ELEMENTS EH: INFORMATION MEMO #6 (10/25/07)
(A) Written Assignment III
INSTRUCTIONS
(1) Your assignment is to make a set of specific arguments about Exam Question II from one of the old exams posted on the course page. Each team is assigned a particular old fact pattern to address. Below, you will find the list of subjects about which you must make arguments and a chart listing the teams of four students who will work together on this assignment and their assigned fact pattern. You should follow the general instructions for written assignments found on pp.14-15 of Information Memo #1 as well as the specific instructions laid out below.
(2) Your team will submit one joint work-product for this assignment, which is due at the beginning of class on Monday, November12. Your work-product will be a list of arguments numbered to correspond to the list of subjects below. At the top of the first page, please indicate which Fact Pattern you are addressing.
(3) For purposes of this assignment and the final exam, “the animals cases” include the cases in Unit I and the whaling cases. I suggest that before you begin to craft arguments for your submission, that you work through Question I of your Fact Pattern orally or in writing, individually or with your partners. You are not required to do this and you should not turn in any response to Question I, but you will find it much easier to respond to Question II if you work through Question I.
(4) After reading the materials, I suggest that your team meet at least twice. At the first meeting, you can discuss and refine the first six arguments and decide who will write out the initial draft of which arguments. At the second meeting, you can edit the first six arguments and discuss what you will do for the seventh argument.
(5) The name in bold in each team will serve as the coordinator. Unless the group decides otherwise, the coordinator will be responsible for the following aspects of the assignment:
· Organizing team meetings;
· Getting pseudonyms from each team member;
· Collecting work-product from other team members;
· Producing a single seamless document for submission that complies with all instructions;
· Turning in the work-product on time
· Exchanging the work-product with other teams (see #7 below)
(6) Unless the group decides otherwise, the other team members must provide any final contributions to the coordinator by 8:00 p.m. on Saturday November 10.
(7) By 5:00 p.m. on Monday, November 22, the coordinator of each team will provide an electronic copy of the work-product to the coordinators of the teams listed on the chart immediately above and immediately below theirs in the same column. So that each team can see two other examples of their own assignment, the coordinators of the teams at the very top and very bottom of each column should also exchange work-product with each other. The coordinators will then each give copies of the other teams’ submissions to their own team members.
List of Subjects for Your Arguments
1. Choose one factual similarity between situation described in the fact pattern and the situations typically governed by the animals cases. Explain why that similarity suggests that the animals cases are a good tool for resolving the issues in your Fact Pattern.
2. Choose one factual difference between situation described in the fact pattern and the situations typically governed by the animals cases. Explain why that difference suggests that the animals cases are not a good tool for resolving the issues in your Fact Pattern.
3. Choose one legal test or factor that is used in the animals cases. Explain why it is a sensible test or factor to use to help resolve the issues in your Fact Pattern. Try not to repeat points similar to those you made in argument #1.
4. Choose one legal test or factor that is used in the animals cases. Explain why it is not a sensible test or factor to use to help resolve the issues in your Fact Pattern. Try not to repeat points similar to those you made in argument #2.
5. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be superior to the alternative as a method of resolving the issues in your Fact Pattern. Try not to repeat points similar to those you made in arguments #1 and #3.
6. Choose one alternative method (i.e., different from the animals cases) of resolving the issues in the fact pattern.. Explain one reason why the animals cases might be inferior to the alternative as a method of resolving the issues in your Fact Pattern. Try not to repeat points similar to those you made in arguments #2 and #4.
7. Briefly discuss which arguments you think are stronger (and why): those you’ve made for using the animals cases (Subjects 1, 3, 5) or those you’ve made for not using the animals cases. (Subjects 2, 4, 6). If your team disagrees on this issue, briefly describe the different positions team members have taken.
TEAM ASSIGNMENTS
IM88
FACT PATTERN C
Adelman, Jared (42)
Duarte, Cristy (82)
Kirtman, Ian (23)
Nelson, Max (126)
Adeseun, Bunmi (14)
Johnson, Joline (15)
Roberts, Scott (76)
Astalos, Shari (113)
Eisenband, Mike (111)
Klein, Brian (22)
Niehaus, Jason (51)
Baier, Doug (55)
Kalmanson, Jared (106)
Ross, Errol (120)
Bailey, Dustin (98)
Farah, Marya (123)
Langenbach, Andrew (92)
Ohanian, Sebastian (44)
Baker, Vanessa (62)
Kessler, David (79)
Saab, Nick (78)
Berg, Arielle (107)
Fraerman, Andrew (16)
Leck, Brandon (11)
Pereira, Diogo (43)
Berglin, Kyle (32)
Langenthal, Jared (128)
Salamone, Kim (74)
Bhatia, Nisha (84)
Leon, Brandon (25)
Sartoian, Allyson (68)
FACT PATTERN D
Bernhard, Andrew (119)
Freidin, Allison (40)
Lee, Hyang (65)
Phillips, Ryan (54)
Berry, Erin (86)
Friedlander, Adam (7)
Levinson, Scott (80)
Poberezhsky, Nick (17)
Bisaccia, Adam (71)
Gesele, Mike (48)
Levy, Josh (99)
Pumariega, Audrey (12)
Bloom, Sam (39)
Levy, Greg (75)
Sawka, Joseph (60)
Brennan, Natalie (87)
Gornail, Christina (10)
Lucas, Sean (83)
Rashed, Aryan (70)
Brillman, Julie (9)
Levy, Nicole (6)
Sayers, Megan (72)
Campagna, Michael (102)
Luedtke, Sean (2)
Sharon, Lauren (94)
Cato, Lindsay (45)
McLaughlin, Diana (114)
Shultz, Ariel (63)
Davis, Chris (67)
Mehta, Nishant (127)
Smolarz, Randle (47)
FACT PATTERN E
Brown, Evan (103)
Greco, Shannon (30)
Martin, Medardo (130)
Reilly, Katherine (88)
Carmona, Michael (90)
Greenfield, Leah (100)
McSweeney, Jaime (112)
Richards, Adam (1)
Casey, Kelly (56)
Hammad, Abdrahman (117)
Medoff, Lauren (93)
Roberts, Josh (54)
Cetnar, Ashley (89)
Hennessy, Dave (49)
Mendoza, Mary-Grace (64)
Robinson, Aaron (50)
Desai, Sonia (125)
Mermiges, Nicholas (61)
Sorenson, Charles (95)
Echarte, Pedro (85)
Miller, Pat (26)
Sparks, Nicole (124)
Emert, Arye (35)
Holcomb, Alan (33)
Reiter, Michael (104)
Farias, Alex (5)
Moore, Matt (53)
Spring, Cassandra (58)
Fraser, Jeff (13)
Nathanson, Sallie (108)
Vaid, Joey (115)
FACT PATTERN F
Cline, Rugh (37)
Holt, Tate (38)
Meza, Veronica (18)
Royle, Bret (4)
Coppolecchia, Liz (69)
Judson, Andy (97)
Miller, Slade (52)
Sadiq, Ahmad (121)
Defabio, Lauren (34)
Kannensohn, Sara (91)
Morales, MJ (129)
Sanders, Geoff (21)
Dresch, Daniel (77)
Kapadia, Rita (46)
Naguib, Miral (118)
Therrien, Sarah (29)
Gart, Marissa (24)
Newberg, Jonathan (20)
Valdivia, Lea (101)
Gontovnik, Eitan (110)
OBrien, Russ (59)
Walsh, Kate (109)
Graham, Amanda (31)
Palmacci, David (81)
Wulwick, Nicole (105)
Greenberg, Jon (66)
Pizzo, Jason (8)
Yi, James (19)
Hanika, James (116)
Rassoul, Parisa (41)
Zamanian, Shahriar (36)
IM88
(B) Briefs of Oil & Gas Cases: Comments/Models
(1) Hammonds v. Central Kentucky Natural Gas Co.
a. Citation: 255 Ky. 685, 75 S.W. 2d 204 (1934) or 75 S.W. 2d 204 (Ky. 1934)
b. Statement of Case: Hammonds, owner of land that included part of a depleted underground gas field, sued CKNG, which had reinserted gas into the field, for damages for trespass.
(i) A number of you included the phrase “using & occupying,” which the court used in its description of her claim. I don’t think these words add anything to the version of the statement above. You should get into the habit of trying to edit or translate the court’s account of the case. You can often make it more concise. In addition, putting it in your own words enables you to see if you really understand what’s going on.
(ii) A number of you referred to the gas as being “under” Hammonds’s land. However, as a technical matter, she owns the area underneath as well as the surface of the parcel. Thus, a portion of the gas field is part of her land, not merely underneath it.
c. Procedural Posture: Judgment for defendant. Plaintiff appealed.
d. Facts: Hammonds owned land that included a small part of a large underground gas field. Pursuant to leases with owners of other parts of the field, CKNG legally extracted the gas from the field. It then reinserted gas extracted elsewhere into the field for storage. CKNG had no lease with Hammonds and did not seek her permission to use the field.
(i) As is usually the case, precise numbers were not crucial to the court’s analysis. Thus, you did not need to include the acreages involved and the value of the stored gas.
(ii) For some reason, this case seemed to give rise to an unusually large number of mistakes regarding the correct form of the possessive. For a singular noun ending in “s” like Hammonds, either of two possessive forms is acceptable: Hammonds’s or Hammonds’. I prefer the former because it makes clear that the word is not plural. In any event, Hammond’s is wrong. It is the possessive form of the name “Hammond.”
e. Issue/Holding Did the lower court err in granting judgment for defendant on the grounds that parties who have natural gas in their possession and release it into a natural underground basin do not retain property in the gas and therefore do not commit trespass when the gas travels onto land owned by another?
(i) Narrow Holding: NO. The lower court did not err in granting judgment for defendant because parties who have natural gas in their possession and release it into a natural underground basin do not retain property in the gas and therefore do not commit trespass when the gas travels onto land owned by another.
(ii) Possible Broad Holding: Where parties have liquid or gaseous minerals in their possession and release them underground into areas that formerly contained that mineral, they do not retain property in the mineral.
(iii) Be careful about buying too far into the court’s use of the animals metaphor. For example, many of you gave as the issue the court’s “question” on page 77 about whether the gas “was restored to its original wild and natural status.[1] Whether gas has become “wild and natural” hardly seems to be a legal question. I think it is important that you try to distance yourself from the court’s more colorful language and try to figure out what is really at stake, which is, “Who owns gas that is reinserted into the ground?”
(iv) Some of you listed as a holding that Hammonds was “the absolute owner” of the gas underneath the area of the surface she owned, relying on the Mills & Willingham citation on page 76. However, the text refers to gas that has not yet been extracted and states that the gas can be lost through “escape,” when a neighbor withdraws the gas from a well on an adjoining lot.[2] Thus, the passage doesn’t tell you what happens when the gas is first possessed and then reinserted. Moreover, this was unlikely to be the holding in a case where nobody argued that Hammonds owned the gas. She argued that it belonged to the gas company and the gas company argued that it belonged to nobody.
(v) A number of you mixed rationales into the holdings both here and in the White briefs. A holding generally takes the form of a legal rule: “Where X facts are present, Y legal result follows. If you find yourself adding a clause that begins, “because,” you probably are drifting into the rationales.
f. Rationales:
(i) Doctrinal Rationales
(A) Gas is like animals. Westmoreland; Willis treatise. When animals escape into their natural element, they return to their unowned state. The same should be true of gas.
(B) Gas is also like underground water. If you pull water out of the ground it is yours. If you return it into the ground, you lose property rights. Willis treatise. Hill. Rock Creek. The same should be true of gas.
(C) When gas is returned to underground storage, it is taxed as part of the land, not as separate personal property of the surface owner. Willis treatise. This suggests that the property rights in the gas are the same as those in gas that has never been extracted: the owner of the surface has ownership rights unless the gas is legally extracted by another.
(ii) Possible Policy Rationales:
(A) The court may have been unfavorably inclined toward Hammonds because it may have perceived that she was trying to make easy money where she had not exerted labor nor experienced harm. The holding would prevent her from gaining an unearned benefit.
(B) The court may have been concerned that deciding in Hammonds’s favor would encourage numerous small landholders to bring similar suits, and decided for the gas company to prevent a flood of litigation.
(C) The court may have wanted to protect the gas companies who are performing useful labor by extracting and storing gas. Deciding this case in their favor limits their liability for trespass (although it also puts their reinjected holdings at risk of capture by others).
(D) Note that the case contains no policy discussion at all. The court never discusses whether the metaphor or the result is good or bad for society. Thus, any policy rationales you include should make clear that you are hypothesizing.
(iii) When the court provides several rationales for its decision, you should try to list them separately. Each one is a tool you can use later on. You will find them more effective tools if you have delineated them clearly to begin with.