ELEMENTS B POWER POINT SLIDES Class #20 (Extendo-Class) Friday, October 16, 2015

THERE WILL BE BLOOD INTRODUCTION TO OIL & GAS LAW ACCOMPANYING MUSIC: THERE WILL BE BLOOD Movie Soundtrack (2007) Music by Jonny Greenwood

INTRODUCTION TO OIL & GAS LAW: THE ANIMALS ANALOGY Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889)

Westmoreland: Master’s Analysis (Rejected by Penn. S.Ct.) Gas is mineral like coal – If in ground, property rights go w possession of surface – Here, lease gave no right to possession of surface – W never extracted, so no property right in gas – Thus, no right to enjoin removal of gas Because no property right to surface, W also can’t enjoin D from drilling W’s only suit: Breach of Contract by B (Interference w W’s right to extract) & W’s Only Remedy = Damages

Westmoreland: Penn. S.Ct. Analysis Oil/Gas/Water not like coal – Move around  Minerals ferae naturae – Initially, legal possession by surface owner (like ratione soli) – Right lost to one who lawfully captures “wild” mineral Here, W captured gas with well that gave control – Even if B evicts W from surface, W owns gas – Thus, W can enjoin D from taking W’s gas.

Westmoreland: Possible Animal Analogies (Implicit) 1 st Player (W) Gets Permission to Hunt Deer from Landowner (B) – W Catches Deer, Ties It to Tree (= Property under Pierson) – W Leaves for Lunch & B Refuses to Allow Return B Resells Hunting Rights (Including Tied Deer) to 2d Player (D) W Can Sue for Property in Deer, Not Just Breach of Contract to Hunt

Westmoreland: Possible Animal Analogies (Implicit) 1 st Player (W) Gets Permission to Trap Fish in Private Lake from Landowner (B) W Sets Up Workable Net When Net Full, B Refuses to Allow W to Re- Enter & Claims Fish for Himself

Review: Westmoreland & DQ2.22 Under Westmoreland, if a pool of gas lies under two adjacent parcels of land and the owner of one parcel drills a well, how much of the joint pool is he entitled to take through his well? How is this result related to the court’s description of gas as a mineral ferae naturae?

1 st Possession of Oil & Gas: Strength of Analogy (for Next Week) DQ : Standard Approaches to Assessing Analogies To Prepare, Work Through Technical Readings (88-94) to Get Sense of How Extraction Works Common task for lawyers: need to acquire expertise in areas important to client. Look for info related to arguments about strengths & weaknesses of rule fromWestmoreland. For 2.25: Try to identify at least 3 alternatives, then identify pros & cons

QUESTIONS? INTRODUCTION TO OIL & GAS LAW: THE ANIMALS ANALOGY Westmoreland & Cambria Natural Gas Co. v. DeWitt (Penn. 1889) QUESTIONS?

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis: The Upside

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now 1.Cut Down on Outside Activities (Less Than 7 Weeks to First Exam) 2.Push Yourself Each Day to Do a Little More Than You Want To 3.Basic Skills Get Better the More You Practice

Mid-October Crisis: Reality Check You Probably Can Do More Work Than You Are Right Now BUT if/when you can’t get everything done … [some advice]

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes, Even When Unprepared

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Eat, Get Sleep, Take Short Breaks

Mid-October Crisis: SOME ADVICE 1.Don’t Miss Classes 2.If You Get Behind in Reading, Skip Ahead to Current Class & Catch Up Later 3.Get Sleep & Take Short Breaks 4.Plan Catch-Up Work and Outlining for One Course Each Weekend

Mid-October Crisis: Like Doing Law School Exam Qs Can’t do everything as well as you’d like; do the best you can with time you have Be very careful not to waste time Identify what work is most important for you and spend time accordingly Be realistic in your expectations; don’t get upset that you are not superhuman. This too shall pass!

FINAL EXAM QUESTION 2 XQ2: “Discuss Whether Animals Cases Are Good Tools to Use in New Scenario” – Testing Ability to Analyze When/Whether Analogy is Useful – Should Utilize Three Approaches We’ll Work With in Unit Two (& Group Assignment #3) Significance of Factual Similarities/Differences Usefulness of Doctrine Usefulness of Alternatives

Argument By Analogy Bottom Line: Not asking if ACs are a perfect tool for the new context, but discussing how good a tool they are.

Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we?

Argument By Analogy We’ve seen that we could use the escaping animals cases to resolve cases like Taber and Bartlett (as in XQ1), but should we? In other words, use of the analogy is possible, but is it a good idea (XQ2)?

Argument By Analogy Applying Three Common Approaches Described in Course Materials: 1.Significance of Factual Similarities & Differences (DQ2.09) (OXYGEN) (Mostly Me) 2.Usefulness of Doctrine (DQ2.10) (Mostly Me) (RADIUM) 3.Usefulness of Alternatives (DQ2.11) (RADIUM) For Each, I’ll Talk A Little About How to Do Generally, Then We’ll Try in This Context

Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts – Factual not Legal (Layperson Could See) – Compare Overall Situations, NOT Individual Cases. Compare Escaping Animals to Escaping Whale Carcasses NOT Facts in Bartlett to Facts in Albers (Task for XQ1)

Argument By Analogy 1. Factual Similarities/Differences Identify Similarity or Difference Between the Two Contexts Explain Why the Similarity (or Difference) You Identified Suggests that the Legal Treatment of the Two Contexts Should be the Same (or Different)

Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) away from where the owner left it.

Argument By Analogy Sample Factual Similarity: Mobility Both contexts involve property that can move (w/o human intervention) Escaping ACs good for escaping whale carcass cases b/c specifically designed to decide when to return mobile property. – Address relevant Qs like extent of OO’s investment, OO’s labor to control or retrieve property, and whether F would have reason to believe another person has a strong claim. – Can then argue re relative importance of these Qs

Argument By Analogy OXYGEN OXYGEN DQ2.09: Additional Factual Similarities? Can You Construct This Kind of Argument Around Them?

Argument By Analogy Sample Factual Difference: Living/Dead Land animals are alive when they “escape”; whale carcasses are not.

Argument By Analogy Sample Factual Difference: Living/Dead Land animals are alive when they “escape”; whale carcasses are not. Some concepts from ACs will not work well in Taber context b/c they assume property was alive at escape. – E.g., “provide for itself” & “intent to return” (AR) – Can then argue re relative importance of these factors. (NOTE: AR not hugely important!)

Argument By Analogy Sample Factual Difference: Living/Dead Some concepts from ACs will not work well in Taber context b/c they assume property was alive at escape. – E.g., “provide for itself” & “intent to return” – Can then argue re relative importance of these factors. Again, ACs don’t have to fit 100% to be reasonable option.

Argument By Analogy OXYGEN OXYGEN DQ2.09: Additional Factual Differences? Can You Construct This Kind of Argument Around Them?

Argument By Analogy 2. Usefulness of Doctrine Qs About Individual Rules or Factors Can you sensibly apply some or all of the legal tests in the new context? Are the purposes behind the rules relevant in the new context?

Argument By Analogy 2. Usefulness of Doctrine Overall Q: Is the doctrine targeting the right concerns? Are there important concerns raised by the precedent that aren’t relevant in the new context? Are there important concerns raised by the new context that weren’t relevant in the precedent?

Argument By Analogy DQ2.10: Usefulness of Doctrine Individual Escape Factors Whose Relevance is Pretty Clear to Disputes re Whale Carcasses (Arguably used in Taber & Bartlett): Marking/Finder’s Knowledge Rewarding Labor/Protecting Industry Abandonment (by Compulsion)/Pursuit Time/Distance (though time frame may be different than for living animals)

Argument By Analogy Arguments (1)Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap:

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (1) Factual Comparison: OO can attach identifying marks to both escaping animals and whale carcasses. – ACs reward OOs who use strong marks that help identify the animal and give notice to Fs of prior claim – For same reasons, good idea to reward OOs of whale carcasses who use strong marks – Thus, this similarity supports using ACs

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: (2) Usefulness of Doctrine: ACs factor we called “marking” (Manning; Albers), rewards OOs who use strong marks that help identify the animal and give notice to Fs of prior claim. – OO of whale carcass can attach identifying marks that serve the same purposes. – Thus, it is a good idea to reward OOs of whale carcasses who use strong marks, which makes “marking” a useful factor to use.

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: – Overlap is logical: Concerns addressed by the legal tests are made relevant by the factual setting. Factual comparisons are made relevant by the way the doctrine operates.

Argument By Analogy Arguments (1) Based on Factual Comparisons and (2) Based on Usefulness of Doctrine Often Overlap: – For XQ2, if you see overlapping arguments, you only need to give me one of them – BUT useful to practice approaching analogy question from both directions b/c sometimes you will find it easier to see a useful point looking from one angle than from the other.

Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Natural Liberty – Maybe NL = carcass is floating free – Pros & Cons: Should Consider: LANGUAGE: E.g., “Provide for itself” v. “No artifical restraint” UNDERLYING POLICIES : I did some in Class #17

Argument By Analogy DQ2.10: Usefulness of Doctrine Factors Less Clearly Relevant? Taming or Intent to Return – Could mean simply anchoring the carcass – Pros & Cons include: Anchoring similar b/c labor expended to maintain control Maybe unnecessary b/c can reward anchoring using NL or general policy rewarding useful labor

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context – For 1st Possession might include: auction, lottery, state ownership, most deserving, etc. salvage (= alternative, not application of ACs) – For Escape might include: F always wins, OO always wins, registration systems, salvage (= alternative, not application of ACs) – For other possibilities, look at old model answers (available after Group Assignment #2 submitted)

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context – Don’t spend time on alternatives that seem fairly stupid or unlikely or impractical Could award carcass to oldest whaler, but this would be stupid because … Could award carcass to finder where internal temperature of carcass had fallen below 45° F, but this would be very difficult to apply in practice because of absence of reliable thermometers and logistics of measuring inside carcass …

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy – Ideally provide both pros and cons for each – Can consider fairness, cost, ease of administration, incentives created, whether the right Qs are being asked, etc.

Argument By Analogy 3. Usefulness of Alternatives Identify alternative approaches that might be used to address the new context Discuss the pros and cons of using each possible alternative instead of the proposed analogy You can identify possible alternatives and common pro/con arguments from class and from model answers. However, only way to get proficient enough to do well under exam conditions is PRACTICE.

Argument By Analogy Usefulness of Alternatives RADIUM: RADIUM: DQ2.11: One Particular Alternative Would salvage be a better way to resolve anchored whale cases than using the escaped animal cases? Why or why not?

Argument By Analogy Usefulness of Alternatives OXYGEN: DQ2.11: Would salvage be better than using the escaped animal cases? Might Consider: Splitting Rewards v. One Side Takes All (& Labor?) Rule Most Likely to Save Most Whale Carcasses Ease of Application: – ACs = multiple factors = complex – But maybe hard to do salvage where property must be cut up and altered to take on board

Argument By Analogy 3. Usefulness of Alternatives Ease of Administration: Escape Escaping ACs not bright line rule/complex to administer (lots of factors) 2 very clear rules always available for Escape – Absolute Ppty Rights (if OO can identify it, OO wins) – Complete loss of ppty rts at escape = Finder’s Keepers Although Usually Other Problems with These Bright Line Rules incentives created, whether the right Qs are being asked, etc.

Argument By Analogy Applying Three Common Approaches Described in Course Materials: 1.Significance of Factual Similarities & Differences (DQ2.09) (OXYGEN) (Mostly Me) 2.Usefulness of Doctrine (DQ2.10) (Mostly Me) (RADIUM) 3.Usefulness of Alternatives (DQ2.11) (RADIUM)Questions?

URANIUM: Brief & DQ2.12- Swift v. Gifford “First Iron Holds the Whale” URANIUM: Brief & DQ

Swift v. Gifford (Uranium) BRIEF: Statement of the Case Swift and others … ?, sued Gifford …, for [cause of action] seeking [remedy].

Swift v. Gifford (Uranium) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford …, ??? for [cause of action] seeking [remedy].

Swift v. Gifford (Uranium) BRIEF: Statement of the Case Swift et al., owners of ship (H) whose crew killed whale sued Gifford, managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, for [cause of action] ??? seeking [remedy].

Swift v. Gifford (Uranium) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford, managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, presumably for conversion seeking [remedy]. ???

Swift v. Gifford (Uranium) BRIEF: Statement of the Case Swift and others, owners of a ship (H) whose crew killed a whale, sued Gifford, managing owner of a ship (R), whose crew first harpooned the whale and later took it from H, presumably for conversion Seeking damages for the value of the whale.

Swift v. Gifford (Uranium) BRIEF: Procedural Posture Decision after a trial.

Swift v. Gifford (Uranium) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. What Else Needs to Be Included?

Swift v. Gifford (Uranium) BRIEF: Facts Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. Crew of ship H captured the whale, unaware that ship R was still pursuing it. Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom.

Swift v. Gifford (Uranium) BRIEF: Facts Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. (Parties all understood.) Note: Hercules gave whale up voluntarily honoring custom (cf. Taber: reaction of Captain of Massachusetts to Zone) Suggests maybe Swift et al. are new players in whaling game: – Hercules gets home & reports to Owners – Swift: “You did what??!!” Swift = famous business family in Chicago, so …

Mini-Comparison Box Boston Red Sox (& Long Lost Braves) Cod & Lobster Shipping "So this is good old Boston. The home of the bean and the cod. Where the Lowells talk only to Cabots. And the Cabots talk only to God." Chicago White Sox (& New Found Cubs) Pork & Beef (Swift/Armour) Railroads “City of Broad Shoulders” & “Not for Breeding Purposes.”

Swift v. Gifford Nature of Dispute Escaping wild animals cases only apply to Taber & Bartlett by analogy. By contrast, Swift is a 1 st possession wild animal case. Two hunters (ships) chasing a wild whale. Who gets? – First to harpoon & pursue (Rainbow) –OR— – First to kill (Hercules)

Swift v. Gifford: Nature of Dispute Two ships chasing a wild whale. Who gets? – First to harpoon & pursue (Rainbow) –OR— – First to kill (Hercules) Could decide using common law or custom. We will look at: 1.How Swift addresses common law claim (from Brief) 2.How our ACs resolve without custom (DQ2.12) 3.How Swift addresses custom (DQ )