Copyright (c) 1997 Great Plains Natural Resources Journal
Great Plains Natural Resources Journal
CASENOTES: The Post-Duncan Era: Are Federal Surface Estates Really Subservient?
2 Great Plains Nat. Resources J. 266
Ethan P. Meaney *
Traditionally, an outstanding mineral owner - the dominant estate - must determine what use of the surface estate is reasonably necessary to extract minerals. 1 In other words, the mineral owner holds a servitude over the surface estate. 2 With a servitude, the mineral owner is allowed free and unfettered use of the surface estate. 3 Without this servitude, the mineral estate would be worthless. 4 Of course the mineral owner's use is not unlimited. 5 A mineral owner has the right only to reasonable use of the surface estate. 6
Consequently, the mineral owner must determine what use of the surface is reasonable and, if challenged by the surface owner, state courts must decide if the surface use chosen by the dominant estate is reasonable. 7 If this surface use is found to be the only reasonable procedure available, then the surface owner must acquiesce. 8 If there are, however, other reasonable means available then "it could be unreasonable ..." to proceed with use of the surface. 9 Although North Dakota law limits the mineral owner's use of the surface, it does not "allow a surface owner to enjoin the unreasonable use of the surface." 10 Nonetheless, the Forest Service believed it had authority, under federal special use regulations, 11 to enjoin unreasonable use of the federal surface. 12 The Forest Service does have broad authority to manage and protect federal property, which stems from the Property Clause of the United ...
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