April 2023

Natural Resources Law Insights

Back to the Future: What Is a Water of the United States?

Joan E. Drake | Modrall Sperling

On January 18, 2023, the U.S. Environmental Protection Agency and the Department of the Army jointly published their latest final rule on the definition of “waters of the United States” (WOTUS) under the Clean Water Act. It is founded upon the pre-2015 definition of WOTUS, which included tributaries and intermittent streams as well as permanently flowing (traditionally navigable) waters, with updates to reflect consideration of U.S. Supreme Court decisions, science, and the agencies’ technical expertise.

Read more here.

State Legal Frameworks for Carbon Capture, Utilization, and Sequestration Are Evolving Rapidly Across the Country

Michael Gerrard, Sarah Grey, Samuel Pickerill, Ethan Shenkman | Arnold & Porter

Carbon capture, utilization, and sequestration (CCUS) is projected by many to play a significant role in achieving national and international climate goals. Yet policies facilitating CCUS development in the U.S. today often occur on a state-by-state level. Over the past two years, the number of states taking action in this area has risen sharply, and it appears that 2023 will continue this trend. This article briefly surveys six state actions that are currently shaping CCUS legal frameworks, including common statutory mechanisms and efforts to obtain primary enforcement authority over CCUS permitting. 

Read more here.

Developments in Federal and Pennsylvania Environmental Justice Policy

Amanda L. Brosy, Sean M. McGovern | Babst Calland

This article provides an update on the recent developments in environmental justice (EJ) policy and funding at the federal level, as well as forthcoming updates to Pennsylvania’s own EJ Policy, which could have tangible impacts on Pennsylvania’s regulated community. 

Read more here.  For additional environment justice (EJ) developments in Pennsylvania from Babst Calland, read more here. 

The Double-Fraction Problem – The Supreme Court of Texas Reiterates Texans' Talent for Misconception

Ryan Latham | Diamondback Energy

In its recent Van Dyke v. Navigator Group decision, the Supreme Court of Texas appears to have changed the analysis of grants and reservations using “of 1/8” to an extent that there is now a presumption that the use of “1/8” is a reference to the entirety of a mineral or royalty estate. This will have far-reaching consequences for mineral transactions and division of interests for operators. The prevalence of estate misconception and mistakes regarding the permanence of the usual 1/8 royalty by mineral owners in Texas may be more complicated than the court allows, and how the term of art “of 1/8” developed in light of the court’s historical decisions is not apparent from its decision in Van Dyke.

Read more here. 

ABC's of Superfund Liability Protection – AAIs, BFPPs, and Current Phase I Standards

Lara Guercio, Mark Stermitz | Crowley Fleck PLLP

This article delves into the U.S. Environmental Protection Agency’s final rule, published on December 15, 2022, that modifies the standards and practices for CERCLA’s “all appropriate inquiries” requirement. It also provides a general overview of the bona fide prospective purchaser liability exemption and examines the professional standards and processes employed during a Phase I environmental site assessment.

Read more here.

Featured Foundation Contributors!

Jamie L. Allen
Associate, Modrall Sperling, Albuquerque, NM

1. Can you tell us about your background and how you became interested in practicing law?
   
   I grew up in a small town in northern New Mexico. It was there that I attended college at New Mexico Highlands University before attending Emory University School of Law in Atlanta, Georgia. After law school, I returned to New Mexico and joined the prestigious Modrall Sperling law firm. This afforded me the invaluable opportunity to learn from and be guided by a team of brilliant attorneys who have contributed immensely to my professional growth. 
   My interest in practicing law started at a young age, around nine or ten years old. I have always enjoyed reading, writing, analyzing and breaking down issues, and, yes, arguing. So, when I got to do all of those things in class mock trials, it seemed like a natural fit. 
   
   
2. What is your area of specialization within the legal field?
   
   While my practice is varied, my area of specialization is federal Indian law, focusing on energy projects and economic development in Indian Country, and litigation in a variety of natural resources and civil matters. 
   
   
3. How did you first get involved with the Foundation?
   
   My first exposure to the Foundation was through my participation in the Young Natural Resources and Energy Lawyers Institute in Denver. As Modrall Sperling has been a long-standing supporter of the Foundation, many of our associates also attended the institute and had a great experience. Not long after, Stuart Butzier, one of our shareholders and a former President of the Foundation, suggested that I contribute to one of the Foundation’s publications as a way to deepen my involvement with the Foundation and expand my knowledge of various areas of energy law. Following his recommendation, I began contributing to the Foundation’s American Law of Mining treatise.
   
   
4. How do you stay up to date with changes in laws and regulations within your field?
   
   Although independent research and keeping an eye on the news are constants, the Foundation’s programs and publications have been a great way to keep up with the ever-changing laws, regulations, and policy we see in energy law. 
   
   
5. How has serving as a volunteer for the Foundation impacted your career? 
   
   Serving as a volunteer has allowed me to take a deeper dive into issues I do not necessarily get to see on a daily basis. It is a great way to learn about new and interesting areas of the law, and stay up to date on the field in general. 
   
   
6. How has your writing evolved over time, and what have you learned from the experience?
   
   It is always interesting how your approach to different facets of practice changes with experience, and writing is no exception. Legal writing is often taught in law school as rigid and formulaic, so we tend to enter practice with that approach in mind. While that approach is certainly an effective tool in legal writing, it is not the only one available. It took some time and experience for me to learn that the ability to tell a story can be just as important as the case law and facts at issue.
   
   
7. Looking back on your career, is there anything you would have done differently, or any advice you would give to someone starting out in the legal profession?
   
   I cannot say there is anything I would have done differently, because even when things have not gone as planned, a learning experience has resulted. So, the advice I would give to someone starting out in the legal profession is to never shy away from an opportunity, even if it seems daunting or you do not think you are ready. You are more prepared than you realize.
   
   
8. Other than law, what are you passionate about?
   
   Nothing makes me happier than spending time with loved ones and cooking a good meal!

Scott W. Hardt
Partner, Davis Graham & Stubbs LLP, Denver, CO 

1. Can you tell us about your background and how you became interested in practicing law? 
   
   My academic background was in the sciences—chemistry and biology. My recreational life was rooted in the outdoors. After graduating from CU-Boulder with a BA in EPO Biology, my path was to pursue graduate school and a career as a field biologist/academic. After a year in the zoology graduate program at UW-Madison, it became apparent that my real interest was at the interface of science and environmental policy. For the first time in my life, law school appeared on my radar. My focus became finding a school with stellar natural resources and environmental programs. This ultimately led me back to CU where I had the amazing opportunity to study with some of the greats in environmental, public lands, and Indian law, including Charles Wilkinson and David Getches.
   
   
2. What is your area of specialization within the legal field? 
   
   Environmental, public lands, and mining law. For the past two decades, the majority of my work has been for mining clients. One of the things I enjoy most about my practice is the diversity of the substantive matters I am able to work on. For example, in a single day, I might work on permitting for a new mine, addressing issues at a legacy cleanup site, negotiating terms of an exploration agreement, and counseling on environmental compliance matters.
   
   
3. How did you first get involved with the Foundation? 
   
   It started almost from day one—writing papers for partners as a first-year associate. It was probably a pretty typical transition from that to participating in various Special Institutes and, of course, attending the Annual Institutes, which were great places to develop early contacts with clients and other practitioners as a young lawyer. I very well remember some particularly exuberant client dinners at Annual Institutes over the years, which we still tell stories about—those provide glue for a lifetime.
   
   
4. How do you stay up to date with changes in laws and regulations within your field? 
   
   The amount of information that passes across our computer screens every day on legal developments can be overwhelming. I have a few daily newsletters I skim every morning that report on agency regulatory developments and recent court decisions. The Foundation’s publications and newsletters remain an essential source for more in-depth coverage on key issues in my field. The Foundation is a unique source (in a world of information overload) for thoughtful and in-depth coverage of issues that are central to my practice, and for which there is really no comparable source that I have found. 
   
   
5. How has serving as a volunteer for the Foundation impacted your career? 
   
   Serving on Foundation committees has exposed me to many fascinating issues within the natural resources law field that I might not have otherwise had the opportunity to learn about and wrestle with, and has provided a platform for many longstanding friendships with lawyers I would not likely have otherwise met.
   
   
6. Looking back on your career, is there anything you would have done differently, or any advice you would give to someone starting out in the legal profession? 
   
   If I had to provide a sound-bite piece of advice for young lawyers, it would be: “Don’t be afraid to take chances.” There are so many things that we can do with a law degree and so many different settings in which we can practice natural resources law or otherwise use our knowledge in pursuit of a career. As a young lawyer, I tried many different options for practicing law before I found the situation that best fit my temperament and objectives. Large law firms, very large law firms, government practice, and a small natural resources law boutique—they all presented different opportunities and lifestyles. I am thankful that I had the nerve (or foolishness) to experience all of those chapters in my career.
   
   
7. Other than law, what are you passionate about? 
   
   My family, exploring the planet, and music. My wife and son (and our malamutes) are crucial elements of my life, and allowing time for us to have those occasions when we are able to slow down and really enjoy each other’s company is the best. My reference to “exploration” probably sounds more elaborate than what I mean. While my wife and I love travelling to new parts of the world that we have not seen before, my favorite expeditions occur right here in the Rockies, often in places I have visited many times (and of course living in Colorado, we have some amazing local haunts). Knowing that we all have a limited amount of time to wander this planet’s mountains, forests, and shorelines, I appreciate every time I am able to be out “in the hills.” For me, it is the optimal counterbalance to the inherently analytical (and often sedentary) pursuit of practicing law. It allows me to keep perspective on my original reasons for wanting to practice environmental and natural resources law. And music—it is the universal language.

Tracy K. Hunckler
Partner, Day Carter Murphy LLP, Sacramento, CA 

1. Can you tell us about your background and how you became interested in practicing law? 
   
   I grew up in the San Francisco Bay Area and have lived in California my entire life. I knew I wanted to be an attorney since I was a teenager when my Dad and I would engage in “debates” on various issues. I enjoyed developing arguments to sway my Dad to see things my way, as he did the same back to me. I was the first member of our family to obtain a college degree, and I ultimately graduated from UC Davis Law School in 1995, just months before marrying my husband of 27 years, David. I have been practicing law out of the Sacramento area for those same 27 years, but my work involves matters throughout the state. In 2006, I was privileged to join with my fellow partners from another firm in the formation of Day Carter Murphy LLP, a boutique energy and real property firm where we pride ourselves on assisting our clients with complex and cutting-edge legal issues while maintaining a culture that fosters a healthy work–life balance. 
   
   
2. What is your area of specialization within the legal field? 
   
   My areas of specialization include oil and gas, renewable energy, and real property matters. I litigate disputes in state, federal, appellate, arbitration, and administrative forums. I also advise clients on transactional matters and on dispute avoidance and resolution.
   
   
3. How did you first get involved with the Foundation? 
   
   My first experience with the Foundation was through attending the Annual Institute. Afterwards, I became a regular attendee of their Special Institutes as well. The Institutes that I attended early in my career helped me understand fundamental issues relating to my developing practice. Over my career, I have frequently turned back to written papers from various Institutes to assist with research issues. 
   
   
4. How do you stay up to date with changes in laws and regulations within your field? 
   
   The Foundation and its many resources, including Institutes and papers, have been vital for me to stay current on changes in the law. I rely on other industry organizations as well and, more importantly, my colleagues at Day Carter Murphy, especially Megan Sammut, to keep me apprised of new developments. I also enjoy researching and reading up on the issues of the day myself by conducting online legal research and sharing the results with others. 
   
   
5. How has serving as a volunteer for the Foundation impacted your career? 
   
   Serving as a volunteer for the Foundation has assisted me with creating networking relationships with others who practice in the same areas as me. I also have pulled from my contacts with the Foundation to assist with locating expert witnesses and to provide referrals when clients need assistance in areas outside our practice. Through my volunteer work, I have expanded my knowledge by learning about issues that other members are facing and have used their experiences to assist with my own practice. In turn, I hope that I also have been able to help others with their practices. 
   
   
6. How has your writing evolved over time, and what have you learned from the experience? 
   
   Early in my career, I focused on writing exactly like I was taught in school and in legal writing seminars. I am very much a “rule follower” so I tried to follow all the “rules” that I was taught about legal writing. As my career developed, I became more comfortable with my writing and began to develop my own style and to focus more on what I felt would persuade the reader, all the while, of course, incorporating some of those “rules” along the way. 
   
   
7. Looking back on your career, is there anything you would have done differently, or any advice you would give to someone starting out in the legal profession? 
   
   To be happy in your career, it is imperative that you enjoy what you are doing (most of the time anyway) and the people you are doing it with. 
   
   
8. Other than law, what are you passionate about? 
   
   I am passionate about my family, first and foremost, which, of course, includes our Aussiedoodle, Coco. I enjoy traveling with my family, hosting gatherings with our friends, reading, and wine tasting.

Highlights of Recent Programs

The Foundation has held five in-person programs and three webinars since December 2022. Read more about these timely, informative, and engaging programs, most of which you can access and purchase on our on-demand platform (with most including the papers) for CLE credit via the links below! Discounts are available for members and for purchasing multiple presentations.

Taking a Natural Resources Case to Trial

This webinar was presented live on December 6, 2022, and featured two seasoned litigation attorneys, Shannon Ratliff of Davis, Gerald & Cremer, and Matt Salzman of Stinson. The speakers addressed key issues to consider in developing witness and exhibit lists and touched on available litigation management tools to assist in trial preparation. This presentation is available for you to view for CLE credit on our Online Natural Resources Education Library here. 

The Ethics of Practicing Law Across State Lines: Rules and Tips for Firm and In-House Lawyers

This webinar, held in December 2022, features Professor John Dzienkowski, Dean John F. Sutton, Jr. Chair in Lawyering and the Legal Process at the University of Texas School of Law. Since the onset of the pandemic, more attorneys practice law remotely from locations where they are not licensed. Professor Dzienkowski discusses situations involving legal work in multiple jurisdictions and what may constitute the unauthorized practice of law under ethics rules for lawyers. If you practice law remotely or in multiple jurisdictions, you can view this presentation for CLE credit on our Online Natural Resources Education Library here.

Oil & Gas Agreements: Purchase and Sale Agreements

This special institute, co-chaired by Sam Niebrugge and Amy Seneshen, was held on January 19-20, 2023, at the Hyatt Regency Galleria in Houston, Texas. This is the 16^th special institute in the Foundation’s highly successful Oil & Gas Agreements series and features 27 speakers and 15 presentations on a broad range of issues associated with oil & gas acquisitions and divestitures. If you are involved in oil & gas A&D, view these presentations for CLE credit on our online Natural Resources Education Library here.

Second Annual U.S. Oil & Gas and Renewable Energy Law Seminar at NAPE

This half-day seminar, chaired by Jared Hembree, was held on February 1, 2023, at the George R. Brown Convention Center in Houston, Texas. The seminar is a partnership with NAPE and held in conjunction with the annual NAPE Expo, the largest oil & gas exhibition in the world. This was the highest-attended educational program at NAPE.

Natural Resources, Energy, and Environmental Legal Research Tools and Strategies for Young Professionals

This webinar, sponsored by the Foundation’s Young Professionals Committee, was held on February 8, 2023, and featured Professor Jennifer Laws, a Senior Lecturer and Law Librarian at the University of New Mexico School of Law. The program provides legal research basics and research tools and strategies specific to natural resources, energy, and environmental law, and received outstanding reviews. You can view the program on our online Natural Resources Library here. The Young Professionals Committee is seeking topics for future virtual presentations, so if you have ideas you would like to share, please contact Melissa Magee, Associate Director – Programs, at mmagee@fnrel.org.

Mining Law Seminar and Reception (Before PDAC)

This program, chaired by Kuno Kafka, was held on March 5, 2023, at the Sheraton Centre in Toronto, Ontario, in connection with the Prospectors and Developers Association of Canada (“PDAC”) expo. The program included two panel presentations followed by a reception. The panel presentations addressed critical issues and developments affecting mining companies, including government policies related to supply chains and critical minerals needed to meet renewable and electric vehicle energy demands.

National Environmental Policy Act

This two-day special institute, co-chaired by Deana Bennett and Dessa Reimer, was held on March 16-17, 2023, at the Watergate Hotel in Washington, D.C. This institute was designed to equip natural resource and environmental law practitioners with a working understanding of the National Environmental Policy Act’s (NEPA’s) requirements and nuances, which have evolved over half a century resulting in an expanded environmental review process. The program also explored advanced topics in NEPA procedures and policy, including the new Council on Environmental Quality revisions proposed by the Biden Administration. The presentations from this special institute will be available on our Online Natural Resources Library soon.

Upcoming 2023 Programs

• International Mining and Energy Law, Development, and Investment
  April 19-21, 2023  |  Mexico City, Mexico 
• BLM’s New Oil & Gas Instruction Memoranda: Refining the Federal Leasing Process and More
  Wednesday, April 26, 2023  |  Live Webinar 
• Law of Permian Basin Oil & Gas Development and Operations
  May 25-26, 2023  |  Santa Fe, New Mexico 
• 69th Annual Natural Resources and Energy Law Institute
  July 20-22, 2023  |  Salt Lake City, Utah
• International Oil & Gas Law, Contracts, and Negotiations
  Part 1: September 25-29, 2023; Part 2: October 2-6, 2023  |  Houston, Texas
• 40th Annual Oil & Gas Law Short Course
  October 16-20, 2023  |  Westminster, Colorado 
• Federal Oil & Gas Leasing Short Course
  October 16-19, 2023  |  Westminster, Colorado
• Indian Law and Resource Development - Registration Opening Soon!
  November 2-3, 2023  |  Chandler, Arizona
• Water Law Institute - Registration Opening Soon!
  November 2-3, 2023  |  Chandler, Arizona

 See all upcoming Foundation Programs!

Spotlight on Grants to Professors – Environmental Law and Geography Workshop

The Foundation recently provided a grant to Karrigan Börk, Acting Professor at UC Davis School of Law, in support of the first Environmental Law and Geography Workshop that was held in Asilomar, California, on December 4-7, 2022. The objectives of the workshop were to bring together an interdisciplinary group of legal scholars to consider (1) what law and geography means as a framework and method for environmental and natural resource legal scholarship and (2) how law and geography scholarship can influence understanding and development of environmental and natural resources law, as well as build a network of legal scholars devoted to improving research in the field. The workshop also aimed to produce several co-authored works for Environs, UC Davis’s environmental law journal. 

The collaborative and productive workshop included nine in-person attendees and two virtual attendees and included the following accomplishments: 

• The group is co-authoring a process piece on law and geography collaborations for publication in a social science/geography journal that will explore the collaboration process itself, what worked and what did not, and what the participants learned about facilitating such a workshop.
  

• The group is also co-authoring a high-level introduction to geographically informed legal approaches for the environmental and natural resource law community. This will ideally introduce the legal community to existing work of which they may not be aware and build excitement and interest in bringing more geography to bear in environmental and natural resource law scholarship. It includes a series of short case studies that show the benefits of this approach.
• In teams of two to three people, workshop participants are authoring works of geographically informed scholarship that will be published in a law review or book format (or perhaps both). These pieces will serve as examples of how to conduct law and geography work and the value of that work.

Professor Börk said that the group also plans to propose environmental law and geography as a topic for a law review symposium at UC Davis and other schools in hopes of building momentum from the Asilomar meeting. He thanked the Foundation for making this workshop possible.

Complete Your Profile

Completing your profile benefits you, the Foundation, and our other members. When companies are looking for lawyers in your practice area who reside in your city or region or are licensed in your state,  they often look in our membership directory. They won’t find you unless you have completed your profile! Similarly, you may be looking for a referral for a specific type of lawyer. And if enough people complete their profiles, the Foundation will be able to better target its communications, which will reduce the emails in your inbox to those that are more relevant to you and your practice.

Our Diversity and Inclusion Committee also wants you to complete your profile. The geographic, practice area, practice type, gender, racial, and ethnic diversity of our speakers, committee members, authors, and leaders is important to the Foundation and its organizational members. It is much more difficult for the Foundation to advance its diversity goals without demographic information about you and your colleagues.

Completing your profile is easy! Just log in with your username (email address) and password and click “Edit My Profile.” Once you complete your profile, your contact information will instantly be available in our searchable membership directory! And don’t forget to upload your photo!