Mineral Rights and Leases – Confusion

Many landowners are confused about mineral rights and how oil & gas leases work. Many oil & gas lease operators are also confused about mineral rights and even about some of the clauses in their oil & gas leases. There’s also confusion among lawyers and judges, especially those who aren’t experienced with mineral rights and oil & gas law. I shuddered one day in court when the judge held up the oil & gas lease and said, “Looks like just another business contract to me.” My opposing counsel also shuddered, and we looked at each other, knowing we would settle the case because there was no predicting what this judge might do with it. Minerals and leases thereon have spawned volumes of court cases spanning more than a century of jurisprudence. It’s a subject well suited to the word “esoteric“. Lawyers and judges like “black letter law” because it requires no interpretation, nor analysis of how it might apply to a given factual situation. The phrase rarely, if ever, applies to oil & gas cases. Yes, there are statutes and regulations on the books printed in black letters. They are frequently poorly drafted or subject to interpretation or, more often, just not clearly dispositive given the facts that can arise in the real world. It’s amazing what people who are confused about mineral rights and leases can spawn. Okay, where am I going with this?

It’s not unusual to get a phone call from a landowner who starts with, “I just have a quick question…” There will be a five or ten minute description of their perspective of the matter before getting to the quick question. I invariably start my reply with, “Well, there’s no quick answer.” Then I explain that the law is generally not black and white when it comes to oil & gas matters and I can’t provide a competent answer within the confines of a phone call. Sometimes I provide an educated guess but it is accompanied with warnings and disclaimers. Then I disclose my hourly rate and advise it’s likely to involve at least three hours of billable time to study the pertinent documents that they probably don’t have in their possession but will need to get for me (or else pay me to track them down with a title search), to track down some pertinent information that I can probably find online, and to then explain where they stand, which won’t be a sure win or sure loss but, hopefully, somewhere east or west of 50/50. By now I’ve been on the phone at least half an hour that I can’t bill for. Okay, where am I going with this?

Sometimes I suggest they do some “homework” to acquire basic knowledge about mineral interests and oil & gas leases. This can shorten the amount of time it takes for me to explain what the law portends for their situation. As a simple example, if they know what “royalty” means, then I can use it in a sentence without having to spend extra time explaining it; and, if they know the difference between a “mineral deed” and a “division order”, then that will save time. Saving time will save them money, since the less time I have to spend on it the less my fee will be. So, to that end, I sometimes refer them to one of my blog posts that has links to information about minerals and leases.

Which brings me to where I was going with this, which is another article I recently came across: “Mineral Rights” on the Geology.com website. It’s a pretty good summary of mineral rights in layman’s terms.

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