Surface Use Agreements & Mineral Interests

Kaplan Kirsch represents surface owners and users to ensure compatible development of underlying minerals, whether or not severed from the surface estate. We understand the distinct unique interests and requirements of surface and mineral developers and owners. Our lawyers utilize our understanding and experience to help clients effectively utilize all available statutory, regulatory and contractual mechanisms to minimize effects of mineral development on the available uses and value of the surface estate. Through negotiation of surface use agreements that define notice, location and operational requirements, we help provide certainty for clients regarding the potential impacts of oil and gas operations or mineral development on their properties.

Additionally, we counsel clients about how to manage the risks and liabilities associated with development of the subsurface estate and help clients obtain favorable land use permitting conditions, clean-up standards and indemnification assurances. These protections have allowed property owners to preserve the integrity of surface uses such as residential and commercial uses, livestock grazing or hay production, energy production and wildlife habitat and open space while also accommodating the rights and interests of the mineral developer.

Representative Experience

Master Planned Community

Represented a master developer in negotiating a surface use agreement to protect a 20,000-acre master planned community encompassing retail centers, recreation facilities, parks and trails, and up to 10,000 homes. Our work involved:

  • Drafting and negotiating a surface use agreement balancing the mineral estate’s right of reasonable access with oversight and planning requirements to ensure oil and gas development sites are operated, maintained, and reclaimed in ways that minimize adverse impacts on quality of life and property values for adjacent residents.
  • Identifying regulatory protections and opportunities to strengthen them through supplemental contractual obligations.
  • Drafting and negotiating form access easements to be granted by the master developer.
  • Preparing a checklist to monitor whether subsequent subsurface development complies with secured commitments.

Solar Development Surface Use Rights

Represented a solar developer in evaluating surface use rights associated with severed oil and gas interests under existing surface use agreements within the proposed project footprint.

Compatible Use Agreements for Directional Drilling Wellsites

Represented the master developer of a golf course community in negotiating surface use agreements for multiple directional drilling wellsites. The agreements included joint planning obligations, traffic management, screening, landscaping, noise and light controls, and coordination requirements to protect adjacent property owners.

Ranch Oil and Gas Surface Use Development

Represented the owner of a large ranch in Routt County, Colorado, in negotiating a surface use agreement governing oil and gas development of the severed mineral estate. We drafted a detailed agreement specifying locations for drilling pads, utilities, and access roads; requiring well clustering and directional and horizontal drilling to minimize surface disruption; ensuring subsurface development compatibility with open space and wildlife habitat preservation; and creating a conservation easement on the property. These commitments helped reduce the impact of oil and gas development while protecting the important wildlife and agricultural resources on the property.

Wind Farms

Represented the developer of a permitted wind farm that included a wind-powered electrical generating facility, related improvements and machinery, wind turbine generators, and electrical transmission and communication lines in negotiating a compatible development agreement. Our work involved:

  • Creating a framework within which future development activities by both the mineral and wind developer could occur.
  • Assisting in the negotiation of permit conditions with the local land use authority that protected both mineral and wind uses.
  • Drafting a compatible development agreement that included provisions to protect generating facilities directly, through operational limitations on oil and gas drilling activities, and through use of a buffer zone around the facilities in which certain seismic and other activities were prohibited.

Mineral Interest Owner

Represented a mineral interest owner in monitoring and intervening in land use approval proceedings where proposed surface development could affect mineral access and negotiated associated surface use agreements.

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