., M.B.A., J.D., Director of Operations, Graduate Program.Maddie Farris, B.A., J.D., Director of Admissions.Sean Harrington, B.A., J.D., M.L.I.S., M.S., Director of Technology and Innovation.Angie Hockett, B.B.A., Director of Financial Services.Anna Inhofe Hull, B.A., J.D., Director of Advancement, OU Foundation.Peter C. Kraemer, B.A., M.A., M.A., Director of Faculty Support and Accreditation and InstitutionalReporting.Amy Pepper, B.A., J.D., Director, OU Legal Clinics, Associate Professor of Clinical Education.Taylor Freeman Peshehonoff, B.A., J.D., Director of Competitions and Externships and AssistantProfessor of Legal Practice.Emily Reed, B.A., CFRE, Executive Director of Advancement, OU Foundation.Sunny Rowland, B.S., J.D., Director of Academic and Bar Support, Director of Paralegal Studies, andAssistant Professor of Law.Jim Shuster, A.A.S., B.S., M.B.A., Director of Info-Tech and Building Resources.Katie Spencer, B.A., J.D., Director of Career Development.Alyssa Buettner, B.A., J.D., Associate Director of Admissions.Cathleen Creegan, B.A., J.D., Associate Director of Career Development.Robert Linz, B.A., J.D., M.S.L.I.S, Associate Director of the Law Library.Addison Witzel, B.B.A., M.A., Associate Director of Admissions.Elaine B. Bradshaw, B.M., M.A., M.L.I.S., Assistant Director for Collections and Digital Products.Published by University of Oklahoma College of Law Digital Commons, 2025FACULTYOwen L. Anderson, B.A.,  J.D., Eugene Kuntz Chair in Law in Oil, Gas and Natural ResourcesEmeritus, and George Lynn Cross Research Professor Emeritus. Evelyn Aswad, BSFS, J.D., Herman G. Kaiser Chair in International Law.Mary Sue Backus, B.A., M.A.T., J.D., Robert Glenn Rapp Foundation Presidential Professor Emeritus,and Hugh Roff Professor of Law Emeritus.Donald T. Bogan, A.B., J.D., Thomas P. Hester Presidential Professor Emeritus, and Frank Elkouriand Edna Asper Elkouri Professor in Law Emeritus.Kenton Brice, B.B.A., J.D., M.S., L.S., Director of the Law Library and Associate Professor of Law.Kevin Buono, B.A., J.D., Assistant Professor of Law.Steven J. Cleveland, B.A., J.D., Thomas P. Hester Presidential Professor, and Professor of Law.Andrew M. Coats, B.A., J.D., Dean Emeritus, Director Emeritus, and Samuel Roberts NobleFoundation Presidential Professor.Erin Means DeWalt, B.S., J.D., Director of Legal Research and Writing and Assistant Professor ofLaw.Steven S. Gensler, B.S., J.D., Gene and Elaine Edwards Family Chair in Law, and President’sAssociates Presidential Professor.Mark R. Gillett, B.A., J.D., LL.M., Professor of Law Emeritus.Katheleen Guzman, B.A., J.D., LL.M., Former Dean, Professor of Law, and MAPCO/WilliamsPresidential Professor.Taiawagi Helton, B.A., J.D., LL.M., W. DeVier Pierson Professor of Law.Stephen E. Henderson, B.S., J.D., Judge Haskell A. Holloman Professor of Law.Eric E. Johnson, B.A., J.D., Earl Sneed Centennial Professor of Law.Kit F. Johnson, B.A., J.D., Hugh Roff Professor of Law, Thomas P. Hester Presidential Professor, andProfessor of Law.Drew Kershen, B.A., J.D., LL.M., Professor of Law Emeritus.F. Stephen Knippenberg, B.A., J.D., LL.M., Floyd H. and Martha Norris Chair in Law Emeritus.Peter F. Krug, B.A., M.S., Ph.D., J.D., Herman G. Kaiser Foundation Chair in International LawEmeritus.Peter B Kutner, A.B., J.D., Hugh Roff Professor of Law Emeritus.Jon J. Lee, B.A., J.D., Associate Dean for Faculty Development and Research, and Associate Professorof Law.Brian McCall, B.A., M.A., J.D., Orpha & Maurice Merrill Professor in Law.William J. McNichols, A.B., J.D., Professor of Law Emeritus.Samuel Merchant, B.A., J.D., Visiting Professor of Law.Roger Michalski, B.A., J.D., Ph.D., Arch B. & Jo Anne Gilbert Professorship of Law, and Professorof Law.Frederick H. Miller, A.B., J.D., Professor of Law Emeritus.Melissa Mortazavi, B.A., J.D., Second Century Presidential Professor, and Professor of Law.Gail Mullins, B.S., J.D., Associate Professor of Legal Practice.Daniel Nicholson, B.A., J.D., Assistant Professor of Legal Research and Writing.Joyce Palomar, B.S., M.A., J.D., Kenneth E. McAfee Chair in Law Emeritus, and Ada Lois SipuelFisher Presidential Professor Emeritus.Alex Pearl, B.A., J.D., Chickasaw Nation Endowed Chair in Native American Law and Professor ofLaw.Tracy Hresko Pearl, B.A., M.Sc., J.D., The Wayne Alley Professorship and Professor of Law.Amy Pepper, B.A., J.D., Director, OU Legal Clinics, Associate Professor of Clinical Education.Taylor Freeman Peshehonoff, B.A., J.D., Director of Competitions and Externships and AssistantProfessor of Legal Practice.Carla D. Pratt, B.A., J.D., Ada Lois Sipuel Fisher Chair in Civil Rights, Race, and Justice.Robert E.L. Richardson, B.A., J.D., LL.M., Professor of Law Emeritus.Liesa Richter, B.S., J.D., Floyd H. & Martha Norris Chair in Law, and Thomas P. Hester PresidentialProfessor.Theodore Roberts, B.S., J.D., Edith Kinney Gaylord Presidential Professor Emeritus, and Professorof Law Emeritus.Lindsay G. Robertson, A.B., M.A., Ph.D., J.D., Chickasaw Nation Endowed Chair in Native AmericanLaw Emeritus, and Sam K. Viersen Jr. Family Foundation Presidential Professor Emeritus.https://digitalcommons.law.ou.edu/olr/vol77/iss2/1Sunny Rowland, B.S., J.D., Director of Academic and Bar Support, Director of Paralegal Studies, andAssistant Professor of Law.Michael A. Scaperlanda, B.A., J.D., Professor of Law Emeritus.Zachary M. Schmook, B.S., J.D., Assistant Professor of Legal Research and Writing.Joseph Schremmer, B.A., B.S., M.B.A., J.D., Associate Professor of Law. Megan Wischmeier Shaner, B.S., J.D., Arch B. & Jo Anne Gilbert Professor of Law, President’sAssociates Presidential Professor.Connie S. Smothermon, B.A., J.D., Director of Competitions and Externships Emeritus, and AssociateProfessor of Legal Practice Emeritus.Robert G. Spector, B.S., J.D., Glenn R. Watson Centennial Chair in Law Emeritus.Hayley Stillwell, B.A., J.D., Professor of Law.David Swank, B.A., J.D., Dean Emeritus, and David Ross Boyd Professor of Law Emeritus.Murray Tabb, B.A., M.A., J.D., LL.M., Judge Fred A. Daugherty Chair in Law, and David Ross BoydProfessor.Phyllis Taite, B.S., J.D., LL.M., Associate Dean for Academic Affairs and Professor of Law.Rebekah C. Taylor, B.A., J.D., Associate Professor of Clinical Legal Education.Rick Tepker, B.A., J.D., Floyd & Irma Calvert Chair of Law and Liberty Emeritus.Joseph T. Thai, A.B., J.D., Glenn R. Watson Centennial Chair in Law, and Presidential Professor.Stacey Ann Tovino, B.A., J.D., Ph.D., John B. Turner LL.M. Program Chair in Law, and Professor ofLaw.Emilie Wedman, B.A., J.D., Assistant Professor of Legal Research and Writing.This publication is issued online by the University of Oklahoma College of Law as authorized by Dean Anna E. Carpenter.  It is available bysubscription via Westlaw, Lexis, and HeinOnline, and at no charge via Digital Commons and the College of Law website.Published by University of Oklahoma College of Law Digital Commons, 2025OKLAHOMA LAW REVIEWEDITED AND COMPILED AT THE COLLEGE OF LAW OF THE UNIVERSITY OF OKLAHOMAAND PUBLISHED QUARTERLY© Oklahoma Law Review, 2025NABIHAH “BIA” SHAHEditor-in-ChiefDOUGLAS-ANN “DA” SMITHManaging EditorROB EVANSANNIE DUNNDUNCAN MERCHAN-BREUERArticles EditorsJAMIE PECKABBY SELZERCARLYN SHOCKLEYMASON STRANDHUNTER TROUTJACK WEBBAssistant Managing EditorsHANNA DOUDICANResearch Editor &Candidate MentorDEVIN DOUTAZCHASE HAMILTONANDREW SCHUMANJudiciary CommitteeTRISHA BUNCEOutreach EditorMEGAN DAVISSenior Managing EditorMICAH MAYSExecutive Articles EditorTRAVIS HANDLERMADISON HOMERANNA SPICERGRACE ZIZZONote & Comment EditorsALISHA CLEGGBEN MASONGABRIEL NGOANDREW SCHUMANAssistant ArticlesEditorsCOLLIN KETELSLENGERSymposium EditorTRISHA BUNCETopic Editor& Candidate MentorCOLLIN KETELSLENGERCHASE HAMILTONMATT PRESTONStaff EditorsCANDIDATES FOR MEMBERSHIPJAYLYNN BLYTHEJACQUELINE CASTILLOTREVOR CRABTREEMARINA DESANTISDAVID DULSKENICHOLAS GILLISHANNAH GOFFMITCHELL GRANTHAMLENNON GREENGRACE GRIGGSBRANDON HANSONSKYLAR JOHNSONARYN KERRLUCILIA KOTROBABRIANNA LAKELINDSAY MARTIN MAYESMAHAK MERCHANTJEFFREY MICHAELISWILLIAM NEWSOMCARSON SHAWNATALIE SPEARSHELBY STANSBURYJUSTIN STROMSKIJACKSON SWEETKATHERINE VAUGHNKYNLEIGH WILLIAMShttps://digitalcommons.law.ou.edu/olr/vol77/iss2/1OKLAHOMA LAW REVIEWVOLUME 77 WINTER 2025 NUMBER 2ARTICLESThe 340B Drug Pricing Program: Administration, Litigation,and Reform  00Ryan P. Knox & Ameet Sarpatwari 00229First Amendment Rights on Trial: A Critique of the Time,Place, and Manner DoctrineAlec Greven 00285Modularity, Licensing, and the NRC Tara Righetti & Madeleine Lewis 01357ESSAYOklahoma's Constitutional Search and Seizure - It's Always Timefor EnlightenmentStephen E. Henderson 01429COMMENTSA Spoonful of Sugar Won't Help This Medicine Go Down: TheInflation Reduction Act's Failure to Address PharmaceuticalEvergreeningMegan E.A. Davis 01439A Legal Black Hole: Private Entities Mining ExtraterrestrialResourcesDevin Lynn Doutaz 01487NOTEThe Kids Aren't Alright: Creating Greater Protections for theChildren of Family VloggersAnnie Dunn 01527Published by University of Oklahoma College of Law Digital Commons, 2025

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