July 2023

Natural Resources Law Insights

The Debt Ceiling Bill’s Substantive NEPA Amendments

Ted Boling, Thomas Jensen, Kerensa Gimre | Perkins Coie, LLP

On June 3, 2023, President Biden signed the Fiscal Responsibility Act of 2023 (FRA), colloquially referred to as the Debt Ceiling Bill, into law. The legislation completes a bipartisan agreement to suspend the public debt limit until 2025 and includes the most substantive amendments to the National Environmental Policy Act (NEPA) since Congress enacted that statute in 1970. It effectively codifies many of the regulations that the Council on Environmental Quality (CEQ) promulgated in 2020, during the Trump administration. This update provides a brief summary of the key NEPA amendments in the FRA.

Read more here.

The Law of the Colorado River: An Opportunity for Change

Fred Breedlove, John D. Burnside, John Habib, L. William Staudenmaier | Snell & Wilmer

The Department of the Interior announced on Monday, May 22, 2023, an agreement with the Lower Basin states to conserve three million acre-feet (MAF) of water in Lake Mead for the next four years, with 2.3 MAF paid for with funding from the Inflation Reduction Act. The balance of 700,000 acre-feet will need to be conserved voluntarily by Arizona, California, and Nevada. In addition, it appears likely that this agreement will be added as an “action alternative” to the draft supplemental environmental impact statement released last month to allow for more full vetting by the Basin States, stakeholders, and the public. This article attempts to provide some much-needed context to these agreements within the framework of the “Law of the River.”

Read more here.

Restraining ESA Critical Habitat: Ninth Circuit Overturns Jaguar Critical Habitat Designation

Murray Feldman, Sandra Snodgrass, Laura Granier | Holland & Hart LLP

In Center for Biological Diversity v. U.S. Fish & Wildlife Service (CBD v. FWS), the Ninth Circuit Court of Appeals recently set aside parts of the U.S. Fish and Wildlife Service’s (FWS) designation of critical habitat under Section 4 of the Endangered Species Act (ESA) for the jaguar in southeastern Arizona. That decision may have important implications for the application of the ESA’s critical habitat designation provisions—especially for unoccupied habitat—in other situations.

Read more here. 

Offshore Wind and Green Hydrogen: What Opportunities Lie Ahead

Laura Morton, Aubri Margason | Perkins Coie, LLP

The development of clean hydrogen—a key component to meeting the Biden Administration’s ambitious clean energy goals—was bolstered recently by the Administration’s announcements of the Pathways to Commercial Liftoff: Clean Hydrogen report and of $750 million in funding for research, development, and demonstration of clean hydrogen technologies. Because of its reliance on renewable energy, green hydrogen presents a significant opportunity for the offshore wind industry. Coupling offshore wind generation and the production and storage of climate-neutral green hydrogen can benefit both industries, help sustainably meet the nation’s energy needs, and advance pathways to decarbonization.

Read more here. 

Don’t Get the Boot: 1031 Exchanges for Oil, Gas, and Mineral Interests

Katie A. Moisan | Fairfield and Woods, P.C.

1031 exchanges do not benefit only commercial real estate investors. Operators, non-operators, and investors in oil and gas and other mineral interests have the opportunity to participate in like kind exchanges as well. This article explains some of the requirements and complexities of 1031 exchanges focusing on whether the interests exchanged are real property, and whether the nature, character, or class of the properties and the transactions themselves are considered like kind.

Read more here.

Tributes to Professor John S. Lowe for an Outstanding Academic Career

Professor John S. Lowe

Professor John Lowe, who was the George Hutchison Chair of Energy Law at SMU Dedman School of Law, recently retired after an almost five-decade career in academia. To commemorate his outstanding career, the SMU Law Review recently published a series of tribute articles.¹ Just a taste of those tributes say much about the person and what he has meant to those who were his friends, colleagues, students, and mentees.

The tributes highlight his teaching acumen and his passion for students, whether they be law students or those already in practice. “Professor Lowe is unique because of how he cares—really cares—about his students’ successes inside and outside of the classroom, not just in word, but in action.” ² And he didn’t just teach and counsel students in the United Stated. “He taught petroleum law and contract courses at schools around the world, such as the University of Dundee in Scotland; the Universities of Melbourne and Sydney in Australia; Qatar University; and Chulalongkorn University in Thailand.” ³ In recognition of his teaching, the Foundation awarded Professor Lowe the prestigious Clyde O. Martz Award in 2013.

Professor Owen Anderson said, “I first corresponded with Professor Lowe in 1982, shortly after I was asked to prepare a paper for the annual institute of the Rocky Mountain Mineral Law Foundation (RMMLF), now The Foundation for Natural Resources and Energy Law (FNREL).” ⁴ “At these CLE events, especially the FNREL Oil and Gas Short Course, I was first able to observe and learn from John’s teaching techniques. He had a great ability to reduce complex topics to what he often called ‘Essential Issues.’ Through this technique, he was able to simplify a complex topic so that the listener could easily grasp the most important issues surrounding a commonly recurring but complex dispute or complex agreement.” ⁵ Professor James Coleman wrote, “His gift for synthesis and explanation is likely why he quickly became and remains one of the most central figures in the history of oil and gas law–nearly synonymous with the field.” ⁶ “And surely, vanishingly few professors could match his record of successfully supporting students for scholarship funding from professional organizations such as The Foundation for Natural Resources and Energy Law and the Energy and Mineral Law Foundation.” ⁷

Although his contributions to academia have been momentous, the time and energy he devoted to the education of attorneys, landmen, negotiators, and other professionals on both domestic and international oil and gas law and contracts are immeasurable. “His writings, casebooks, and counsel are responsible for shaping U.S. and international law related to the field, and he has trained generations of practitioners, policymakers, and academics. His work defined a field; his mentorship sustained a community.” ⁸ “But for those of us who know Professor Lowe personally, perhaps his greatest impact is through the steadfast, energetic, and enduring mentorship he offered to so many students and scholars throughout his career.” ⁹

Professor Lowe served on 13 Foundation committees, including as Program Chair of the 44th Annual Institute; taught on the faculty of the Oil and Gas Law Short Course for 22 years; and authored seven annual and special institute papers. He is an original co-author of International Petroleum Law and Transactions, a comprehensive treatise published by the Foundation now in its fourth edition. To this day, he continues to serve as the oil and gas editor of the Mineral and Energy Law Newsletter, a task he first assumed in 1984.

Professor Lowe did not only write, speak, and teach for the Foundation, he served in the highest levels of leadership. He was elected to the Foundation’s Board of Directors (formerly the Executive Committee) and then elected the Foundation’s Secretary, Vice-President, and President. Considering all Professor Lowe has done for the Foundation, it is a wonder he had time for teaching, much less his other pursuits.

“Professor Lowe was a hard-driving law professor, consultant, and arbitrator, but he always prioritized his health and well-being and Jackie, his children, and his grandchildren.” ¹⁰ “A page in the history of oil and gas law is being turned with John’s retirement. He has contributed so much to that discipline.”¹¹

From all of us at the Foundation, our heartfelt congratulations to you, Professor Lowe, on the next chapter of your life. You left nothing on the table.

To read the full text of the tributes on the site of the SMU Law Review, click here.

¹ 76 SMU L. Rev. 5-23 (2023).
² Eric C. Camp, A Tribute to Professor John S. Lowe, 76 SMU L. Rev. 9, 9 (2023).
³ Monika U. Ehrman, A Giant in the Field: Tribute to John S. Lowe, 76 SMU L. Rev. 15, 17 (2023).
⁴ Owen L. Anderson, Professor John S. Lowe: A Master Teacher Who Never Doubted the Confidence of His Convictions Even When He Was Wrong!, 76 SMU L. Rev. 5, 5 (2023).
⁵ Id. at 6.
⁶ James W. Coleman, A Tribute for Professor Lowe, 76 SMU L. Rev. 13, 13 (2023).
⁷ Id. at 14.
⁸ Ehrman, supra, at 15.
⁹ Coleman, supra, at 14.
¹⁰ Anderson, supra, at 7-8.
¹¹ David Pierce, Tribute to John Lowe on His Retirement, 76 SMU L. Rev. 23, 23 (2023).

In Memoriam – Natural Resources Law Legends and Leaders

Charles Wilkinson

Charles Wilkinson, the Moses Lasky Professor of Law Emeritus and Distinguished Professor at the University of Colorado Law School, passed away on June 6, 2023. Professor Wilkinson had a remarkable career of teaching, writing, and advocating for the rights of Indigenous Peoples and the environment. He was a passionate and inventive teacher and mentor, educating and inspiring thousands of students and scores of colleagues.

Professor Wilkinson spent most of his teaching career at the law schools at the Universities of Oregon and Colorado, where his influence and impact were deeply felt. In 1997, the regents of the University of Colorado recognized Wilkinson as a Distinguished Professor, one of only twenty-five at the University. His gift for teaching and deep commitment to research were repeatedly acknowledged through numerous teaching and research awards throughout his illustrious career. Professor Wilkinson was famous for hiring law students as research assistants and sending them into the world to learn about legal problems. These opportunities were often life-changing, with dozens of his students going on to practice Indian Law and Public Land Law over the decades.

Professor Wilkinson authored fourteen books that stand as seminal works that shaped the fields of Indian Law and Federal Public Land Law. These include Crossing the Next Meridian that tackled pressing issues related to land, water, the West, Indigenous rights, and the complex histories that shape our nation. Wilkinson also devoted himself to numerous special assignments for the U.S. Departments of the Interior, Agriculture, and Justice. Professor Wilkinson left an indelible mark on legal education, scholarship, and the attributes that are the very essence of the American West.

For more information about Professor Wilkinson, read IN MEMORIAM: Charles Wilkinson - A Trailblazer for Justice, the Earth, and American Indian Law, on the University of Colorado School of Law website here. 

Kenneth E. Barnhill

Kenneth E. Barnhill passed away on May 4, 2020. We did not learn of his passing until this past year. Ken was one of the founders of the Foundation, working closely with Clyde Martz, Jr., Stan Dempsey, Don Sherwood, and others, and serving as Executive Director from 1958-1960, Secretary from 1961-1963, Vice-President in 1969-1970, and President in 1970-1971. He also guided the Foundation through a transition year when Dave Phillips became Executive Director. Ken authored three annual institute papers between 1962 and 1982, and one special institute paper.

Ken served in the U.S. Air Force and was instrumental in the land development for what is now the U.S. Air Force Academy. He had a distinguished career with Holland and Hart, later establishing the firm of Lohf and Barnhill. Ken was also the Chairman of the Colorado Supreme Court Grievance Committee and the Supreme Court Rules of Conduct Committee, and in 1983 received the Denver Bar Association Award of Merit. In 1987, he was appointed to the First Judicial District Court of Jefferson County. As a judge, he was widely praised for his thoughtfulness and empathy to those in his courtroom.

Ken was an avid outdoorsman and hunter and enjoyed his “piece of heaven” at his cabin in Bailey, Colorado. He was survived by his wife, Carolyn, formerly a nurse at Boulder Community Hospital.

Foundation News

Congratulations to Our Scholarship Winners!

The Foundation has several scholarship programs that provide tuition support to law students who are interested in the study of natural resources, energy, and environmental law. Thanks to the generosity of our members and other constituents, since 1980 the Foundation has awarded 742 scholarships totaling $4.2 million!

This year, the Foundation awarded 45 scholarships to 33 scholars for a total of $283,320.

Consider helping us continue to be able to award scholarships at this level in the future by making a deductible charitable contribution to support one of our scholarship programs by clicking here.

2023-2024 Scholarship Recipients

Richard H. Bate Scholar
Pryce Stewart, Texas Tech University

Catherine J. Boggs Scholar
Kendall Fowler, University of Denver

James M. King Scholar
Katherine Carter, University of Colorado

Mary A. Viviano Scholar
Jamie Johnson, Lewis and Clark Law School

Charles Edgar “Chuck” Moran Scholar
Bryce Talsma, University of Tulsa

Francis Hartogh Diversity Outreach Scholars
Nickolasa Jackson, Washburn University
Susie Wilbur, Washburn University
Senait Yohannes, University of Calgary

Equity and Inclusion Scholars
Andrew Hallak, University of California-Irvine
Haekyong Min, University of Houston

Foundation Scholars
Colin Bryden, University of Alberta
Maren Carron, Brigham Young University
Katherine Carter, University of Colorado
Sawyer Connelly, University of Montana
Imoreshi Dania, University of Calgary
Colton Edwards, University of Wyoming
Kendall Fowler, University of Denver
Cameron Hekkert, Texas Tech University
Nickolasa Jackson, Washburn University
Jamie Johnson, Lewis and Clark Law School
Jennifer Kieffer, University of Montana
Avery Lajeunesse, University of California-Davis
Isaiah Martin, University of Calgary
Rachel Miller, University of Oklahoma
Haekyong Min, University of Houston
Chance Mitchell, University of New Mexico 
Nathan Murray, University of Calgary
Alexandra Nielsen, University of Colorado
Lauren Ottmers, Texas Tech University
Wesley Peebles, University of Utah
*Morgan Pettit, University of New Mexico 
Katherine Sheftic, University of Idaho
Mary Slosson, University of Colorado
Jeffrey Steen, University of Tulsa
Pryce Stewart, Texas Tech University
Bryce Talsma, University of Tulsa
Kristen Verwey, University of Calgary
Daniel Volin, University of Kansas
Senait Yohannes, University of Calgary

* David P. Phillips Scholarship Award

The Foundation congratulates the awardees and thanks all the applicants for their interest
and efforts!  
If you would like to support or learn more about the Foundation and its scholarship programs, contact the Foundation at 303-321-8100 or scholarships@fnrel.org

New Programs Available On-Demand, or Purchase the Course Materials

Did you know that the Foundation has an Online Natural Resources Education program with more than 130 streaming, on-demand presentations at any one time from our recent Annual and Special Institutes? Most on demand presentations include top-notch papers written by the speakers and can be accessed online 24/7, making them the easiest and most convenient way to receive natural resources, energy, and environmental legal education. Foundation members receive a substantial discount, and additional discounts are available for group viewing (think practice group or department meetings). Discounts are also available for bundled purchases for those who are looking to purchase more than one presentation.

If you missed any of the following courses that were offered this spring by the Foundation and want to view any of the presentations online (available for CLE in most states or AAPL credit), then click here. If you missed a program and are interested in purchasing the binder of materials, click here.

Presentations from the following spring courses are now available!

Special Institute on the Law of Permian Basin Oil & Gas Development and Operations

The Eldorado Hotel in Santa Fe, New Mexico, was the location for this timely, outstanding program on May 25-26, 2023, that was co-chaired by Jonathan Baughman and Beth Ryan. The special institute, the Foundation’s first partnership with the Texas Bar Association Section on Oil, Gas, and Energy Resources Law, attracted almost 180 registrants. Presentations and papers examined essential legal concepts for lawyers, landmen, consultants, and others who operate or practice in the Permian Basin. Topics will include a keynote overview of the state and future of the Permian, legal differences between development and operations in Texas and New Mexico, challenges related to flaring and venting in the region, case law and litigation updates, important and evolving oil and gas royalty issues, lease expiration and termination, surface access and damages issues, developing federal and state minerals, midstream, water management, ethics, and more.

To access these presentations, click here. To purchase the course materials, click here.

Special Institute on the National Environmental Policy Act

This 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. The program attracted 175 total registrants, including 92 from government agencies. In addition to separate keynote addresses by the General Counsel of the Council on Environmental Quality and the Principal Deputy Director of the U.S. Department of the Interior, Bureau of Land Management, presentations and papers examined finding NEPA efficiencies under the Infrastructure Bill and new energy economy, working with categorical exclusions, the acquisition and use of agency records in NEPA litigation, the use of mitigation measures, NEPA and environmental justice, climate change and other indirect and cumulative effects, NEPA for linear infrastructure projects, effective community engagement, ethics and compliance programs, and information about the history of NEPA, NEPA basics, and finding NEPA resources.

To access these presentations, click here. To purchase the course materials, click here.

Special Institute on 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. The program attracted almost 160 registrants, including 70 from industry companies. Presentations and papers addressed topics such as deal and market trends, structuring the transaction, tax considerations, the due diligence process, title defect procedures, environmental issues, representations and warranties, closing conditions, allocating liabilities and indemnities, tough deal issues, ethical considerations in negotiating complex contracts, and many others. The practical focus provided valuable insights into key contract provisions and issues.

To access these presentations, click here. To purchase the course materials, click here.

Upcoming 2023 In-Person Programs

We still have many upcoming in-person programs in 2023 after the 69th Annual Institute. Register now for one of our October short courses or save the date for our November 2023 special institutes.

• International Oil & Gas Law, Contracts, and Negotiations – Parts 1 and 2
  September 25-29, 2023 (Part 1), and October 2-6, 2023 (Part 2), in Houston, Texas
• 40^th Annual Oil & Gas Law Short Course
  October 16-20, 2023, in Westminster, Colorado
• Short Course on Federal Oil & Gas Leasing and Operations
  October 16-19, 2023, in Westminster, Colorado
• Indian Law and Resource Development – registration opening soon!
  November 2-3, 2023, in Chandler, Arizona
• Water Law Institute – registration opening soon!
  November 2-3, 2023, in Chandler, Arizona

Don’t Miss the 69th Annual Institute!

If you haven’t registered for the 69th Annual Institute, register now! It is once again time to see old and new friends and colleagues, and Salt Lake City is an incredible value!

The member registration fee is under $500; hotel rooms are as low as $166 a night; and there are easy and relatively inexpensive direct flights from more than 100 cities.

Chaired by Jana Grauberger, the 69th Annual Institute will feature 34 talks with almost 60 speakers from private practice, academia, government, industry, associations, and other organizations. After opening with a general session on Thursday morning, the institute will offer attendees choices among separate sessions focusing on oil and gas and landman’s issues, mining law, renewable energy and electricity, public lands and Indian law, water law, environmental law, corporate counsel legal issues, and international resources issues. 

Salt Lake City is a modern city with every urban amenity only minutes from spectacular mountains. Enjoy sightseeing, amusement and water parks, zoos and gardens, historic sites, the Great Salt Lake, breweries and brewpubs, restaurants, nightlife, and more! Park City, the largest ski resort in the U.S. with endless summer activities for all ages, is only a short 45-minute drive away.

Registration includes a huge reception for registrants and families on Thursday evening at the majestic Grand America Hotel. Other events include separate receptions for young professionals and in-house counsel, a babysitting option on Friday night for enjoying the town or private events, and various lunches with guest speakers, including Portia’s Lunch for Women, a natural resources law teachers’ lunch, an international practitioners lunch, and a lunch for oil and gas practitioners. We look forward to seeing you in July!

Registration closes on July 13, 2023, so register today!