Roberts et al v. Unimin Corporation

Filing 70

CERTIFICATION ORDER certifying to the Supreme Court of Arkansas a question of law that may be determinative of this case. The Clerk is hereby directed to forward this Certification Order to the Supreme Court of Arkansas under his official seal. Signed by Judge J. Leon Holmes on 4/25/2016. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
BATESVILLE DIVISION
KATHY ROBERTS and
KAREN MCSHANE

PLAINTIFFS

v.

NO. 1:15CV00071 JLH

UNIMIN CORPORATION

DEFENDANT
CERTIFICATION ORDER

This Court certifies to the Supreme Court of Arkansas a question of law that may be
determinative of this case and as to which this Court finds that there is no controlling precedent in
the decisions of the Supreme Court of Arkansas.
I.
QUESTION OF LAW TO BE ANSWERED
Does Arkansas law allow a lessor to terminate a lease at will when the lease term continues
after a term of years “and as long thereafter as mining and/or mining operations are prosecuted on
said above described lands and siliceous material are hauled, transported over, across, or under said
above described lands, and siliceous materials are shipped from Lessee’s mill or mills [. . .]”?
II.
FACTS RELEVANT TO THE QUESTION
Pursuant to Rule 6-8(c)(2), the parties agree upon the following statement of facts relevant
to the question.
On March 1, 1961, a Lease Agreement was entered into between Silica Products Company,
Inc. as “Lessee” and S. B. Hinkle, Oma Collier, Watt McKinney, J.A. Cotten, D. G. Brown, Ray
Williamson, and Ida E. Williamson as “Lessors” (hereinafter “the 1961 lease”). Plaintiffs Kathy
Roberts and Karen McShane (“Plaintiffs”) are assignees of the 1961 lease. Defendant Unimin

(“Defendant” or “Unimin”) is the successor-in-interest to Silica Products Company, Inc., the original
lessee. Unimin conducts mining and mining operations in the Guion, Arkansas area, including on
property that is the subject of the 1961 lease.
Page 4 of the 1961 lease states the following term:
TO HAVE AND TO HOLD the above described lands unto the Lessee and to its
successors and assigns for and during the term beginning the 1st day of March, 1961
and ending the 31st day of January, 2007, and as long thereafter as mining and/or
mining operations are prosecuted on said above described lands and/or siliceous
materials are hauled, transported over, across or under said above described lands,
and siliceous materials are shipped from Lessee’s mill or mills, subject, however, to
the provisions hereinafter set out.
Page 4 of the 1961 lease includes a list of “mining operations” for purposes of the 1961
lease, which are described as follows:
For the purpose of mining, quarrying and/or milling and preparing for market, and
selling, shipping and/or otherwise disposing of siliceous materials from the above
described lands, constructing such mills, buildings, and other permanent
improvements of whatever nature deemed desirable by Lessee on said above
described lands, storing and/or stockpiling siliceous and other materials on said
above described lands, constructing, reconstructing and maintaining on, over and
across said above described lands of roads, tracks, and rights-of-way of whatever
nature from time to time and for the purpose of hauling and transporting over, across
and under the above described lands siliceous materials mined from the above
described lands or mined from other lands owned or leased by Lessee to its mill site
or sites, or to other locations on said above described lands.
The lease also contains a provision with specified events of default.
Plaintiffs seek a declaratory judgment that the 1961 lease is terminable at will, claiming its
term is indefinite. Defendant maintains that the 1961 lease cannot be terminated at will because it
is either a valid determinable lease or determinable fee.

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III.
COMMENT BY THE UNITED STATES DISTRICT COURT
It appears that this issue is one of first impression in Arkansas. Outside of the mineral lease
context, the Arkansas Supreme Court has held that a lease for an indefinite term creates a tenancy
from month to month. Coley v. Westbrook, 206 Ark. 1111, 1115, 178 S.W.2d 991, 992-93 (1944).
In the mineral lease context, the Arkansas Supreme Court has addressed leases that were similar,
but not identical, to the lease at issue here. In none of those cases, however, was the issue whether
the lease was terminable at will. See, for example, Mooney v. Gantt, 219 Ark. 485, 243 S.W.2d 9
(1951) (the plaintiffs argued that the lease lacked mutuality of obligation and consideration, not that
the lease was for an indefinite term); Bodcaw Oil Co. v. Atlantic Refining Co., 217 Ark. 50, 228
S.W.2d 626 (1950) (the issue was whether the term – “for so long as oil and gas, or either of them,
is being produced from the other lands” – was sufficient consideration to support an agreement).
IV.
REFORMULATION OF THE QUESTION
The United States District Court hereby acknowledges that the Supreme Court of Arkansas,
acting as the receiving court, may reformulate the question presented.
V.
COUNSEL OF RECORD AND PARTIES
The attorneys of record in the case pending before this Court are as follows.
Attorneys for the Plaintiffs, Kathy Roberts and Karen McShane:
Benjamin R. Askew, pro hac vice
John G. Simon
Kevin M. Carnie, Jr., pro hac vice
THE SIMON LAW FIRM, P.C.
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800 Market Street
Suite 1700
St. Louis, MO 63101
314-241-2929
Fax: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for the Defendant, Unimin Corporation:
Robert D. Stroud
Barrett S. Moore
BLAIR & STROUD
P. O. Box 2135
Batesville, AR 72503
870-793-8350
Fax: [phone]
[e-mail]
[e-mail]
VI.
The Clerk of the Court is hereby directed to forward this Certification Order to the Supreme
Court of Arkansas under his official seal.
IT IS SO ORDERED this 25th day of April, 2016.

J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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