The Oklahoma Bar Journal May 2024

terms identical to those in the forced pooling, in effect offering mineral owners the option of being pooled by election or pooled by force, a distinction without a difference if ever there was one. Appellate courts have yet to weigh in on the validity of the practice. COMMISSION PROCEDURE The procedure followed during proceedings at the Commission is, in broad strokes, largely the same as it was in Mr. Nesbitt’s day, but there have been significant changes as well. As in Mr. Nesbitt’s day, the majority of conservation appli cations are still uncontested, and procedure, as it regards uncontested applications, is little changed – uncontested cases are heard the day the notice sets them for hear ing. Contested cases, on the other hand, are another matter. Today, contested cases are heard Wednesday through Friday on a docket dedicated solely to protests – an innova tion that allows more time for the responding party to prepare for a protested proceeding. Prior to the hearing, a pre-hearing conference agreement is filed setting out the issues, stipulations, timeline for exhibit exchanges and witness lists. In many cases, once an application has been heard as a protest, the prevailing party prepares the initial draft of the report and submits it to the administrative law judge (ALJ, a position called the trial examiner in Mr. Nesbitt’s day), who reviews the report, makes changes as they may deem appropriate and then files it. A nonprevailing party can still take exception to the report, in which instance the commission ers usually remand the case to an

more robust attempts to contact a landowner. In 2020, the Oklahoma Supreme Court held in Purcell v. Parker that when “affected land owners are known, or reasonably discoverable, notice provided by publication results in an uncon stitutional exercise of jurisdiction and a denial of due process.” 42 What precisely happens once notice has been given – or is supposed to happen, particularly with respect to the offer of a private agreement versus forced pooling – has become a tricky question of late, and an apparent conflict between law and custom suggests that the matter may require judicial attention in the coming years. However, the law appears on its face to require that operators make a good faith attempt to reach a private accord with mineral owners before subjecting them to forced pooling. Since the early 2000s, operators have tended to make less than vigorous efforts to reach such agreements before resorting to pooling, and the joint operating agreement (JOA) of old is rarely seen today. Instead, operators often send owners a bare-bones well proposal with

has to do with notice requirements. Mr. Nesbitt wrote in 1979 that “[n]either law nor policy requires prior contact to other lease owners” before initiating a pooling proceed ing. 40 Today, 52 O.S. §87.1(e) requires that an applicant first make a bona fide effort to reach an agreement with lease owners and explicitly requires that notice be attempted by mail with return receipt requested as well as published in a newspaper of general circulation in Oklahoma County and in some newspaper, at least 15 days prior to the date of the hearing, in the county (or in each county if there is more than one) in which the lands embraced within the spacing unit are situated. Furthermore, efforts to give notice to landowners must be more than merely perfunctory. In Harry R. Carlile Tr. v. Cotton Petroleum Corp. , a case involving notice requirements in a spacing proceeding before the Corporation Commission, the Oklahoma Supreme Court held that notice by publication in a periodical was inadequate in that instance. 41 Today, it may be inadequate for any purpose, at least in the absence of

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

MAY 2024 | 15

THE OKLAHOMA BAR JOURNAL