As you seek the optimal location for your solar project, you should be aware that the rights to subsurface minerals can dominate the use of surface lands even when there is a surface user conducting business over the mineral deposits. What do you know about the relative concerns and interaction between land surface rights and mineral rights? More importantly, what do you need to know? Due to the ongoing explosion of oil and gas exploration within the United States, and Texas in particular, surface developments such as utility scale solar projects can encounter significant issues of relative concern. Listen to Randy Sowell and Greg Friend, two leading experts in this field, discuss the basics of the interactions between a mineral estate (oil and gas exploration) and surface estate (solar projects), and how this legal construct can influence solar development. Although Texas is the focus of the webinar, reference will be made to Bureau of Land Management (BLM) development issues which primarily occur west of the Great Plains region of the US; significant because the BLM administers over 245 million surface acres of land and over 700 million acres of mineral estates within the United States. First Greg and Randy will discuss relevant regulatory and policy issues and propose possible resolutions that attempt to allow both the oil and gas exploration outfit (mineral estate) and the solar project company (surface estate) to develop projects with reasonable legal and practical certainty.

1. Principal Solar Institute
Solar Above, Oil and Gas Below:
Coexistence In Energy Project Development
RANDY SOWELL
Lionshare Advisory Services
McCamey, Texas
(432) 301-0002
lionsharers@hotmail.com
GREGORY S. FRIEND
Stahl, Bernal & Davies, LLP.
Austin, Texas
(512) 652-2949
gfriend@sbaustinlaw.com
Principal Solar Institute

2. Can’t We All Just Get Along?
Principal Solar Institute

3. What’s the Problem?

4. Oh, right.

5. Mineral estate is dominant estate, and has the
right to utilize as much of the surface as is
reasonably necessary to exploit minerals
below.
Due regard and accommodation doctrine.
AK, AR, CO, NM, ND, UT and WV also
recognize the accommodation doctrine, and
others states have enacted specific surface
damages statutes.
Texas (and some other places) Law

6. Solar Resource

7. Oil and Gas

10. Railroad Commission Rule 76
Surface owner may request qualified subdivision.
Qualified subdivision:
– may not be > 640 acres
– Located in
• Counties with population > 400,000
• Counties with population > 140,000 so long as it
borders county with population > 400,000 or located on
border island.
– “Operations site” for each 80 acres; 2 acres or >.
– Road and pipeline easements.
– Subdivided for residential, commercial or industrial use.

11. Railroad Commission Rule 76
 Surface owner files application; RRC provides hearing notice
to all possessory interest holders.
 RRC considers adequacy of number and location of operations
sites and road and pipeline easements.
 If application granted, surface owner must begin construction
of roads or utilities and sell lot within 3 years.
 SWEPI v. RRC
– Qualified subdivision for each 640.
– Landfill satisfies “industrial use;” broad authority to RRC.

12. Bureau of Land Management
 BLM administers surface estates and mineral estates on
publicly owned lands
– 261 Million Surface Acres
– 700 Million Mineral Acres
• 58 Million are Split Estates
 BLM requires that the mineral lessee engage the Surface
Owner in negotiations for the purpose of obtaining a surface
use agreement.
 BLM requires the lessee/operator make a good faith effort to
obtain a surface use agreement.

13. BLM - Split Estate Options
 Amend Resource Management Plan
– Open or Closed to leasing; lease stipulations
 Mineral Conveyance
– Federal Land Policy and Management Act (FLPMA)
• Section 209 (b) – “may convey mineral interests owned
by the U.S. where the surface is in non-federal
ownership if ….
1) There are no known mineral values in the land or
2) The reservation of mineral rights is interfering with or
precluding appropriate non-mineral development of the land
and that such development is a more beneficial use of the
land.”
3) Conveyance only to surface owner of record.

14. QUESTIONS?

15. Principal Solar Institute
Solar Above, Oil and Gas Below:
Coexistence In Energy Project Development
RANDY SOWELL
Lionshare Advisory Services
McCamey, Texas
(432) 301-0002
lionsharers@hotmail.com
GREGORY S. FRIEND
Stahl, Bernal & Davies, LLP.
Austin, Texas
(512) 652-2949
gfriend@sbaustinlaw.com
Principal Solar Institute