Does The Mineral Owner’s Dominance Foreclose Environmental Advocacy by the Surface Owner?

Posted on August 8, 2019 by Thomas Hnasko

Since the beginning of recorded mineral law, the owner of the mineral interests has enjoyed an elevated status in its relationship with the surface owner, resulting in the universally accepted notion that the mineral estate is the “dominant” estate.  Based on this long-standing characterization, courts have traditionally declared that, even where the deed creating a split estate is silent, the mineral owner enjoys an implied easement to use so much of the surface estate as is reasonably necessary for the exploration and production of minerals.  A recent, unpublished state court decision explored the intriguing issue of whether the mineral estate’s dominance allows its owner to prevent the surface owner from advocating for environmental protections for the surface in a public forum.     

In the case of Lone Mountain Ranch, LLC v. Santa Fe Gold Corp., No. D-101-CV-2013-02581, in which the author represented the surface estate owner, the mineral estate owner asserted that the surface owner’s participation in public processes designed to impose environmental protections for the surface constituted a violation of, or interference with, the mineral estate’s easement for access to and use of the surface for mineral development. The mineral estate owner claimed that such participation by the subservient surface estate would be detrimental to the development of the minerals and, therefore, contrary to the “dominance” enjoyed by the mineral estate.  At bottom, the mineral estate owner claimed that its easement deprived the surface owner of its right to advocate in a public forum for environmental protection of the surface estate.

Lone Mountain, as the surface estate owner, countered that such an interpretation would transform an access easement into a restrictive covenant and re-write the deed reservation splitting the estates to include promissory and obligatory terms that have nothing to do with physical access.  After hearing from professorial experts in the oil and gas and mineral disciplines, the court agreed with Lone Mountain and held that the dominance enjoyed by the mineral estate refers only to physical access, which the surface owner has no right to obstruct.  The court reasoned that an implied or express easement for access and development does not have the characteristics of a restrictive covenant and thus could not foreclose protected public participation and advocacy for environmental protections of the land.  As a result, instead of acting as a mere bystander to mineral development, a surface owner under a split estate deed may contest and resist mineral development under that estate based on environmental concerns that are unrelated to issues of physical access granted by the easement.

“Go back to where you came from” – a personal journey

Posted on August 7, 2019 by Brenda Mallory

The first time that I remember being told “go back to where you came from,” I was 18. Although not the first time I was targeted because of my race, it was the first time I remember those words. I had just finished my freshman year at Yale and I travelled with three African-American friends from Connecticut to Laconia, New Hampshire for a karate tournament. We were staying in a cabin in an easily forgettable location. In the morning as we loaded the car to leave for the event, we noticed several bunnies grazing in the grass. As kids from an industrialized, urban area, we watched with excitement and nervous laughter as the bunnies did their business and then hopped away. The spell was broken by an angry older white man, who hobbled out of a nearby building, yelling at us to get out of there, to go back to where we came from. We were stunned. The young men in the group responded in protest: we weren’t doing anything and we weren’t going anywhere. Of course, we were leaving but we would not leave until he went back in his cabin. Despite the bravado, we were all shaken and a little on edge when we returned to sleep for the night.

The next time, I was about 23. It was a quiet Sunday morning and I was walking down a major street in my hometown of Waterbury, Connecticut. I was in law school and had escaped for the weekend; I was on my way to the bus station to return to New York. The morning calm was broken by a car screeching around the corner, loud music blaring out the windows, carrying a rowdy bunch of white boys. One of them leaned out the window and yelled, “Hey, Ni*ger,” and some version of “get out of here or go back where you belong.” It was the first time I can remember having the N-word slapped upside my head in such a hostile and aggressive way.

The next time, I was about 25. I was walking through the North End of Boston with my white Jewish boyfriend, now husband, Mark. Mark had been staying with friends and we were picking up his things. As we passed a group sitting on a stoop, someone yelled, “Get out of here,” followed by, “There was a time they would have been killed for just walking down this street.”

Fast forward about 10 years for the last example I will share. More typical of recent encounters, the specific words were not used, but the message of not belonging or being suspect was clear. I’m in my mid-30s, a partner in a fancy law firm, living in an upper-class neighborhood in Montgomery County, Maryland. I am working a reduced schedule to have more time with my child and am at home on a Friday. The doorbell rings and I answer it holding my two-year-old. The woman standing on my porch, seeming a little annoyed, says, “Hi, do you know how long they’ve lived here?” Seriously not understanding, I ask “who?” She says, “the owners.” With the expressive eyes of my father, I say, “I’m the owner.”

My personal experiences are not unlike those of many African-Americans and other people of color—and much less traumatic than many. Yet, the memories sting and they stay with me. I have always viewed my experiences as evidence of isolated pockets of intolerance, with the mainstream arc of justice and equality bending in the right direction. My message to myself was just keep striving for excellence in the spaces you occupy and, one interaction at a time, my success will help overcome stereotypes and calm fears, leading to a better world for others.

At a time when hateful and divisive rhetoric is growing and spewing from our highest political leaders, it is clear that the journey to our more perfect union and the best ideals for this nation will take more concerted efforts, vigilance, and focus.  And so, I was pleased to join my former Obama Administration colleagues in issuing the Washington Post Op Ed, We are African Americans, we are patriots, and we refuse to sit idly by, committing to invest in the hard work to make this a great country, for all. As the Op Ed concludes, “We plan to leave this country better than we found it. This is our home.”

Brenda Mallory is the Director and Senior Counsel for the Conservation Litigation Project, a project created to protect the environmental and conservation values on public lands. During the Obama Administration, Brenda served as the General Counsel for the White House Council on Environmental Quality. Before then, Brenda held various senior positions at the U.S. Environmental Protection Agency, including as the Acting General Counsel and the Principal Deputy General Counsel. She also led the legal office supporting EPA’s pesticide and toxics programs. Brenda spent 15 years in private practice, chairing her firm’s Natural Resources Practice Group. She has been a Fellow in the American College of Environmental Lawyers since 2016.

Twenty Years of Waterkeeper Alliance: How the Waterkeeper Movement Shaped and Was Shaped by U.S. Environmental Law

Posted on August 6, 2019 by Karl Coplan

In the late 1980s, when I was an associate at the environmental boutique law firm of Berle, Kass, and Case in New York City, Robert F. Kennedy, Jr. and John Cronin came to visit the firm to discuss a new project they had started with sportswriter and Hudson River environmentalist Bob Boyle. Boyle wanted to take the British estate tradition of having a streamkeeper to protect streams from poachers and expand it to the entire estuary. Boyle’s organization, the Hudson River Fishermen’s Association, had designated Cronin as the Riverkeeper for the Hudson River estuary, patrolling it for polluters and other modern-day river poachers. Thus was born the idea of having Waterkeepers – individuals acting as non-governmental environmental monitors and enforcers, supported by local, waterbody-based grassroots organizations. The Waterkeeper idea caught on – programs were started in San Francisco, Atlanta and Portland, Maine at about the same time.  And in 1999, the fledgling Waterkeepers formed an alliance to spread the Waterkeeper model and support the growing network of Waterkeeper organizations.

As Waterkeeper Alliance celebrates its twentieth anniversary, it is worth reflecting on how the movement has both shaped, and been shaped by, U.S. environmental law. In a way, the Waterkeeper movement was a natural outgrowth of mid-20th century developments in the law of judicial standing and the Congressional innovation of the environmental citizen suit. By mid-century, the Supreme Court recognized the role of public interest intervenors in agency proceedings, describing these participants as “private attorneys general.” The Riverkeeper concept sought to take this “private attorney general” idea literally and have non-governmental water monitors enforce the environmental laws.

Standing for private law enforcement was a potential hurdle, and the Storm King case on the Hudson River proved pivotal to opening up environmental enforcement standing to non-governmental plaintiffs. Bob Boyle wrote a Sports Illustrated article about the proposed Storm King pumped storage hydroelectric facility and the devastating impact it would have on the Hudson River striped bass fishery. This story led to the 1965 Scenic Hudson Preservation Conference v. Federal Power Commission case in which the Second Circuit Court of Appeals explicitly recognized judicial standing based on non-economic recreational, environmental, and aesthetic harms.  A year later, Boyle founded the Hudson River Fishermen’s Association, the predecessor organization to Riverkeeper.

The Supreme Court went on to adopt the Scenic Hudson standard for environmental standing in Sierra Club v Morton, but with an important limitation: organizational plaintiffs would have to show that some individual member of the organization personally suffered one of these environmental, recreational, or aesthetic injuries. This holding set the stage for the growth of waterbody-based grass roots membership organizations litigating to protect their waters from pollution – exactly what became the Waterkeeper model. And in the 1972 Federal Water Pollution Control Act Amendments Congress gave such groups something to enforce and the means to enforce it, with strict permitting requirements for point source discharges, numeric permit limits, monitoring requirements, and, most importantly, specific authorization for citizen suits. Congress thus gave life to Waterkeepers as enforcers. In 1983, John Cronin became the Hudson Riverkeeper and started patrolling the river looking for cases to bring as a private attorney general.

While many of the early Clean Water Act citizen suits of the 1980s were brought by Natural Resources Defense Council, as the Riverkeepers, Baykeepers, and Soundkeepers popped up across the country, their influence on the development of US environmental law grew. The grass-roots membership model based on recreational use of rivers, lakes, sounds, and bays was a natural fit with environmental standing requirements. Not surprisingly, given their roots in the Storm King power plant fight, Waterkeepers have played an important role in ensuring regulation of power generation water intakes. John Cronin got the ball rolling when he successfully sued to force EPA to issue the long delayed cooling water intake structure regulations under Clean Water Act § 316(b). When EPA finally issued these rules, it was a Riverkeeper suit that prompted the Second Circuit to remand the rules to remove reliance on offsite restoration as “Best Technology” to reduce aquatic species impacts. It was also (less successfully for Riverkeeper) the same Riverkeeper litigation that later led the Supreme Court to graft cost-benefit analysis onto the “Best Technology” standard in Entergy v. Riverkeeper. Waterkeepers continue to play the role of regulatory watchdog over the power industry. This year, Waterkeeper Alliance won a case requiring reconsideration of the coal ash impoundment effluent limits under the Clean Water Act as well as another case requiring reconsideration of the Resource Conservation and Recovery Act regulations governing disposal of power plant coal combustion residuals.

Waterkeepers played a key role in development of Clean Water Act regulations in other areas as well. Another one of the founding Waterkeepers, the Upper Chattahoochee Riverkeeper, helped bring combined sewer overflows to the regulatory agenda with a successful suit against the City of Atlanta for violating water quality standards. Long Island Soundkeeper brought the cases establishing that recreational trap and skeet shooting ranges required Clean Water Act permits for their discharges, and were responsible for cleaning up past lead shot and target contamination in water bodies. Waterkeeper Alliance brought one of the first cases seeking enforcement of Clean Water Act and RCRA requirements against massive hog Confined Animal Feeding Operations (CAFOs). Waterkeeper Alliance also brought a successful challenge to EPA’s revisions of the CAFO effluent limitations regulations.

The Waterkeeper movement has grown to over three hundred forty organizations in forty-seven countries, and Waterkeeper affiliates around the world are influencing the global development of environmental law just as the earliest Waterkeepers did in the United States.


NOTE: The author serves as outside counsel for Riverkeeper and Waterkeeper Alliance, and is a member of the Waterkeeper Alliance Board of Directors.

Because I Didn’t Say So!

Posted on August 5, 2019 by Brian Rosenthal

Major sources of air pollution must obtain a Clean Air Act Title V permit under their state’s EPA- approved implementation plan.  Permits, of course, can be challenged.  By petition to the EPA Administrator, the Sierra Club challenged a Utah permit in part based on a challenge to the standard used when the permit was issued in 1997! 

The challenge was denied.  The D.C. Circuit has exclusive venue for nationally applicable regulations or orders or issues of nationwide scope.  So, Sierra Club appealed to the D.C. Circuit but also filed a protective appeal in the Tenth Circuit in case the D.C. Circuit’s exclusive venue was not controlling.  Good move.  Because the issue involved a single permit from a single state, and because the Administrator used a “novel” interpretation of Title V limited to the specific circumstances presented and did not make a determination of nationwide relevance, venue was found to properly lie in the Tenth Circuit. 

It may be creative to conclude that venue is lacking because “the circumstances presented” by the federal air permit challenge are local in nature, but isn’t that always true in a decision on an air permit source with impacts in a single state?  If the Administrator had used other language intimating general application of a standard without a specific finding of a matter of nationwide effect, one has to wonder whether that would produce the same result.  So a word to the careful practitioner.  File the protective appeal in the issuing state’s circuit!