66th Annual Rocky Mountain Mineral Law Institute

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Wednesday Evening

Registration

General Session - Thursday Morning

Introductions

Special Recognitions

  1. MARK FINLEY

    Fellow in Energy and Global Oil Baker Institute for Public Policy, Rice University, Houston, TX

Energy Security and the Energy Transition

Policymakers and companies around the world are grappling with how to understand the implications of an energy system in transition—and if they aren’t, they should be. In addition to geopolitical risk, reliability of energy supplies has been threatened by factors ranging from weather events to terrorist activities, industrial accidents, and cyberattacks. The recent attack on Saudi oil facilities, hurricanes on the Gulf Coast, and high winds and wildfires in California have brought energy security once again into the global headlines. The U.S. and its allies have spent the past 50 years building a robust domestic and international response system to mitigate risks to oil supplies, but similar arrangements for other energy forms remain limited. This presentation will describe the speaker’s recent paper, which offers a framework for assessing energy security based on an evaluation of vulnerability, risk, and offsets. This approach has been a useful tool for assessing oil security for the past 50 years and can be relevant for assessing energy security in a system in transition.

Hosted Refreshment Break

  1. DAVID B. SPENCE

    Baker Botts Chair in Law University of Texas at Austin School of Law, Austin, TX

OK Boomer! - The Children’s Trust Suit and Other Trends In and Beyond Climate Change Litigation

Let’s forget the U.S. campaign trail and Congress—please!? The real, and somewhat stealth, action is in the courtroom. Stymied by federal policy inaction, climate change advocates are pushing a growing list of lawsuits blaming large oil companies and the government for the planet’s predicament. Even if such suits are long shots, rest on unproved legal theories, and lose in court, they are influencing public opinion and lawmakers and putting pressure on defendants. Cases such as the fraud lawsuit by the New York Attorney General alleging ExxonMobil misled investors on its handling of climate-change costs (the Massachusetts Attorney General has filed a similar lawsuit), the Children’s Trust lawsuit (losses in a similar state court suit led to changes in Colorado law), and state law tort lawsuits are proliferating. Also somewhat under the radar, the Sierra Club is pushing the retirement of coal-fired power plants in state public utility dockets throughout the country. This presentation will outline these lawsuits and their direct and indirect effects.

  1. PAULA HOWELL ANDERSON

    Partner Shearman & Sterling, New York, NY
  2. PHILIP UROFSKY

    Partner Shearman & Sterling, Washington, DC

Beware! Whistleblowers, Wolves, and Lambs-Navigating Ethical Landmines in Global Investigations

Whistleblowers in the news are a good reminder that allegations of wrongdoing may come to a company’s attention through many avenues, including both publicly and internally. In the extractive industries, issues may arise regarding compliance by the company, its employees, agents, consultants, and business partners with environmental and resource protection laws, as well as anti-corruption, sanctions, and anti-money laundering laws and regulations. This presentation will address the steps companies should take once they become aware of such allegations, including the pitfalls they may encounter when there is a whistleblower involved, the relevance of the Model Rules of Professional Conduct to the conduct of the investigation, and the role of executives, the Audit Committee, and the Board in overseeing any internal investigation and interactions with the government, including whether or not to make a voluntary self-disclosure.

Thursday Lunches

Lunch – On Your Own

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. Rich Haddock, General Counsel of Barrick Gold Corp., will discuss the settlement of the disputes between the government of Tanzania and Acacia Mining. 

Special function Natural Resources Law Teachers Lunch

For full- and part-time academic faculty who would like to network with new and old friends. Jason Anthony Robison, University of Wyoming College of Law, will discuss “Decolonizing Colorado River Governance.” The 2021 Natural Resources Law Teachers Institute at Asilomar also will be covered.

Special function Oil & Gas Practitioners Lunch Co-Sponsored by IPAA and API

For all oil and gas practitioners, presentations will explore current legal issues for producers.  

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

  1. AUSTIN BRISTER

    McGinnis Lochridge, Houston, TX

Oil and Gas Law Update—Texas and the West

This Oil and Gas Law Update will summarize the key legislative, administrative, and judicial developments in oil and gas law in Texas and the western U.S. since the 2019 Annual Institute.

  1. JOSEPH A. SCHREMMER

    Assistant Professor and Leon Karelitz Oil & Gas Law Professor University of New Mexico School of Law, Albuquerque, NM

Peering into the Crystal Ball – What Will the Next 10 Years Hold for Oil and Gas Law

This presentation will explore the emerging oil and gas legal topics most likely to dominate the next decade, as identified by a survey of oil and gas law professors and practitioners from around the country. These topics include pore space and related injection rights and liabilities; ownership rights and liabilities in produced water; competing surface uses in a changing statutory and energy landscape; the shifting focus of conservation law from waste and correlative rights to environmental protection; and questions of eminent domain and takings brought on by changes in property rights, conservation regulation, and popular attitudes about oil and gas development and infrastructure. For each topic, the speaker will describe the likely issues and their historical and legal backgrounds, synthesize relevant precedent and scholarship, and propose an analytical framework for resolving the issues. In analyzing these topics, the presenter will identify themes and connect seemingly novel issues to the property, contract, and tort underpinnings of oil and gas law.

Hosted Refreshment Break

  1. Nicolle R. Snyder Bagnell

    Partner Reed Smith LLP, Pittsburgh, PA
  2. MARK C. RODRIGUEZ

    Partner Partner, Beck Redden LLP, Houston, TX

Affiliate Transactions in Royalty Litigation – Don’t Judge a Lessee by Its Relatives

With the current focus in both single plaintiff and class action oil and gas cases on whether lessors are receiving the correct amount of royalties, the concept of affiliate transactions—for both the sale of oil and gas and the amount paid for post-production activities—has been given closer scrutiny. This presentation will examine how the simple fact that a deal is done with an affiliate impacts the analysis by the courts; the scope of the meaning of “affiliate,” and the effect in various jurisdictions of affiliate transactions on the scrutiny given to the calculation of royalties. The speakers will provide an update on the existing case law, pending litigation, and practical advice as to drafting considerations, royalty calculations, and negotiated solutions.

  1. LAWRENCE A. HALL

    Partner Partner, Baker Botts L.L.P., Dallas, TX
  2. GERRY MORTON

    General Counsel; VP of Business Development Carrizo Oil & Gas, Inc., Houston, TX
  3. JEFFREY A. ZLOTKY

    Partner NGP Energy Capital Management, LLC, Dallas, TX

Water in the Desert – Alternative Means for Raising Capital for Cash Starved Exploration and Production Companies

In the age of unconventional resources, successful oil and gas producers must continually drill and complete new wells to keep ahead of the decline curve and replace reserves. All of this drilling makes oil and gas production one of the most capital intensive industries, requiring $100s of billions of new capital annually. But in today’s market, Wall Street has seemingly abandoned the industry, pressuring producers to reduce their capital spending and pay dividends while simultaneously chastising them for failing to replace production. At the same time, many large oil and gas lenders are lowering their expectations for oil and gas prices and tightening their lending criteria. Where is a producer to turn for capital? This presentation will discuss various alternative transaction structures for raising cash, including participation agreements, farmouts, net profits interests, term overriding royalty interests, and “drillcos,” where the investor enters into an agreement to fund drilling operations for a certain number of wells in exchange for a working interest. The panel will discuss the motivations of the investor in these various structures, and the advantages and disadvantages and key contract and legal considerations for the operator.

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

  1. Oscar Benavides

    Partner Rodrigo, Elias & Medrano Abogados, Lima, Peru
  2. Erik Goldsilver

    Partner Borden Ladner Gervais LLP, Toronto, ON
  3. LUIS E. LUCERO

    Partner Marval, O’Farrell & Mairal, Buenos Aires, Argentina
  4. France Tenaille

    Partner Gowling WLG, Toronto, ON

Investment Driven Due Diligence for International Mining Projects

Companies pursuing investments in exploration and mining in foreign jurisdictions face the daunting front-end task of evaluating advisability and feasibility, often within the context of unfamiliar political, economic, and social regimes. In-house and outside counsel often assume the substantive burden of advising company management on issues such as fiscal and foreign investment laws, anti-corruption legislation, the equator principles, the existence and provisions of bilateral investment treaties, tax and tax stabilization issues, political and expropriation risks, and other considerations. The paper accompanying this presentation will capture and summarize the major investment factor-driven due diligence requirements for pursuing projects in foreign jurisdictions and offer practical insights on the means of obtaining such international due diligence information. This panel of experienced practitioners will give their perspectives on various parts of the checklist.

Hosted Refreshment Break

  1. NATALIE L. REID

    Partner Debevoise & Plimpton, New York, NY
  2. BERGLIND HALLDORSDOTTIR BIRKLAND

    Member Debevoise & Plimpton, New York, NY

Record-Breaking International Arbitration Awards—Is International Arbitration an Effective Remedy?

In July 2019, Antofagasta Minerals and Barrick Gold announced that the World Bank’s International Centre for Settlement of Investment Disputes had issued a $5.8 billion arbitration award to their joint venture company Tethyan Copper Company Pty Limited (“TCC”), against the Islamic Republic of Pakistan, arising from the denial of a mining lease for the world-class Reko Diq project. Using the TCC arbitration and other prominent mining arbitrations as case studies, this presentation will examine the extent to which international arbitration can serve as an effective remedy for adverse actions by a host government. The speakers will provide a practical overview of key issues in investor-state mining arbitrations, including strategic considerations before and during a dispute, the duration, cost, and potential funding sources for international arbitration, the challenges of valuation, and enforcement.

  1. W. Martin Añez Rea

    International Consultant DRLAbogados, Madrid, Spain
  2. PETR POLÁŠEK

    Partner White & Case LLP, Washington, DC

Protecting Mining Investments Against Government Interference—An Investment Treaty Perspective

When a project is impaired or expropriated by the conduct of State authorities of a foreign host country, obtaining an effective remedy against the host State in an impartial forum can be a significant challenge. Experience shows that treaties for the protection of foreign investment are among the few viable options available to companies and investors in such circumstances, including by way of an internationally enforceable arbitration award of monetary damages. This presentation will provide an overview of the protections typically provided to investments and projects by investment treaties and the related remedies, including investor-State international arbitration. The presentation will use real-life examples, such as the successful $740 million investment treaty claim by the Canadian gold mining company Gold Reserve against Venezuela concerning the Brisas gold and copper mining project, and the successful $48.6 million investment treaty claim by the Chilean ulexite mining company Quiborax S.A. against the Plurinational State of Bolivia. The presentation also will discuss considerations relating to the structuring of mining investments so that they qualify for protection under investment treaties.

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

  1. Robin Kundis Craig

    James I. Farr Presidential Endowed Professor of Law S.J. Quinney College of Law, University of Utah, Salt Lake City, UT
  2. WENDY BOWDEN CROWTHER

    Partner Parsons Behle & Latimer, Salt Lake City, UT
  3. MARCELLE F. SHOOP

    Director National Audubon Society, Salt Lake City, UT

The Great Salt Lake and Its Wetlands—Protecting a Challenged Resource

The Great Salt Lake is the largest saltwater lake in the western hemisphere. Its ecosystem supports a huge array of species, including more than 7 million migratory birds, and the lake and its wetlands generate more than $1.32 billion annually from recreational, industrial, and other activities. Nevertheless, the lake and its wetlands face potential destruction as a result of water diversions, climate change, drought, and changes in salinity. This presentation will provide background and an overview of water-related challenges facing the Great Salt Lake and its wetlands. The panel will take a deep dive into the lake’s declining water supply, exploring climate impacts, hydrology, water demand, and water law and policy. The panel will explore various ways these issues are being, or might be, addressed, including the implications of Utah’s evolving public trust doctrine, application of prior appropriation to the lake and its tributaries, and other new or existing policy or management approaches.

Hosted Refreshment Break

  1. ANNE CASTLE

    Senior Fellow University of Colorado Law School, Boulder, CO

Drought Contingency Planning in the Upper Colorado Basin

In the spring of 2019, the Department of the Interior, Bureau of Reclamation, and representatives from all seven Colorado River Basin states executed drought contingency plans (DCPs) for the Upper and Lower Colorado River basins to address ongoing low flows and overuse in the system. This presentation will provide an overview of the DCPs focusing particularly on the Upper Basin plans, and explore the reach of the solutions the parties have crafted for dealing with drought and the gaps remaining. Opportunities and challenges for the next set of operating guidelines for the river will also be explored. The session will complement the Colorado River panel at the first Annual RMMLF Water Law Conference that will be held in November 2020 in San Diego, which will discuss a broad assortment of contemporary issues for the Colorado River overall.

  1. JEFF B. KRAY

    Partner Marten Law LLP, Seattle, WA

America Confronts PFAS Contamination

Per- and polyfluorinated substances (PFAS) are a group of man-made chemicals that have been manufactured and used around the globe, including in the U.S., since the 1940s. PFAS is a key component in well-known products such as Teflon, Gore-Tex, and ScotchGuard. Various industries, including the oil and gas industry, use chemicals linked to PFAS, including aqueous film forming foam fire suppressant spray, hydraulic oils, and surfactants. PFAS are being detected in community water supplies and there is evidence that exposure to PFAS can lead to adverse human health effects. PFAS regulation is emerging at both the state and federal level, including congressional appropriations to establish maximum contaminant levels for PFAS under the Safe Drinking Water Act and to designate PFAS chemicals as hazardous substances under CERCLA. This presentation will provide background on PFAS and where these chemicals might appear and contaminate water in industry operations. The speaker will then discuss efforts to regulate PFAS and evaluate the main proposals under discussion.

Hosted Reception – For Registrants and Families

Special function Hosted Reception for Registrants and Families at Grand America

Join us for hors d’oeuvres, drinks, and networking. Bring the family! We’ll have magicians, face painters, balloon artists, and fun food for the smaller ones.

Sponsored Reception/Family Event – Child Under 13

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Oil & Gas Section (con't) - Friday Morning (Concurrent with Mining Section)

  1. MEGAN S. HAINES

    Counsel McGuireWoods, Pittsburgh, PA

Oil & Gas Law Update - Louisiana and the East

This Oil and Gas Law Update will summarize the key legislative, administrative, and judicial developments in oil and gas law in Appalachia and Louisiana since the 2019 Annual Institute.

  1. AMY E. SENESHEN

    Managing Partner Welborn Sullivan Meck & Tooley, P.C., Denver, CO
  2. DAVID SENESHEN

    President Geochemical Insight, Denver, CO

The Race for Helium and Why It Matters

“Liquid helium is a quiet engine of American research and business. It is essential to a broad range of technologies, from cutting-edge quantum computing to M.R.I. scanners in hospitals. . . . In short, it is crucial to innovation.” Dr. Joseph DiVerdi, NY Times Op-Ed (Sept. 4, 2019). Yet the Helium Stewardship Act of 2013 directed the closure of the BLM-managed Federal Helium Reserve, the world’s only helium storage facility, by 2021. Helium supply disruptions have resulted in sky-high helium prices. Pursuant to Executive Order No. 13817, the USGS identified helium as one of 32 minerals deemed critical to U.S. national security. This presentation will discuss the exploration, geotechnical, and production issues related to helium, including where helium resides and accumulates, exploration tools to find helium, and how helium is produced. The presentation will also examine the legal issues related to helium, including federal statutes, regulations, and policies that govern helium, and state and fee lease provisions that address helium.

Hosted Refreshment Break

  1. CHRISTOPHER RICHARDSON

    Partner Davis Graham & Stubbs LLP, Denver, CO

Going Once, Going Twice – How to Survive (and Thrive) in a Bankruptcy Sale of Oil and Gas Assets

Courts across the country are seeing an uptick in bankruptcy filings in the oil and gas industry—a trend that is expected to continue given current commodity pricing and regulatory pressures. Increasingly, these bankruptcies result in a sale of all of the debtor’s assets, either through a public auction and Section 363 sale or through a plan of reorganization. These sales impact every segment of the industry, from operators to mineral interest owners to service providers to taxing authorities. Whether you are a buyer looking to acquire an asset “free and clear,” a vendor hoping to get paid from sale proceeds, or a local government wondering what the future holds, bankruptcy sales bring both pitfalls and opportunity. This presentation will walk through the key issues that each constituency—debtors, lenders, buyers, operators, interest owners, service providers, governments—must understand and demonstrate how to maximize your position at each step of a dynamic bankruptcy sales process.

  1. BYRON C. KEELING

    Founding Shareholder Keeling & Downes, P.C., Houston, TX

Exculpatory Clauses for Operators – When Do They Apply and What Do They Mean?

Exculpatory clauses are common in JOAs and other types of oil and gas contracts. Commonly, these clauses specify that the operator is liable only for losses that result from “gross negligence” or “willful misconduct.” Exculpatory clauses have been the subject of significant litigation, some of which has raised the question of whether such clauses even apply. Depending on their terms, exculpatory clauses may apply only to an operator’s operational decisions, or if phrased broadly, may apply to all of an operator’s decisions, including accounting, management, or marketing decisions. Other litigation has raised the question of what is “gross negligence” or “willful misconduct.’” A few courts have suggested that those terms are synonymous and require some element of subjective intent; others have held differently. A surprising number of states have not yet addressed the issue in an oil and gas context. This presentation will survey the case law on exculpatory clauses and discuss both the circumstances in which they apply and the meaning of the terms “gross negligence” and “willful misconduct.”

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

  1. JASON STEIERT

    Associate Parsons Behle & Latimer, Salt Lake City, UT

Annual Mining and Public Land Law Update

This Annual Mining and Public Land Law Update will summarize the key legislative, administrative, and judicial developments in mining and public land law since the 2019 Annual Institute.

  1. NAVIN JONEJA

    Partner Blake, Cassels & Graydon LLP, Toronto, ON
  2. ALMIRA MORONNE

    Associate Davis Graham & Stubbs LLP, Denver, CO

Unearthing the Impacts of U.S. and Canadian Foreign Investment Restrictions on the Natural Resources Industries

The U.S. and Canada are close trading partners, but when it comes to foreign investment, each country’s government is committed to prioritizing its own national interests. In recent years, both governments have exhibited heightened concern over the national security implications of foreign investment, including in natural resources. Under the U.S. Defense Production Act (DPA) and the Investment Canada Act (ICA), the respective federal government conducts national security reviews of foreign investment transactions across sectors. Amendments to the DPA that took effect in February 2020 dramatically expanded the scope of review to include, among others, foreign acquisition of real estate on public lands and investment in large-scale oil and gas operations. On the northern side of the border, the ICA can require a net benefit to Canada review, a national security review, or both. This presentation will spotlight some of the major concerns and procedural pitfalls associated with foreign investment reviews under the DPA and the ICA, as well as case studies that elucidate each government’s priorities and practitioners’ tips for navigating the transforming regulatory landscape.

Hosted Refreshment Break

  1. Alexandra B. Klass

    Distinguished McKnight University Professor University of Minnesota Law School, Minneapolis, MN

Energy Transition and Mining – Reconciling Renewable Energy Growth with the Need for New Mineral Development

Spurred by growing climate change concerns, governments and organizations around the world are calling for the transition and transformation of the energy sector away from continued fossil fuel extraction and toward increased use of renewable energy resources such as solar and wind. But another extractive industry is potentially critical to this transition, if it is to occur: solar panels, wind turbines, and energy storage batteries all require minerals, including cobalt, nickel, copper, lithium, and rare-earth elements. However, new mines in North America often face significant opposition and permitting challenges due to environmental concerns that can delay their construction, if they are built at all. Moreover, minerals such as cobalt and nickel are primarily sourced from certain developing countries that raise concerns over human rights abuses and adverse environmental impacts. This presentation will examine issues related to the need for minerals in the renewable energy transition, including the role of new technology and recycling, impacts of relying on imports, legal and political challenges associated with new mines, and potential solutions.

  1. Andrew C. Lillie

    Partner Hogan Lovells U.S. LLP, Denver, CO
  2. ELIZABETH A. OCH

    Senior Associate Hogan Lovells US LLP, Denver, CO

Growth of Environmental, Sustainability, and Governance Policies and the Push for Ethical Mineral Supply Chain Management

Responsible mineral sourcing is becoming a significant issue for the natural resources industry as companies such as Apple, Google, HP, Intel, and other major multinational corporations implement strategic initiatives to ensure that human rights and the environment are monitored and protected throughout their mineral supply chains. This presentation will explore provenance issues, the development of Environment, Sustainability, and Governance (ESG) program provisions tailored to supply chain integrity, and the legal underpinnings of socially responsible citizenship of companies that extract and process minerals. It also will examine current ethical mineral supply chain management, including the use of new technologies, such as blockchain-enabled and artificial intelligence solutions, to improve security and human rights conditions in mineral supply chains. Finally, it will discuss the legal and other issues that mining companies are facing in their efforts to demonstrate ethical and contractual compliance with mineral supply chain management requirements and protocols.

Friday Lunches

Lunch - On Your Own

  1. KARRA PORTER

    Attorney Utah Cold Case Coalition

Special function Portia's Lunch Co-Sponsored by the Women's Energy Network

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 Karra Porter, founder of the Utah Cold Case Coalition, who will speak on why cases go cold and how this organization tries to tackle some of the hundreds of thousands of unsolved deaths and disappearances in the U.S.

SPONSOR A STUDENT to attend this lunch and help young women students meet and network with potential mentors and future colleagues. See the registration form for ordering information.

Special function Portias Lunch Student

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

  1. SHARON BUCCINO

    Senior Attorney and Director Natural Resources Defense Council, Washington, DC
  2. LINDA M. BULLEN

    Attorney Bullen Law, LLC, Las Vegas, NV

An Impending Train Wreck – The Conflict Between Agency Streamlining Priorities and Eroding Agency Deference

Streamlining of the National Environmental Policy Act (NEPA) and other federal agency review processes has been discussed for many years under both Democratic (remember the American Reinvestment and Recovery Act, “Fast-Track” Renewable Energy Projects, FAST Act?) and Republican administrations (DOI Secretarial Order 3355, anyone?) to expedite or better manage unwieldy reviews. At the same time, courts are trending toward less agency deference. Is this a train wreck waiting to happen? This presentation will evaluate recent court decisions and trends and evaluate the streamlining revolution in light thereof.

Hosted Refreshment Break

  1. SARAH ROUBIDOUX LAWSON

    Of Counsel Schwabe Williamson & Wyatt, Seattle, WA

Tribal Sovereignty – Recent Developments and Implications for Mineral and Energy Development in Indian Country

Recent court decisions involving tribal sovereignty and tribal sovereign immunity may have broad impacts on mineral and energy development in and near Indian reservations. These include the Ninth Circuit’s decisions in Dine Citizens Against Ruining Our Environment v. Bureau of Indian Affairs, (dismissal of NEPA, ESA, and APA challenges to a 25-year extension of the operation of the Four Corners Power Plant and an expansion of the coal mine that feeds the plant on tribal sovereign immunity grounds), and FMC Corp. v. Shoshone-Bannock Tribes (tribe had environmental regulatory and judicial jurisdiction over a non-member mining company for activities on fee land within the reservation). Other key decisions include the Eighth Circuit’s decision in Kodiak Oil & Gas (USA) Inc. v. Burr and the Tenth Circuit’s decision in Navajo Nation v. Dalley. This presentation will discuss these recent decisions and their potential impact on energy and mineral development in and near Indian Country.

  1. JIM BUTLER

    Partner Parsons Behle & Latimer, Reno, NV
  2. ROY W. FULLER

    Attorney-Advisor Office of the Solicitor, U.S. Department of the Interior, Washington, DC (invited)

Public Lands and the Mining Law of 1872 – Courts Revisit Dumps, Tailings, and Ancillary Uses

Mines have always needed land for waste rock and tailings storage facilities. Federal surface management regulations specifically address the construction, operation, reclamation, and closure of these mine components on public land. In 2001, a Department of the Interior Solicitor’s Opinion questioned whether a mining claim validity determination was a prerequisite to approval of ancillary facilities in a mine plan. The opinion was withdrawn, but the issue has resurfaced in a challenge to BLM’s rules in DC federal district court, Earthworks v. U.S. Department of the Interior, and in challenges to specific mine plan approvals. After being rejected in previous administrative appeals and litigation, the argument found new life in 2019 in Center for Biological Diversity v. United States Fish and Wildlife Service, in which an Arizona federal court reversed U.S. Forest Service approval of support facilities for the Rosemont Copper Project. This paper updates prior institute papers on this topic, examines the current status of the law, and describes measures that could provide reasonable access for mining and eliminate future uncertainty and controversy.

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

  1. KATHRYN CAMERON ATKINSON

    Chair Miller & Chevalier, Washington, DC

Building and Implementing an Effective Anticorruption Compliance Management Program

Government ownership and regulation of natural resources mean that resource companies face corruption risks in nearly all aspects of their operations, from market entry through exploration, development, production, and distribution. Anticorruption enforcement in the U.S. and, increasingly, abroad has risen steadily over the last two decades and continues to push the compliance bar higher. How would your company’s anticorruption compliance program hold up to government scrutiny? What does an effective, risk-based program look like, and how do you defend your risk analysis and resource allocation decisions after a problem arises? How do compliance policies and internal accounting controls fit together, and how does your company culture affect how closely they are followed? This presentation will explain current U.S. and foreign enforcement expectations and compliance guidance and will offer practical recommendations on how to create and sustain an anticorruption compliance program that is nimble, effective, and integrated into business operations.

Hosted Refreshment Break

  1. AMY ABDO

    Director Fennemore Craig, Phoenix, AZ
  2. Rob Risley

    Counsel Freeport-McMoRan Inc., Phoenix, AZ
  3. LUIS SARABIA

    Partner Davies Ward Phillips & Vineberg LLP, Toronto, ON

Challenges to Enforcing Confidentiality Agreements in the Information Age

Businesses use confidentiality agreements (CAs) in many contexts, and they are a critical step in putting together a mineral property transaction. But do they really work as more than a psychological deterrent? This presentation will highlight issues plaintiffs face when asking courts or arbitrators to enforce CAs. These include issues that are essential to enforceability, the types of relief plaintiffs can expect, whether plaintiffs are ever entitled to money damages, the limitations that apply to injunctive relief, and when CAs might conflict with public policy. The speakers will also discuss the practical limitations to CA enforcement—identifying the breaching party, attributing representative breach to a CA party, anticipatory breach, and the inevitable disclosure and protectable interest doctrines. The presentation will also explore common law and other confidentiality obligations such as trade secret doctrine, unjust enrichment, and unfair competition law.

  1. MARCELLA BURKE

    Partner King & Spalding LLP; former Deputy Solicitor for Energy and Natural Resources, U.S. Department of the Interior, Washington, DC and Houston, TX

Crisis Management in Energy Transition – the Ethical Implications

Are you as an in-house counsel prepared for a high-stakes environmental incident? ESG demands for reductions in carbon emissions despite lack of infrastructure, aging assets, complex environmental, health, and safety standards, increased oversight and regulation, and other challenges present unique ethical dilemmas. This presentation will provide practical advice for in-house counsel navigating the risk surrounding energy transition related to crisis management, including an incident response playbook and an enforcement investigation checklist. The speaker will examine the Model Rules of Professional Conduct to clarify the responsibilities of the in-house lawyer to identify his client, draw clear lines, avoid conflicts of interest, and properly and ethically communicate to management. The presentation will also help in-house counsel advise their internal clients on how to be proactive with risk resiliency strategies to defend against government intervention and enforcement actions, protect and preserve incident evidence and records, and promote safety and environmental standards.

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 landmen, and their families. No charge, but please note the number of people attending on the registration form.

Special function In-House Counsel Reception – Child Under 13

Young Professionals - Family Reception

Special function Young Professionals - Family Event

Young professionals and their families can join us at The Leonardo Museum of Creativity and Innovation for a fun-filled event. We’ll have food, drink, and networking in this new style of museum that combines science, technology, art, and hands-on experiences to inspire creativity and innovation in visitors. Bring the family – only $50 for our registrants – your sigificant others and kids are free.

Special function Young Professionals/Family Event – Significant Other/Teen

Special function Young Professionals/Family Event – Child Under 13

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

  1. HEIDI K. RUCKRIEGLE

    Senior Associate Wilmer Hale, Denver, Colorado

Annual Environmental Law Update

The Environmental Law Update will summarize the key legislative, administrative, and judicial developments in environmental law since the 2019 Annual Institute.

  1. DANIEL P. ETTINGER

    Partner Warner Norcross & Judd LLP, Grand Rapids, MI
  2. ASHLEY G. CHRYSLER

    Associate Warner Norcross & Judd, LLP, Grand Rapids, MI

Waters of the United States – The Practical Application of an Equivocal Phrase

The definition of waters of the United States (WOTUS) has been through several iterations over the past few decades. The new Trump administration WOTUS rule, which was finalized on January 23, 2020, and is likely to be subject to legal challenge, streamlines the definition in an attempt to simplify its application and provide certainty to developers. This presentation will illustrate the practical application of the new WOTUS rule as compared to prior versions and provide practical advice as to WOTUS compliance obligations. In particular, the speakers will focus on how to apply those obligations to different water bodies, rivers, tributaries, streams, floodplains, and groundwater during this period of uncertainty.

Hosted Refreshment Break

  1. Jennifer L. Biever

    Director Lewis, Bess, Williams & Weese P.C., Denver, CO
  2. CARLOS R. ROMO

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

Backseat Driver No More! The Expanding Role of State and Local Government in Reducing Methane Emissions

Recently the Trump administration has proposed amendments to the Obama-era Clean Air Act rule on methane emissions from oil and gas operations. In response to these proposals and in response to state regulation, ballot initiatives, and public concern, several states and some local governments have proposed or enacted new or strengthened mechanisms or regulations that control methane released from oil and gas production, processing, and transmission. This presentation will provide a brief background on the import of the Trump administration’s proposed amendment, background on the states that have begun increased efforts in this area, common approaches for achieving emissions reductions by these state and local governments, the impact on industry, and how industry has responded.

  1. John Ruple

    Research Professor of Law University of Utah S.J. Quinney College of Law, Salt Lake City, UT
  2. HEATHER TANANA

    Research Associate & Stegner Center Fellow Wallace Stegner Center for Land, Resources and the Environment, University of Utah S.J. Quinney College of Law, Salt Lake City, UT

NEPA at 50 – An Analysis of the Data in the Courts

The National Environmental Policy Act (NEPA), the groundbreaking 1970 statute that established a national policy to take a “hard look” at the environmental impacts of projects, turned 50 in January. In those 50 years, how well have agencies fared in court decisions in applying NEPA’s mandates? Researchers at the Wallace Stegner Center for Land, Resources and the Environment, University of Utah S.J. Quinney College of Law sought to find out by analyzing approximately 1,500 court decisions. After providing a brief overview of the standards of judicial review of agency actions under NEPA, the researchers will reveal the results of their work. They will apply that research to answer questions including how frequently NEPA compliance efforts result in litigation, how often agency decisions are overturned, and how NEPA litigation outcomes compare to outcomes in other challenges to federal agency decisions. The speakers will also discuss what the cases tell us about compliance best practices and successful litigation strategies.

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

  1. JILL FULCHER

    Shareholder Beatty & Wozniak, P.C., Denver, CO
  2. JAMES P. PARROT

    Shareholder Beatty & Wozniak, P.C., Denver, CO

Pooling for Landmen in the Rockies and Mid-Continent

This presentation covers voluntary and statutory pooling with a focus on the practical needs of landmen. The requirements for, and effects of, pooling oil and gas interests vary widely from lease to lease and state to state, so this presentation will concentrate on the Rockies and Mid-Continent states, including Colorado, Kansas, Montana, New Mexico, North Dakota, Oklahoma, and Utah. The presentation will address both voluntary and statutory pooling, covering similarities and differences in these states. The session will also examine the processes and requirements for getting statutory pooling applications approved, as well as common challenges to these applications. Finally, the speakers will discuss situations where both voluntary and statutory pooling are difficult or impossible to accomplish, and some strategies for addressing these situations.

Hosted Refreshment Break

  1. M. BRADFORD MOODY

    Of Counsel Henneman Rau LLP, Houston, TX

Wind and Solar Development in the Oil Patch – Challenges and Opportunities for Landmen

Many oil and gas basins in North America are rich in wind and solar resources. Increasingly, co-development of these resources is becoming the norm, leading to potential conflicts and opportunities for landmen. This presentation will provide an overview of the legal issues associated with the development of wind and solar projects, including those arising from co-development of oil and gas and renewable resources. It will also discuss the similarities between oil and gas and renewable legal instruments and how oil and gas landmen can potentially expand their practices to include renewables.

  1. ALLYSON VISTICA BOIES

    Vice President of Land Extraction Oil & Gas, Denver, CO
  2. ASHLEY GARBER

    General Counsel Nine Point Energy, LLC, Denver, CO (invited)
  3. JON D. TJORNEHOJ

    Partner Tjornehoj & Hack LLC, Longmont, CO

Landman and Lawyer – Working Together for Best Results

This session will examine the landman/lawyer relationship through the lens of specific issues that landmen and lawyers may wish the others knew. Landmen can educate the lawyer to make the lawyer’s work product more useful. For example, title opinions used to set forth only working interests/net revenue interests. Because production may now be sold under different contracts or some working interest owners are taking in kind, the company needs to know exactly which overriding royalty interests burden which working interests, not just the net revenue interests to each working interest owner. If the title opinion discloses that information, the landman does not have to waste time and money asking the lawyer to later explain who bears the burdens and in what amount. The panel will also address how the lawyer and landman should work together to make risk assessments, recognizing that it is the client’s decision as to what risks to assume. On the flip side, in the age of email, texting, and social media, lawyers can help landmen understand the extent and nuances of the attorney/client privilege and best practices to maintain privilege, along with how to work together to navigate communications with government agency staff and the extent, and bounds, of agency authorities, demands, and requests.

Adjournment

Adjournment