§ 6.9 - Dormant Minerals

• Jurisdiction: Washington

§6.9 DORMANT MINERALS

"Dormant" minerals are severed mineral interests that are unused or undeveloped for a specified period of time. As discussed below, under certain circumstances those interests may revert to the surface owner.

(1) Dormant minerals statutes

In what may seem to be an astonishing disregard for property rights, for the past quarter century it has been lawful for governments to enact statutes that declare privately owned severed minerals "dormant" and then take those severed minerals from the mineral owner, without payment, and give them to the surface owner. See Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d 738 (1982) (upholding Indiana's Dormant Mineral Interests Act against constitutional challenges based on issues of due process and taking of private property without just compensation).

Numerous states have adopted dormant minerals statutes that allow ownership of the mineral estate to transfer to the surface owner under certain conditions. These statutes typically fall into two categories: (1) those that require a judicial determination for title to vest in a new owner and (2) those that appear to be self-executing, generally following the recording of some kind of notice of intent to claim the interest. The purpose of such statutes is to provide some certainty to the surface owner regarding the development of minerals. Many states' statutes are based on the Uniform Dormant Mineral Interests Act, §§1-13, 7A pt. 1 U.L.A. 199 (1986).

In general, the statutes provide that if a severed mineral interest is unused or undeveloped for a specified period of time, the mineral interest will lapse and revert to the current surface owner. States that have adopted dormant mineral, lapse, or abandonment statutes include California, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Tennessee, Washington, West Virginia, and Wisconsin.

Comment: Numerous public policy arguments drive dormant minerals statutes. Some proponents simply have more concern for surface owners (especially where the surface use has changed from undeveloped to developed property—e.g., from agricultural ranching, or timberland to residential subdivisions), while others assert that, in many instances, the mineral reservation is, in essence, a title relic that needlessly encumbers the property. In this author's view, however, there is a

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