Asserting Dominance: Do Renewable Developers Have to Accommodate Oil & Gas Surface Use?

Disputes between renewable energy developers and the owners of mineral rights could potentially lead to losses well outside the scope of most title insurance policies. At the very least, these disputes can lead to protracted and expensive litigation, laden with fact-intensive expert testimony, as in the case of Lyle v. Midway Solar, LLC. Our latest Energy Law Update explores the El Paso Court of Appeals' decision on whether to apply the accommodation doctrine in a case involving a solar facility that was constructed by defendants on a 315-acre tract of land in Pecos County, Texas. [Download the article]  
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Travis County District Court Finds that Texas Railroad Commission Lacks Power to Issue Allocation and Production Sharing Well Permits

May 14, 2021 — In Opiela v. Railroad Commission of Texas, No. D-1-GN-20-000099, the 53rd District Court of Travis County, Texas, concluded that the Texas Railroad Commission (“RRC”) violated the Administrative Procedure Act, Tex. Gov’t Code § 2001.001 et seq., by adopting rules for issuing allocation and production sharing well permits.  Further, the court held that the permit applicant, EnerVest (and subsequently Magnolia Oil & Gas), failed to make the requisite showing that it had a good faith claim of right to drill the proposed well under RRC rules. In Opiela, the Plaintiffs objected to an application filed by EnerVest…
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Conveying Future Interests: What You Don’t Say Is As Important As What You Do Say

May 14, 2021 — In Parker v. Jordan,[1] the El Paso Court of Appeals interpreted a 1998 warranty deed to determine the extent of the interests conveyed by the deed.  The deed, which claimed to convey all right, title and interest, was silent on whether it also conveyed a remainder interest that was owned by the grantor.  Ultimately, the Court held that because the remainder interest was a vested future interest and not a present interest, the remainder interest could not be conveyed without clear and express language in the deed.  Thus, because the deed was silent as to the…
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