Since the beginning of recorded mineral law, the owner of the mineral interests has enjoyed an elevated status in its relationship with the surface owner, resulting in the universally accepted notion that the mineral estate is the “dominant” estate. Based on this long-standing characterization, courts have traditionally declared that, even where the deed creating a split estate is silent, the mineral owner enjoys an implied easement to use so much of the surface estate as is reasonably necessary for the exploration and production of minerals. A recent, unpublished state court decision explored the intriguing issue of whether the mineral estate’s dominance allows its owner to prevent the surface owner from advocating for environmental protections for the surface in a public forum.

In the case of Lone Mountain Ranch, LLC v. Santa Fe Gold Corp., No. D-101-CV-2013-02581, in which the author represented the surface estate owner, the mineral estate owner asserted that the surface owner’s participation in public processes designed to impose environmental protections for the surface constituted a violation of, or interference with, the mineral estate’s easement for access to and use of the surface for mineral development. The mineral estate owner claimed that such participation by the subservient surface estate would be detrimental to the development of the minerals and, therefore, contrary to the “dominance” enjoyed by the mineral estate. At bottom, the mineral estate owner claimed that its easement deprived the surface owner of its right to advocate in a public forum for environmental protection of the surface estate.

Lone Mountain, as the surface estate owner, countered that such an interpretation would transform an access easement into a restrictive covenant and re-write the deed reservation splitting the estates to include promissory and obligatory terms that have nothing to do with physical access. After hearing from professorial experts in the oil and gas and mineral disciplines, the court agreed with Lone Mountain and held that the dominance enjoyed by the mineral estate refers only to physical access, which the surface owner has no right to obstruct. The court reasoned that an implied or express easement for access and development does not have the characteristics of a restrictive covenant and thus could not foreclose protected public participation and advocacy for environmental protections of the land. As a result, instead of acting as a mere bystander to mineral development, a surface owner under a split estate deed may contest and resist mineral development under that estate based on environmental concerns that are unrelated to issues of physical access granted by the easement.