Image: Oil and Gas Law Illustration.


The Future Course of Oil & Gas Jurisprudence II Symposium will be held October 2-3, 2009 at Washburn University School of Law. The symposium is hosted by the Washburn University School of Law Business and Transactional Law Center.

Friday, October 2, 2009

1:00 p.m.

  • Welcome – Dean Thomas J. Romig
  • Introduction and Explanation Of Program Goals – Professor David E. Pierce

1:10 p.m.
The Future of Oil & Gas Law
Professor John S. Lowe

  • 1:50 p.m. – Practitioner Responses To Professor Lowe
This topic focuses on the energy needs of the U.S. and the world and the role that oil and gas will continue to play in supplying those needs. Professor Lowe will examine the potential impact these energy realities, coupled with likely policy initiatives, will have on oil and gas law.

2:05 p.m. – Break

2:20 p.m.
Something Old, Something New: The Evolving Farmout Agreement
Professor Kendor P. Jones

  • 3:00 p.m. – Practitioner Responses To Professor Jones
The three most important instruments for oil and gas development have been and continue to be the lease, the joint operating agreement and the farmout agreement. This topic will cover issues that have arisen under the traditional drill to earn farmout, such as mandatory versus permissive drilling obligations, the measure of damages for failure to drill, the definition of "payout", conflicts between the terms of the farmout agreement and the assignment, and renewals, extensions and "washouts." It also will address disputes that arise between the parties over an Area of Mutual Interest provision included in the farmout agreement or when a successor or assign discovers an AMI provision embedded in the agreement. Finally, it will address the legal issues that may be presented as the farmout agreement evolves from a relatively simple document covering the drilling of a single well to one used to initiate a drilling partnership between the parties for a multi-well program.

3:15 p.m. – Break

3:30 p.m.
Royalty Jurisprudence: A Tale of Two States
Professor David E. Pierce

  • 4:10 p.m. – Practitioner Responses To Professor Pierce
Depending upon the state where leased land is located, and whether you represent the lessor royalty owner or the lessee developer, it will be either "the best of times" or "the worst of times." Professor Pierce will examine the underlying motives of supreme court justices in Colorado and Texas when they are called upon to interpret oil and gas lease royalty clauses. Once these judicial motives are isolated and defined, Professor Pierce will examine royalty cases from across the nation in an effort to identify the jurisprudential models being used by courts to resolve royalty calculation disputes.

4:25 p.m. – Break

4:40 p.m.
The Future of State Oil and Gas Commissions: The Past is Prologue
Professor Thomas A. Mitchell

  • 5:20 p.m. – Practitioner Responses To Professor Mitchell
Most State Oil and Gas Commissions were created in the ‘30s through the ‘50s to supplant the common law of capture that had governed oil and gas production in the various states. The newly created Commissions were structured on variations of the Model Code of Oil and Gas Conservation. While the goal of the Commissions was to apply conservation principles, there was substantial modification over time reflecting changing political and social goals. As creatures of state statute, each new Commission reflected both local politics and national trends, creating new winners and losers. Now, the rapidly changing landscape of drilling technology and the new or rediscovered locations of productive formations will test existing statutory schemes, causing legislative responses that again will create new winners and losers.

5:30 p.m.
Board Transportation to Dinner Site: Home of Martha & David Pierce

Saturday, October 3, 2009

8:25 a.m. – Introduction
Professor David E. Pierce

8:30 a.m.
Subsurface "Trespass": A Man's Subsurface is Not His Castle
Professor Owen L. Anderson

  • 9:10 a.m. – Practitioner Responses To Professor Anderson
This paper will discuss the law of trespass in light of contemporary subsurface land uses and activities, including horizontal drilling, hydraulic fracturing, carbon sequestration, 3D seismic, gas storage, and waste disposal. Professor Anderson will argue that ancient common-law trespass doctrines are ill suited to address subsurface encroachments.

9:25 a.m. – Break

9:40 a.m.
The Continuing Role of Implied Covenant Law in Developing Leased Lands
Professor Keith B. Hall

  • 10:20 a.m. – Practitioner Responses To Professor Hall
Courts throughout the United States have held that mineral lessees are bound by implied covenants or obligations that supplement the duties expressly imposed by their leases. Various jurisdictions and authorities have given different scopes, formulations, and justifications for these implied covenants. This presentation will explore recent trends in the jurisprudence relating to implied covenants, with an emphasis on implied covenants relating to development and exploration of leased premises.

10:35 a.m. – Break

10:50 a.m.
The Removal, Disposal, and Use of Water in Relation to Oil and Gas Development and Production
Professor Robert E. Beck

  • 11:30 a.m. – Practitioner Responses To Professor Beck
Water is significant in oil and gas development and production in relation to both the need to use water and the need to get rid of water. This paper will identify specific needs in both contexts, set out settled law, identify and discuss current issues, and project where the law is going, if anywhere.

11:45 a.m. – Lunch (Bradbury Thompson Alumni Center)
Group Discussion: Teaching Oil and Gas Law
Discussion Leader: Professor David E. Pierce

1:20 p.m.
Keeping Leases Alive in the Era of Horizontal Drilling and Hydraulic Fracturing: Are the Old Workhorses (Shut-In, Continuous Operations, and Pooling Provisions) Up to the Task?
Professor Bruce M. Kramer

  • 2:00 p.m. – Practitioner Responses To Professor Kramer
Oil and gas leases have contained various "savings" provisions for at least 100 years in order to avoid the harsh remedy of lease cancellation due to the automatic termination feature of the fee simple determinable estate. Are these provisions in need of an overhaul in light of the new realities of oil and gas operations including horizontal drilling, hydraulic fracturing and national markets for natural gas? This paper will explore some of the problems that operators have run into in trying to prevent leases from terminating given these new realities.

2:15 p.m. – Break

2:30 p.m.
Prelude to the Future of Shale Gas Development: The Fayetteville Shale Play in Arkansas
Professor Phillip E. Norvell

  • 3:10 p.m. – Practitioner Responses To Professor Norvell
Since the successful completion of initial test wells in the Fayetteville Shale in 2004, Arkansas has experienced an oil and gas boom reminiscent to the industry’s upsurge in the 1920s and eclipsing the ill-fated rush of the 1980's. Unlike earlier booms, the Fayetteville Shale play now involves production from unconventional gas reserves. Due to further innovations in the drilling and facing of shale wells, "tight" depositions such as the Fayetteville Shale, once thought too impermeable for production despite its ample porosity and copious trapped gas molecules, now play a significant role in commercial exploitation. The horizontal well, as opposed to the customary vertical well, along with cutting edge fracing, holds the key to enhanced production from Fayetteville Shale wells. This article examines the unique problems involved in developing the Fayetteville Shale in Arkansas, with an emphasis on the Arkansas Oil and Gas Commission’s well-spacing and pooling regulations for Fayetteville Shale wells. Likewise, this article ponders what the Arkansas experience portends for the future of oil and gas law and the development of unconventional gas resources.

3:25 p.m. – Break

3:40 p.m.
Oops - Accidents Happen: Oil Pollution Prevention at Onshore Facilities
Professor Bill Jeffery

  • 4:20 p.m. – Practitioner Responses To Professor Jeffery
Environmental requirements will continue to play a major role in future oil and gas development. Problems associated with regulating upstream oil and gas activities are explored by examining the seemingly never-ending process of revising the EPA’s Spill Prevention Control and Countermeasure (SPCC) regulations. Professor Jeffery will also examine jurisdictional issues that define the scope of Section 311 of the Clean Water Act and the meaning of "waters of the United States."

4:35 p.m.
Concluding Remarks – Professor David E. Pierce

4:45-5:00 p.m.
Transportation from Law School to Capitol Plaza Hotel

5:30 p.m.
Transportation from Capitol Plaza Hotel to Brown v. Board of Education National Historic Site 

  • 5:45 p.m. – Tour Galleries
  • 7:00 p.m. – Dinner
  • 8:30 p.m. – Speaker