Stan Getz & The Oscar Peterson Trio (Recorded 1957) Stan Getz, Tenor Sax * Oscar Peterson, Piano Herb Ellis, Guitar * Ray Brown, Bass Please Place Takings Surveys on Chair in Front of Room. Extra Copies Available.

White v. N.Y. Gas Co.: OVERVIEW Ds using well for storage of reinsertion gas. Reinsertion gas leaking underground into nearby OD well to which P has some rights. P claims that, once reinserted underground, gas has “escaped”, so belongs to nobody (Hammonds & ACs).

White v. N.Y. Gas Co.: DQ87 Arguments that G wins even under ACs? Can do in detail yourselves; relevant points include: Return to NL: – Not “Natural Habitat” (but see Mullett ) – Like Kesler: relatively short time & distance; quick “pursuit” Marking/F’s Knowledge: – Nature of gas shows person in industry that not local – Highly unlikely OD well starts producing again w/o leak

White v. N.Y. Gas Co.: DQ87 Arguments that G wins even under ACs? Domestication (Coupet B2) Could Easily Have Rule That Once “Captured”, No Longer Wild Animal, so Stronger Rights Two Concerns re Analogy to Domestication 1.Natural Gas Escapes if Not Confined Well, so Maybe More Like Wild Animal in Cage 2.In White Situation (Unlike Hammonds), G No Longer Fully Controls Gas

White v. N.Y. Gas Co. : Logic of Case Finding #1: Plaintiff is a resident and citizen of Crawford County, Pennsylvania. Defendant New York State Natural Gas Corporation … is a New York corporation and doing business in Pennsylvania. Defendant Tennessee Gas Transmission Company … is a Delaware corporation and doing business in Pennsylvania. The amount in controversy exceeds the sum of $3,000 exclusive of interest and costs. Relevance?

White v. N.Y. Gas Co. : Logic of case Diversity Case in Federal Court – Court must apply Pennsylvania Law (Erie) – Penn. Trial Court case followed Hammonds Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion (note finding re necessary for winter heating in Northeastern US)

White v. N.Y. Gas Co. : Logic of case (DQ88) Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion DQ88: Penn Statutes = Evidence of public policy – Eminent Domain power available to get storage space (like Oklahoma) – Allowed to store even near coal mines – State leases out land for storage

White v. N.Y. Gas Co.: DQ89 Under the reasoning of White, will surface owners (Os) have a trespass action against those who reinsert gas (Gs)? They should; gas remains property of Gs. Penn giving Gs Eminent Domain power to purchase rights suggests state thinks Gs should have to pay Os.

White v. N.Y. Gas Co.: DQ89 Under the reasoning of White, Os have trespass action against Gs who don’t purchase rights to use pool. White & Hammonds can’t be reconciled on this point. After White, Pennsylvania has different rule than Kentucky. Qs on White?

Argument By Analogy Oil & Gas: Escape (radium) Reviewing: Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1.Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool (Deliberate Reinsertion) 2.White: G v. Owners of Adjoining Pools: (Leaks) Note :You could address the two kinds of disputes separately. E.g., might argue ACs better for leaks than for Hammonds.

Argument By Analogy Oil & Gas: Escape (radium) DQ90: Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Similarities re Usefulness of Escaping Animals Cases

Argument By Analogy Oil & Gas: Escape (radium) DQ90: Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Similarities re Usefulness of Escaping Animals Cases: Could start with In both, Property moving from complete control to place where ownership is less certain. (Nice Point: DeOrchis B2) Leak in White Like Animal b/c Escaping Confinement w/o OO’s Intent Despite Labor to Control Valuable Property/Industry Both Can Hold Identifying Mark (Although Marking of Gas Probably Only Discernable to Expert ) (Dahl B1)

Argument By Analogy Oil & Gas: Escape (radium) DQ90: Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Differences re [lack of] Usefulness of Escaping Animals Cases

Argument By Analogy Oil & Gas: Escape (radium) DQ90: Factual Comparisons Between Escaping Animals Situations & “Escaping” Gas Situations Arguments from Factual Differences re [Lack of] Usefulness of Escaping Animals Cases: Could start with Natural Gas Lasts Much Longer Than Animal or Whale Carcass Reinsertion is Socially Valuable ; Escape is Not Reinsertion is Deliberate; Escape is Not

Argument By Analogy Oil & Gas: Escape (radium) DQ91: Usefulness of Doctrine from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Would Work Fairly Well (and Why)

Argument By Analogy Oil & Gas: Escape (radium) DQ91: Usefulness of Doctrine from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Would Work Fairly Well Might Include: Distance; AR; Abandonment; F’s Knowledge; Industry; NL (in leak cases)

Argument By Analogy Oil & Gas: Escape (radium) DQ91: Usefulness of Doctrine from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Might be Hard to Use (and Why)

Argument By Analogy Oil & Gas: Escape (radium) DQ91: Usefulness of Doctrine from Escaping Animals Cases for “Escaping” Gas Situations Rules/Factors from Escaping Animals Cases that Might be Hard to Use Might Include: Time; Marking (w/o expertise); NL (in Hammonds cases)

Argument By Analogy Oil & Gas: Escape (radium) DQ94: POSSIBLE ALTERNATIVES (Pros & Cons? Best Solution?) White Rule: Reinserted Gas = Property of Gas Co. Hammonds Rule: Reinserted Gas = Unowned (Simplified ACs) More Complex ACs (Consider marking, control, etc.) DQ 92. Oklahoma Statute (White footnote 2) DQ 93. “Airspace Solution to Hammonds problem.” Other??

Argument By Analogy Oil & Gas: Escape (radium) DQ94: POSSIBLE ALTERNATIVES Pros & Cons? Best Solution? Might Consider: Importance of Reinsertion & Cheap Fuel Relative Importance of Landowners’ Interests Ease of Administration Public Reaction

LOGISTICS CLASS #26 My Exam Workshops: Tue 10/30 & Thu 12:30-1:50 Room F309 Info Memo #6 Online: Includes Group Written Assignment #3 Comments/Models re Written Assignment #2 Published Ghen Brief for DQ77 Takings Survey (If you haven’t already, can turn in after class; extras available)

Argument By Analogy: Group Written Assignment #3 Generally Task Like XQ2 for Fact Pattern A (Never Given) Helpful first to do XQ1 for Fact Pattern Comments/Models for XQ2s Online – Can look at for ideas – I suggest you try to do yourself first

Argument By Analogy: Group Written Assignment #3 Structure of Each Sub-Assignment Similar Doing One of Three Approaches Must Submit (Roughly Speaking)… – Two Arguments in Favor of Using ACs – Two Arguments Against Using ACs – One Argument re Which Set Seems Stronger

Argument By Analogy: Group Written Assignment #3 Specific Concerns “Overlap” Instructions: Don’t Choose Topics That Yield Two Very Similar Arguments Stick to Approach I Give You (See Weasels) Reread Instructions Before Finalizing QUESTIONS??

Unit Three : Constitutional Protection of Private Property State Regulations of Land Use Frequently Limit What Landowners Can Do With Their Land and/or Reduce Its Value. Under What Circumstances Does the U.S. Constitution Require that the State Compensate the Landowner for These Effects?

Unit Three : Constitutional Protection of Private Property Key Differences from Units One & Two Whole Unit is Single Line of Cases from Same Court, So Need to Work With as a Group US Supreme Court Opinions Longer & More Complex Context: – Not State Court Working with Common Law of Property – Federal Court Determining if State Law Violates US Constitution (Takes Us to DQ95)

Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) When Federal Courts review state statutes to determine whether they violate the U.S. Constitution, most people believe their role does not include determining whether the statute is a good idea as a matter of policy. Why shouldn’t a Federal Court strike down a state statute because it is stupid?

Unit Three : Introduction DQ95: Role of Fed’l Court (Oxygen) Why shouldn’t a Federal Court strike down a state statute because it is stupid? Common Answers Include: Democratic Theory – State Legislature is Elected Body; Fed’l Court is Not – Bill of Rights Generally as Limit on Democracy Relative Expertise: – Legislature Can Do Better Fact-Finding – See DQ55 after Albers