INTRODUCTION
Whether one dates the source of “oil and gas law” to the successful drilling of an oil well in Ohio in 1833,[1] or to the drilling of the more famous Drake Well in Pennsylvania in 1859,[2] the acceptance of a body of common law, legislative/regulatory and academic as being a standalone field known as oil and gas law followed within a generation. The goal of this paper is not to predict the role that oil and gas production will play over the next century but to try and divine, as best as one can, the issues that will need to be addressed by oil and gas law within the overall context of natural resources law.
As is evident by the title to this paper, my discussion and analysis will look at three component parts of what in the author’s opinion constitutes “oil and gas law.” Undoubtedly oil and gas law is shaped by common law or judicial decision-making, legislative and/or administrative decision-making and by the legal academy’s acceptance of and debate over the judicial and legislative/administrative actions.[3] Additionally the development of any body of law cannot be shoe-horned into any post-hoc chronological order that neatly fits into 100-year eras.[4] But it is also obvious that trends and developments that occur do not occur in isolation or in the absence of historical evidence that may illustrate that a particular issue or problem is typically not sui generis but is instead a new wrinkle in an older set of problems that oil and gas law or more broadly natural resources law has dealt with in the past. For example, how different from a natural resources law perspective is the 40-year-old concept of mine-mouth coal-burning electric generating facilities from locating natural gas and pocket atomic electric generating facilities adjacent to large-scale data centers?
THE EARLY YEARS – PRE-1926
Given the fact that we are celebrating a centennial year, I have artificially designated the end of the early years of oil and gas law as being 1926. It is not surprising that the earliest period of oil and gas law development was in the Appalachian Basin states of Pennsylvania, Ohio and West Virginia from the mid-1850s through the drilling of the Spindletop Well near Beaumont, Texas in 1901. The shift in production from the Appalachian Basin to the Mid-Continent region consisting of Louisiana, Texas, Oklahoma and Kansas was reflected in the number of reported cases and a shifting in the domicile of the authors of the various oil and gas treatises that started to appear in the 1890s.
This early period was concerned with a number of important issues that form the basis of oil and gas law. Generally speaking, common law developments in oil and gas law during this time frame were concerned with the characterization of the oil and gas estate, the application of the rule of capture including the offset well rule, the severability of the oil and gas estate from the ownership of the surface, the use of the oil and gas lease as the principal written instrument authorizing the exploration for and development of the oil and gas resource, the cotenancy rule, and the implied covenant doctrine.[5]
While the rule of capture is generally treated in hindsight as the most important development in oil and gas law,[6] contemporary authors treated the characterization issue as the most critical issue.[7] In my opinion characterization was the critical force in oil and gas law development since it resulted in the application of traditional notions of real property to oil and gas transactions.[8] Courts had less to do with the widespread use of the oil and gas lease as being the written instrument which allowed the owner of the mineral estate to authorize someone else to explore for and produce the oil and gas underneath its premises.[9] Given the fractionized ownership of land and minerals that is prevalent in many areas of the United States, an important common law development that encouraged the production of oil and gas was the adoption of the cotenancy rule whereby a single cotenant could either develop itself or lease to a third party the right to explore for and develop the oil and gas that was owned by two or more cotenants.[10] Finally, this early period was the source of the implied covenant doctrine that would attach itself to the lessor/lessee relationship notwithstanding the general laissez-faire approach taken by many courts in dealing with contractual and other juridicial relationships. A series of cases arising in Pennsylvania and the Mid-Continent region literally created out of whole cloth the notion that in every oil and gas lease, in the absence of express language to the contrary, there arose various implied covenants that created duties on the lessee to engage in activities or refrain from engaging in activities that would be detrimental to the interests of the lessor.[11]
Thanks in large part to the work of the Section of Mineral Law of the American Bar Association it is relatively easy to determine the legislative/administrative response to the development of the oil and gas industry. In 1938, 1948 and 1960, the Section published three volumes that looked at legislative and administrative developments in the oil and gas industry over the decade prior to each volume’s publication date.[12] The earliest statutes relating to oil and gas conservation matters regulated the plugging and casing of wells.[13] Within a few years of this initial spurt of legislation came more general state regulation though the adoption of conservation statutes that in broad terms were intended to prevent the waste of oil and gas caused by the haphazard and inefficient development of oil and gas fields in the Appalachian Basin, which in turn was largely caused by the widespread adoption of the rule of capture. Starting in the 1890s, Indiana took the lead in this type of anti-waste regulation which eventually led to the Supreme Court’s opinion in Ohio Oil Co. v. Indiana, upholding the constitutionality of such provisions.[14]
The proof of the birth of oil and gas law as a standalone jurisprudential subject comes in part from how oil and gas law was treated by the legal authors and scholars of the time. Prior to 1896 to the extent that oil and gas legal issues made their way into digests or treatises they were probably a page or two in one of the mining law treatises that dealt with hardrock mining.[15] In 1896, George Bryan of Pennsylvania authored The Law of Petroleum and Natural Gas, a reasonably short tome on oil and gas law. This was followed in 1904 by the first edition of W.L. Thornton, The Law Relating to Oil and Gas, an even-longer one-volume tome that was the predecessor to Eugene Kuntz’s multi-volume treatise. As W.L. Thornton, an Indiana resident said in 1904: “Since petroleum and natural gas became commercial products, thousands of cases concerning their production, sale and transfer, involving new and unusual questions, have been decided in our courts. . . . Cases have come before the courts involving many questions so unique a character that no precedents could be found. Necessarily, there has grown up quite a body of law, unknown to the past generations.”[16] By the 1920s, however, the need for an oil and gas treatise covering the legal developments in the Mid-Continent area was being fulfilled by attorneys who lived outside the Appalachian Basin.[17]
THE LAST CENTURY – 1926-2026
The past 100 years of oil and gas law were impacted by many events and realities that were probably unforeseeable by those oil and gas professionals who created the building blocks that formed the basis of oil and gas law. From world wars, to oil embargos, to pricing spikes and collapses to natural gas gluts, to natural gas de-regulation, to concerns about global warming, to the development of hydraulic fracturing and horizontal drilling technologies and to predictions of peak oil, the oil and gas industry and oil and gas law had new obstacles to confront. I have had the privilege of being both an eyewitness and chronicler to the last 45 years of such tumult.
From a common law perspective the past 100 years saw a refinement of the characterization efforts of the early years with most oil and gas producing states making definitive decisions as to whether oil and gas in the ground fit within the two or three ownership theories, to wit, absolute ownership or ownership-in-place, qualified ownership and non-ownership.[18] Along with the categorization effort, state courts had to deal with the consequences of treating oil and gas in place within those three categories. Thus, state courts issued opinions regarding whether or not the rule of capture applied, and if it did how the rule could consider the correlative rights of the owners of portions of a common source of supply, whether or not the Statute of Frauds applied to various oil and gas transactions, whether the oil and gas estate was a corporeal or incorporeal hereditament, whether the oil and gas estate was an interest in real property or an interest in personal property, and whether the Rule Against Perpetuities would apply to various types of transactions involving the oil and gas estate.[19]
Some 25 years ago I said:
When oil and gas jurisprudence was in its infancy, for better or worse, the courts chose to follow the path of applying property law precepts. The one precept which has done more to shape oil and gas jurisprudence more than any other is the borrowing of the estates system to describe the nature of the interests in the mineral and leasehold estates. Furthermore the labeling of the basic leasehold estate as a fee simple determinable with its automatic termination feature created substantial practical difficulties relating to activities of the lessee in both the primary and secondary terms of a typical oil and gas lease.[20]
Responses to the ubiquitous adoption of the “unless” lease form through the inclusion of savings provisions in oil and gas leases ameliorated some of these unintended consequences, but more often than not were “merely the prologue to new problems.”[21]
One of the principal areas where there has been significant and consequential activity in the past 100 years involves the interpretation of the royalty clause in oil and gas leases. This activity was undoubtedly triggered by how the market for oil and gas has changed over the past century. For the first several decades of the 1926-2026 century oil was sold at the well at the posted price for the field. Pricing was local in nature. As the oil markets became both international and national in scope, the use of local posted prices disappeared and was replaced by market centers such as exist in Cushing, Oklahoma and in the Houston, Texas area. In addition, futures markets for oil were created that allowed for various hedging and other financial transactions to impact the price of oil. In addition, natural gas went from being a waste product unless it could be used locally to a national and now international commodity that can be sold not only at the wellhead but at a LNG facility that could either liquify or de-liquify the LNG. These external factors led to decades of litigation as to how a lessee is to calculate the royalty owed to the lessor. The results have not been consistent from jurisdiction to jurisdiction including substantial differences as to .[22]
Common law developments over the past 100 years have not been distributed equally throughout the United States. Up until the 1990s the lion’s share of reported cases dealing with oil and gas matters arose in Texas, Louisiana and to a lesser extent in North Dakota and Colorado. With the shale revolution, Pennsylvania, West Virginia and Ohio revived their oil and gas law jurisprudence and now share top billing with Texas and Louisiana for the number of cases decided each year.
The past 100 years has entailed a maelstrom of legislative and regulatory enactments at the federal, state and local level that clearly has impacted oil and gas law. Although long forgotten, for nearly 40 years the Federal Energy Regulatory Commission and its predecessor the Federal Power Commission were in the business of regulating the pricing of natural gas that entered the interstate pipeline system.[23] In addition, the Federal Government as owner of vast acreage in the western States and offshore not only leased its oil and gas to private operators but imposed a regulatory regime following the enactment of the major environmental statutes starting in 1969 with the National Environmental Policy Act.[24]
One of the negative ramifications of the widespread adoption by the courts of the rule of capture is the economic incentive it creates to over drill an oil and gas reservoir in order to maximize production as quickly as possible before the oil is produced from a neighboring wellbore.[25] Maximizing production tends to lower the price for oil and gas leading to constant boom and bust cycles. One legislative/administrative response to low commodity prices is the proration/allowable system which attempts to regulate, meaning limit, production from individual wells so that the commodity price would increase.[26] States also responded by enacting well spacing statutes, administratively enforced by state conservation agencies, which limited the number of wells that could be drilled.[27] Two of the leading state conservation regulatory programs, pooling and unitization, were also instituted and implemented starting in the 1930s, although the initial compulsory pooling regulations were adopted by municipalities that antedated the state statutes.[28] Pooling is “the joining together of small tracts or portions of tracts for the purpose of having sufficient acreage to receive a well drilling permit under the relevant state or local spacing laws and regulations, and for the purpose of sharing production by interest owners in such a pooled unit.[29] Pooling was the stepchild of well spacing since if one owned a parcel of land that would not qualify for a drilling permit the rule of capture would essentially cause the owner to have his oil or gas drained away to a well which did comply with the spacing regulations.[30] New Mexico adopted the first state compulsory pooling statue in 1935. Unitization, on the other hand “refer[s] to the consolidation of mineral or leasehold interests covering all or part of a common source of supply.[31] Oklahoma adopted the first compulsory unitization statute in 1945 which was found to be constitutionally valid in 1952.[32] The role that sub-state governmental units play in the regulation of oil and gas operations has been transformed in the past 20-25 years from one where dual regulation was common to one where states are increasingly seeking to preempt sub-state units from regulating oil and gas operations even where the sub-state units are afforded home rule authority under the respective state constitutions.[33]
The maturation of oil and gas law as a standalone subject worthy of being taught at law schools throughout the nation and written about in multi-volume treatises is evident from the record.[34] Starting in the 1940s authors were preparing casebooks for use in standalone oil and gas law classes.[35] Oil and gas law was treated as a special area of property law, a notion that I personally believed in when I started teaching the subject in 1980. The changing nature of oil and gas law as an academic subject is reflected in the changing emphases on subject matter areas in the two most widely-used casebooks in use today.[36]
Oil and gas law was the subject of comprehensive, and national-in-scope multiple multi-volume treatises which have been annually updated since the earliest treatise was published in 1938.[37] Another sign that oil and gas law had been recognized as a worthy subject of teaching, research and scholarship was the central role that oil and gas law played in the creation of three national continuing legal education institutions. The Southwestern Legal Foundation, now known as the Center for American and International Law, has from its creation in 1949 sponsored both an annual program and special programs that focus on oil and gas law. The Rocky Mountain Mineral Law Foundation, now known as the Foundation for Natural Resources and Energy Law, has from its creation in 1955 sponsored both an annual program and special institutes that include substantial segments on oil and gas law. Finally, the Eastern Mineral Law Foundation, now known as the Energy and Mineral Law Foundation, has from its creation in 1979 sponsored both an annual program and special programs that focus on oil and gas law.[38]
The last 100 years has been a roller coaster ride for oil and gas law and the oil and gas industry. Clearly the refinement of horizontal drilling and hydraulic fracturing technologies that allowed for the economic development of known, but un-developable hydrocarbons has led to a renaissance of oil and gas law activity in states where oil and gas law had been moribund for several generations.
THE NEXT 100 YEARS
Now comes the fun part of this presentation: trying to predict the future of oil and gas law over the next 100 years. In this section I will discuss several issues that I believe will confront oil and gas jurisprudence with difficult, but not impossible to answer, questions. Unlike the prior sections I will try to identify the issue and then provide my guess as to whether such issues can, or should be resolved by the common law, legislative/administrative or academic institutions, or any combination thereof.
The common law has been around since the 13th century. The evolution of the common law as a means of regulating, informing and potentially resolving societal interests and conflicts has been well documented. The common law field of torts clearly has shaped behavior by imposing minimum standards of conduct which if not met can lead to liability. Likewise, as discussed earlier, the common law of property has and continues to shape behavior on behalf of the participants in the oil and gas industry. As we move into the next 100 years I predict that in the absence of legislative/administrative actions, courts in resolving property and tort disputes will undoubtedly change and/or shape oil and gas law to meet the demands of new technologies and new societal needs.
In my opinion, oil and gas law will deal with “micro” issues, such as conveyancing problems, royalty clause problems, joint operating agreement problems and characterization problems, notably dealing with the ownership of pore space and the potential growth for widespread development of carbon capture, utilization and sequestration (CCUS). But United States oil and gas law will also necessarily deal with “macro” issues such as global warming, climate change and the borrowing of oil and gas jurisprudence and principles into other natural resource areas such as wind, solar, and geothermal.
Whether one is a proponent of the “drill baby drill” or “keep it in the ground” dogmas, I believe that oil and gas law jurisprudence will be taking a back seat to legislative and administrative power over the next 100 years. Attempts by individuals and non-governmental organizations to use common law principles to achieve their respective goals on a macro level will likely be doomed to failure. As an example, in the past decade a number of governmental entities and NGO’s have filed state common law tort and other claims against various oil and gas companies. See 8 Patrick H. Martin & Bruce M. Kramer, Williams & Meyers Oil & Gas Law 164-65 (climate change litigation) (2025). After 8 years of litigation, including a decision by the Supreme Court, almost all of the cases have been remanded back to state court for eventual trials.[39] But we are still years, if not decades from determining if the common law rules should apply to climate change/global warming litigation as is reflected in the Supreme Court’s recent grant of a writ of certiorari from a Colorado Supreme Court opinion finding that various state common law tort claims were not preempted by several federal statutes.[40] It will probably be another decade or so before any trial court in any state begins to tackle the very difficult conceptual and foundational common law tort issues such as causation, standing and injury that will have to be overcome before liability attaches to oil and gas extraction activities.
Oil and gas jurisprudence has been developed through a combination of judicial decision-making and academic research and writing. Treatise and law review article authors have had an outsized impact on judicial decision-making as it relates to the development of oil and gas jurisprudence. But the role of the academic in the development of oil and gas law may have reached its peak with the birth of artificial intelligence (AI). As an example, it has been my experience in publishing two treatises and over 60 law review articles, that practicing lawyers and judges did not have the time, or possibly the inclination, to take the “deep dive” into the jurisprudence in order to inform those lawyers and judges what the “law” was as to a particular problem. The academic, however, can and should devote substantial time and resources to fully explore an area, or a single question, and develop a theory or explain inconsistent results that would be published in an accommodating law review. That system, however, was changed somewhat by the development of Westlaw and Lexis which made access to that information quick and easy as opposed to slow and hard. AI, however, may change that paradigm extensively by not only doing the research that the academic community would spend months delving into, but by analyzing the hundreds of legal opinions and written articles on the subject or issue at hand. For example, as part of my role as an expert in an Australian litigation it took me several months to respond to a series of 40-50 questions posed by the judge regarding an issue the parties had agreed to resolve applying Texas law. When the case settled I shipped my boxload of hard print materials to a colleague at McGinnisLochridge who ran the cases and articles through an AI application and within 15 minutes had a written summary of what each case and article said. I perceive that over the next 100 years the role of the academic commentator on the common law will necessarily shrink and be replaced by ever-evolving AI applications. I also predict that lawyers will embrace the use of AI because of its time-saving quality but just as the episodic appearance of hallucinations and made-up case law reflect, attorneys will still be active participants in the practice of law and the development of jurisprudence even though they may be relying on AI rather than associates and paralegals in their practice.
While I have long favored the application of traditional rules or principles of property to the oil and gas estate,[41] recent scholarship has raised some substantial questions about the continued wisdom of applying such rules or principles to resolve such questions. For example, Professor Monika Ehrman has posited the theory that property law should be divided into two areas, to wit, simple property and complex property.[42] As to complex property such as those dealing with renewable energy supplies, pore space ownership and use and transboundary sub-surface migration, the traditional property-based principles shouldn’t apply because, like the rule of capture, they lead to inefficient results and social harms.
Oil and gas law as well as common law property and tort principles may have to be changed in order to deal with the new reality that, at least for the next few decades or more, CCUS may be the most economically available technology to deal with our global warming issue. As in the past with the academic debates in oil and gas law such as the Merrill and Walker debate over whether implied covenants were implied in fact or implied in law or the Meyers and Brown debate over whether there existed an implied covenant of exploration, there is a current debate as to whether a cross-boundary migration of gas and/or fluids should be governed by the strict liability trespass rule or should be governed by an “actual harm” test.[43] While oil and gas law has been dealing with the practice of injecting fluids and/or gases into subsurface formations for secondary recovery projects and underground natural gas storage facilities for nearly 100 years, the refinement of hydraulic fracturing and horizontal drilling technologies in the past 30 years along with CCUS have created new problems not capable of being resolved applying extant oil and gas law principles. For example, neither the Texas approach of treating the cross-boundary migration of frac fluids and/or proppants as being insulated from liability under the rule of capture, nor the Pennsylvania approach that would find trespass liability if such a cross-boundary migration can be shown have been widely adopted or rejected in other jurisdictions.[44] The lack of cases in jurisdictions other than Texas and Pennsylvania may in part be due to further technological advances in hydraulic fracturing techniques and the adoption by state oil and gas conservation agencies of well spacing regulations that minimize the chance for such cross-boundary migrations. This result would be similar to the minimization of drainage covenant cases following the widespread adoption of well spacing and pooling statutes and regulations for traditional oil and gas production.
Even though windmills have been used for hundreds of years, it is only in the past few decades that the commercial installation of wind farms, both onshore and offshore, has taken off. At least in the United States, the ownership principles that were developed for oil and gas, namely, the rule of capture, has become the prevalent way of describing the ownership of “wind” that allows the wind resource to be severed and then sold as a commercial commodity.[45] But the use of oil and gas law principles relating to “ownership” may be rejected as they apparently were in New Mexico which treated the ownership of wind as different from the ownership of oil and gas in a case dealing with a partition petition among cotenants fighting over the potential use of the surface as a wind farm.[46] Instead of treating wind as being subject to the absolute ownership doctrine, wind was treated as an ephemeral right that only became subject to ownership after it was captured.
Another problem that will need to be resolved in the next 100 years deals with the ownership of produced and/or frac water that is produced along with the oil and gas stream. The difference between naturally-occurring produced water and injected frac water may be important in resolving the ownership interest.[47] Recently due to the possible lithium and/or other rare earth elements that might be present in the produced water, the question has arisen as to whether or not the produced and/or frac water is owned by the surface owner, the mineral owner or the mineral lessee. In the past few years, both common law and legislative/administrative developments have attempted to determine the proper owner. Given the backdrop of different groundwater ownership regimes that exist in oil and gas producing states, the resolution of who owns the produced water will undoubtedly not be uniform. Developments to date have focused on classifying the water under the relevant State’s groundwater law or the specific language contained in the instrument that severs the surface and mineral estate.[48]
What I had thought was a Texas-centric problem dealing with the Texas Supreme Court’s inability to articulate a rational methodology for interpreting deeds, leases and contract,[49] has become more widespread with other states, such as Ohio and Pennsylvania, creating rules, canons and presumptions that are sometimes contradictory to each other.
Finally, in light of the NIMBY movement (Not In My Back Yard) that has been recognized as a reality in the field of land use planning, I think that the division of power issues between federal, state and sub-state units will only be exacerbated by developments in the natural resources arena, including the oil and gas sector.[50] While states have since the 1940s been the primary source of the regulation of oil and gas activities, sub-state units have exercised their land use and zoning powers for the past 100 years. Recent events suggest that states are becoming more jealous of sub-state units’ impact on oil and gas operations so as to preempt such sub-state units from interfering with oil and gas operations.[51]
As I have aged, I have come to the realization that oil and gas-related issues that appear to be new and/or novel are really issues that have been arising over the past 150 years of oil and gas production. Knowing where we have been is an important step in predicting where we may be in the next 100 years. In many situations, oil and gas law is flexible enough to respond to new issues without overthrowing the foundational principles that make oil and gas law a meaningful jurisprudential subject. Thus, in my opinion oil and gas law will not only survive over the next 100 years, but thrive as a source of answers to questions that will undoubtedly arise.
[1] Eugene Kuntz, The Law of Oil and Gas 7-8 (1987) [hereinafter Kuntz].
[2] Id. at 8-10.
[3] I have been fortunate enough to have spent the past 46 years learning about, writing about and being educated about the oil and gas industry in general and oil and gas law specifically. One measure of the future of any legal discipline may be how it is treated within the law school community in terms of courses being offered and articles being written. When I first began teaching oil and law in 1980, I was told by more than one person that oil and gas law was in its death throes, having been written about extensively in the prior 25-year period, and further noting the non-renewable aspects of oil and gas production. In paraphrasing Mark Twain, the death of oil and gas law may have been prematurely announced.
[4] James Coleman, The Third Age of Oil and Gas Law, 95 Ind. L.J. 389 (2020) [hereinafter Coleman, Third Age].
[5] See generally, Bruce M. Kramer and Owen L. Anderson, The Rule of Capture—An Oil and Gas Perspective, 35 Envt’l L. 899 (2005) [hereinafter Kramer & Anderson, Rule of Capture]; Coleman, Third Age, supra note 4, 95 Ind. L.J. at 393-95.
[6] Coleman, Third Age, supra note 4, 95 Ind. L.J. at 393-95.
[7] Kramer & Anderson, Rule of Capture, supra note 5, 35 Envt’l L. at 902 (n.8).
[8] The characterization problem is still evident in modern oil and gas jurisprudence where courts are not precise in the language they use to describe oil and gas ownership as being defined by the absolute ownership or non-ownership doctrine with the ensuing ramifications. See Patrick H. Martin & Bruce M. Kramer, Williams & Meyers Oil & Gas Law §§ 203-203.3 (2025) [hereinafter Williams & Meyers].
[9] Coleman, Third Age supra note 4, 95 Ind. L.J. at 400-05 explores the economic rationale for the widespread use of the oil and gas lease as the principal development agreement. Oil and gas leases evolved over time from being fixed term and/or no-term in duration to the modern primary and secondary term leases which are near universally found in modern oil and gas leases. See Williams & Meyers, supra note 8 at § 601; Kuntz, supra note 1 at § 18.1.
[10] Williams & Meyers, supra note 8 at § 5.02. The leading case is Prairie Oil & Gas Co. v. Allen, 2 F.2d 956 (8th Cir. 1924). There are a number of states which treat production or leasing by one cotenant as constituting waste. Williams & Meyers, at § 5.02 (n 1.1).
[11] Williams & Meyers, supra note 8 at § 802. The three cases are Stoddard v. Emery, 128 Pa. 436, 18 A. 339 (1889), Kleppner v. Lemon, 176 Pa. 502, 35 A. 109 (1896), and Brewster v. Lanyon Zinc Co., 140 F. 801 (8th Cir. 1905). See also: Harris v. Ohio Oil Co., 57 Ohio St. 118, 48 N.E. 502 (1897).
[12] American Bar Association, Legal History of Conservation of Oil and Gas (1938) [hereinafter 1938 ABA Report]; American Bar Association, Conservation of Oil & Gas – A Legal History, 1948 (1948); American Bar Association, American Bar Association, Conservation of Oil & Gas – A Legal History 1958 (1960). It is important to note that the editors and contributors to the various volumes were outstanding members of the academic and practice venues. For example, Walter W. Summers, a University of Illinois College of Law Professor and author of a multi-volume oil and gas treatise was the editor and the writer of the introductory article for the 1938 ABA Report while Robert E. Sullivan, Dean of the University of Montana School of Law and author of a one-volume oil and gas law treatise played a similar role for the 1960 ABA Report.
[13] 1938 ABA Report, supra note 12 at 1 (n.1) shows that California in 1878 adopted a plugging statute, followed by similar legislation in New York in 1879, Ohio in 1883 and West Virginia in 1891.
[14] Ohio Oil Co. v. Indiana, 177 U.S. 190 (1900). The Indiana Supreme Court had earlier upheld the anti-waste statutes. Townsend v. State, 147 Ind. 624, 47 N.E. 19 (1897).
[15] For example, there are two short sections on oil and gas law issues in Geroge P. Costigan, Handbook on American Mining Law §§ 127-28 (1908).
[16] As published in 1 Kuntz, supra note 1 at vii.
[17] See e.g.: Victor H. Kulp, Digest of Oil & Gas Decisions (1928) (Oklahoma); Lawrence E. Mills & J.C. Willingham, Law of Oil & Gas (1926) (Oklahoma); R.S. Morrison & Emilio DeSoto, Oil & Gas Rights (1920) (Colorado).
[18] The Williams & Meyers treatise contains a chart showing how different commentators placed states within one of these three categories while also noting that many commentators argued that there were only two categories, absolute ownership and non-ownership. Williams & Meyers, supra note 8 at §§ 203-203.4.
[19] Williams & Meyers, supra note 8 at §§ 204-204.9, 209-211, 213-214.2, 322-326. See also: Bruce M. Kramer, Modern Application of the Rule Against Perpetuities to Oil and Gas Transactions: What the Duke of Norfolk Didn’t Tell You, 37 Nat. Res. J. 281 (1997).
[20] Bruce M. Kramer, Lease Maintenance in this Century and the Next, Chapter 2 of Oil and Gas Law for a New Century: Precedent as Prologue (SWLF 1999).
[21] Richard C. Maxwell, Termination of Oil and Gas Leases – The Failure of Drafting Solutions, 15 Inst. On Oil & Gas L. & Tax’n 181 (1961). See also: Bruce M. Kramer, Lease Maintenance for the Twenty-First Century: Old Oil and Gas Law Doesn’t Die, It Just Fades Away, 41 Rocky Mtn. Min. L. Inst 15-1 (1994); Bruce M. Kramer, The Temporary Cessation Doctrine: A Practical Response to an Ideological Dilemma, 43 Baylor L. Rev. 519 (1991).
[22] Williams & Meyers, supra note 8 at §§ 641-662.
[23] The Natural Gas Act of June 21, 1938, 52 Stat. 821 15 U.S.C.A. § 717. The importance of natural gas regulation to “oil and gas law” is exemplified by the allocation of roughly 20% of the 6th edition of Maxwell, Williams, Martin & Kramer, Cases and Materials on The Law of Oil and Gas (6th ed. 1992) to that subject matter. Earlier editions starting with the first edition published in 1956 also included substantial material on “policy” issues relating to natural gas regulation.
[24] The onshore oil and gas development regime was moved from various hard rock mining statutes to a leasing regime by the enactment of the Mineral Leasing Act of 1920, codified as amended at 30 U.S.C. §§ 181-287. Offshore development was governed by the Outer Continental Shelf Lands Act of 1953, codified as 30 U.S.C. §§351-360.
[25] Kramer & Anderson, Rule of Capture, supra note 5, 35 Envt’l L. at 901-03; Bruce M. Kramer & Patrick H. Martin, The Law of Pooling and Unitization § 2.02 (3d ed. 2025) [hereinafter Kramer & Martin].
[26] Both the 1938 and 1947 ABA Reports reflect attempts to impose allowable/proration limits on production in a large number of producing states. 1938 ABA Report, supra note 12 at 1-2 (n.4) lists 13 state proration statutes. See generally: Kramer & Martin, supra note 25 at § 5.01.
[27] Kramer & Martin, supra note 25 at § 5.02. Spacing rules encompass two different types of standards. One standard is lineal meaning that a well could be drilled if it was not located within a set distance from a property line or another well. The second standard is density related meaning that a well could only be drilled if the permit applicant owned the right to drill covering a minimum number of acres surrounding the well. Id. It was common for states to employ both standards.
[28] Kramer & Martin, supra note 25 at § 3.02[1].
[29] Kramer & Martin, supra note 25 at 1-2 to 1-3.
[30] Id. The validity of the City of Oxford, Kansas compulsory ordinance was upheld in Marrs v. City of Oxford, 24 F.2d 541 (D. Kan. 1928), aff’d 32 F.2d 134 (8th Cir. 1929), cert. denied, 280 U.S. 573 (1929).
[31] Kramer & Martin, supra note 25 at 1-4. See also: Robert E. Hardwicke, Antitrust Laws, et al. v. Unit Operation of Oil or Gas Pools (2d ed. 1961).
[32] Palmer Oil Corp. v. Phillips Petroleum Co., 1951 OK 78, 231 P.2d 997, app. dism’d 343 U.S. 390 (1952).
[33] See: Kramer & Martin, supra note 25 at § 4.05[2]; Bruce M. Kramer, The State of State and Local Governmental Relations as it Impacts the Regulation of Oil and Gas Operations: Has the Shale Revolution Really Changed the Rules of the Game?, 29 FLA. STATE. UNIV. J. OF LAND USE & ENV’TL. L. 1 (2013)
[34] In 1965 Robert Emmett Clark published an article on teaching resources law, including oil and gas law that was a survey of mostly western law schools and their teaching of various resource-related courses. Robert Emmet Clark, Teaching Resources Law, 18 J. of Leg. Educ. 165 (1965).
[35] Clark, supra note 34, 18 J. of Leg. Educ at 166 (n.15).
[36] As the co-author of one of those two casebooks, I can’t speak as to what was included and/or excluded from our worthy competitors’ casebook but I can attest to the fact that our casebook now has numerous chapters on environmental regulation of the oil and gas industry, local regulation, state regulation, including pooling and unitization and contract law and interpretation. See Martin, Kramer, Hall, Righetti and Schremmer, Cases and Materials on Oil & Gas Law (11th ed. 2021); Lowe, Anderson, Kulander, Ehrman, Griggs & Coleman, Oil & Gas Law (8th ed. 2022).
[37] W.L. Summers, The Law of Oil & Gas (1st ed. 1927); Williams & Meyers, Oil & Gas Law (1959), Kuntz, Oil & Gas Law (1962). In theory, the Kuntz volume was a successor to the last edition of W.W. Thornton, The Law Relating to Oil & Gas (1932) but in reality the 1962 edition is an original work by Dean Eugene Kuntz. The author took over the annual supplementation of the Williams & Meyers treatise in 1996 with his longtime co-author, Patrick H. Martin.
[38] I should disclose that I have served as a trustee and been in leadership positions at CAIL, FNREL and EMLF over the past 50 years.
[39] In Chevron USA Inc. v. Plaquemines Parish, 2026 U.S. LEXIS 1627 (Apr. 17, 2026), the Supreme Court found that one of the forty or more cases filed seeking damages under both common law and state statutory theories should not be remanded because as to two producing oil fields, the defendants had properly asserted officer removal jurisdiction in the federal courts since some of the production occurred during World War II when the federal government was contracting with oil and gas companies to both produce crude oil and refine it into aviation gas to support the war effort.
[40] County Commissioners of Boulder County v. Suncor Energy USA, Inc., 2025 CO 21, cert. granted 224 L. Ed.2d 3, 2026 U.S. LEXIS 737 (Feb. 23, 2026).
[41] Bruce M. Kramer, Horizontal Drilling and Trespass: A Challenge to the Norms of Property and Tort Law, 25 Colo. Nat. Res., Energy & Envtl. L.Rev. 292 (2014); Bruce M. Kramer, Property & Oil & Gas Don't Mix: The Mangling of Common Law Property Concepts, 33 Wash. L.J. 540 (1994)
[42] Monika Ehrman, Gravitational Property Theory, 60 Ga. L. Rev. 135 (2025).
[43] Compare, Joseph A. Schremmer, Subsurface Trespass in the Restatement (Fourth) of Property: An Appraisal and Alternative Account, 77 Ala. L. Rev. 61 (2025) with Thomas W. Merrill & Henry E. Smith, Briggs v. Southwestern Energy Production: Hydraulic Fracturing and Subsurface Trespass, 16 J. Tort L. 1 (2023). Professors Merrill & Smith are the reporters for the Restatement (Fourth) of Property which for the first time is tackling the issue of subsurface trespass. 77 Ala. L. Rev. at 63-64.
[44] Williams & Meyers, supra note 8 at § 228; Kramer & Martin, supra note 25 at § 2.03[2][b].
[45] See e.g.: K.K. DuVivier, Preventing Wind Waste, 71 Amer. U. L.Rev. 1, 49 (2021) where Prof. DuVivier states: “U.S. wind law appears to follow the same rule of capture that prevails in oil and gas development.” See also: Monika Ehrman, Gravitational Property Theory, 60 Ga. L. Rev. 135 (2025).
[46] Romero v. Bernell, 603 F. Supp.3d 1333 (D. N.M. 2009) (applying New Mexico law).
[47] Cactus Water Services, LLC v. COG Operating, LLC, 718 S.W.3d 214 (Tex. 2025).
[48] Williams & Meyers, supra note 8 at § 222. See also: Joseph A. Schremmer, Crystal Gazing: Foretelling the Next Decade in Oil and Gas Law, 66 RMMLF-Inst. § 5.03 (2020).
[49] Bruce M. Kramer, The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction, 24 Tex. Tech L. Rev. 1 (1993). Some 23 years later, things have amazingly gotten worse regarding inconsistent directives from the Texas Supreme Court regarding interpretation methodology.
[50] Keith B. Hall, Local Government Regulation of CCS, 24 Wyo. L.Rev. 475 (2024).
[51] Kramer & Martin, supra note 25 at § 4.05[2].