ELEMENTS D 1 D 2 POWER POINT

ELEMENTS D 1 & D 2 POWER POINT SLIDES Class #30 Monday, November 13, 2017 Tuesday, November 14, 2017

MUSIC TO ACCOMPANY WHITE: Dave Brubeck Quartet, We’re All Together Again for the First Time (2005) featuring Take Five (1960) New on Course Page Read Carefully New Instructions on • Hammonds & White Sample Briefs CP for Next Class re: • Revised Info Memo #3 with 2014 XQ 1 B (1 st – Escape Toolbox Possession of Virtual – Exam Prep Exercise based on GWA#2 Planet) • Revised Info Memo #4 with 2012 XQ 2 (Usefulness Of – Completed Custom Toolbox Escaping ACs for Human – Write-Uo of DQ 2. 19 (Internet Brief) Gestures)

White v. N. Y. Gas Co. CONTINUATION OF DQ. 30, COURT’S ANALYSIS & DQ 2. 31 -2. 32

Oil & Gas: “Escape”(recap) Factual Setting of Hammonds & White • Gas pool underneath multiple surface lots • All usable gas extracted from pool • Gas Co. (G) uses empty pool for storage: – G has lawful access from some point on surface – G wants to extract and reinsert at will – G does not want to pay surface Os for right to store gas in the underground parts of their lots

Oil & Gas: “Escape” (recap) Factual Settings: Hammonds v. White • Gas Co. (G) uses empty pool for storage • Hammonds = Dispute betw G & Surface O • White = Different Problem – Reinserted Gas Leaked into Adjacent Gas Pool – Person with Interest in Adjacent Pool Wants to Pump Out Reinserted Gas Through That Pool

White v. N. Y. Gas Co. : DQ 2. 30 Arguments that G wins under ACs? (Recap +) Labor by OO, No Abandonment, Plus: • Marking/F’s Knowledge: – Nature of gas shows industry expert that not local – Highly unlikely OD well starts producing again w/o leak – Court’s zoo elephant in Pittsburgh (p. 103) a little Q’able – Need to be expert to tell NE from SW gas – Maybe more like: Fished-out lake suddenly has fish again • Return to NL: – Under Mullett : Not “Natural Habitat” (Doesn’t Have to Be) – Can “behave” as it would in Nat’l Habitat – Not free from artificial restraint (valve) BUT can escape into 2 d pool – Like Kesler: relatively short time & distance; quick “pursuit”

White v. N. Y. Gas Co. : DQ 2. 30 (D 2 Uranium) Arguments that G wins even under ACs? • Domestication • Could Easily Have Rule That Once “Captured”, No Longer Wild Animal, so Stronger Rights • Two Concerns re Analogy to “Domestication” 1. Natural Gas Escapes out of Human Control [into Air!] if Not Confined Properly, so Maybe More Like Wild Animal in Cage 2. In White Situation (Unlike Hammonds), G No Longer Fully Controls Gas

White v. N. Y. Gas Co. : Logic of Case Finding #1: Plaintiff is a resident and citizen of Crawford County, Pennsylvania. Defendant New York State Pennsylvania Natural Gas Corporation … is a New York corporation and doing business in Pennsylvania. Defendant Tennessee Gas Transmission Company … is a Delaware corporation and doing business in Pennsylvania. The amount in controversy exceeds the sum of $3, 000 exclusive of interest and costs. Diversity Jurisdiction in Fed’l Court

White v. N. Y. Gas Co. : Logic of Case & DQ 2. 31 • Diversity Case in Federal Court – Court must apply Pennsylvania Law (Erie) – Earlier Penn. Trial Court case followed Hammonds • Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion (note finding re necessary for winter heating in Northeastern US) • DQ 2. 31: Statutes cited on top of p. 106: Significance?

White v. N. Y. Gas Co. : Logic of case & DQ 2. 31 • Court: Penn. SCt would not follow Hammonds – Penn doesn’t always use animals analogy for oil & gas – Hammonds rule discourages reinsertion – Strong public policy favoring reinsertion • DQ 2. 31: Penn. Statutes = Evidence of public policy – Eminent Domain power available to get storage space. – Like Oklahoma Statute cited in n. 2 p. 102 – What does use of Em. Dom mean in this context? – Allowed to store even near coal mines. – See Mahon v. Penn. Coal Co. (in Property) – State leases out stsate-owned land for storage.

White v. N. Y. Gas Co. DQ 2. 32 Under the reasoning of White, will surface owners (Os) have a trespass action against those who reinsert gas (Gs)? • They should; gas remains property of Gs. • Penn giving Gs Eminent Domain power to purchase rights from Os suggests state thinks Gs should have to pay Os.

White v. N. Y. Gas Co. : DQ 2. 32 • Under the reasoning of White, Os have trespass action against Gs who don’t purchase rights to use pool. • White & Hammonds can’t be reconciled on this point. After White, Pennsylvania has different rule than Kentucky. Qs on White?

REINSERTING GAS & ESCAPING ANIMALS CASES : Setting Up Discussion of Argument By Analogy Keep in Mind: Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1. Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool – Who owns gas? – If G owns gas, does G have to pay for right to use pool? – If G doesn’t own, can other Owners extract reinserted gas? 2. White: G v. Owners of Adjoining Pools: If reinserted gas leaks into reservoir not owned/controlled by G, does G lose property rights to gas?

REINSERTING GAS & ESCAPING ANIMALS CASES : Setting Up Discussion of Argument By Analogy Gas Companies (G) Reinserting Gas Produces Two Kinds of Disputes: 1. Hammonds: G v. Owners of Lots Containing Part of Reinsertion Pool 2. White: Leaks (G v. Owners of Adjoining Pools) • If exam Q, you could address the two kinds of disputes separately where you thought they raised different issues. E. g. , might argue ACs better for leaks than for Hammonds. • In comparing Alternatives (DQ 2. 35 -2. 37), we are going to address only Hammonds-type disputes

Argument By Analogy Oil & Gas: Escape ACs & Possible Alternatives DQ 2. 35 -2. 37 • White Rule: Reinserted Gas = Property of Gas Co. • Hammonds Rule: Reinserted Gas = Unowned (Oversimplified ACs) • More Complex [Complete] ACs (Consider marking, control, etc. ) • DQ 2. 35 Oklahoma Statute (White footnote 2) • DQ 2. 36 “Airspace Solution to Hammonds problem. ” • [Other? Can raise with DQ 2. 37]

Argument By Analogy Oil & Gas: Escape Pros & Cons of Alternatives to ACs (DQ 2. 35 -2. 37) Next Time: • OXYGEN DQ 2. 35: Re Oklahoma Statute (I’ll Explain Now) • RADIUM DQ 2. 26: Re Airspace Solution • ALL DQ 2. 37: Ideas re Best Overall Option Might Consider: • Importance of Reinsertion & Cheap Fuel • Relative Importance of Landowners’ Interests • Ease of Administration

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 102: fn 2) “All natural gas which has previously been reduced to possession, and which is subsequently injected into underground storage fields, sands, reservoirs and facilities, shall at all times be deemed the property of the injector, his heirs, successors or assigns injector …. ” = Reinserted gas stays property of Gas Co. (G)

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 102: fn 2) “ … and in no event shall such gas be subject to the right of the owner of the surface of said lands or of any mineral interest therein, under which said gas storage fields, sands, reservoirs, and facilities lie, or of any person other than the injector, his heirs, successors and assigns, to produce, take, reduce to produce possession, waste, or otherwise interfere with or possession exercise any control thereover, …” = … and other owners of pool cannot take reinserted gas or bring trespass action …

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 102: fn 2) “ … provided that the injector, his heirs, successors and assigns, shall have no right to gas in any stratum, or portion thereof, which has not been condemned under the provisions of this Act, or otherwise purchased. ” = … BUT G has no rights to gas in portions of the pool that it has not paid to use via Eminent Domain or negotiated agreement. ”

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 102: fn 2) (Summary) • (1) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT • (2) G doesn’t have any rights to gas in portions of the pool that it has not paid to use. • MEANS: So long as G buys rights through negotiation or eminent domain, Os cannot prevent reinsertion or take gas.

Argument By Analogy Oil & Gas: Escape Oklahoma Statute (p. 102: fn 2) (Summary) Reinserted gas remains property of Gas Co. (G) and other owners (Os) of pool cannot take reinserted gas or bring trespass action , BUT G doesn’t have any rights to gas in portions of the pool that it has not paid to use. • If G doesn’t buy rights from Os, doesn’t own gas in those parts of pool. – Means Os can extract, but not bring trespass action. – Might mean Gs will take risk that small Os can’t afford to extract and not pay them for rights. QUESTIONS?

Argument By Analogy Oil & Gas: Escape Possible Alternatives to ACs: DQ 2. 36: Airspace Solution Possible State Regulation: • Reinserted gas stays property of Gas Co. (G) • BUT Surface Owners have no right to trespass action even if Gs haven't leased/bought space • Like rule about airspace over surface: above certain height, no rights. Here, below certain depth, Surface Owner has no rights (once gas extracted).

Group Written Assignment #3 Due Sun. Nov. 19 @ 7 pm QUESTIONS? 1. Today 2. In Class Friday 3. By E-Mail Until Thu 11/16 @ 11: 59 pm

Exam & Skills Practice Problems Class #30 + Remaining DFs Class #30 (Today) • Analogy DQs: 1 st Poss. of Oil & Gas (Cont’d): – 2. 24 (D 2): OXYGEN – 2. 25: KRYPTON • 2012 XQ 1 B(i) (Custom) Mon/Wed 11/13+15 DF • 1997 XQ 2 (Analogy /1 st Possession) Mon 11/20 DF • 2007 XQ 2 (Analogy /1 st Possession)

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas Overall Q: How Useful Are ACs as Tools for Determining 1 st Poss. of Oil & Gas? A. Background/Recap: Under Westmoreland, property rights to any amount of oil/gas from joint pool go to first person to lawfully extract it. B. XQ 2: Three Common Approaches: 1. Significance of Factual Similarities & Differences (Last Week) 2. Usefulness of Doctrine (DQ 2. 24 = OXYGEN) (D 1 Last Week) 3. Usefulness of Alternatives (DQ 2. 25 = KRYPTON)

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas D 2 RECAP: 2 d Approach: Arguments re Usefulness of Rules/Doctrine (How Well Does the Toolbox Work? ) • Starting Point = Particular Legal Rules/Tests from ACs • Not Applying to Facts of Problem. Instead Discuss Usefulness for New Job (Extraction of Oil & Gas) Generally • Toolbox Can Be Useful Even if Some Tools

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas D 2 RECAP: 2 d Approach: Arguments re RECAP Usefulness of Rules/Doctrine (How Well Does the Toolbox Work? ) • Discuss Usefulness of Particular Rules/Factors for New Job (Extraction of Oil & Gas) Generally • Some Rules/Factors Might Warrant Two. Sided Discussion re Usefulness. • Last Week I did for Depr. Of NL)

XQ 2: Argument By Analogy Sample: XQ 2 1 st Possession of Oil & Gas) OXYGEN: DQ 2. 24. Other Pierson/Liesner/Shaw: Rules/Factors/Tests that Would Work Fairly Well (and Why)

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas OXYGEN: DQ 2. 24. Pierson/Liesner/Shaw: Rules/Factors/Tests that Would Work Fairly Well (and Why) Could Try, e. g. , : Actual Possession; Power & Control Escape Practically Impossible

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas) OXYGEN: DQ 2. 24. Other Pierson/Liesner/Shaw: Rules/Factors/Tests that Would Not Be Very Useful (and Why)

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas) OXYGEN: DQ 2. 24. Rules/Factors/Tests that Would Not Be Very Useful (and Why) Could Try, e. g. , : Mortal Wounding; Continued Pursuit

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas 3 d Approach: Are There Better Alternatives (Other Tools or Toolboxes) • Starting Point = Identify & Describe Plausible Alternative Ways to Address the New Job (Extraction of Oil & Gas) Generally • Discussing Relative Pros and Cons of Each of Your Alternatives as Compared to the ACs.

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas • Disputes Most Likely to Occur Among Owners of Surface Lots Above Parts of Same Oil or Gas Pool • Westmoreland: – Property rights to any amount of oil/gas from joint pool go to first person to lawfully extract it – Owning surface above pool onlygives you right to “hunt”for unextracted oil/gas.

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas DQ 2. 25: Possible Alternatives • First in Time – – – [ACs: First to Extract (Westmoreland)] First to Drill into Pool Gets Whole Pool First to Provide Relevant Notice (Registration? ) • Rights Proportional to Surface Ownership – Pure Proportional Ownership – Proportional Ownership with Fair “Fee” for Labor • State Ownership

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas • KRYPTON: DQ 2. 25. Pros & Cons – Westmoreland (Rule of Capture) v. – Distribution of Profits Proportional to Surface Area (w Reasonable Fee to Drillers for Labor and Risks) • Assume Some Large Oil/Gas Fields Under Multiple Surface Lots • Think About, e. g. , Ease of Operation, Incentives, Effects on Market, etc. First Some Preliminary Qs to Help See What’s at Stake

XQ 2: Argument By Analogy DQ 2. 25 Pros & Cons: Preliminary Qs KRYPTON: Westmoreland & Incentives • Under Westmoreland rule, what are people likely to do when they see that a neighbor is producing oil or gas from a well? • What problems might that cause?

Westmoreland & Incentives: Wichita Falls, TX (1930 s)

XQ 2: Argument By Analogy DQ 2. 25 Pros & Cons: Preliminary Qs Westmoreland & Incentives • What are people likely to do when they see that a neighbor is producing oil or gas from a well? – Drill [many] competing additional wells • What problems might that cause? – Unneeded Wells: Environmental Concerns & Increased Cost of Extraction – Decreased Total Production (Loss of Pressure)

XQ 2: Argument By Analogy DQ 2. 25 Pros & Cons: Preliminary Qs Westmoreland & Incentives • What are people likely to do when they see that a neighbor is producing oil or gas from a well? • Resulting problems? Readings refer to “Oversupply” – Primarily of concern to industry low prices, low profits – Good for consumers in short run – Long run, may encourage overuse of petroleum products b/c cheap (cars v. mass transit, etc. )

XQ 2: Argument By Analogy DQ 2. 25 Pros & Cons: Preliminary Qs KRYPTON: Proportional Allocation (w Labor Fees) • How do you determine where the oil or gas field lies in order to determine proportional interests? In 1889? Today? • How do you decide where drilling occurs?

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas) KRYPTON: DQ 2. 25 Other Pros & Cons Westmoreland v. Proportional Allocation (w Labor Fees) (Next Slide has Some Useful Ideas)

XQ 2: Argument By Analogy XQ 2 st Poss. of Oil & Gas: DQ 2. 25 1 Westmoreland Preferable to Proportional • Certainty for Industry – Hard to Divy Up w/o Good Geologic Info – Low Administrative Costs • Rewards Labor & Clear Act of Extraction Proportional Preferable to Westmoreland • More Certain/Fairer to Small Landowners • Lower Externalities (from Unneeded Wells) • Collective Decision-Making (& Maybe Expertise) Can Reduce Harms from Well-Placement re Property Values or Community Interests from Expertise (D 2” Friedson/Ribeiro)

XQ 2: Argument By Analogy XQ 2 Sample: 1 st Possession of Oil & Gas Overall Q: How Useful Are ACs as Tools for Determining 1 st Poss. of Oil & Gas? A. Background/Recap: Under Westmoreland, property rights to any amount of oil/gas from joint pool go to first person to lawfully extract it. B. XQ 2: Three Common Approaches: 1. Significance of Factual Similarities & Differences (DQ 2. 23 = RADIUM) 2. Usefulness of Doctrine (DQ 2. 24 = OXYGEN) 3. Usefulness of Alternatives (DQ 2. 25 = KRYPTON)

Exam & Skills Practice Problems Class #30 + Remaining DFs Class #30 (Today) • Analogy DQs (Cont’d): 1 st Poss. of Oil & Gas • 2012 XQ 1 B (Custom) – Problem 1 B(I): OXYGEN Mon/Wed 11/13+15 DF • 1997 XQ 2 (Analogy /1 st Possession) Mon 11/20 DF • 2007 XQ 2 (Analogy /1 st Possession)

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I) Does Custom Apply to Ads in Q (a) Cane-Ade KG Ad & (b) BB Online Ad Easy Qs/Hard Qs - Useful Preliminary Q During Exam - Spend Most Time on Hardest (Most-Contested)

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I) Custom in Question (Sample Breakdown) 1. In the U. S. advertising and broadcasting industries 2. ads for ordinary commercial products and services 3. can’t a. closely imitate; or b. use major components of 4. ads for charitable organizations. Apply to problem like a legal standard.

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I) MERE Ad in Q • MERE is charitable organization that arranges to build extra rooms onto the houses of families who are taking care of multiple foster children. • In MERE’s TV and internet, L-Bow stands in front of a house before renovations and does the EG. • At the sound when his arms come together, the camera jumps to a view of L-Bow playing with smiling children in front of the renovated house.

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I) Custom in Q: Apply Like Legal Standard 1. In the U. S. advertising and broadcasting industries 2. ads for ordinary commercial products and services 3. can’t a. closely imitate; or b. use major components of 4. ads for charitable organizations. YES. (Easy Q!)

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I) • • Cane-Ade’s Kerry Grinder (KG) Ad KG in college game “complet[ed] a spectacular dunk shot that included a complete 360 degree turn in the air and then doing the EG as she landed. ” KG signed a multi-million dollar contract to become a spokesperson for popular sports drink Cane-Ade ran TV ads that included footage of KG’s famous dunk including the EG. Networks disagree as to whether it violates custom. [Strong hint that I expect two-sided discussion. ]

Cane-Ade Ad Oxygen: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1. In the U. S. advertising and broadcasting industries 2. ads for ordinary commercial products and services 3. can’t a. closely imitate; or b. use major components of 4. ads for charitable organizations. YES. (Easy Q!)

Cane-Ade Ad Oxygen: Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1. In U. S. advertising/broadcast industries. YES. (Easy Q!) 2. Ad for ordinary commercial product. YES. (Easy Q!) • “All the health benefits of Gator-Ade, but it Tastes Good!” 3. can’t a. Closely imitate: Maybe need more info? b. Use major components of: Harder Q: Discuss 4. Ads for charitable organizations. YES. (Easy Q!)

Cane-Ade Ad Oxygen: Policy as Tie-Breaker? Custom in Q: Apply Like Legal Standard • Can’t a. Closely imitate: Maybe need more info? b. Use major components of: Harder Q: Discuss • If unsure, can look to purpose of custom: • “Many people in the industry believe that it is unethical when for-profit companies take advantage of the efforts of charities, especially if their ads might suggest to consumers charities that they are part of the charitable enterprise • Does Cane-Ade Ad Do This?

2012 EXAM Q 1 (OXYGEN): PROBLEM 1 B(I): BB Online Note: 2 Ads in Same Q Different Analysis Online Footage of BB Doing the EG • BB developed a diet and exercise program. After using his own program for several years, BB succeeded in doing the EG. • BB began marketing his program for profit on the internet to allow more people to do the EG. • To demonstrate that the program worked, website provided footage of BB doing the EG himself.

2012 EXAM Q 1 (OXYGEN): BB Online Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1. In the U. S. advertising and broadcasting industries 2. ads for ordinary commercial products and services 3. can’t a. closely imitate; or b. Use major components of (Already Done Discussion of EG as Major Component; Cross-Reference) 4. ads for charitable organizations. YES. (Easy Q!)

2012 EXAM Q 1 (OXYGEN): BB Online Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard 1. In U. S. advertising and broadcast industries (Interesting Q: Discuss) 2. ad for ordinary comm’l services. YES. (Easy Q! Lots of Workout Programs on Internet) 3. can’t a. closely imitate (Interesting Q: Discuss)

2012 EXAM Q 1 (OXYGEN): BB Online Easy Qs/Hard Qs? Custom in Q: Apply Like Legal Standard • In U. S. advertising/broadcast industries (Interesting Q) • Can’t closely imitate (Interesting Q) • If unsure, can look to purpose of custom: • “Many people in the industry believe that it is unethical when for-profit companies take advantage of the efforts of charities, especially if their ads might suggest to consumers charities that they are part of the charitable enterprise • Leave for You: Does BB Ad Do This? Matter that EG Closely Tied to Product Itself?