July 20, 2019

Colorado Court of Appeals: Special District Act Does Not Require Consent of Mineral Estate Owners to Expand Boundaries of District

The Colorado Court of Appeals issued its opinion in Bill Barrett Corp. v. Lembke on Thursday, September 6, 2018.

Preliminary InjunctionSpecial DistrictMineral EstatesPower to TaxSummary Judgment.

In 2009, the Sand Hills Metropolitan District (Sand Hills) included the 70 Ranch within its boundaries and began assessing ad valorem taxes on the oil and gas extracted from the mineral estate. Plaintiffs Bill Barrett Corporation and Bonanza Creek Energy, Inc., and intervenor Noble Energy, Inc. (lessees), challenged these taxes and obtained summary judgment in Weld County District Court. Both sides appealed. In that appeal, the division agreed with the district court that when Sand Hills included the 70 Ranch it was a material departure from its 2004 service plan, which required approval from the Weld County Board of County Commissioners. Because that approval had not been obtained, the division held that Sand Hills lacked taxing authority after 2009.

Following entry of the summary judgment and before the Sand Hills appeal was filed, Lembke and 70 Ranch, LLC (the LLC) (collectively, defendants) petitioned South Beebe Draw Metropolitan District (South Beebe) to include the 70 Ranch. Defendants owned the surface estate where all of lessees’ well heads are located. Lessees were not notified of this action. South Beebe resolved to include the 70 Ranch, and the Adams County District Court approved the inclusion. Lessees filed a motion for a preliminary injunction to prevent South Beebe from taxing oil and gas that lessees produce from the mineral estate underlying the 70 Ranch. The trial court denied the motion and entered summary judgment that under C.R.S. § 32-1-401, the severed mineral estate underlying the 70 Ranch could not be included within South Beebe because all the owners and lessees of that estate did not petition for and consent to inclusion. Lessees obtained a temporary restraining order in the Weld County District Court that prohibited the Weld County Treasurer, who had collected the disputed taxes, from disbursing the monies to South Beebe. Venue was transferred to Adams County and, following an evidentiary hearing on lessees’ motion for a preliminary injunction, the court found lessees had not shown a reasonable probability of success on the merits and denied the motion. Later, the court entered a final judgment against lessees on their C.R.S. § 32-1-401 claim. Lessees appealed and asked that the status quo be preserved by enjoining the treasurer from disbursing taxes collected to South Beebe. A motions division granted the request.

On appeal, lessees argued that without their consent and that of the other mineral estate owners, the 70 Ranch, or at least the underlying mineral estate, could not have been included within South Beebe. South Beebe responded that because the mineral and surface estates were severed, only the surface owners needed to petition for and consent to inclusion, and all of them did. The court of appeals first held that mineral estate owners are “fee owners,” but lessees are not. Next, because the parties agreed and the record supports that not all of the mineral estate owners consented to the 70 Ranch’s inclusion, the court considered whether South Beebe’s services can benefit the mineral estate. Because lessees did not argue that the mineral estate owners would benefit from the inclusion, the court concluded that lack of consent by all mineral estate owners did not preclude South Beebe from taxing lessees. Consequently, the court affirmed the trial court’s entry of summary judgment as to lessee’s C.R.S. § 32-1-401(1)(a) claim.

Lessees also challenged the trial court’s ruling that lessees had not shown a reasonable probability of successfully establishing that South Beebe had violated C.R.S. § 32-1-207(2)(a) by failing to obtain Board of County Commissioners (BOCC) approval for a material change in its service plan, because it had obtained approval from the planning commission. However, the court found that the actions of the planning commission and other officials did not satisfy the requirement that South Beebe had to obtain BOCC approval for a material modification of its service plan. Therefore, lessees have a reasonable probability of success in establishing that South Beebe did not obtain the requisite BOCC approval. Further, the trial court dissolved the temporary restraining order and denied a preliminary injunction on this ground alone, without considering the other factors set forth in Rathke v. MacFarlane, 648 P.2d 648, 651 (Colo. 1982).

Lessees also argued that it was error to conclude that South Beebe’s inclusion of the 70 Ranch was not a material modification. Boundary changes alone are presumptively not material modifications, and the court found that inclusion of the 70 Ranch was just a boundary change. Thus, the trial court acted within its discretion in ruling that lessees had not shown a reasonable probability of success in challenging inclusion of the 70 Ranch as an unapproved material modification.

Finally, lessees argued that under C.R.S. § 32-1-107(2), South Beebe could not levy and collect taxes to support services if those services are already being provided by another special district (in this case, Sand Hills). The court agreed with the trial court that the statute prohibits overlapping services, not merely overlapping territory. Here, no party asked the court to resolve the factual question of overlapping services, thus the question of whether the services were overlapping was not properly before the court.

The summary judgment on lessees’ C.R.S. § 32-1-401(1)(a) claim was affirmed. The order denying lessees’ motion for a preliminary injunction was vacated. The case was remanded for the trial court to make findings on the remaining Rathke factors and reconsider whether to enter a preliminary injunction. The temporary injunction will remain in effect until the trial court enters its renewed ruling on the motion for preliminary injunction.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Insufficient Notice of Tax Lien Renders Tax Deed Voidable

The Colorado Court of Appeals issued its opinion in Sandstrom v. Solen on Thursday, February 25, 2016.

Validity of a Tax Deed—Void or Voidable—Redemption Rights of Tenants in Common—Summary Judgment—Duty of Diligent Inquiry.

Bradford appealed the summary judgment concluding that the Arapahoe County Treasurer (Treasurer) properly invalidated a tax deed in his favor. Bradford also appealed the grant of summary judgment quieting title to the subject property in favor of Solen and Ibbotson.

The subject parcel was assessed as a 50% undivided interest in mineral rights beneath surface property owned by Bradford. That undivided interest was conveyed as two undivided interests to Solon and his sister Ibbotson. Because of an error on the part of the assessor, the Treasurer had billed the parcel by mailing tax bills to Solon only. The taxes went unpaid for tax years 2004 through 2007. In 2005, Bradford purchased the 2004 tax lien.

On August 30, 2008, Bradford applied for a tax deed for the parcel. Before a deed is issued to a purchaser, CRS § 39-11-128(1)(a) requires the treasurer to serve a notice of the purchase of a tax lien on all persons having an interest or title of record in or to the property if “upon diligent inquiry” the residence of such persons can be determined. Here, the Treasurer sent notice to Solen of the application for tax deed but did not obtain title work for the parcel or check the county clerk and recorder’s records. On February 26, 2009, the Treasurer issued a tax deed transferring the entire undivided one-half interest in the mineral estate to Bradford.

In 2013, an oil and gas lessee of Ibbotson’s notified the Treasurer that she claimed ownership of the parcel. On August 26, 2013, the Treasurer issued and recorded a declaration of invalid treasurer’s deed that purportedly invalidated Bradford’s tax deed. In December 2013, the Treasurer filed this action seeking a declaratory judgment that the declaration of invalid treasurer’s deed was a valid document, thereby canceling title in Bradford. The Treasurer’s complaint admitted that she had failed to conduct diligent inquiry prior to issuing the tax deed. Bradford counterclaimed against the Treasurer and cross-claimed against Solen and Ibbotson for a decree quieting title in the parcel. The district court entered summary judgment in favor of the Treasurer, Solen, and Ibbotsen.

On appeal, Bradford argued the district court erred in finding that the tax deed issued to her was invalid and void. The Court of Appeals concluded that the tax deed was voidable for failure to provide Ibbotson with notice. Because the statutory requirements of CRS § 29-11-128(1) were not met, the district court properly voided the tax deed.

Bradford also argued that it was error to conclude that as tenants in common, Ibbotson and Solen were entitled to quiet title in the parcel and that because Solen received notice of the requested tax deed, he was estopped from challenging her title under the tax deed. The Court disagreed, noting that a tenancy in common is a form of ownership in which each cotenant owns a separate fractional share of undivided property. The parcel was assessed as a single parcel, and Solen and Ibbotson each owned an undivided interest in the entire parcel. The tax deed purported to convey the entire parcel, and therefore either cotenant had the right to notice and to redeem the entire parcel. It is irrelevant whether Solen is estopped because Ibbotson was willing and ready to redeem if she had received notice.

Bradford also contested Solen’s standing, but the Court found that Solen had standing.

The Court affirmed the order.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Subsurface Mineral Rights Lessee May Cross Surface Owner’s Property to Access Leasehold

The Tenth Circuit Court of Appeals issued its opinion in Entek GRB, LLC v. Stull Ranches, LLC on Thursday, August 14, 2014.

Stull Ranches is the surface owner of a tract of property in rural Colorado. Entek GRB leases subsurface mineral rights, and, in order to access those subsurface rights, sought to access them by installing oil wells on the surface of Stull’s property. Entek’s subsurface oil leasehold rights extend onto neighboring property owned by the Bureau of Land Management, and Entek sought to traverse Stull’s property in order to reach the subsurface minerals on BLM’s property, since the only way to access the BLM property was on the existing road crossing Stull’s property. Stull objected, arguing that Entek’s drilling would disrupt Stull’s grouse hunting business. The district court granted summary judgment to Entek regarding access to its wells on Stull’s property, but denied Entek’s request to cross Stull’s property in order to access the BLM land. Entek appealed to the Tenth Circuit.

The Tenth Circuit explored the history of the government’s land grants, specifically as to separate grants of surface ownership and rights to subsurface minerals and water. Stull is the successor in interest of land acquired under the Stock-Raising Homestead Act of 1916, which expressly reserved to the government all mineral rights, along with the right to enter and use as much of the surface as is “reasonably incident” to the exploration and removal of mineral deposits, and the right to enact future laws and regulations regarding “disposal” of the mineral estate. The subsequently-enacted Mineral Leasing Act granted the Secretary of the Interior the right to amend mineral leases, which it did for the lease encompassing the subsurface mineral rights on Stull’s property and the adjacent BLM property in the Focus Ranch Unit Agreement. This agreement deems all drilling and producing operations on one part of a leasehold interest will be accepted and performed on all leasehold interests. Because Entek is allowed to drill through Stull’s surface estate to access its subsurface mineral lease, it is deemed access to all leasehold interests, including the leasehold interest on BLM’s surface property. Entek has the right to use the existing road that traverses Stull’s property in order to achieve efficient access to its subsurface leasehold.

Stull also argued that, in a case involving the prior holder of Entek’s current rights, the district court ruled that the lessee of the mineral rights was not permitted to access a different property in order to reach a well on an adjacent tract. However, that case was not appealed because the prior lessee entered into an agreement with Stull allowing it to traverse Stull’s property. The Tenth Circuit ruled that preclusion was precluded by this prior agreement.

The district court’s grant of summary judgment to Stull was vacated and the case was remanded for further proceedings consistent with the Tenth Circuit opinion.

SB 14-009: Requiring Seller to Disclose Separate Mineral Estate Subject to Oil, Gas, or Mineral Extraction

On Wednesday, January 8, 2014, Sen. Mary Hodge and Rep. Dominick Moreno introduced SB 14-009 – Concerning a Disclosure of Possible Separate Ownership of the Mineral Estate in the Sale of Real Property. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a seller to disclose in the sale of real property that a separate mineral estate may subject the property to oil, gas, or mineral extraction. This requirement does not include a duty to investigate. The bill is assigned to the Judiciary Committee.