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Pennsylvania Supreme Court Maintains Presumption that Oil and Gas are Not “Minerals”

By David Mandelbaum on April 26, 2013
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On Wednesday, the Pennsylvania Supreme Court decided Butler v. Charles Powers Estate, No. 27-MAP-2012 (Pa. Apr. 24, 2013), re-affirming the general presumption in Pennsylvania law that a deed that conveys or reserves “minerals” does not convey or reserve rights in shale gas.  This presumption dates at least from Dunham v. Shortt & Kirkpatrick, 101 Pa. 36 (1882).  However, Dunham turned on the fugacious nature of oil and gas.  “Mineral” in the common lay understanding means something metallic and fixed.  Oil and gas seep.  However, Dunham arguably conflicts with United States Steel Corp. v. Hoge, 468 A.2d 1380 (Pa. 1983), holding that coal bed methane is conveyed in deeds conveying the coal.  Thus, reasoned the Superior Court in Butler, a deed reserving “minerals” might have been reserving the shale rock and therefore the gas within the rock.  The upshot of affirmance would have been to call into question gas title throughout the Marcellus Shale region in Pennsylvania, or at least so some alleged.  The Supreme Court has laid all that concern to rest.

Find the court’s opinions here.

 

 

Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights
Read more about David MandelbaumEmailDavid's Twitter Profile
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  • Posted in:
    Real Estate & Construction
  • Blog:
    E2 Law Blog
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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