Professor Joshua Fershee who teaches at the West Virginia University College of Law has made a statement regarding the decision (.pdf) by Judge Hummel that all leases include the right to pool.
Professor Fershee didn’t go so far as to say the decision was wrong, but he did criticize some of the reasoning of the decision, including what he thought the decision left out.
Fershee believes that if the decision were reviewed by a higher court, it would probably be sent back to the lower court for some explanation.
I am of the opinion that older leases that were signed before pooling became a thing couldn’t possibly have included the right to pool. It wasn’t in the contemplation of the parties.
It will be interesting to see how this one plays out in court. No one appealed the decision, and the time for appeal has long since passed, so it won’t be appealed. However, someone is going to have a fight over this issue in the future, and someone will appeal the issue to the Supreme Court.
How much should be read into American Energy v. Mary Jean Templeton Pooling, et al? In addition to Professor Fershee, my opinion not much, here is why:
The order granting summary judgement is a settlement and agreement between the parties and compensation exchanged. In return no cross motion to the summary judgement would be made or any opposition to slick Ken’s motion for implied pooling. It seems since the court appointed representation for the defendants and the compensation is held by the court that this was about missing heirs not so much about holdouts. Seems like a slick trick to get around the process and long waiting times for missing heirs petition. This begs the questions – Who’s left to appeal the case? No-one as they owners of the property are missing heirs any their court appointed counsel made a settlement with compensation. Is this something to worry about in reference to forced pooling? No lease modifications to allow pooling? Ken’s slick move but does it really set a precedent on forced pooling? I don’t think so, but I’m not in the law business. A slick trick by Ken to try and get his clients an easier ride in the future.