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Applicability of State Conservation and Other Laws to Indian and Public Lands

Edward B. Berger, William J. Mounce, Proceedings of 16th Annual Rocky Mountain Mineral Law Institute (1970)

The Rule of Capture

As any first year law student can and will advise you, oil and gas in place is fugacious in character and at common law was subject to the doctrine of ferae naturae similar to wild animals.1 Thus was created the rule of capture.2 Once there was a discovery, the early oil operator would drill wells as rapidly as possible with as great a density as possible.3 This was the practical application of the rule of capture. Such activity resulted in physical waste both above and below ground level due to the lack of storage facilities and market above ground and to the dissipation of reservoir energy below ground. The early [348] conservation statutes were designed primarily to prevent physical waste above ground.4

Adoption of Conservation Statutes

Through a process of metamorphosis the typical oil and gas operator changed from the rugged individual type to the sophisticated corporate type and the conservation laws and regulations provided for the protection of correlative rights and the prevention of economic as well as physical waste. The conservation statutes of the oil and gas producing states have created fact finding, rule making commissions which have had a tremendous impact on the oil and gas industry. It has been said, with some justification, that the conservation statutes have repealed the rule of capture.5 The conservation agen