Journals
Fall 2001 Vol. 41, No. 4
The Mutual Benefit Implied Covenant for Oil and Gas Royalty Owners
John Burritt McArthur
The oil and gas industry has developed a handful of implied covenants that regulate royalty owners’ rights. Yet the courts have not formally recognized any new covenants in recent years. In practice, however, courts frequently enforce a covenant that is perhaps more fundamental than the recognized covenants: the mutual benefit covenant that operators are to share benefits they receive with royalty owners and are not to take separate benefits from the revenue stream. This covenant can be found in application in areas as diverse as division order cases, affiliate pricing cases, and some drainage and interest-suspense cases. It is expressly recognized by the one code state, Louisiana. Adopting this principle formally should have prevented the current rule that royalty owners do not share in take-or-pay payments and might have prevented the oil posted-price problems and similar problems now coming to light in natural gas royalty payments. The mutual benefit covenant meets requirements for formal articulation; it tracks the parties’ true understanding and is necessary to effectuate the purposes of the lease.
This Bird Has Flown: The Uncertain Fate of Wildlife on Closed Military Bases
Lloyd Burton & Thomas Williams
As the fifth largest public lands manager in the federal government, the U.S. Department of Defense hosts significant wildlife populations on many of its large military bases in exurban and rural areas of the United States. As the military’s mission began to change in the late twentieth century, Congress authorized the closure of several large bases. This closure legislation, however, makes no direct provision for the preservation of open space generally or wildlife habitat conservation specifically on these closed bases. This article presents case study research on the closure of two air force bases roughly equal in size and natural resource attributes. At one base, nearly a fourth of the land mass was preserved as a wildlife refuge; while at the other, all significant wildlife habitat was destroyed by real estate development. The two most significant factors accounting for the radical difference in these two base closure cases were (1) the political culture of the communities surrounding the bases, and (2) the relative presence of what Harvard political scientist Robert Putnam refers to as social capital. Several administrative measures can be taken within the Department of Defense and at the state and local level to increase the likelihood that the nation’s wildlife heritage is better preserved in future base closures than is now usually the case.
Recent Trend for Environmental Compliance Provides New Opportunities for Land and Water Use at Brownfields and Other Contaminated Sites
Robert G. Knowlton & Jeffrie Minier
A new environmental compliance trend is leading to more flexibility for environmental remediation and providing potential new opportunities in terms of saving money and utilizing otherwise unusable land and water resources. These opportunities arise primarily from two new changes to the risk assessment process: the incorporation of uncertainty analyses and reconsideration of future land use options. Concurrently, new government regulations are making it easier to reduce potential liabilities associated with contaminated sites and return them to productive use. This article shows how risk assessment and uncertainty recognition can be used to take advantage of the new trend and presents hidden costs/problems of this new approach.
Should Municipalities Be Liable for Development-Related Flooding?
Steven Frederic Lachman
Municipalities contribute to flooding when they permit new construction without requiring drainage facilities adequate to accommodate increased surface water runoff. Poor municipal planning encourages urban sprawl and vacant center cities, while the flooding caused by poor planning deprives existing landowners of investment-backed expectations. Flood planning is even more important under conditions of global warming because cities may be subject to more severe storms and coastal areas may be more frequently inundated by seawater.
Municipal liability for planning-related flood damage and immunity therefrom are largely matters of common law. States diverge as to municipal immunity and liability, supporting rationales, causes of actions, and standards of proof. Public policy argues for a uniform doctrine of prospective municipal liability that limits flood damage and urban sprawl and protects existing landowners but does not penalize cities for planning mistakes made under previous immunity doctrines.
Legal Regime for Use and Protection of International Watercourses in the Southern African Region: Evolution and Context
Salman M.A. Salman
Water resources management is receiving increased attention worldwide due to the growing realization that most areas of the world face major challenges with regard to the quantitative and qualitative aspects of water. These challenges are attributed to a multitude of factors, the most important of which are the significant increase in population, urbanization, and environmental degradation. Such factors are more apparent in the Southern African Region than in many other parts of the world. The region is, by and large, arid and semi-arid and as a result faces a shortage of water in many areas. Moreover, the high rates of population growth and urbanization threaten to worsen the situation. The region depends, to a large extent, on the waters of river basins, most of which are shared by two or more countries. Under these circumstances, the potential for conflicts over shared water resources exists and is expanding. Thus, the recent conclusion of the Revised Protocol on Shared Watercourses in the Southern African Development Community is a significant step towards averting such conflicts and developing close cooperation for a sustainable, coordinated, and equitable utilization of Southern Africa’s shared watercourses. This article examines the water resource problems of the Southern African Development Community Region and discusses and analyzes the Revised Protocol. The article compares the main provisions of the Revised Protocol with an earlier protocol and with the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses.
