In 2018 I commented on a case in the 9th Circuit court of Appeals, Murray v BEJ Minerals, LLC, holding that fossils of two “dueling dinosaurs”, a 22-foot-long theropod and a 28-foot-long ceratopsian, “engaged in mortal combat” when “entombed under a pile of sandstone,” were “minerals” under Montana law. Well, not so fast. The federal court decided to ask the Montana Supreme Court to weigh in on the question. It’s answer? Dinosaur bones are not minerals after all. Murray v. BEJ Minerals, 464 P.3d 80 (Mont. 2020). Including one dissenting opinion, the court took 21 pages and 23 footnotes to reach its conclusion. In the meantime, the Montana legislature weighed in with a statute clarifying the definition of fossils and distinguishing them from minerals. Read more about the bones and the dueling over ownership here.
In Murray v. BEJ Minerals, LLC, No. 1:14-cv-00106-SPW, a panel of the US 9th Circuit Court of Appeals ruled on a fight over fossils of two “dueling dinosaurs”, a 22-foot-long theropod and a 28-foot-long ceratopsian, “engaged in mortal combat” when “entombed under a pile of sandstone.”
The surface owner and mineral owners then became involved in a fight over the ownership of these fossils, as well as several other fossils (including a nearly intact Tyrannosaurus Rex skeleton) found on the property. Pointing out that “oil, gas and coal all derive from the remains of plants and animals,” the mineral owner argued that the fossils are “minerals.” The court agreed with the mineral owner, citing a Montana Supreme Court case, Farley v. Booth Brothers Land & Livestock Co.,, 890 P. 2d 377, 379 (Mont. 1995), which in turn adopted a definition from a Texas Supreme Court Case, Heinatz v. Allen, 217 S.W.2d 994 (Tex. 1949):
[S]ubstances such as sand, gravel and limestone are not minerals within the ordinary and natural meaning of the word unless they are rare and exceptional in character or possess a peculiar property giving them special value, as for example sand that is valuable for making glass and limestone of such quality that it may be profitably manufactured into cement. Such substances, when they are useful only for building and road-making purposes, are not regarded as minerals in the ordinary and generally accepted meaning of the word.
A friend recently made me aware of a publication by the Real Estate Center at Texas A&M called “Mineral Law West of the Pecos,” written by Judon Fambrough, a lawyer who is with the Center. Judon has written much good stuff about land and mineral law in Texas, and this publication is no exception. (The Center has many good articles and publications on its website of interest to land and mineral owners.) Judon’s article contains a good summary of the history of land grants in West Texas, mineral reservations, the Relinquishment Act and “mineral-classified” land, what constitutes a “mineral,” and recent litigation over State ownership of minerals in West Texas. His article is well written and informative and should be in every oil and gas lawyer’s library. The law of Texas land grants in West Texas (and South Texas) is complex and fascinating.
Judon provides this link to maps online at the Texas General Land Office, which show tracts in West Texas subject to any mineral classification or reservation by the State:
The Eighth Court of Appeals in El Paso has issued its opinion in State of Texas v. Cemex Construction Materials South, LLC. The court reversed a summary judgment for Cemex and granted the State’s summary judgment, returning the case to the trial court to assess damages. The State is seeking damages of $558 million.
Cemex is the world’s leading supplier of ready-mix concrete, and one of the world’s largest producers of White Portland Cement. Cemex is based in Monterrey, Mexico, and has operations across North and South America, Europe, Africa, the Middle East and Asia. It has annual sales of more than $14 billion.
Cemex operates a quarry for sand, gravel and caliche in El Paso County. According to the State’s petition, Cemex and its predecessors have mined about 100 million tons of materials from the quarry since 1940. Cemex bought the quarry from the British group RMC in 2005.
Conveyances of minerals in Texas usually describe the interest conveyed or reserved as an interest in “oil, gas or other minerals.” Texas courts have struggled mightily to try to discern what the parties meant by the term “other minerals.” If the parties did not specifically name a particular mineral, such as coal or uranium, did they intend that substance to be included in their reference to “other minerals”?
Making the matter more complicated, the Texas Supreme Court has changed its mind on how to approach the problem. At one point, the Court adopted a “surface destruction test” to determine whether a substance was intended to be a “mineral.” Under this rule, the Court reasoned that the parties would not intend to sever ownership of a substance from the surface estate if the commercial way to mine the mineral was by strip mining, so a near-surface substance would not be considered a “mineral.” Then the Court decided that such a test was not workable, and it adopted (but only for reservations or conveyances of “other minerals” after the date of its opinion) a different test, the “ordinary and natural meaning” test. Under this test, a substance is a mineral if it is within the “ordinary and natural meaning” of the word “mineral.” In effect, each substance must be tested by litigation to determine if it is a “mineral” within the ordinary and natural meaning of that term. Once a court has decided that a particular substance is a mineral under this test, it is a mineral for all reservations and conveyances of “oil, gas and other minerals” to which the test applies..
Because of all of the confusion about the term, I have created a short-hand decision tree to use when looking at a conveyance or reservation, to help me remember how to apply these tests. My decision tree is below.