65th Annual Rocky Mountain Mineral Law Institute

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Wednesday Evening

Registration

Special function Young Professionals Reception at The Perry House

This gathering offers young professionals and their significant others an opportunity to come together with young lawyers, landmen, and other professionals from around the country and around the world. Meet and network over drinks and hearty hors d’oeuvres, learn more about the Foundation, and discuss how the Foundation can better serve professionals in the first decade of their career. A seven minute walk from the conference center.

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Thursday Breakfast

Special function Newcomers Breakfast

For newcomers to the Foundation who would like to learn more about participating in Foundation activities, committees, and programs.

General Session - Thursday Morning

Introductions

Special Recognitions

  1. MAX MINZNER

    Partner Jenner & Block LLP, Washington, DC; former General Counsel, U.S. Federal Energy Regulatory Commission

The Future of the Modern Electricity Grid

World energy markets are in transition and the U.S. is no exception. Many active forces have combined to restructure our energy future, including state renewable portfolio standards, global and domestic decarbonization projects, coalitions to improve energy efficiency and reduce demand, regulatory requirements for enhanced resiliency and security, reinvention of the traditional utility and power grid models, private business initiatives for renewable-based power purchase arrangements, and movements for a zero carbon world. This presentation will present a macro perspective of how the U.S. electricity markets work, the catalysts impacting the ongoing metamorphosis of the grid, and how these changes will likely impact the primary source energy industries that supply electric utilities.

Hosted Refreshment Break

  1. MARCILYNN BURKE

    Dean and Dave Frohnmayer Chair in Leadership and Law University of Oregon School of Law, Eugene, OR; Former Acting Assistant Secretary for Land and Minerals Management, U.S. Department of the Interior

Anything New Under the Sun? When Voters Directly Regulate Energy and Mineral Development

Ballots for the 2018 midterm elections included a variety of measures to regulate mineral development. For example, in Colorado voters considered an oil and gas setback requirement for new infrastructure of 2,500 feet from homes, schools, playgrounds, and other “vulnerable areas.” Montanans voted on a measure to prohibit the permitting of new hardrock mines if the reclamation plan does not “contain measures sufficient to prevent the pollution of water without the need for perpetual treatment.” Alaska voters considered new permitting requirements for mineral extraction to protect salmon, and in Florida, voters saw a proposed ban on offshore drilling. The history of such ballot measures and how they have fared after they were enacted will be addressed. This presentation will discuss what this spate of measures signals for the future, how industries court public opinion to avoid referendums, whether such outreach is effective, and whether different states’ requirements for initiatives offer any lessons for the rest of the country.

  1. DEBORAH SHINBEIN HOWITT

    Director Lewis, Bess, Williams, & Weese P.C., Denver, CO

Ethical Obligations in Data Security and Breach Response

Data breaches dominate the news, with hackers regularly infiltrating businesses to obtain sensitive information. Because law firms and corporate law departments house valuable and sensitive information, they are particularly appealing targets. Law firms and in-house legal departments must be particularly alert to the risk of data breaches because they implicate lawyers’ duty to protect client information. The American Bar Association recently affirmed this duty and advised that lawyers must notify clients if a data breach occurs or is suspected, as well as meet other ethical obligations to protect client information. This presentation will describe the risks of data breaches and some common tactics used to target lawyers, and trace how data stolen during a breach can be sold on the dark web. It will then outline lawyers’ ethical obligations to prevent and respond to data breaches. This presentation will also identify the cybersecurity controls and procedures that corporate clients frequently demand (and that are required by various laws independent of ethical obligations), and discuss best practices and policies to prevent and respond to data security threats.

Thursday Lunches

Lunch – On Your Own

Special function Natural Resources Law Teachers Lunch

For full- and part-time academic faculty who would like to network with new and old friends. Cameron Jefferies at the University of Alberta Faculty of Law will explore ongoing efforts to preserve the Southern Resident Killer Whale population, and how this has been approached under Canadian and American endangered species legislation. The 2021 Natural Resources Law Teachers Institute at Asilomar also will be discussed.

Special function International Lunch

For registrants working in the international arena who would like to network with other professionals and learn more about the Foundation’s international programs and outreach efforts. Elizabeth Bastida from the Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee will discuss international issues involving the Lithium Triangle in South America.

Oil & Gas Section - Thursday Afternoon (Concurrent with International Section)

  1. David E. Pierce

    Professor and Norman R. Pozez Chair in Business and Transactional Law Washburn University School of Law, Topeka, KS

New Subsurface Property Rights in an Old Trespass World

Oil and gas operators are suing and being sued for the movement of pressure, fluids, proppants, and wellbores across boundary lines dividing connected subsurface rock structures. Courts disagree on whether such movements, within a subsurface rock structure, constitute a trespass. Courts and litigants have, however, been consistent in employing a traditional trespass analysis to these issues. This presentation examines the subsurface trespass issues regarding hydraulic fracturing, “frac hits,” injection wells, enhanced recovery operations, carbon sequestration, and wellbore placement. “Old” trespass theory is studied and contrasted with “new” correlative rights theory designed to accommodate legitimate uses of oil and gas reservoirs and other connected rock structures.

Hosted Refreshment Break

  1. STEFANIE L. BURT

    Partner Reed Smith LLP, Pittsburgh, PA
  2. SARAH P. STEWARD

    Counsel Exxon Mobil Corporation, Spring, TX

Roadblocks to Condemnation for Pipelines

With oil and gas production soaring to record levels in the U.S., the nation increasingly is seeking to expand oil and gas transportation infrastructure to accommodate new production. This presentation will include an overview of condemnation laws and examine the legal hurdles that pipeline operators may face when expanding transportation infrastructure, including legislative attempts to limit eminent domain authority, environmental and permitting obstacles, landowner challenges to eminent domain authority and access under the Natural Gas Act, increased judicial scrutiny of state laws granting eminent domain authority to pipeline operators, and uncertainty regarding the determination of compensation.

  1. SARAH MCLEAN

    Partner Shearman & Sterling, Houston and Austin, TX

Considerations for Oil and Gas Transactions Involving Private Equity Backed Buyers and Sellers

Private equity has supplied much of the capital injected into the oil and gas exploration and production sector over the last decade. These investors will typically seek to identify, acquire, operate and ultimately exit from an investment within a defined investment period. Assembling a strong management team at the front end of an investment and maximizing returns with a clean exit at the back end are two key areas of focus for a typical private equity investor, and these points often drive considerations for the counterparties in private equity deals. For example, if a new private equity backed company is the buyer, the parties must consider whether the buyer has the management infrastructure to operate, the necessary scope of the transition services agreement, and the extent to which the seller must cooperate and provide financial information to the private equity backed company after closing. If a private equity backed company is the seller, a strategic conventional purchaser should consider who will stand behind the obligations of the private equity backed seller in the purchase and sale agreement. The buyer should also consider whether an indemnity escrow and representation and warranty insurance are viable sources of recovery and, if so, be familiar with the common terms associated with these mechanisms. This presentation will identify and explore the questions a private equity backed and conventionally financed producer should consider in these transactions. 

International Section - Thursday Afternoon (Concurrent with Oil & Gas Section)

  1. MARISA BASUALDO

    Manager of Legal Affairs and Compliance Total Gas Marketing Cono Sur S., Buenos Aires, Argentina
  2. JEFF COHEN

    Partner K&L Gates LLP, Washington, DC

Transboundary Energy and Infrastructure Projects

Energy and infrastructure projects across the continent face the challenges of fluctuating political landscapes and volatile economies and must also account for technological innovation. This presentation will explore the differences between the interconnection and integration of energy markets, how development in one jurisdiction can affect the interests of the adjoining jurisdiction, and the geographical, social, and regulatory conditions for integration. It will analyze the effects of treaties governing shared resources, the legal theories used to address cross-border resource allocation issues, and innovative approaches to transboundary projects such as bidirectional pipelines and pipeline entry-exit systems.

Hosted Refreshment Break

  1. DIEGO BRIEBA

    Senior Counsel Codelco, Santiago, Chile
  2. Jaime Zaldumbide

    Partner Pérez Bustamante & Ponce, Quito, Ecuador

Government Participation in Natural Resources Projects

Joint ventures with state-owned companies and voluntary contributions to state-owned infrastructure trusts are standard elements of resource development projects in African and South American countries. This presentation will discuss current forms of government participation and the different approaches for capital contributions, including the negotiation of free carried interests and preferred contribution loans, the consequences of failing to fund contributions, and other key issues to consider with respect to joint venture compliance duties, tax planning and stability rights.

  1. RICHARD D. DEUTSCH

    Partner McGuireWoods, Houston, TX
  2. NÉSTOR JOSE RIGAMONTI

    Board Member and General Counsel Minera Santa Cruz S.A., Buenos Aires, Argentina

Stabilizing Risk: The Application of Stability Clauses to Mitigate Risk in the Mining and Energy Sectors

Uncertainty has become the norm in today’s global environment, and with uncertainty comes added risk, particularly for foreign investors in the energy sector.  Prudent investors are focusing on taking all steps possible to mitigate commercial and political risk for their international dealings. Host countries offer stabilization frameworks or the option to apply stabilization clauses to provide a measure of confidence for more risky investments. This presentation will provide an overview of the practical usage of such provisions in both a specific segment of the extractive industries and on the global stage overall. The speakers will detail the effectiveness of stabilization provisions in the mining sectors in Argentina and Peru and will then examine the treatment of freezing provisions in international energy dealings gone awry.

Hosted Reception for Registrants and Families

Special function Hosted Reception at Monterey Beach House

We’re having a beach party at the Monterey Beach House for registrants, guests, and families. Within walking distance of the downtown hotels, we’ll have indoor/outdoor facilities, tiki torches, beach bonfires, games, fun food, an open bar, and s’mores for dessert. Bring the small ones for our pizza boards. The best news of all – the Moondogs (our in-house band) will be rocking throughout the night!

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Oil & Gas Section - Friday Morning (Concurrent with Mining Section)

  1. Sarah Y. Dicharry

    Associate Jones Walker LLP, New Orleans, LA

Annual Oil & Gas Law Update

The Annual Oil and Gas Law Update will provide a summary of new and significant statutory, regulatory, and judicial developments applicable to upstream oil and gas development in the U.S. that have occurred since the 2018 Annual Institute.

  1. KYLE P. POLOZOLA

    Partner Kean Miller LLP, Lafayette, LA

Disbursing Oil & Gas Revenue – Who Pays Who When

Production is good, but paying production can be tricky. Oil and gas leases, joint operating agreements, pooling orders, and statutes all create obligations on producers, lessees, and operators to disburse proceeds. Problems often arise over who has the primary obligation for such payments. In some instances, the operator may have a duty to directly pay the lessors of even the non-operators, while in others the obligation may depend on contractual rights or arise from statutory requirements. If the operator elects or is required to pay all proceeds of production, issues of liability necessarily arise. This presentation will examine judicial decisions and state payor statutes that establish deadlines and conditions for payment. It also will consider the responsibility for disbursing oil and gas revenue on a state-by-state basis while noting how a joint operating agreement, pooling order, unleased mineral owner, or other unique situation can impact the outcome.

Hosted Refreshment Break

  1. LYNN P. HENDRIX

    Partner Bryan Cave Leighton Paisner LLP, Denver, CO
  2. PETER D. ROBINSON

    Legal Counsel Suncor Energy (U.S.A.) Inc., Denver, CO

Calling the Repo Man: Enforcing and Avoiding Liens in the Oil Patch

Regardless of the commodity cycle, operators encounter insolvent non-operators, disputes with contractors over amounts owing, and subcontractors who have not been paid by a general contractor. Most oil and gas producing states have enacted legislation that provides some level of protection to parties that claim they haven’t been paid money owed. This presentation will look at the statutory liens available in the oil patch, the circumstances under which they arise, and the extent to which they apply. It will also discuss perfection, enforcement, and potential avoidance of these liens. Finally, the presentation will address how these statutory liens relate to other liens such as tax liens, operator’s liens under joint operating agreements, and other contractual liens securing financings.

  1. Timothy C. Dowd

    Attorney Elias, Books, Brown & Nelson, P.C., Oklahoma City, OK
  2. WADE C. MANN

    Partner Crowley Fleck PLLP, Bismarck, ND

Pooling Actions by Unleased Mineral Owners and Responses by Operators

The majority of oil and gas producing states allow compulsory pooling of an unleased mineral owner into a spacing unit. After a spacing unit is created or an application for permit is granted, operators may have little incentive to acquire leases from mineral owners in a spacing unit. This presentation will identify the avenues an unleased mineral owner may utilize under a variety of scenarios, including participation in a well, self-development, the mineral owner’s grant of a lease to an affiliated entity, and protests to applications for pooling, increased density, or other regulatory permits. The presentation will discuss how an operator may respond to these actions by unleased mineral owners.

Mining Section - Friday Morning (Concurrent with Oil & Gas Section)

  1. ALEAVA R. SAYRE

    Partner Stoel Rives LLP, Minneapolis, MN

Annual Mining and Public Land Law Update

The Annual Mining and Public Land Law Update will summarize the key legislative, administrative, and judicial developments in mining and public land law since the 2018 Annual Institute. 

  1. SANTIAGO MONTT

    Vice President BHP Billiton, Santiago, Chile

Environmental Liability in Action: The Fundão Dam Failure Case

This presentation will provide an overview of environmental liability in action in the Fundão Dam failure case. It will review the legal processes initiated against Samarco and its shareholders, as well as the settlements that the companies have signed with federal and state entities, public prosecutors, and public defenders. It will also summarize the efforts developed and implemented by the Renova Foundation, the entity incorporated by Samarco, Vale, and BHP Brazil to remediate and compensate for the impacts of the Fundão Dam failure.

Hosted Refreshment Break

  1. ANELIYA S. CRAWFORD

    Partner Schulte Roth & Zabel LLP, New York, NY
  2. Fred R. Pletcher

    Partner Borden Ladner Gervais LLP, Vancouver, BC

The Barbarians Are Past the Gate: Shareholder Activism in the Resources Industries – Canadian and U.S. Trends and Tactics

In 2018, activist investor Paulson & Co. Inc. successfully overturned the majority of the board at Detour Gold Corp. after a costly and very public six-month proxy battle. Why? Shareholder activism in both the mining and oil and gas sectors has increased over the last decade, driven by investor fatigue after years of share price weakness and concerns about capital allocation, operating results, governance, and executive pay levels. As a result, more shareholders are demanding change at resource companies they perceive to have strong assets but weak boards, management, or strategic direction. This presentation will focus on the trends of shareholder activism in the resource sector in Canada and the U.S., the situations that attract activists, and the tactics (both successful and unsuccessful) that activists and resource companies have employed during recent activist campaigns.

  1. KARIN S. ALDAMA

    Partner Perkins Coie LLP, Phoenix, AZ
  2. MARY ROSE HUGHES

    Partner Perkins Coie LLP, Washington, DC; Former Deputy Assistant Secretary of State for Environmental, Health and Natural Resources, U.S. Department of State
  3. Stephanie M. Regenold

    Attorney Perkins Coie LLP, Portland, OR

We Have Insurance for This, Don’t We?

Mining is a risky business, and catastrophic events that can result in damage claims in the hundreds of millions of dollars are a reality. Companies routinely manage such risks through the use of insurance to transfer some of their potential exposure to insurers that provide coverage for claims arising out of unforeseen events. Questions arise, however, as to how much coverage is really available, whether a particular event is covered and the claim will be paid, how long it may take to get that payment, and whether coverage might be jeopardized by statements in response to the loss event. In the face of a catastrophic event, no one wants to scramble for an answer to the question “We have insurance for this, don’t we?” This panel will evaluate key issues to consider when placing an insurance program, how to deal with insurers in the event of a loss, and proactive approaches to minimizing disputes with insurers. It will also include a nuts-and-bolts discussion of how to dissect policies and avoid “traps for the unwary.”

Friday Lunches

Lunch - On Your Own

Special function Portia's Lunch

For professional women from different generations, cities, and practices, Portia's Lunch is an opportunity to meet, network, share experiences, and enjoy a presentation. Our speaker will be Marcia Hashimoto of Watsonville, California. Her parents were Japanese-Americans who had married in January 1942, one month after Pearl Harbor. In February 1942, President Roosevelt issued Executive Order 9066, which led to approximately 120,000 men, women, and children of Japanese ancestry being evicted from the West Coast of the United States and held in American concentration camps and other confinement sites across the country during World War II. Ms. Hashimoto’s parents were incarcerated in California and Colorado and her brothers were born in the camps. Ms. Hashimoto will share her family’s story.

Special function IPAA Law Committee Lunch

For IPAA members and interested professionals, presentations will explore current legal issues for producers.

Poe Leggette, Baker & Hostetler LLP, Denver will provide an update on IPAA’s role in litigation challenges to energy deregulation initiatives.

Bruce Kramer, Of Counsel, McGinnis Lochridge, Houston, will provide a legal update for Texas.

Public Lands Section - Friday Afternoon (Concurrent with Water Section and Corporate Counsel Section)

  1. HILARY C. TOMPKINS

    Partner Hogan Lovells, Washington, DC; Former Solicitor, U.S. Department of the Interior

Working with Landscape-Scale Traditional Cultural Properties

Landscape-scale traditional cultural properties (TCPs) present particularly complex issues for natural resource projects, such as oil and gas field development, mining projects, and linear infrastructure. A TCP is associated with a community’s cultural practices or beliefs and is subject to section 106 consultations under the National Historic Preservation Act. Federal agencies also must consult with any Indian tribe that “attaches religious and cultural significance to the property,” including areas located outside of reservation lands. This presentation will describe TCPs, distinguish them from other cultural resources, and discuss how landscape-scale TCPs can impact the resource development process. It will then discuss current TCP issues, such as Chaco Canyon in New Mexico, Badger-Two Medicine in Montana, and pipeline controversies with tribal nations, and provide practical suggestions for conducting effective section 106 consultation to resolve adverse effects to landscape-scale TCPs.

Hosted Refreshment Break

  1. JOHN W. ANDREWS

    Of Counsel Snell & Wilmer L.L.P., Salt Lake City, UT; Former Chief Legal Counsel, Utah School & Institutional Trust Lands Administration

State Trust Lands: Goals and Constraints

Public lands include not only federal public lands but also millions of acres managed by the western states in trust for designated purposes – typically public schools and state universities. Although state trust lands have a low public profile, through hands-on management, state lands return seven times more money to state coffers than all onshore federal public lands combined, and state land endowments now exceed $140 billion. This presentation examines state trust lands’ history and management framework, using examples from several western states, Alaska, and Texas to illustrate the challenges, opportunities, and idiosyncrasies of the various state trust land systems. This presentation will focus on how the land management goals and legal constraints relating to state trust lands differ from federal public lands, and how those goals affect both resource development and conservation opportunities (including mitigation supporting or offsetting development effects in other areas).

  1. ELIZABETH B. DAWSON

    Counsel Crowell & Moring LLP, Washington, DC

Shifting Federal Policies on Public Lands: The Promise and the Peril

With the advent of the new presidential administration in 2017 came promises of new opportunities for natural resources development on public land. The U.S. Department of the Interior has attempted to expand the use of public lands to foster energy and other natural resource development, such as through Endangered Species Act regulatory proposals, FAST Act coverage for certain infrastructure projects, revised oil and gas regulations, a Secretarial Order for National Environmental Policy Act streamlining, and a Bureau of Land Management instruction memorandum to expedite oil and gas leasing. But has dream actually become reality? This presentation will take a critical look at key policy changes from their inception through conclusion (or not), including any litigation, examining whether they have actually yielded measurable, lasting results. This discussion will also necessarily entail assessing some unexpected roadblocks, judicial and otherwise, that the administration has faced along the way. Both the setbacks and the successes provide important lessons to carry into the second half of the administration and beyond. 

Water Section - Friday Afternoon (Concurrent with Public Lands Section and Corporate Counsel Section)

  1. HOLLY DOREMUS

    James H. House and Hiram H. Hurd Professor of Environmental Regulation University of California, Berkeley, School of Law, Berkeley, CA
  2. RICHARD M. GLICK

    Partner Davis Wright Tremaine LLP, Portland, OR
  3. JENNIFER L. HARDER

    Associate Professor University of the Pacific, McGeorge School of Law, Sacramento, CA

California’s Sustainable Groundwater Management Act, the Public Trust Doctrine, and Surface and Groundwater Rights Administration

California has an infamously complex common law system for groundwater rights that has historically precluded state-level management of state groundwater resources. To prevent overdraft and avoid harm to surface waters, California’s Sustainable Groundwater Management Act (SGMA), adopted in 2014, directs local groundwater users to form planning entities and develop sustainability plans. The decision in Environmental Law Foundation v. State Water Resources Control Board, No. C083239 (Cal. Ct. App. Aug. 29, 2018) may complicate SGMA implementation in that it requires counties issuing well drilling permits to consider the feasibility of protecting public trust resources where a hydrologic connection between groundwater and navigable surface waters can be shown. The presentation will review SGMA implementation to date, the potential effect of the ELF case on SGMA, and the conjunctive administration of surface and groundwater rights. 

Hosted Refreshment Break

  1. DUANE T. MECHAM

    Senior Attorney U.S. Department of the Interior, Pacific Northwest Region, Portland, OR

Federal Reserved Water Rights in the Courts and Congress

Although more than a century has passed since the U.S. Supreme Court first established the federal reserved water rights or “Winters” doctrine, several state and federal courts continue to grapple with the full scope of these rights. The Idaho Supreme Court recently heard arguments regarding several reserved right claims for the Coeur d’Alene Tribe, including the application of the “necessity” test to tribal claims, off-reservation instream flow claims for fisheries, irrigation claims in non-arid regions, and rights to groundwater. In Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians, federal courts confirmed that the Tribe has reserved rights to groundwater in southern California, and the parties continue to litigate related issues. Meanwhile, efforts to negotiate these far-ranging claims continue, as evidenced by several historic settlements that have been approved by Congress over the past decade. This presentation will review these and other recent court developments and congressional actions, and discuss the larger implications for the reserved rights doctrine in the western states.

  1. BURKE GRIGGS

    Associate Professor of Law Washburn University School of Law, Topeka, KS

Interstate Litigation, State Reaction, and Federalism in the Age of Groundwater

Over the past decade, an unprecedented number of interstate water disputes have reached the U.S. Supreme Court, and most of them have concerned groundwater. The Court’s management and resolution of these disputes have raised important questions about the Court’s interstate jurisprudence, while producing profound effects on state groundwater law and policy. This presentation, the first RMMLF presentation on interstate litigation since 2009, covers both of these dimensions. First, it surveys the interstate cases since 2009, with particular regard to the role of the U.S., the Court’s robust approach to remedies in interstate compact disputes, and the current state of equitable apportionment. Next, it addresses the intrastate consequences of the Court’s decisions by showing how state agencies, state courts, and local water districts have reacted to the Court’s decisions and reconceived the regulation of interstate water supplies. The presentation concludes with a critique of the current state of water federalism across interstate basins—especially those where groundwater dominates.

Corporate Counsel Section - Friday Afternoon (Concurrent with Public Lands Section and Water Section)

  1. TRACY K. HUNCKLER

    Partner Day Carter & Murphy LLP, Sacramento, CA
  2. Carlin A. Yamachika

    Partner Day Carter Murphy, Sacramento, CA

Ethics for In-House Counsel: Best Practices for Establishing (and Maintaining) Attorney-Client and Work-Product Privileges in an Electronic World

Business units may not always appreciate the importance of protecting the attorney-client privilege or the limits of the attorney work-product doctrine. This presentation will examine the scope of these privileges and discuss best practices to maintain them, particularly in the electronic world, where sending a quick email or text may unintentionally waive a privilege. The presentation will discuss the Model Rules of Professional Conduct (including those that relate to e-discovery), survey existing law, and describe, using real-life examples, some practical communication strategies to protect privileged communications, including electronic communications. This presentation will also describe how in-house counsel’s varied roles and responsibilities within their companies may impact the attorney-client privilege and attorney work-product doctrine. 

Hosted Refreshment Break

  1. AMY FLAKNE

    General Counsel Aspect Holdings, Denver, CO
  2. ALLISON KOSTECKA

    Associate Gibson Dunn & Crutcher LLP, Denver, CO
  3. WENDY YU

    Assistant General Counsel and Assistant Corporate Secretary Centerra Gold Inc., Toronto, ON

Something to Talk About? Public Company Disclosure Obligations for Natural Resources Projects

Companies subject to U.S. or Canadian securities laws, or both, can face special challenges when long-term mining, oil and gas, or other energy projects encounter unexpected obstacles such as budget changes, delays, or permitting issues. For example, U.S. securities laws do not require continuous or instantaneous disclosure of information in between quarterly or annual reports, but the U.S. Securities and Exchange Commission’s regulations require companies to more frequently disclose certain “triggering events” on a Form 8-K. Whether or when an event qualifies as a “triggering event” is not always clear. Yet the consequences for not disclosing information required by the various securities regulations can be severe, including the initiation of costly and time-consuming securities fraud or insider trading litigation. This presentation will offer practical guidance on navigating U.S. and Canadian disclosure requirements for publicly traded oil and gas and mining companies.

  1. SARAH A. STRUNK

    Chair of the Board of Directors Fennemore Craig, P.C., Phoenix, AZ

Corporate Audits and Investigations

Companies may engage in a variety of internal audits and investigations beyond the financial audit, such as environmental audits, human resource audits, and ethics or corruption investigations. These audits are important for good corporate governance and essential to ensure compliance with laws, policies, and standards. This presentation will describe the various audits and investigations that a company may conduct voluntarily or be forced to conduct, and will consider the differences in the privileges, confidentiality, work product, joint defense agreements, and benefits associated with each type of audit and investigation.

Special function In-House Counsel Reception (Limited to in-house counsel, in-house landmen, and their families)

Beginning immediately after the Corporate Counsel Section on Friday afternoon, a reception including beverages and hor d’oeuvres just for in-house counsel, in-house land professionals, and their families. No charge, but please note the number of people on the registration form.

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Environmental Section - Saturday Morning (Concurrent with Landman's Section)

  1. SHANISHA Y. SMITH

    Associate Baker & Hostetler LLP, Houston, TX

“Winter Is Coming!”– Annual Environmental Law Update

Who will take the Environment Throne of the Seven Sectors? House of Water? House of Air? House of Climate Change from The North? House of Renewables? House of Power? House of Wildlife? Or the House of Executive Office? The Environmental Law Update will summarize the key legislative, administrative, and judicial developments in environmental law since the 2018 Annual Institute. This presentation will examine the recent environmental law developments impacting oil and gas and mining companies and discuss their significance.

  1. ANA MARIA GUTIÉRREZ

    Senior Associate Hogan Lovells US LLP, Denver, CO
  2. DALE RATLIFF

    Associate Lewis, Bess, Williams & Weese, P.C., Denver, CO

NEPA and the Case of Climate Change: An Analysis of the Climate Change Considerations Required to Satisfy NEPA in Energy and Infrastructure Projects

Climate change currently sits at the forefront of environmental law, policy, and federal decision-making. The National Environmental Policy Act (NEPA) requires federal agencies to meaningfully consider the environmental impacts of their decisions. And over the past decade, federal courts and agencies have made it clear that climate-change impacts fall “squarely within NEPA’s focus.” But the question still vexing both federal agencies and the courts is how to incorporate climate-change considerations into the NEPA process in a meaningful way. The Trump administration’s decision to rescind the Council on Environmental Quality’s 2016 guidance on the consideration of climate change has put this issue squarely back in the hands of the courts. And in response to recent challenges to energy and infrastructure projects, courts have continued to expand the analysis required under NEPA to include not only a project’s direct greenhouse gas emissions, but also the downstream use of energy produced from or transported by the proposed project. This presentation will explore and examine the developing law of the appropriate level of climate-change considerations required to satisfy NEPA’s purpose of informed decision-making.

Hosted Refreshment Break

  1. RANDALL KULHANEK

    Platform Manager DTE Energy, Detroit, MI
  2. ALI MOSTAFAVI

    Assistant Professor, Zachry Department of Civil Engineering Texas A&M University, College Station, TX
  3. RYAN STOA

    Associate Professor Concordia University School of Law, Boise, ID

How Regulated Entities Adapt to Environmental Regulatory Change and Uncertainty

Regulatory change particularly impacts the energy and resources sectors because the scope and scale of project-level planning and management are broad and changes to these processes can be highly disruptive. No commonly accepted best practices to respond and adapt to regulatory change have been identified for these sectors. This presentation will discuss the results of research conducted by the Construction Industry Institute into how regulated entities have adapted to changes in the federal regulation of greenhouse gas emissions by electric utilities and other infrastructure entities. The presentation will also identify best practices and lessons learned, such as risk assessment, mitigation and implementation plans, engagement with regulators, and other practical strategies that can assist the regulated community in navigating future regulatory change.

  1. H. MAX KELLN

    Partner Faegre Baker Daniels LLP, Indianapolis, IN

Ethics in Spill and Release Reporting

Responding to an emergency spill or release can be one of the most difficult environmental issues a facility will face. Whether and when to report a spill or release to federal, state, or local environmental or emergency response agencies is a complex legal and business determination. This presentation will discuss when and to what extent in-house and outside attorneys, consultants, company officers, and environmental health and safety professionals have independent ethical and legal obligations to report a spill or release over the objections of their client or company management. This presentation will focus in particular on potential reporting obligations under the Model Rules of Professional Conduct and related ethics decisions. The criminal, civil, and professional liabilities attendant to a failure to report such a spill or release will also be described. 

Landman's Section - Saturday Morning (Concurrent with Environmental Section)

  1. CELIA C. FLOWERS

    Partner Flowers Davis, P.L.L.C., Tyler, TX

Where Is the Original? How Do Electronic Signatures, Online Notaries, and E-Recording Change Our Record Driven Industry?

In the traditionally paper-intensive industries of oil and gas and real estate, old school paper trails are being replaced with electronic signatures, recordings, and acknowledgments. While the federal act recognizes electronic signatures, many states have adopted specific electronic signature and other technology-driven acts affecting execution and recording that may differ without common law interpretation regarding their legal effect. This presentation will discuss technology-driven model acts, including the Uniform Electronic Transactions Act and the Uniform Real Property Electronic Recording Act. It will identify the states that have adopted technology-driven acts with emphasis on the new remote online notary, examine how these laws impact contracts and conveyances, and identify the risks and advantages of relying on electronic signatures, online notaries, and recorded scans.

Hosted Refreshment Break

  1. JOHN M. SMITH

    Member Smith Butz, LLC, Canonsburg, PA

From Litigation to Leasing: How Pennsylvania’s Developing Oil & Gas Legal Landscape Shapes the Lessor Perspective

Pennsylvania is now the second largest natural gas producer in the U.S. Its lessor residents have a better understanding of the leasing process and are represented by increasingly sophisticated legal counsel. The ever-changing legal backdrop of Pennsylvania’s statutory provisions and case law has both emboldened and diminished lessor requests and allowed lessors to negotiate unique provisions not common in other parts of the country. This presentation from the lessor perspective will reveal how oil and gas jurisprudence shapes what lessors want during lease negotiations. It will discuss the lessor concerns inherent in an oil and gas lease, why these concerns exist, and how lessors want their concerns addressed. In particular, this presentation will examine lease clauses addressing unitization, held-by-production, royalty deductions, and surface protections, among other topics, and highlight those provisions that may become more prevalent outside Pennsylvania.

  1. DAVID B. HATCH

    Associate Holland & Hart, LLP, Salt Lake City, UT

Quiet Title Actions as an Effective Curative Tool

Landmen and title examiners often face the daunting task of determining ownership where title is muddled by issues such as multiple missing probates or where the owner of record is a defunct entity. In response, landmen and their attorneys have increasingly used quiet title actions to confirm title in the current owners. Yet a quiet title action may not always be the most effective curative tool. This presentation explains the risks of quiet title actions, illustrates when they might be a last resort, and suggests more appropriate curative measures when they are not. Furthermore, it will provide practical solutions for curing title for landmen, title attorneys, and other title examiners, including the use of multiple-estate probate, corporate dissolution statutes, compulsory pooling, and unlocatable property statutes.

Adjournment

Adjournment

Optional Workshop for Natural Resources Law Teachers

Special function Natural Resources Law Teachers Workshop (OPTIONAL)

Request for Submissions

The 3rd Natural Resources Law Teachers Workshop, held in conjunction with the Annual Institute in Monterey, will follow the final session on Saturday, from 12:30 pm to 6:00 pm. The Workshop's objective is to encourage the work of scholars in the fields of natural resources law and policy. Presenters are welcome to present abstracts, partial, or full papers. Those wishing to participate by providing feedback on presented works are also welcome to attend. The goal of the Workshop will be to provide helpful feedback on works-in-progress, in addition to building relationships and increasing the sense of community among natural resource law scholars.

Please contact Professor Monika Ehrman, University of Oklahoma College of Law, at mehrman@ou.edu for more information or to submit a paper or abstract.