Access to Private Surface and State Surface Use Laws

Several factors have played a role in the enactment of surface access and compensation legislation. The increasing expansion of residential development into areas of oil and gas development has resulted in state governments enacting legislation on surface use. Other contributing factors include agricultural interest groups advancing their interests in state legislatures. Industry practices of paying for surface damage perhaps has itself contributed to an expectancy of payment for surface use, and consequently contributed to surface use legislation.

The tensions between oil and gas development, other surface uses and residential development continues to be an issue. In 2007, three state legislatures, New Mexico, Colorado and Texas took different statutory approaches to the relationship between oil and gas operators and surface owners. As described in this paper, the legislative approach adopted in each of these three states differs significantly. New Mexico adopted a “Surface Owners Protection Act” similar to surface access and compensation statutes existing in other states which limit the “dominant” rights of the mineral estate to access the surface to explore and develop the minerals.1 Colorado took an entirely different approach by codifying the common law dominance of the mineral estate and the accommodation doctrine.2 Texas enacted legislation affirming the dominan