Judge Tacha's strong and well-reasoned dissent is a substantial asset in obtaining Supreme Court review. The Coal Lands Acts not only reserved coal to the United States, but also deeded gas and to the mineral owners. Public land and mining laws, as well as regulations, have long recognized that coal, and oil and gas, are separate and distinct mineral estates. The unequivocal intent of Congress to convey natural gas produced from coal reservoirs to coal lands patentees is confirmed by the fact that these mineral owners received title to gas and oil. Numerous persons and companies, including the defendants in this case, have relied upon these laws and regulations to obtain title and to conduct their affairs.
Natural gas produced from coal is indistinguishable from all other natural gas.
Thus, the assumption in the 10th Circuit opinion that the gas originated in the coal is erroneous. For example, gas is also adsorbed in substantial quantities in shale reservoirs. Under federal law, such gas is undisputedly owned by the oil and gas estate, not the owner of the shale. Even if the Supreme Court does not review the case, a number of issues remain to be decided in the trial court. The trial, and the likely second appeal, could require 10 years or more.