A-W Land Co., LLC et al v. Anadarko E & P Company LP et al

Filing 462

OPINION AND ORDER: Accordingly, the Court finds that the Defendants are entitled to judgment as a matter of law pursuant to Fed. R. Civ. P. 50 on the Bays trespass claim. The Clerk of the Court shall enter judgment in favor of the Defendants and against the Bays and close this case. Entered by Judge Marcia S. Krieger on 9/28/2021. (rkeec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 09-cv-02293-MSK-MJW
MARVIN BAY and MILDRED BAY, Co-Trustees of the Bay Family Trust,
Plaintiffs,
v.
ANADARKO E&P COMPANY LP; and
ANADARKO LAND CORPORATION,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DISMISSING CLAIMS
______________________________________________________________________________
THIS MATTER comes before the Court sua sponte.
The Court assumes the reader’s familiar with the lengthy and extensive proceedings to
date in this action. In abbreviated summary, a group of landowners that included Plaintiffs
Marvin and Mildred Bay (“the Bays”) commenced this action alleging a claim of trespass against
the Defendants (collectively, “Anadarko”) under Colorado law. Anadarko holds the rights to the
mineral estate beneath the various landowners’ surface estates, but the landowners contended
that Anadarko’s1 oil and gas development activities exceeded the scope of Anadarko’s rights to
occupy the surface estate.2

1

For purposes of efficiency, the Court will not distinguish between acts by Anadarko itself
and acts by entities to whom Anadarko leased its mineral interests and who actually constructed
the wells and other development on the landowners’ property. The Court will simply refer to all
such actions as having been performed by Anadarko itself.
2

The landowners essentially contended that Anadarko should have arranged to drill
multiple directional wells from a single well pad, rather than drilling numerous vertical wells
from separate well pads.
1

This Court certified a class action for the purpose of construing the meaning of certain
language in the landowners’ deeds, all of which severed the mineral estate and reserved certain
rights in the surface estate to the mineral estate owner. Lengthy proceedings in this Court
occurred thereafter. Once the deeds’ meaning was resolved, the Court de-certified the class,
finding that each landowners’ trespass claim turned on different factual issues. The parties
agreed to select a bellwether plaintiff to proceed to trial, and the landowners selected the Bays.
The Court commenced a jury trial on the Bays’ trespass claim, but at the conclusion of the Bays’
presentation of evidence, the Court found that the Bays’ evidence failed, as a matter of law, to
demonstrate that Anadarko’s activities amounted to a trespass. Thus, the Court entered judgment
in favor of Anadarko pursuant to Fed. R. Civ. P. 50.
The Bays appealed, and the 10th Circuit reversed. Bay v. Anadarko E&P Onshore, LLC
912 F.3d 1249 (10th Cir. 2018) (“Bay”). The 10th Circuit’s analysis in Bay is critical to the
outcome of this Order, and thus, this Court discusses it at some length. The 10th Circuit began by
finding that “Gerrity [Oil & Gas Corp. v. Magness, 946 P.2d 913 (Colo. 1997)] is the leading
Colorado case addressing surface use rights held by mineral owners and the elements of
trespass.” 912 F.3d at 1255. After reciting the facts of Gerrity, the 10th Circuit summarized
Gerrity’s key holding: that “a mineral owner may access and use that portion of the surface
estate that is reasonably necessary to develop the severed mineral interest,” and that “the surface
owner and mineral owner must have due regard for the rights of the other in making use of the
estate in question.” 912 F.3d at 1256. The 10th Circuit noted that Gerrity had also cited to Getty
Oil Co. v. Jones, 470 S.W.2d 618 (Tx. 1971), “for the proposition that the ‘due regard’ concept
requires mineral owners to accommodate surface owners to the extent possible.” Id.

2

Noting that Getty “concerned a dispute that resembles the one between the Bays and
Anadarko” and that the Colorado Supreme Court “appears to have relied upon [Getty],” the 10th
Circuit then considered Getty’s facts. There, Jones, the surface owner, sued to enjoin Getty, the
mineral estate owner, from constructing pumping units that were tall enough to obstruct the
irrigation system that Jones used for farming the surface estate. The Texas Supreme Court found
that Jones had adduced evidence that the irrigation method he used was the only feasible way to
farm the land, and that Getty had the ability (but refused) to construct shorter pumping units that
would allow Jones’ irrigation system to pass over them. Based on these facts, the Texas court
found that Jones’ case should proceed to trial, as he had demonstrated that “(1) he would have to
abandon his existing surface use” if Getty’s chosen pumping units remained, and “(2) Getty’s
use of the surface was not reasonably necessary because other reasonable means of producing the
minerals were available.” 912 F.3d at 1256-57.
Returning to Gerrity’s application of Getty, the 10th Circuit explained that Gerrity
“prescribed a three-step burden-shifting approach” for trespass claims. First, “the surface owner
must make a prima facie case by introducing evidence that ‘the operator’s conduct materially
interfered with surface uses,” and the 10th Circuit noted that “[t]he interference must be more
than ‘inconvenient to the surface owner,” and “must be unreasonable from the perspective of the
surface owner, considering only the effects on surface use.” Second, the mineral owner was
required to show “why its surface conduct was reasonable and necessary from its perspective by
showing, for instance, that its operations conformed to standard customs and practices in the
industry.” Finally, the surface owner could prove “that reasonable alternatives were available to
the operator at the time of the alleged trespass.” 912 F.3d at 1257.

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Next, the 10th Circuit discussed, at length, the particular language of the reservation of
rights in the Bays’ deed. The court ultimately concluded that it did “not bestow the mineral
owner with any rights beyond those already provided at common law” – that is, that the Gerrity
analysis, not any unique standard created by the deed itself, controls in this case. 912 F.3d at
1261.
Because the ordinary Gerrity analysis applied to the Bays’ claims, the 10th Circuit found
that this Court – which had concluded that a “modified” version of Gerrity applied by virtue of
the deed language – had erred. To determine whether that error was prejudicial, the 10th Circuit
then proceeded to analyze whether the Bays’ evidence would support a claim under the normal
Gerrity standard. Thus, it turned to the first element, the Bays’ prima facie case – that is,
whether Anadarko’s surface use had constituted a “material” interference with the surface use.
The 10th Circuit noted that Gerrity “offers little explicit instruction on what constitutes
material interference,” but noted that Getty, on which Gerrity had relied, “suggests that surface
use must be infeasible or nearly impossible under the circumstances” in order for the interference
to be “material.” 912 F.3d at 1261. The 10th Circuit also found that “[a] more recent Texas
case,” Merriman v. XTO Energy, Inc., 407 S.2d 3d 244, 249 (Tx. 2013), “also provides helpful
guidance on the meaning of material interference.” 912 F.3d at 1261-62. Explaining that
“[m]aterial interference is a high bar,” the 10th Circuit quoted Merriman for the proposition that
“the surface owner has the burden to prove that the lessee’s use completely precludes or
substantially impairs the existing use.” 912 F.3d at 1262 (emphasis in original). Thus, the 10th
Circuit seemed to endorse a conclusion that, to establish its prima facie case, the surface owner
must show that it “has no reasonable alternative method to maintain the existing use” in light of
the mineral owner’s activities. Id. The 10th Circuit concluded its analysis on this element by

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observing that based on “factual differences between the Bays’ claims, Gerrity, and the
aforementioned Texas authorities, we question whether the record before us supports a legally
sufficient finding of material interference.” Id. (emphasis added). But the 10th Circuit chose not
to resolve this issue “because Anadarko has not raised it on appeal.”
The 10th Circuit then briefly considered the remaining two elements, finding that
Anadarko had met its burden of producing evidence that its surface use was reasonably necessary
and that the Bays had come forward with sufficient evidence of the availability of alternatives to
allow the issue to proceed to the trier of fact. Thus, the Court of Appeals reversed this Court’s
grant of judgment as a matter of law to Anadarko. 912 F.3d at 1262-63. The court remanded
this action “for further proceedings consistent with this opinion.”
Mindful of the 10th Circuit’s doubt as to whether the Bays’ evidence was sufficient to
establish their burden of demonstrating Anadarko’s “material interference” with the Bays’ use of
the surface estate, this Court issued an Opinion and Order Directing Briefing (# 453). That
Order recited the preceding analysis and noted that “the 10th Circuit’s observation presents a
potential question of legal sufficiency, similar to a mid-trial motion for judgment as a matter of
law . . . that would, if resolved in favor of [Anadarko], ameliorate the need for a re-trial.” The
Court recited the facts that the Bays had adduced at trial regarding the nature of Anadarko’s
interference with their agricultural operations,3 and observed that “[n]one of the impacts Mr. Bay

3

That recitation is deemed incorporated herein. Summarized, Mr. Bay’s testimony was
that: (i) multiple well sites caused additional inconvenience when operating farm equipment and
created areas for weed growth; (ii) compaction of soil along fence lines and tracks where
Anadarko’s vehicles were operated; (iii) failure to remediate a pit which caused an irrigation
sprinkler to sink into the pit, requiring Mr. Bay to retrieve the sprinkler with a tractor; (iv) soft
soil conditions over flow lines, which could only be somewhat remediated; (v) Anadarko’s
inadequate spraying for weeds around well locations; (vi) erosion of the hillside due to water
collecting in trenches cut by Anadarko for flow lines; (vii) water waste resulting from irrigation
devices “get[ting] in the wrong rows”; (viii) crop loss due to vehicle access roads; (ix) light and
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described at trial would seem to suffice to constitute a material interference” with their use of the
surface estate under the standard articulated by the 10th Circuit. Thus, this Court directed that the
Bays “file a brief addressing the evidence in the trial record and whatever legal authority they
with to rely upon to demonstrate their ability to establish the material interference element.”
The Bays’ brief in response (# 454) raised numerous legal and factual arguments. First,
the Bays argued that “neither [Getty or Merriman] has any bearing on a Colorado surface
owner’s prima facie case under Gerrity,” and that “commentators have recognized that Colorado
and Texas apply the reasonable accommodations doctrine differently.” The Bays argue that
Texas law treats the mineral owner as “the dominant estate,” whereas Gerrity indicates that
Colorado law treat the two estates equally and, moreover, requires the element of material
interference to be adjudged from the perspective of the surface owner. The Bays contend that,
measured against a standard derived from the surface owner’s expectations, the evidence they
adduced at trial could suffice to meet the Gerrity standard.
Second, the Bays argued that “if the material interference standard changed” from the
standard announced by this Court prior to the first trial, they “must be granted the opportunity to
conduct relevant discovery and legal research and present the applicable evidence to a jury.”
They assert that, at that trial, Mr. Bay “did not, but could have, explained exactly how much
crops loss has been caused by Anadarko’s surface use annually to show the hundreds of
thousands of dollars Anadarko’s excessive surface use has cost him and his family” and that he
“can present further testimony regarding the extent of compaction and its residual effects, the
severity of weeds, and the mud pit and flow line effects” that he discussed at the first trial.

noise pollution and vehicle exhaust resulting from; and (x) general concerns about the possibility
that Anadarko might be using radioactive materials or asbestos in its activites.
6

Third, the Bays argue that, even under the Getty/Merriman “material interference”
standard, they can adduce evidence that would satisfy that standard. They do not particularly
explain what that evidence would be, other than to state that the evidence would relate to
“decrease in production potential and land value.”
Finally, the Bays argue that this Court should instead stay this case and certify the
question of the appropriate interpretation of the “material interference” standard to the Colorado
Supreme Court under Colo. App. R. 21.1(a), or to await further development of the law by state
courts hearing some sixty similar cases.
Once again, this Court construes the instant matter similar to a Motion for Judgement As
a Matter of Law under Fed. R. Civ. P. 50, based on the evidence that the Bays offered at the first
trial.4 Such judgment is appropriate “only if the evidence points by one way and is susceptible to
no reasonable inferences which may support the nonmoving party’s position. In re Cox
Enterprises, Inc., 871 F.3d 1093, 1096 (10th Cir. 2017). The Court construes the evidence in the
light most favorable to the Bays and does not make credibility determinations or otherwise weigh
the evidence. Liberty Mut. Fire Ins. Co. v. Woolman, 913 F.3d 977, 983 (10th Cir. 2019). The
sole question is whether the Bays’ evidence, taken in the light most favorable to them, could be
sufficient to meet the “material impairment” standard.
The Court begins with the Bays’ first argument: that Texas cases like Getty and
Merriman should not be used to interpret or refine the Gerrity standard. This Court is, simply,
unable to entertain that argument. The Court is bound by the 10th Circuit’s interpretation of

4

The Court addresses the Bays’ argument that additional evidence exists below.
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Colorado law.5 Were the Court to hold a second trial, it would deem the 10th Circuit’s
interpretation of the “material interference” standard to be controlling and would instruct the jury
accordingly. Thus, there is little reason why the Court should not apply that same standard when
considering the matter under Rule 50. Accordingly, it is appropriate to apply the standard to the
evidence in the record herein.
The Court skips over the Bays’ second argument for a moment and proceeds to their third
argument: that their evidence at trial could suffice to satisfy the “material interference” standard
articulated in Bay. The Bays do not materially develop this argument, at least not based on the
evidence that was already adduced at trial. Rather, they argue that “additional evidence the Bays
may provide” would be “highly likely” to meet the 10th Circuit’s standard. One can reasonably
infer from this argument that the Bays are conceding that the evidence that was actually adduced
at trial does not suffice to meet the “material interference” standard as set forth in Bay.
That standard requires that the Bays’ use of the surface land for agricultural purposes be
either “completely preclud[ed]” or “substantially impair[ed],” with the latter test met by showing
that, due to Anadarko’s actions, the Bays have “no reasonable alternative method to maintain the
existing use.” Clearly, the Bays cannot meet that standard. The wells they challenge on the
South Farm were constructed in 2006, two of the four wells on the North Farm were constructed
in 2007, and the final two were constructed in 2011. But the Bays testified that the remaining
surface land was still being used for agricultural purposes as of trial in 2017, and they have given
no indication that the situation has changed to date. Although Mr. Bay testified that Anadarko’s

5

The Bays argue that the 10th Circuit’s discussion of the Getty and Merriman standards is
“dicta.” Even if it is – and this Court makes no such finding – it is clear that the 10th Circuit fully
intended it to clarify the meaning of the “material interference” standard and expected this Court
to apply that standard when conducting any retrial.
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wells caused various inconveniences to his efforts to farm in areas adjacent to Anadarko’s wells
-- that Anadarko’s activities caused soil compaction and weed growth in those areas and caused
difficulties with farm and irrigation equipment in locations where Anadarko’s construction was
or is present -- it is clear, even from Gerrity itself that “[e]vidence that the operator’s conduct
was merely inconvenient to the surface owner is insufficient.” Thus, on the trial record, the
Court would be required to grant judgment as a matter of law to Anadarko based on the Bays’
failure to establish the “material interference” element.
Because it is clear that the Bays cannot succeed on the “material interference” prong on
the existing trial record, there remains a question as to whether they have articulated the ability
to put on evidence that, if presented in a new trial, would suffice. The Bays argue that they
should be permitted to come forward with new evidence because the Court announced that it
construed Gerrity’s first element to require the Bays to establish only that Anadarko’s “use of the
surface was unreasonable according to [the Bays’] subjective expectations.” The Court agrees
that the standard it intended to apply at the first trial is substantially less exacting than the
“material interference” standard that the 10th Circuit identified. (One could say that the 10th
Circuit implicitly reversed this Court with regard to that standard as well.) Thus, the Bays’
argument that they should be permitted to come forward with new evidence is well-taken.
But the Bays’ briefing does not identify any particular new evidence that they would
come forward with that would suffice to meet the new, more restrictive “material interference”
standard. The Bays’ brief makes only generalized references to evidence that they currently
possess, primarily a reference to Mr. Bay being prepared to testify as to “crop loss [ ] caused by
Anadarko’s surface use” that has resulted in “hundreds of thousands of dollars [it] has cost

9

him.”6 In other respects, the Bays appear to imply that they presently lack sufficient evidence, as
they argue that they should be “granted an opportunity to conduct relevant discovery” in order to
meet the new “material interference” standard.
The Court reflexively rejects the Bays’ argument that the 10th Circuit’s decision warrants
reopening discovery. Nothing in the record suggests that the Bays’ discovery requests were in
any way constrained by this Court’s rulings about the legal standard that applied to their prima
facie case,7 and the Bays have not identified, even generally, the additional information they
would seek to discover.
At most then, the Court is left with the Bays’ contention that in a new trial, Mr. Bay
would supplement his existing testimony with testimony about how Anadarko’s construction of
the wells caused the Bays to suffer “hundreds of thousands of dollars” of crop losses. But Mr.
Bay already testified about crop losses at the first trial. Specifically, he testified that Colorado
Oil and Gas Commission rules require oil and gas developers to pay for crop losses, that he made
demands on Anadarko in 2013 for reimbursement of crop losses to date, and that the Bays “did
reach an agreement” for Anadarko to compensate them for such losses in the amount of $20,000.
(Mr. Bay testified that he made additional demands on Anadarko in 2014 for continuing losses,

6

The Bays also refer to having “further testimony regarding” the issues Mr. Bay already
addressed, such as soil compaction and weed growth in areas adjacent to Anadarko development
locations. In this regard, the 10th Circuit’s contrast with Getty is apt: a showing that Anadarko’s
actions prevented the Bays from operating irrigation equipment for their entire farm might
suffice, but adverse effects localized to the immediate vicinity of locations where Anadarko’s
development activities were occurring are, as noted above, mere “inconveniences” that fail to
meet the Gerrity standard.

7

Moreover, the Court is puzzled as to why the Bays would need to conduct any additional
discovery about the interference that Anadarko’s construction had with their use of the surface
estate, given that the knowledge of such interference is clearly within the personal knowledge of
the Bays themselves.
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but received no response.) It is not clear from the briefing what additional evidence Mr. Bay
would could present as to “hundreds of thousands of dollars” of crop losses arising in 2014 and
beyond, but it is clear that such losses would result from Anadarko infrastructure that has been in
place since 2011. In other words, the losses the Bays wish the supplement the record to include
relate to crops that they have been unable to grow on those portions of land that Anadarko has
been using since 2013. In that sense, the value of the lost crops is simply a proxy for the amount
of surface land being used by Anadarko. And the Bays have not argued that the amount of land
used by Anadarko, as a percentage of the entire area of the Bays’ land used for agricultural
production, is so significant as to itself amount to “material interference” – that is, complete
preclusion of agricultural use of the surface estate or such substantial interference that productive
use of the surface estate is effectively impossible. Admittedly, land used by Anadarko cannot be
used by the Bays. But, at the same time, Anadarko’s ownership of the mineral estate entitles it to
occupy reasonable portions of the surface estate, an occupation that, by definition, will result in
some losses to the Bays.
Thus, the Court finds that the existing trial record does not demonstrate that Anadarko’s
use of the a portion of the land materially interfered with the Bays’ ability to use the remainder
of the surface estate. Nor have the Bays articulated any additional evidence that they could
produce that, when added to the existing record, would allow them to meet that standard. As a
result, the Court concludes that Anadarko is entitled to judgment as a matter of law on the
trespass claim.
The Court pauses here to address the Bays’ final argument: that the Court should stay this
litigation and either certify a question to the Colorado Supreme Court or simply await the
development of law on the “material interference” standard as similar cases in state court

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proceed.8 The indefinite duration of the latter option, plus the advanced age of this case, makes
that option inappropriate. And, for essentially the reasons discussed above, this Court declines
the suggestion that it certify a question to the Colorado Supreme Court. Although the Colorado
Supreme Court is the final authority on questions of state law, this Court must also take its
instructions on legal issues from the 10th Circuit. The 10th Circuit has instructed this Court as to
how the “material interference” standard should be construed, and this Court is not free to second
guess those instructions by asking a different court to intercede. To the extent the Bays believe
that certification of a question to the Colorado Supreme Court is warranted, they may appeal this
ruling and request that the 10th Circuit grant that relief.
Having concluded that Anadarko is entitled to judgment as a matter of law on the Bays’
claims, the question remains as to how the remainder of this case should be addressed. As noted
above, the Bays’ claims were proffered as a bellwether of the claims that several other plaintiffs
(and former class members) wish to pursue individually. A fair assumption might be that, as
bellwether plaintiffs, if the Bays cannot adduce sufficient evidence to satisfy the “material
interference” standard, none of the remaining landowners can do so either. But the Court will
not presume to enter judgment on behalf of Anadarko against all of the landowner plaintiffs at
this time. Previously, the Court entered final judgment on the Bays’ claims, allowing the Bays to
take an immediate appeal. Because the Bays disagree with this Court that Bay correctly sets
forth the “material interference” standard, this Court presumes that the Bays will want to appeal
this matter again in the hopes of convincing the 10th Circuit to reconsider and adopt a more

8

The Bays argued that cases raising similar claims were underway in state court. To date,
no party has filed any Notice of Supplemental Authority indicating any state court decision
addressing the “material interference” standard in this context, and the Court’s research reveals
none. To date, the 10th Circuit’s decision in Bay stands as the only modern interpretation of the
Gerrity decision.
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favorable standard. For the same reasons, the Court further assumes that none of the other
landowner plaintiffs will request to proceed until the Bays’ appeal is complete. Thus, the Court
will, once again, enter final judgment in favor of Anadarko against the Bays and close this case,
leaving the claims of any other landowner plaintiffs in a sort of hibernation, to arise for future
adjudication only upon a successful appeal and retrial by the Bays.
Accordingly, the Court finds that the Defendants are entitled to judgment as a matter of
law pursuant to Fed. R. Civ. P. 50 on the Bays’ trespass claim. The Clerk of the Court shall
enter judgment in favor of the Defendants and against the Bays and close this case.
Dated this 28th day of September, 2021.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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