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Access and Surface Use Within Units and Communitized Areas

Bradford C. Berge, Federal Onshore Oil & Gas Pooling and Unitization

This paper discusses the origin and evolution of the surface use and access issues that can arise, and the different ways in which courts have addressed them.

1. The Guiding Principles: Dominance and Unitization

a. It is universally recognized that the mineral estate is dominant over the surface estate, and that a mineral lease includes a right to use as much of the surface as is reasonably necessary to develop and produce the minerals. This right was recognized by the Supreme Court in Kinney-Coastal Oil Co. v. Kieffer,3 where the Court considered efforts by a surface owner to interfere with an oil and gas lessee's development in Wyoming. The patent was granted pursuant to the Act of July 17, 1914 (30 U.S.C. §121 et seq.), and the mineral lease was granted under the Mineral Leasing Act of 1920 (30 U.S.C. §181 et seq.). Reading these two acts together, the Court perceived “an intention to divide oil and gas lands into two estates for the purposes of disposal -one including the underlying oil and gas deposits and the other the surface.”4 The Court also held that the two acts also demonstrated that Congress intended to make the surface estate servient to the mineral estate, as this relationship “naturally would be suggested by their physical relation and relative values.”5 The Court went on to hold that “In effect therefore a servitude is laid on the surface esta