ELEMENTS B POWER POINT SLIDES

Class #20 (Extendo-Class)Friday, October 16, 2015

INTRODUCTION TO

OIL & GAS LAWACCOMPANYING MUSIC: THERE WILL BE THERE WILL BE

BLOODBLOODMovie 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)• 1st 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)• 1st 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?

1st Possession of Oil & Gas:Strength of Analogy (for

Next Week)• DQ2.23-2.25: 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

INTRODUCTION TO OIL & GAS LAW:

THE ANIMALS ANALOGY

Westmoreland & Cambria Natural Gas Co. v. DeWitt

(Penn. 1889)

QUESTIONS?QUESTIONS?

Mid-September Crisis

Mid-October Crisis

Mid-October Crisis:The Upside

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

Now

Mid-October Crisis: Reality CheckYou Probably Can Do More

Work Than You Are Right Now1.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 To3.Basic Skills Get Better the More You Practice

Mid-October Crisis: Reality CheckYou 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 Classes2. 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 Classes2. If You Get Behind in Reading, Skip Ahead to

Current Class & Catch Up Later3. 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)

2.Usefulness of Doctrine (DQ2.10) (Mostly Me)(Mostly Me)3.Usefulness of Alternatives (DQ2.11) (RADIUM)(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

OXYGENOXYGEN 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% Again, ACs don’t have to fit 100% to be reasonable option.to be reasonable option.

Argument By Analogy

OXYGENOXYGEN DQ2.09: Additional Factual Differences?Can You Construct This Kind of

Argument Around Them?

Argument By Analogy

2. Usefulness of DoctrineQs 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 DoctrineIndividual 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 AnalogyArguments

(1)Based on Factual Comparisons

and

(2) Based on Usefulness of Doctrine

Often Overlap:

Argument By AnalogyArguments (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 AnalogyArguments (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 AnalogyArguments (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 AnalogyArguments (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 DoctrineFactors 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 DoctrineFactors 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.

– For Escape might include: F always wins, OO always wins, registration systems, salvagesalvage (= (= alternative, not application of ACs)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 Don’t spend time on alternatives that seem

fairly stupid or unlikely or impracticalfairly 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 AlternativesRADIUM: RADIUM: DQ2.11: One Particular AlternativeWould 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 AlternativesOXYGEN: 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 AlternativesEase 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)

2.Usefulness of Doctrine (DQ2.10) (Mostly Me)(Mostly Me)3.Usefulness of Alternatives (DQ2.11) (RADIUM)(RADIUM)

Questions?Questions?

Swift v. Gifford “First Iron Holds the

Whale”URANIUM: URANIUM:

Brief & DQ2.12-Brief & DQ2.12-2.15

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 BoxBoston

• 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 1st 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 (DQ2.13-2.14)