The Accommodation Doctrine
Near the end of last year, the 10th Circuit Court of Appeals issued a ruling related to the accommodation doctrine. In this case, the Bays owned the surface of a tract of land in the Wattenberg Field. Anadarko owned the minerals. Bay v. Anadarko E& P Onshore, 2018 WL 6778017 (10th Cir. 2018).
The Bays asked for wells to be drilled on its land be drilled directionally, which the operator refused. The Bays, farmers in Weld County, Colorado, sued for trespass and provided testimony about how the drilling operations and well sites affected their use of the surface.
The court determined that the district court had applied the wrong standard in evaluating the case and remanded the case. The court held that there are three steps in evaluating a trespass claim under the accommodation doctrine.
First, the surface owner must prove that an operator’s conduct caused a “material interference” with surface use. The court held that material interference requires the surface owner to prove that the operator’s conduct “completely precludes or substantially impairs the existing use.” [Emphasis in the opinion].
Second, if such a showing is made by the surface owner, the operator must produce evidence to explain the necessity of its use and to show that its use conformed with industry practice.
Third, if the operator meets this burden, the surface owner is to provide evidence that there are “reasonable alternatives” available. If this is done, the trier of fact is to balance the competing interests of the operator and surface owner and determine if the operator’s use was both reasonable and necessary.
