62nd Annual Rocky Mountain Mineral Law Institute

  • Squaw Valley, California
  • Jul. 21-23, 2016
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Wednesday Evening

Special function Young Professionals Reception

This gathering offers young professionals and their significant others an opportunity to meet young lawyers, landmen, and other professionals from around the country and around the world.  Meet and network over drinks and hearty hors d’oeuvres, learn more about the Foundation, and discuss how the Foundation can better serve professionals in the first decade of their career.

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Thursday Breakfast

Special function Newcomers Breakfast

For newcomers to the Foundation who would like to learn more about participating in Foundation activities, committees, and programs.

General Session - Thursday Morning

  1. Stevia M. Walther

    Rocky Mountain Mineral Law Foundation, Westminster, CO
  2. Jonathan A. Hunter

    Partner Jones Walker LLP, New Orleans, LA
  3. William B. Prince

    President, Rocky Mountain Mineral Law Foundation Dorsey & Whitney LLP, Salt Lake City, UT

Introductions

  1. Kenneth B. Medlock III

    Rice University, Houston, TX

An Uncertain Energy Future: What Do the Fundamentals Tell Us?

The one constant is change. Nowhere is that more true than in energy markets. While predicting the future with any precision is folly, the exercise is important to understanding the long run evolution of markets and the short run drivers of change. Global energy markets are in a period of transition. This talk will explore these issues and highlight critical issues in understanding the path forward.

Special Recognitions

Break

  1. Gideon Volschenk

    Rothschild Inc., Washington DC
  2. J. Thomas Beckett

    Parsons Behle & Latimer, Salt Lake City, UT
  3. Kevin W. Johnson

    Shareholder Parsons, Behle & Latimer, P.C., Salt Lake City, UT
  4. Chuck Carroll

    FTI Consulting, Dallas, TX
  5. Bruce H. White

    Parsons Behle & Latimer, Salt Lake City, UT

Positioning for the Future: Fundamentals, Principles, and Pitfalls for Reorganizations and Workouts for Distressed Natural Resources Companies

North American natural resources companies find themselves uncertain about the future of their industries. This panel presentation will explore the common experiences, problems, and solutions for distressed companies in a falling/low commodity price environment. The presentation will include an economist overview; experience-based advice and input from industry and subject matter experts on how to properly assess a distressed company, valuation issues for a distressed company, and strategies for an out of court restructure or a Chapter 11 reorganization; and financial and restructuring advisors who provide financing and restructuring assistance to the distressed company. The panelists will give an overview of common problems such as how to fund the restructure, and conducting distressed asset sales both in and out of court. They will provide insightful and helpful reorganization advice and suggestions on how to steer through these complex reorganization issues as companies seek to position themselves not only for survival, but for the next turn-around.

  1. Robert E. Cattanach

    Dorsey & Whitney LLP, Minneapolis, MN
  2. Emily Stapf

    PwC Forensic Technology, Denver, CO

Cybersecurity: Governance, Breach Response, Ethics, and Privilege Considerations

Cyber experts now claim that there are only two kinds of companies: those that have been hacked, and those that don’t know it yet. Cyber threats are an increasing focus of corporate governance, and an incident response plan is an essential element of any company’s preparedness. Conducting the response to a breach under direction of counsel is often standard operating procedure, but the protections can break down quickly as outside experts are retained, law enforcement seeks information, and stakeholders demand answers. This presentation will examine developments in cyber threat vectors and provide helpful guidance for what constitutes good corporate information governance structure, the basics of an incident response plan, and the limits of attorney-client privilege in breach response situations. It will also explain the legal and ethical duties of lawyers and their clients to protect sensitive and corporate information.

Thursday Lunches

Special function In-House Counsel Lunch

Limited to in-house counsel.  This is an opportunity to meet your peers, socialize, and network.  Speaker to be announced.

  1. Rachael E. Salcido

    University of the Pacific McGeorge School of Law, Sacramento, CA

Special function Natural Resources Law Teachers Lunch

For full- and part-time academic faculty who would like to network with new and old friends.

  1. Franka Cheung

    Corrs Chambers Westgarth, Brisbane, Australia

Special function International Lunch

For registrants working in the international arena who would like to network with other professionals and learn more about the Foundation’s international programs and outreach efforts. The winner of the prestigious 2016 Australian Mining and Petroleum Law Association (AMPLA) award will present a topic of interest to our international registrants. Also, there will be a 5-minute flash report on developments in Argentina, by Juan Martin Allende, Allende & Brea, Buenos Aires.

Public Lands Section - Thursday Afternoon (Concurrent with International Section)

  1. Thomas C. Perry

    Marten Law, Boise, ID
  2. Brian A. Rutledge

    National Audubon Society, Fort Collins, CO
  3. Thomas C. Jensen

    Partner Perkins Coie LLP, Washington, DC

At Ground Level: A Closer Look at the Greater Sage-Grouse Conservation Strategy

The U.S. Fish and Wildlife Service’s September 2015 decision not to list the greater sage-grouse under the Endangered Species Act was preceded by the largest federal land and forest plan amendment process in history and accompanied by several state-led initiatives. Amidst stakeholders’ differing perceptions of and reactions to the plan amendments and conservation measures involved with the decision not to list, this panel will focus on the following questions:  What are the key elements of the federal plan amendments and state initiatives to conserve sagebrush habitats and improve conditions in priority habitat areas? How will existing tensions among federal laws and regulations limit or facilitate the conservation measures in these plan amendments? How will stakeholders work within the inherent administrative and practical complexities of the state and federal programs? What are the prospects for long term success of these efforts in a changing political climate and by what measure will they be evaluated?

Break

  1. Michael J. Brennan

    Wildlife Conservation and Mitigation Program, Texas A&M University Institute of Renewable Natural Resources, College Station, TX
  2. Bailey K. Brennan

    Counsel Wyoming County Commissioners Association, Cheyenne, WY

Landscape-Scale Mitigation: What Does It Mean, Is It Legal, and How Can It Be Implemented?

Federal agencies have historically addressed mitigation of impacts to natural resources on a narrow scope, both geographically and temporally. This perspective is changing. Recent mitigation directives issued by the Obama Administration instruct federal agencies to look beyond single projects to determine what compensatory mitigation could achieve the greatest conservation benefit on a regional scale. Other developments, including the decision not to list the greater sage-grouse under the Endangered Species Act, based in part on the development of state-led conservation programs, suggest that “landscape” scale conservation will require a previously unprecedented level of coordination and collaboration among the federal government and the states. In an effort to better understand the implications of landscape-scale conservation and mitigation, and the manner in which those objectives will be pursued, this presentation will first explore mitigation concepts and provide legal and regulatory background regarding compensatory mitigation in the federal context. Next, the conceptual and legal underpinnings of landscape-scale mitigation will be addressed. Finally, the presentation will explain the legal and institutional barriers to achieving regional conservation and mitigation objectives, including the challenges federal agencies will face in working across governmental jurisdictions, how to ensure statutory mandates are met, and how to identify and implement mitigation programs that will withstand legal challenges.

  1. Kipp A. Coddington

    University of Wyoming Carbon Management Institute, Laramie, WY
  2. Stacey L. Vanbelleghem

    Latham & Watkins, Washington, DC

Implications of the Evolving NEPA Framework for Assessing Greenhouse Gas Emissions and the Social Cost of Carbon

Natural resource development on public lands has long faced challenges relating to the National Environmental Policy Act (NEPA) requirement that federal agencies take a “hard look” at the environmental consequences of agency action. Recent developments implicating how agencies must consider greenhouse gas (GHG) emissions and climate change in their NEPA analysis as well as whether and how agencies should consider the Social Cost of Carbon (SCC) have added a new layer of complexity and uncertainty to this already challenging review framework. This presentation will explore relevant Council on Environmental Quality NEPA guidance on consideration of GHG emissions and climate change, provide background on the development and use of SCC estimates, and review relevant case law, including a court’s invalidation of a proposed coal project for failure to consider the SCC.

International Section - Thursday Afternoon (Concurrent with Public Lands Section)

  1. Kevin O'Callaghan

    Fasken Martineau DuMoulin LLP, Vancouver, BC
  2. Fred R. Pletcher

    Partner Borden Ladner Gervais LLP, Vancouver, BC
  3. Thomas M. Rose

    Troutman Sanders LLP, Washington, DC
  4. Robert J. Wieder

    Bryan Cave, London, UK

Saying What You’re Paying: New Extractive Sector Transparency Reporting Initiatives in the U.S., U.K., and Canada

Both Canada and the United Kingdom now require the reporting of payments to governments by companies in the mining and oil and gas industries in an effort to reduce corruption and assist local communities in benefiting from resource revenues. While the Canadian and U.K. laws were, in part, based on section 1504 requirements of the Dodd-Frank Act, which was signed into law in 2010, U.S. implementation of transparency reporting has been delayed (except for conflict minerals). This presentation will consider the history and policy basis of current reporting requirements in the U.S., Canada and the U.K. and offer practical advice on complying with the these disclosure regimes, while also considering the broader future of transparency reporting in the U.S. and internationally.

Break

  1. Sean Cumberlege

    Trubshaw Cumberlege, Ltd., Denver, CO
  2. Dimitri L. Seletsky

    Chevron Upstream, San Ramon, CA

Implementing Integrity: the Business Case for an Ethical Supply Chain and a Toolkit for Tempering the Links

Companies active in the development of natural resources devote considerable effort and funds to assuring that they conduct their business ethically as well as legally, consistent with the principles of sustainable development. Companies adopt internal policies and controls, and announce their principles and aspirations to the world. Often, the companies make similar contractual commitments intended to implement their principles in production sharing contracts, mine development agreements, community development agreements, and the like. All of a company’s efforts and good intentions can be for naught, however, if its contractors, the suppliers and service companies engaged by the resource development company, have not adopted the same standards and incorporated them into their business practices for delivering goods or services. This presentation will examine project data from around the world demonstrating that there is a business case for assuring that a company’s external supply chain is operating ethically and with integrity in alignment with, and under the leadership of, the company itself. The speakers will discuss a data-driven approach to identifying and managing supply chain risks, and will provide strategies that may be incorporated into a company’s contracting process to assure that the company’s projects and operations are pursued in a manner consistent with its principles, policies, and promises.

  1. Lucinda A. Low

    Steptoe & Johnson LLP, Washington, DC
  2. Jack R. Hayes

    Steptoe & Johnson LLP, Washington, DC

How Economic Sanctions Apply to U.S. and Non-U.S. Extractive Operations, and How to Manage These Risks

As extractive industries operate globally, they must take into account U.S., E.U., and U.N. economic sanctions affecting them, their supply chains, and their customers.  These restrictive measures can have extraterritorial effect, and may penalize the activities of entities and individuals engaging in offshore transactions with sanctioned persons, organizations, governments (including state-owned instrumentalities) and government officials, and industrial sectors.  This presentation will explore the implications of certain sanctions relief recently implemented that relates to Iran, the prospects for liberalization of the Cuban embargo, and other sanctions programs such as those related to the Sudan, Syria, Crimea (the part of Ukraine annexed by Russia), Russia, and activities threatening the security, peace, and stability of certain countries or regions.  It will also cover trends in sanctions policy, the challenges of managing facilitation and evasion prohibitions, identifying blocked persons and the implications of dealing with them, conducting sufficient and reasonable due diligence,  managing personal liability risks for individual employees acting on behalf of companies, and other issues that affect the day-to-day management and operation of business, including practical compliance best practices and tips.

Hosted Reception

Special function Hosted Reception – For Registrants and Families

For registrants, guests, and families.  Bring the kids – fun food and drink for the smaller people in your family also.

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Oil and Gas 1 - Friday Morning

  1. KRISTEN VAN DE BIEZENBOS

    University of Calgary Faculty of Law, Calgary, AB

Oil and Gas Law Update

The Annual Oil and Gas Law Update will provide a summary of new and significant statutory, regulatory, and judicial developments applicable to upstream oil and gas development in the U.S. that have occurred since the 2015 Annual Institute.

  1. Anne D. Weber

    Managing Attorney Weber Law Firm LLC, Denver, CO
  2. Larry Pain

    Weber Law Firm LLC, Houston, TX

Strategies for Midstream Operators and Their Producer Suppliers in Distressed Times

During difficult industry times, both midstream operators and their producer customers need strategies for successfully achieving the dual goals of finding the “sweet spot” for both parties and of reducing financial risk. This presentation will begin by examining the negotiation, structuring, and drafting of new midstream gas and crude arrangements incorporating new business models and industry developments. Next, it will focus on mining existing contracts to extract maximum value and specific strategies that may provide relief to counter-parties undergoing stress due to low commodity prices, lower volumes than anticipated, and other changes to their initial fundamental contracting assumptions. The speakers will cover the nuts and bolts of midstream contract and compensation structures in some detail, and will offer specific suggestions for drafting more bullet-proof provisions to protect the interests of contracting parties while at the same time allowing maximum flexibility over long-term contracts and in dynamic markets.

Break

  1. Kathleen C. Schroder

    Partner Davis Graham & Stubbs LLP, Denver, CO
  2. William A. Lambert

    Bureau of Land Management (BLM), Washington, D.C.

Permitting and Trespass Issues Associated with Horizontal Development on Federal Lands and Minerals

Horizontal development on federal lands and minerals managed by the Bureau of Land Management and Forest Service presents unique issues for oil and gas operators. This presentation will explore common issues that operators may encounter when developing federal minerals, such as drilling without a permit or a lease, failing to effectively secure an extension of a federal lease, and failing to schedule development to avoid timing stipulations. The speakers will describe how BLM reviews wells that traverse federal subsurface in order to produce non-federal minerals, as well as BLM’s regulatory authority over wells that will produce federal minerals from off-lease locations. They will also review the various situations in which trespass of federal minerals may occur. Finally, the presentation will address issues presented by horizontal development on federal lands under NEPA, the NHPA, and the ESA.

  1. Michael C. Sanders

    Sanders Willyard LLP, Houston, TX

Operator Remedies Against Defaulting Non-Operators

What remedies are available to operators of oil and gas properties when non-operators fail to meet financial obligations under the parties’ joint operating agreement? This presentation will analyze the remedies available under widely used form operating agreements, including steps that operators should take before any potential default, as well as after a non-operator fails to pay amounts billed by the operator. The speaker will examine judicial and non-judicial remedies, contractual and statutory liens, and additional provisions that can be added to form operating agreements. Questions about withholding non-operator revenues, setting off funds from other properties, seizing the non-operator’s lease and well rights, collecting unpaid expenses from the other non-operators, and seeking recovery from a non-operator’s predecessor in title will be explored, and procedures for alternative dispute resolution will also be considered.

Mining - Friday Morning

  1. Christina C. Sheehan

    Modrall Sperling, Albuquerque, NM

Annual Mining and Public Land Law Update

The Annual Mining and Public Land Law Update will summarize the key legislative, administrative, and judicial developments in mining and public land law since the 2015 Annual Institute.

  1. Andrew C. Lillie

    Partner Hogan Lovells U.S. LLP, Denver, CO
  2. Elizabeth H. Titus

    Partner Hogan Lovells US LLP, Denver, CO

Drip, Dribble, or Deluge: Managing the Legacy of Mine-Water Discharges from Historic and Abandoned Mines in the American West

In late summer 2015, the U.S. Environmental Protection Agency and its contractors accidently released over three million gallons of wastewater and tailings from the closed Gold King Mine near Silverton, Colorado. The resulting deluge turned the Animas River a shocking yellow-orange, incited downstream communities, and spurred worldwide media attention. While EPA’s actions at Gold King will be scrutinized by scholars and the courts, there remains a more challenging and complex problem for the mining industry – the potential liability stemming from the thousands of unmanaged legacy mine sites on both public and private lands. Ongoing discharges from these sites release millions of gallons of water laden with heavy metals and other contaminants, in trickles and streams, into watersheds throughout the American West every year. Most water from legacy mining properties is untreated and uncontained, and someone may be responsible. This presentation will explore the potential legal consequences of discharges from closed or abandoned mines:  what are the risks, who might be liable, and how to respond.

Break

  1. Randall E. Hubbard

    Partner Davis Graham & Stubbs LLP, Denver, CO

Royalties in Mining Agreements: Real Property or Personal Property?

Whether royalty interests in mining properties are personal property or real property has important consequences. Are royalties are real property interests that run with the land?  What are the potential rule against perpetuity and restraint on alienation issues? The impact of bankruptcy on royalties raises further questions, such as whether royalties can be treated as executory contracts that can be rejected in bankruptcy, whether the underlying property can be sold free and clear of a royalty interest, etc. Other implications include whether royalties are community property in community property states, and the extent to which recording royalty instruments under recording statutes binds or gives notice to third parties acquiring interests in the property burdened by a royalty. This presentation will also address royalty agreements that attempt to create perpetual rights to royalties under area of interest clauses, and recent case law such as the Bullion Monarch v. Barrick and Bullion Monarch v. Newmont cases in Nevada.

  1. Michael Drysdale

    Dorsey & Whitney LLP, Minneapolis, MN

Farewell to Coal?

Leasing Moratorium. New Regulations. Litigation. Bankruptcies. Things are bad generally for mining, but no sector has been harder hit in the past few years than coal. In addition to unfavorable market conditions, the industry has been beset by determined and well-funded opponents exploiting a very process-intensive leasing and permitting regime. Further complicating matters has been an Administration with a rapidly evolving approach to defending its own decisions and advancing new regulations. These tensions have recently reached a crescendo with Secretary Jewell’s announcement of a moratorium on federal coal leasing pending a programmatic review of the entire federal coal program. This presentation will walk attendees through the current challenges facing the industry and discuss how regulatory and litigation initiatives affecting coal can more broadly threaten the mining of other minerals in the U.S.

Friday Lunches

  1. Frances Spivy-Weber

    State Water Resources Control Board, Redondo Beach, CA

Special function Portias Lunch

For professional women from different generations, cities, and practices, Portia’s lunch is an opportunity to meet, network, share experiences, and enjoy a presentation. 

  1. JONATHAN AIREY

    Vorys, Columbus, OH
  2. BRUCE M. KRAMER

    Of Counsel Keystone, Colorado; McGinnis, Lochridge & Kilgore, Houston, Texas
  3. PATRICK H. MARTIN

    Campanile Professor of Law Emeritus Louisiana State University Law Center, Baton Rouge, LA

Special function IPAA Lunch

For IPAA members and interested professionals, speakers will present current legal issues for producers.

Poe Leggette, Baker & Hostetler LLP, Denver, will summarize the latest developments in litigation involving BLM’s hydraulic fracturing rule.

Professors Emeritus Bruce Kramer, Of Counsel to McGinnis Lochridge & Kilgore, L.L.P., Houston, and Patrick Martin, Professor Emeritus, LSU Law Center, will discuss current developments in oil and gas law with a focus on royalty litigation in Kansas and Texas, an update on Louisiana litigation, statewide class actions in Arkansas, preemption in Colorado, and real covenants and continuing liability of the original lessee in Wyoming.

Jonathan Airey, Vorys, Sater, Seymour and Pease LLP, Columbus, and Chair of the IPAA Law Committee, will provide an update on Appalachian Basin legal developments.

Oil and Gas 2 - Friday Afternoon

  1. Matthew J. Salzman

    Partner Stinson Leonard Street LLP, Kansas City, MO

What Every Royalty Payor and Payee Needs to Know About the Recent Developments in the Case Law and Regulations

Oil and gas royalty case law and regulations are anything but stagnant, and the rules vary from jurisdiction to jurisdiction. Often the applicable standards are developed through class action case law, and certain precedent-setting cases have been recently decided. Additionally, the federal regulations continue to evolve. This presentation will explore new issues in several areas of oil and gas royalty calculation, including: (1) recent class action royalty litigation and the resultant case law on deductions of post-production expenses and point of valuation; (2) developments in marketable product jurisdictions, including the significance of the Kansas Supreme Court’s Fawcett v. Oil Producers, Inc. of Kansas decision; and (3) the impact of the recent federal regulations affecting production from federal and Indian leases.

Break

  1. Aimee W. Hebert

    Kelly Hart & Pitre, New Orleans, LA

Between a Rock and a Hard Place: Problems Encountered in Marketing Production on Behalf of Lessors and Non-Operators

The interests of operators, non-operators, and lessors are generally aligned in marketing oil and gas production. But there are times when the interests of the parties diverge, leaving operators to face certain dilemmas when marketing oil and gas production. For example, how does an operator satisfy its obligation when selling to an affiliate? Whose interests must be considered when dealing with midstream companies? How does an operator meet its obligation if it stores oil or shuts in wells during a downturn in the market? This presentation will examine the basic express and implied obligations to market on behalf of lessors and non-operators, the recognized standards of operator conduct, and the effect of common provisions in mineral leases and joint operating agreements on the obligation to market. It will also explore potential exposures to liability when an operator is faced with a choice that could benefit some owners but not others.

  1. Sean B. Murphy

    Day Carter Murphy, Sacramento, CA
  2. Carlin A. Yamachika

    Partner Day Carter Murphy, Sacramento, CA

Everything Old Is New Again: Lease Maintenance Issues that Arise When Oil Prices Drop

Maintaining leases through drilling and production efforts has been a constant issue over the years. Due to the recent collapse of oil prices, this issue has once again become paramount as companies face significant challenges undertaking drilling and production operations sufficient to keep leases alive. This presentation will examine the potential implications of gaps in production and delays in operations with respect to typical habendum, continuous drilling, and shut in clauses and other lease maintenance provisions found in oil and gas leases, including whether leases are at risk of termination under these and other circumstances precipitated by the economic downturn in the oil and gas industry.

Water - Friday Afternoon

  1. Stephen Samuels

    U.S. Department of Justice, Washington, DC

The Clean Water Act Goes to Court

In response to three decisions of the Supreme Court that have cast considerable doubt over the extent of waters protected under the Clean Water Act, the U.S. Environmental Protection Agency and the Army Corps of Engineers issued new regulations in 2015 defining the statutory term “waters of the United States.” After providing a brief historical background, this presentation will provide an update on the substance of the regulation and the multiple legal challenges it has engendered throughout the nation. It will also provide a synopsis of a Clean Water Act case currently before the Supreme Court that will decide whether “jurisdictional determinations” performed as a public service by the Corps of Engineers are subject to immediate challenge in the courts.

Break

  1. M. Rodney Smith, Jr.

    U.S. Department of the Interior Office of the Solicitor, Salt Lake City, UT

The Truckee River Operating Agreement: Managing the River System by Agreement Instead of Litigation

The Truckee River Operating Agreement (TROA), which was recently implemented after being negotiated since 1990, provides an opportunity to attempt management by agreement for a river system that has been mired in over a century of litigation. The system includes Lake Tahoe, the Truckee River, and Pyramid Lake, as well as out-of-basin diversions to the Carson River Basin. This geography provides at least one example (and usually multiple examples) of almost all modern issues in water law across the West: interstate allocation between California and Nevada; reserved water rights for federally recognized Indian tribes in the Truckee basin and the Carson Basin; conflicts between endangered species and water use; agricultural-to-urban conversions, and trans-basin diversions. This presentation will discuss how TROA addresses these complex issues, with a focus on solutions that may be applicable when these common problems present themselves in other river systems.

Securing the Unsecurable: The Future of Collateralizing Water Rights in the West

In the arid west, water is one of our most important natural resources. In fact, water rights, apart from the land, are themselves an increasingly valuable property interest. And in many circumstances, land without water rights may be of limited value. Land is commonly used as collateral for financing, and appurtenant water rights are often assumed to be encumbered along with the land. However, as the value of water rights independent of the land itself increases, the use of water rights as financial collateral has become more common. This presentation will analyze the use of water rights as collateral and address risks associated with the collateralization of water rights, including how interested parties can ensure that their security interests in water rights are adequately protected. The speaker will also compare the water law regimes and practices of various western states to identify state-specific and common challenges in collateralizing water rights.

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Landmans - Saturday Morning

  1. Melanie B. Bell

    AAPL, Fort Worth, TX
  2. Margaret L. Meister

    Modrall Sperling, Albuquerque, NM

Due Diligence Done Right: Practical and Ethical Issues for Landmen and Attorneys

The four key elements of a successful due diligence activity for a seller or buyer are:  defining the desired outcome; analyzing and assessing the diligence needed to achieve the desired outcome; developing a strategic plan for implementation of the diligence process; and executing the plan. This presentation will explain the importance of defining a desired outcome and the critical factors that underpin a successful due diligence plan. The speakers will address the determination of the extent of due diligence required to achieve the desired outcome, including setting materiality thresholds, identifying reports to be developed, allocation of resources, and preservation of records, as well as invoking attorney-client privilege, when and how, and standards of practice and ethical rules as between due diligence team members, including the landman and the lawyer.

Break

  1. William M. Kerr, Jr.

    Kelly Hart & Hallman, Austin, TX

Navigating an Imperfect Oilfield: Drilling with No JOA or with Multiple JOAs

Everyone knows better than to drill an oil and gas well without a joint operating agreement that is binding upon all owners of drilling rights. The AAPL 610 Model Form Operating Agreement (including the  Horizontal Modifications) has evolved in the sixty years since its first issuance through at least two oilfield depressions and enormous technical advancements in the industry and is currently the tried, true, and tested standard (albeit frequently with modifications) to govern the rights and obligations of co-owners jointly drilling oil and gas wells. But what happens when one or more co-owners won’t sign an operating agreement and some or all owners still want or have to drill? Or, perhaps even more confoundingly, what happens when there is more than one joint operating agreement covering different interests in the same drillsite already in place and some or all owners insist upon drilling? This presentation will explore the legal rights and obligations of the co-owners in those contexts vis-à-vis the solutions provided by the AAPL Model Form with respect to the drilling of a single well and its associated spacing unit. Specific issues addressed will include basic rights to operate, proposal of operations, consent and non-consent operations, liabilities of the parties for drilling costs, cost overruns, marketing of production, and rights to well information. The presentation will also address harmonizing differing provisions when confronted with multiple JOAs.

  1. Thomas A. Henry

    Stoel Rives LLP, Sacramento, CA
  2. Michael J. Sherman

    Stoel Rives LLP, Sacramento, CA

Crossing the Community Property Border

The first recorded evidence of marriage dates from over 4,000 years ago.  Some would say disputes over marital property have enjoyed an equally lengthy history.  Consequently, laws governing marital property – commonly referred to as community property – have developed over time to bring certainty to ownership of marital property.  With over half of the U.S. adult population married, oil and gas and mining companies frequently encounter issues related to community property when acquiring or leasing minerals, paying royalties, or entering into other agreements affecting real property. Further, with nearly half of all marriages ending in divorce, failing to understand community property laws can result in invalid agreements and costly ownership disputes.  This presentation will help attorneys and landmen identify and minimize risks when dealing with community property in the major mining and oil and gas producing states.

Environmental - Saturday Morning

  1. Sarah Stauffer Curtiss

    Partner Stoel Rives LLP, Portland, OR

Environmental Law Update

The Environmental Law Update will summarize the key legislative, administrative, and judicial developments in environmental law since the 2015 Annual Institute. Topics will include litigation involving the Clean Power Plan and EPA’s contested definition of waters of the United States under the Clean Water Act.

  1. Cameron M. Leonard

    Perkins Coie LLP, Anchorage, AK
  2. Stephanie M. Regenold

    Attorney Perkins Coie LLP, Portland, OR

The Specter of EPA Bonding of Hard Rock Mines Under CERCLA

Under court order, EPA is currently undertaking a rule-making that it was required to do back in 1983. CERCLA Sec. 108(b) requires that the federal government identify classes of facilities for which it will require financial assurance to protect against releases of hazardous substances, and imposes the 1983 deadline. Some 25 years after that deadline passed, a number of environmental groups sued to compel agency action, and in 2009 EPA identified the hard-rock mining industry as the first industry sector for which it would promulgate financial assurance requirements under CERCLA. Draft regulations are expected in December 2016, and potentially as soon as August 2016. This presentation will address:  what EPA has disclosed so far about its CERCLA bonding initiative; the issues that the mining industry should be prepared to address when the proposed regulations are put out for public comment; how EPA’s new rules may either preempt, or differ from, the reclamation bonding requirements that already govern this industry;  and the effect that the August 2015 Gold King Mine spill, and challenges associated with other closed mines, may have on EPA’s approach to bonding required for the industry.

Break

  1. Stacy J. Stotts

    Stinson Leonard Street, Kansas City, MO

Oil and Gas Air Quality Issues — Efforts to Curb Methane Emissions and Climate Change

In 2012, after extensive public comment, the U.S. Environmental Protection Agency adopted new regulations for oil and gas production facilities, NSPS Subpart OOOO, that specify requirements to reduce air emissions, including volatile organic chemicals and sulfur dioxide emissions. EPA has proposed revisions to those regulations on August 18, 2015. These new regulations would subject to regulation additional emission sources not currently covered by the existing rule as well as new reductions of methane emissions. Methane is one of the most potent greenhouse gas emissions and the reduction of methane emissions across the oil and gas industry is a priority as a part of the Obama Administration’s Climate Action Plan. In addition, the BLM proposed rules on January 22, 2016 to reduce methane emissions for venting, flaring and leaks at oil and gas operations. This presentation will discuss the various federal rules and proposals as well as other air related proposals, such as how a “single source” should be defined, that will impact oil and gas production operations.

  1. Stephen W. Smithson

    Snell & Wilmer L.L.P., Salt Lake City, UT
  2. E. Blaine Rawson

    Shareholder Ray Quinney & Nebeker, Salt Lake City, UT

Is The Scope of Federal Agency Deference Eroding? If So, What Does That Mean for Challenging Federal Actions and for Defending Federal Permitting Decisions?

Recently, there has been increasingly strong language from the U.S. Supreme Court questioning the scope and appropriateness of agency deference. In Utility Air Regulation Group v. EPA, the Court found that EPA was not entitled to Chevron deference, and struck down the EPA’s “Tailoring Rule.” In 2015, Justices penned concurrences that (i) expressly sought a case that directly allowed the Court to determine whether to continue Seminole Rock deference; (ii) expressly called for abandonment of Auer; and (iii) expressly questioned whether Chevron deference is constitutional. Taken together, these cases suggest that a future Supreme Court case may substantially change the way that natural resource lawyers and regulatory agencies must consider the weight and strength of agency positions. In this regard, several Circuit Courts of Appeals are already suggesting that deference to agency decisions and interpretations should be scrutinized, while other circuits appear to have strengthened agency deference. This presentation will consider arguments that have, or have not, been successful in challenging or defending federal agency decisions.

Adjournment

Course Adjournment