Brief for the Kansas Independent Oil & Gas Association as Amicus Curiae

Is the letter of the rule against perpetuities (the Rule) more important than its public policy? The Appellants in this case recklessly petition the Court to apply the Rule to a commonly used form of mineral reservation for the first time in the reservation’s nearly 100 years of use. They contend the Rule should apply even though it would cloud or nullify the property interests of countless unrepresented parties, spur a spate of litigation, remove a useful form of mineral ownership from commerce, and disrupt oil and gas development across Kansas—all in contravention of the Rule’s policy of making land more likely to be developed. Kansas courts have long rejected applying the Rule at the expense of its policy. This case does not provide a compelling reason to change course. The Kansas Independent Oil and Gas Association (KIOGA) represents the interests of over 1,400 members involved in the development of crude oil and natural gas in Kansas. KIOGA’s members, who include oil and gas producers, attorneys, landmen, and abstractors, have long assumed reservations of defeasible term mineral interests, like those in the present case, are valid under the Rule because they promote the development of oil and gas and create a future interest that parties in commerce regard as immediately vested. For as long as these reservations have existed, parties in Kansas have purchased leases, paid royalties, and probated estates on this assumption. KIOGA urges the Court not to apply the Rule and upend this long-accepted practice. In this brief, KIOGA will describe the commonness of the interests at stake, illustrate some of the practical consequences of applying the Rule to them, and demonstrate the commercial function these interests serve in the development of oil and gas

A New Associate’s Field Guide to Partner Compensation

This article surveys three broad models of income and expense allocation regarding law firm compensation for partners: the true partnership model; the modified partnership model; and the eat-what-you-kill model. The goal is for young lawyers to understand the fundamental differences among these compensation models even as there are myriad ways to allocate income and expenses

Getting Past Possession: Subsurface Property Disputes as Nuisances

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature. Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracing, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and efficiently allocate costs of subsurface activities. The article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS

Ad Coelum and the Design of Property Rights

This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts with various other doctrines—as a cog in a complex machine that serves larger purposes—that a comprehensive conceptual and normative account of the doctrine emerges. Natural Property Rights presents such an account of ad coelum and many other doctrines by attending to both the details of property law’s rules and the body of property law as a system with a larger purpose. In this way, Claeys’s Natural Property Rights is praiseworthy for its approach

The Curious Policy Implications of In re SemCrude: Do Crude Oil Markets Need a Volcker Rule?

In the summer of 2008 the nation\u27s largest and fastest growing midstream crude oil purchaser, SemCrude, declared bankruptcy. SemCrude\u27s demise was not the result of a bear market but of its taste for risky options trading. The bankruptcy pitted the competing liens of thousands of unpaid oil and gas producers and royalty owners who sold their crude oil to SemCrude at the wellhead against those of SemCrude\u27s lenders and the claims of downstream purchasers. The Bankruptcy Court for the Federal District of Delaware found none of the producers\u27 lien rights to be perfected under applicable law and awarded priority to SemCrude\u27s lenders. Producers and royalty owners were left holding the bag. This article hopes to frame the issue as a problem of systemic market risk like what ailed the financial sector preceding the 2007 financial crisis. As with the financial crisis, this problem may be solvable partly by restricting speculation by midstream crude oil and natural gas purchasers similar to how regulators restrict speculation by federally insured banks under § 619 of the Dodd-Frank Act, known as the Volcker rule

Oil and Gas Secured Transactions in Kansas

Successfully handling oil and gas secured transactions in Kansas requires understanding two bodies of law: Article 9 of the Kansas Commercial Code (Article 9 or UCC) and Kansas real property law. This article surveys the creation, perfection, priority, and enforcement of consensual liens in oil and gas property under both sets of rules

Avoidable "Fraccident": An Argument Against Strict Liability for Hydraulic Fracturing

This is the published version

Pore Space Property

Through modern technology we can use the void pore space of underground rock formations for a growing number of socially beneficial purposes. These run the gamut from unconventional oil and gas production to climate change mitigation. The common law of property and tort, however, has struggled to keep up with advancing technology in this area. Significant questions remain about the nature of property rights in pore space. Of particular interest are the limits, if any, on an owner’s right to use pore space for beneficial purposes when it extends beneath the land of another. For example, may A hydraulically fracture an oil well on her property if the fractures extend beneath B’s land? May C store anthropogenic carbon dioxide for climate change mitigation in a common reservoir that extends beneath the land of D, E, F, and G if they do not consent? If so, what, if any, compensation does C owe to the others? These and similar scenarios pose urgent questions for a wide range of landowners, industries, environmental interests, courts, and policymakers across the nation. This Article searches for answers to these pressing questions in the doctrinal histories of similar common pool natural resources. The Article reviews the development of common law rights in water and oil and gas to synthesize lessons for shaping the content and limits of rights in pore space. Then, applying these lessons to the current state of pore space rights, the Article explains that rights in pore space are established by a default rule of prior use and are absolute, subject to little, if any, limitation. As demand for the resource continues to grow, however, owners, and, ultimately, courts will likely search for ways to limit the absolute extent of pore space rights to avoid a tragedy of the pore space commons. In searching for doctrinal mechanisms to make pore space rights limited, or correlative, the Article predicts that courts will be tempted to choose between establishing limits by strict, formalist rules of proportionality (which favor certainty), on the one hand, and instrumentalist, utilitarian standards of reasonable use (which favor development of the resource), on the other. This Article identifies an underexplored doctrine from oil and gas law that would define the limits of pore space rights without resort to purely instrumentalist or formalist doctrines. The “fair-opportunity doctrine” articulated here would permit an owner to use any quantity of pore space anywhere in a common reservoir, so long as it does not interfere with the lawful existing operations of other owners or deprive other owners of a fair opportunity to either participate in the proposed operations or conduct like operations from their respective land

Getting Past Possession: Subsurface Property Disputes as Nuisances

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracking). Property rights will need to continue adapting if they are going to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise—for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort of trespass is designed to protect possession, its application indicates a view of subsurface property as possessory (or corporeal) in nature. Despite calling subsurface invasions “trespasses,” courts rarely impose liability for, or enjoin, invasions themselves. They instead find liability only for interferences with existing or foreseeable uses of the affected land. Leading scholars likewise advocate for a standard of subsurface “trespass” that would privilege encroachments that are societally valuable, and award compensation only for resulting harm to existing uses of the property. The cases and literature thus nominally apply trespass but modify the tort from a property rule into a liability rule resembling the tort of nuisance. This Article is the first to examine unauthorized subsurface encroachments as nuisances, rather than trespasses, and to assert that such encroachments do not implicate possession. Drawing on geology, doctrine, and property theory, this Article interrogates the assumption that subsurface property is possessory. It analyzes prominent subsurface “trespass” cases involving waste disposal, enhanced oil recovery, fracking, natural gas storage, slant-hole wells, tunneling, and horizontal drilling to demonstrate that these disputes are already being resolved under nuisance-like principles. It argues that express application of nuisance law is doctrinally correct and would improve courts’ reasoning, harmonize disparate results, and more efficiently allocate costs of subsurface activities. The Article then discusses how viewing subsurface invasions as nuisances would remove legal barriers to implementation of new and emerging climate change mitigating technologies that utilize subsurface pore space, such as CCS

Waste and the Governance of Private and Public Property

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law. In this Article, we excavate the old waste cases in multiple fields of property and natural resources law to make novel connections across these fields and demonstrate the doctrine\u27s continuing relevance for contemporary lawyers, legal theorists, and environmental advocates. The Article is unique in its articulation of a universal waste principle and its examination of how this principle facilitates communication and cooperative self-governance by and among owners of common property. It suggests that underenforcement of civil and administrative waste law in the context of common pool natural resources contributes to failures in modern law to respond to pressing environmental challenges