Tiffany Dowell Lashmet, an agriculture law specialist with Texas AgriLife Extension, was at a Texas Agricultural Law CLE (Continuing Legal Education) conference in Lubbock when news broke that the state Supreme Court had just applied the accommodation doctrine to a groundwater case.
Dowell Lashmet and others had predicted that the case of Coyote Lake Ranch LLC versus the City of Lubbock would make it to the high court, but few expected the justices to rule in favor of the ranch.
“Everybody was real shocked by it,” she said. “They didn’t expect it to go the way it did. What it basically does is create a new law.”
Agricultural groups praised the decision. Texas and Southwestern Cattle Raisers President Richard Thorpe called it “a major victory for landowners across Texas.”
The ruling gives landowners who don’t own the rights to groundwater underneath their property the same rights as landowners with severed rights to oil and gas under the “accommodation doctrine.”
“Severed rights” means the landowner owns the land but not the minerals or water underneath it.
The accommodation doctrine requires mineral rights owners — the “dominant estate” in such matters — to accommodate surface owners, if at all possible, when drilling or pumping for oil and gas. The Texas Supreme Court ruled that the same doctrine applies to groundwater, at least in this case.
Dowell Lashmet said the language in the ruling is broad enough to leave room for interpretation in future court cases, but it doesn’t mean that every landowner with severed groundwater rights can have a say in how the groundwater owner accesses their land. If the deed gives the owner of the groundwater specific and unlimited rights of access, the deed supersedes the accommodation doctrine.
“In that case, there’s nothing you can do,” she said. “This ruling doesn’t give the accommodation doctrine precedence over the deed. And the burden of proof under the accommodation doctrine is squarely on the surface owner.”
Surface owners have two points of evidence to prove — that the drilling will greatly impair the use of the land, and that they have no reasonable alternative. The surface owner also has to prove that the groundwater or mineral rights holder does have a reasonable alternative that would not harm the surface. Meanwhile, all the producer of the water or minerals has to prove is ownership of those rights.
The facts in the case go back to 195,3 when the family that formerly owned the Coyote Lake Ranch property conveyed groundwater rights to the city of Lubbock during a historic drought. The city believed the deed gave the city “full and exclusive rights of ingress and egress” to drill wells, access water, build water lines and reservoirs — in short, to do anything and everything necessary to get that water and use it.
In the midst of another historic drought in 2012, Lubbock proposed a “well field plan” that called for up to 80 new wells on Coyote Lake Ranch property near Muleshoe in Bailey County. When the city moved trucks and mowers onto ranch property to clear a path to the well field, the ranch asked for an injunction to stop the activity, claiming that the city had to accommodate the surface owners — the ranch — before beginning any operations.
Coyote Creek Ranch, a 26,600-acre livestock and hunting operation, said the well field plan would disrupt the ranch’s irrigation system, destroy grazing for their cattle and disturb Lesser Prairie Chicken habitat. A Bailey County trial court sided with the ranch, citing the accommodation doctrine. The city appealed, and the 7th Court of Appeals in Amarillo overturned the decision, noting that no court had ever applied the accommodation doctrine to groundwater.
However, the appeals court also remanded the case to the state Supreme Court for review and possible action, and the injunction stayed in place.
In their ruling, the justices determined that the deed in the case is “silent” as to whether the city actually has “rights of ingress and egress” to the property and that the accommodation doctrine applies, just as it would if the city was drilling for oil instead of water.
“The City of Lubbock clearly thought the deed gave them the right to do what they proposed,” Dowell Lashmet said. “The court didn’t think so. I talked to one of the lawyers who worked on the case, and he said the deeds are sometimes 30 pages long and very detailed. Apparently, this one wasn’t detailed enough.”
The ruling put an end to the temporary injunction that kept Lubbock from drilling the wells and erecting power lines, though the deed gave the city those specific rights. But Coyote Lake never questioned the city’s right to drill for the water, just the way they went about it. The ruling requires Lubbock to use only the amount of land that is “reasonably necessary” to the operation and with “due regard” for the surface rights owners.
A Bailey County trial court will modify the injunction, and the city eventually will be free to drills the wells. But the ranch and the city still have a long way to go before the matter is truly settled.
“For them, it’s just now really getting started,” Dowell Lashmet said.
As for the lawyers, it means a new rule they can play with.