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                SUPREME COURT OF ARKANSAS
                                       No.   CV-14-648

RICHARD G. GAWENIS                                Opinion Delivered   May 28, 2015
                               APPELLANT
                                                  APPEAL FROM THE VAN BUREN
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CV-2012-150]

ARKANSAS OIL & GAS                                HONORABLE H.G. FOSTER, JUDGE
COMMISSION, AND SEECO, INC.
                    APPELLEES                     AFFIRMED.


                                JIM HANNAH, Chief Justice


       Appellant Richard G. Gawenis appeals from an order of the Van Buren County

Circuit Court affirming an order of appellee Arkansas Oil and Gas Commission to integrate

Gawenis’s unleased mineral interests into a drilling unit. For reversal, Gawenis contends that

the Commission’s forced integration of his mineral interests is an unconstitutional taking of

his property and that the Commission’s order deprived him of his constitutional right to a jury

trial to determine just compensation for his property. This appeal requires interpretation of

the Arkansas Constitution; therefore, our jurisdiction is pursuant to Arkansas Supreme Court

Rule 1-2(a)(1) (2014). We affirm the circuit court’s order.

       Gawenis is the owner of the oil, gas, and other minerals beneath a .69 acre tract in Van

Buren County, Arkansas, that is situated within the Ozark Highlands Unit (“OHU”). Formed

by the United States of America Bureau of Land Management, the OHU is believed to be

prospective for natural-gas exploration and development from the Fayetteville Shale
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formation. The OHU is composed mostly of mineral interests owned by the United States

of America, but it also contains some privately owned mineral interests, such as the .69 acre

mineral tract owned by Gawenis.

       On May 22, 2012, the Commission held a public hearing to receive evidence related

to SEECO’s application seeking to create a 5,154-acre oil-and-gas drilling unit in the OHU

and to integrate all unleased and uncommitted mineral interests within the unit. On June 4,

2012, the Commission established the unit and integrated all of the unleased and

uncommitted mineral interests within the unit, except for the unleased mineral interests of

Gawenis.

       On June 26, 2012, the Commission held a hearing to receive evidence related to

SEECO’s request to integrate Gawenis’s unleased mineral interests into the drilling unit.

Gawenis testified at the hearing, stating that he believed that the forced-integration procedures

of the Commission amounted to a taking of his property, that the risk-factor percentage was

inappropriate, that his rights and his land belonged to him, and that he had not been afforded

a jury trial to determine just compensation for his mineral interests. In a July 12, 2012 order,

the Commission approved SEECO’s application and integrated Gawenis’s unleased mineral

interests into the drilling unit.

       Gawenis sought review of the Commission’s decision in the circuit court pursuant

to the Arkansas Administrative Procedure Act, Arkansas Code Annotated sections 25-15-

201 to -219. At a hearing before the circuit court, Gawenis argued that the Commission’s

forced-integration procedures amounted to a taking of his property and that he was


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entitled to have a jury determine compensation. On March 31, 2014, the circuit court

entered an order affirming the Commission’s decision and finding, inter alia, that the

forced-integration procedures are constitutional and that the terms provided under the

Commission’s order were fair and reasonable consideration for an oil-and-gas lease.

Gawenis appeals.

       A brief review of the history of relevant oil-and-gas law is helpful to an

understanding of Gawenis’s arguments. In early twentieth-century Arkansas, the “rule of

capture” governed the production and use of oil and gas. This court defined the rule of

capture in a 1912 case as follows:

       Petroleum, gas, and oil are substances of a peculiar character. . . .They belong to
       the owner of land, and are part of it so long as they are part of it or in it or subject
       to his control; but when they escape and go into other land or come under
       another’s control, the title of the former owner is gone. If an adjoining owner drills
       his own land and taps a deposit of oil or gas extending under his neighbor’s field,
       so that it comes into his well, it becomes his property.

Osborne v. Ark. Terr. Oil & Gas Co., 103 Ark. 175, 180, 146 S.W. 122, 124 (1912)

(quoting Brown v. Spilman, 155 U.S. 665, 669–70 (1895)). Under the rule of capture, a

landowner had an unrestricted right to drill for oil and gas on his or her land, and if oil and

gas were found, the landowner would not be liable to adjacent landowners whose lands

were also drained. Each landowner was encouraged to produce as much oil and gas from

the reservoir as possible, even though “[t]he resultant ‘race’ to the depletion of the

reservoir wasted oil and gas reserves, as well as economic resources, and jeopardized

property rights.” Phillip E. Norvell, Prelude to the Future of Shale Gas Development: Well

Spacing and Integrating for the Fayetteville Shale in Arkansas, 49 Washburn L.J. 457, 459

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(Winter 2010).

       In 1939, the General Assembly enacted the Arkansas Conservation Act. See Act of

Feb. 20, 1939, No. 105, 1939 Ark. Acts 219.1 The Act modified the rule of capture and

established the Arkansas Oil and Gas Commission to regulate the development and

production of oil and gas in the state.2

       To prevent waste and to avoid the risks arising from the drilling of an excessive

number of wells, the Commission has statutory authority to establish drilling units, designate

the number of wells that may be drilled and produced, and regulate the spacing among wells

within a unit. See Ark. Code Ann. § 15-72-302(b). The Commission also has the authority


       1
      The Act has been amended from time to time and is now codified at Arkansas Code
Annotated sections 15-72-101 to -407 (Repl. 2009).
       2
        In a section titled “Declaration of Policy,” the Act stated,

       In recognition of past, present, and imminent evils occurring in the production and
       use of oil and gas, as a result of waste in the production and use thereof in the absence
       of co-equal or correlative rights of owners of crude oil or natural gas in a common
       source of supply to produce and use the same, this law is enacted for the protection
       of public and private interests against such evils by prohibiting waste and compelling
       ratable production.

See Act of Feb. 20, 1939, No. 105, § 1, 1939 Ark. Acts 219, 219; currently codified at Ark.

Code Ann. § 15-72-101; see also Susan Webber Wright, The Arkansas Law of Oil and Gas, 9

U. Ark. Little Rock L.J. 223, 231 (1986–87) (noting that “[i]f the rule [of capture] were

allowed to operate without governmental regulations, each landowner could drill as many

oil or gas wells as he could afford and could produce as rapidly as possible in order to drain

the common pool before the others did so”).

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to integrate production in drilling units. See id. § 15-72-303. Owners3 of tracts or interests

within an established drilling unit may voluntarily pool, combine, and integrate their tracts

or interests for the development or operation of that drilling unit. See id. § 15-72-303(a). But

if the owners fail or refuse voluntarily to integrate their interests, the Commission shall, upon

the application of any owner or operator,4 integrate all tracts and interests in the drilling unit

for the development or operation of the drilling unit and the sharing of production from the

drilling unit. Id. § 15-72-303(b). “Forced integration” or “compulsory pooling,” as it is

known in other jurisdictions, “is the remedy that permits development of the drilling unit in

the event that the mineral-interest owners cannot agree to pool voluntarily.” Norvell, supra,

at 463.

          Integration orders are made after notice and a hearing and “upon terms and conditions

which are just and reasonable and which will afford the owner of each tract or interest in the

drilling unit the opportunity to recover or receive his or her just and equitable share of the

oil and gas in the pool without unnecessary expense.” Ark. Code Ann. § 15-72-304(a).

When, as in this case, there is no well drilled in the unit, the integration order (1) authorizes

the drilling, equipping, and operation of a well on the drilling unit, (2) provides who shall



          3
       “Owner,” as used in the Act, “means the person who has the right to drill into and
to produce from any pool and to appropriate the production either for himself or herself, or
for himself or herself and another, or others.” Ark. Code Ann. § 15-72-102(9).
          4
       An “operator” is a “person who has the right as an owner or by agreement with an
owner to enter upon the lands of another for the purposes of exploring, drilling, and
developing for the production of brine, oil, gas, and all other petroleum hydrocarbons.” Ark.
Code Ann. § 15-72-102(8).

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drill, complete, and operate the well, (3) prescribes the time and manner in which all owners

in the drilling unit who may desire to pay their share of the costs of such operations and

participate therein may elect to do so, and (4) provides that an owner who does not

affirmatively elect to participate in the risk and cost of the operations shall transfer his or her

rights in the drilling unit and the production from the unit well to the participants for

reasonable consideration and on reasonable terms. See id. § 15-72-304(b)(1)–(4).

       The integration order at issue in this case gave Gawenis four options: (1) lease his

mineral interests to any party on mutually agreed terms, (2) lease his interest to the

participating owners for a cash bonus of $938.36 per net mineral acre and a 1/5 royalty, (3)

participate as a working interest owner in the drilling of the proposed well by paying his

proportionate share of the costs and receiving his proportionate share of the proceeds, or (4)

become a “Non-Drilling (Non-Consenting) Party” who receives compensation for produced

minerals after the participants have been paid a certain amount as a risk-factor percentage. If

Gawenis failed to elect one of the options, then his mineral interests would be deemed

integrated into the unit for a cash bonus of $938.36 per net mineral acre and a 1/5 royalty.

       Gawenis contends that the forced-integration provisions of sections 15-72-303 through

-304 authorize an unconstitutional taking of his property in violation of article 2, section 22,

of the Arkansas Constitution. Arkansas statutes are presumed constitutional, and the party

attacking a statute has the burden of showing that the challenged statute clearly violates the

Arkansas Constitution. E.g., Hall v. Tucker, 336 Ark. 112, 117–18, 983 S.W.2d 432, 435

(1999). Article 2, section 22 states that “[t]he right of property is before and higher than any


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constitutional sanction; and private property shall not be taken, appropriated or damaged for

public use, without just compensation therefor.” Gawenis contends that, because forced

integration under sections 15-72-303 and 15-72-304 is, for all intents and purposes, a taking

of the mineral owner’s property, it is not enough that the Commission determines

“reasonable” compensation for the owner’s mineral rights, see Ark. Code Ann. § 15-72-

304(b)(4). According to Gawenis, he and other owners subject to forced integration are

constitutionally guaranteed “just” compensation.

       Although the issue whether the forced-integration procedures amount to an

unconstitutional taking is one of first impression in Arkansas, we note that the Oklahoma

Supreme Court confronted a similar issue in Anderson v. Corporation Commission, 327 P.2d 699

(Okla. 1957). In that case, the appellant asserted that Oklahoma’s conservation statute made

him a tenant-in-common owner of the unit well, which was not located on his land. He also

asserted that the Oklahoma commission’s order, which required him to either participate in

the cost of the unit well or accept a bonus and a royalty, constituted an unconstitutional

taking of his property. The court rejected the appellant’s arguments:

       In the case of Amis v. Bryan Pet. Corp., 185 Okl. 206, 90 P.2d 936, 939, an almost
       identical relationship existed by reason of municipal zoning ordinances controlling
       drilling. It was there said that,

              ‘Here the city created the relationship as it now exists between the parties. Had
              it not been for the zoning ordinance none of the lot owners would have held
              an interest in the oil and gas rights beneath the lots of the others. The
              relationship in the nature of a tenancy in common resulted merely as an
              incident to the application of the city’s police powers. The tenancy . . . is
              entirely subject thereto. The parties cannot successfully assert their common
              law rights as tenants in common, for such a tenancy actually does not exist.’


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                                             ....

       The order complained of did not constitute a taking of property of Anderson in any
       manner. It granted him the right to participate in the production from a well on
       Ellison’s property, but on condition that certain requirements were met. The
       limitation of one well to eighty acres was a proper exercise of the police power in
       furtherance of conservation of natural resources. That he was allowed to share in the
       production or to receive a bonus instead of that participation was a grant to him at the
       expense of Ellison merely because of the recognition of correlative rights. On the other
       hand, Ellison was not deprived of anything because he was granted the right to drill
       the only well which would be permitted on the eighty acre drilling unit upon
       condition that Anderson (and other owners of leasehold interests) could participate in
       the production upon payment of his part of the cost. Both were forced to co-operate
       for the benefit of both and for the protection of the public generally.

Anderson, 327 P.2d at 702–03.

       We find persuasive the reasoning in Anderson. Similar to the conservation statute

discussed in Anderson, the forced-integration provisions of the Arkansas Conservation Act do

not “take” anything away from Gawenis. Rather, the integration order allowed Gawenis to

lease his interest in the drilling unit in exchange for compensation or to participate in the

drilling of the well and receive monetary benefits.

       We are not persuaded by Gawenis’s argument that Anderson is inapposite because the

Oklahoma Constitution differs from the Arkansas Constitution in its treatment of property

rights. Even assuming, as Gawenis contends, that the Oklahoma Constitution is “more lax

[than the Arkansas Constitution] in the limitations placed upon takings,” this court has

recognized that, although article 2, section 22 protects individual property rights, the

individual’s use and enjoyment of property is always subject to reasonable regulations in order

to preserve the welfare of the public at large. Yarbrough v. Ark. State Highway Comm’n, 260

Ark. 161, 165, 539 S.W.2d 419, 421 (1976). We have also recognized that the valid exercise

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of the police power through land-use regulations does not constitute a compensable “taking”

because “the owner of such property is sufficiently compensated by sharing in the general

benefits resulting” from the regulations. See City of Little Rock v. Sun Bldg. & Developing Co.,

199 Ark. 333, 338, 134 S.W.2d 582, 585 (1939). We hold that the Commission’s integration

of Gawenis’s .69 acre mineral interest is not a compensable taking but a constitutional exercise

of the State’s police power.

       Finally, we disagree with Gawenis’s contention that the Commission’s order deprived

him of his constitutional right to a jury trial to determine just compensation for his property.

Article 12, section 9, of the Arkansas Constitution states that

       [n]o property, nor right of way, shall be appropriated to the use of any corporation,
       until full compensation therefor shall be first made to the owner, in money; or first
       secured to him by a deposit of money; which compensation, irrespective of any benefit
       from any improvement proposed by such corporation, shall be ascertained by a jury
       of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.

Gawenis cites no authority for the proposition that the forced-integration provisions

constitute a corporate “appropriation” of his property. Accordingly, he has no constitutional

right to a jury trial on the issue of compensation.

       In this case, Gawenis has failed to satisfy his burden of showing that the challenged

statutes clearly violate the Arkansas Constitution. The circuit court’s order is affirmed.

       Affirmed.

       Special Justices SARAH CAPP and DUSTIN JONES join in this opinion.

       HART, J., dissents.

       DANIELSON and BAKER , JJ., not participating.


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       JOSEPHINE LINKER HART, Justice, dissenting. Richard G. Gawenis argues that

he is entitled to a jury trial under the Arkansas Constitution. The majority, however, declines

to address the issue. Because Gawenis is correct, I respectfully dissent.

       The Arkansas Constitution provides as follows:

       No property, nor right of way, shall be appropriated to the use of any corporation,
       until full compensation therefor shall be first made to the owner, in money; or first
       secured to him by a deposit of money; which compensation, irrespective of any benefit
       from any improvement proposed by such corporation, shall be ascertained by a jury
       of twelve men, in a court of competent jurisdiction, as shall be prescribed by law.

Ark. Const. art. XII, § 9.

The Commission approved SEECO’s application to integrate all unleased and uncommitted

mineral interests. There is no jury trial at the Arkansas Oil & Gas Commission. Thus, if the

integration process appropriates Gawenis’s property, then the whole integration system is

unconstitutional.

       Though the majority does not address the issue, it concludes that the forced-integration

provisions of the Arkansas Conservation Act do not take anything away from Gawenis

because the integration order allowed Gawenis to lease his interest in the drilling unit in

exchange for compensation or to participate in the drilling of the well and receive monetary

benefits.

       The integration order, however, does not account for secondary recovery methods that

SEECO will utilize to cause the gas to migrate to SEECO’s well. Minerals are fugacious when

there is escape, seepage, or drainage that occurs as a result of the tapping a common reservoir;

in the Fayetteville Shale, however, the gas is primarily nonfugacious, thus owing to the need


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for secondary recovery methods. See Young v. Ethyl Corp., 521 F.2d 771, 774 (8th Cir. 1975)

(discussing fugacious and nonfugacious brine). In Jameson v. Ethyl Corporation, 271 Ark. 621,

609 S.W.2d 346 (1980), this court stated that the law should not “permit those persons who

are in an economically advantaged posture to be able to gain negotiating clout by being

allowed to undertake, with impunity, processes that go beyond extracting transient minerals

or [gases] which have drained or flowed by natural process to their drilling sites.” Id. at 626,

609 S.W.2d at 350. The Jameson court cited Osborn v. Arkansas Territorial Oil & Gas Company,

103 Ark. 175, 146 S.W. 122 (1912), where this court adopted the rule of capture, noting that

petroleum, gas, and oil belong to the owner of the land and are part of it so long as they are

part of it or in it or subject to his control, but when they escape and go into other land or

come under another’s control, the title of the former owner is gone. The Jameson court,

however, noted that Osborn did not involve a secondary recovery process. The Jameson court

recognized the obligation of the extracting party to compensate the owner for any special

damages that may have been caused to the property. Similarly, Gawenis is entitled to

compensation for any special damages that may be caused to his property by secondary

recovery methods, such as fracking. See O’Brien v. Primm, 243 Ark. 186, 419 S.W.2d 323

(1967) (concluding that defendants were negligent in conducting the sand-fract operation and

that such negligence was a proximate cause of damage to a water well); Young, 521 F.2d at

775 (concluding that a landowner had a vested existing property right in the brominated salt

water underlying his land and that a party’s act of forcibly removing the solution by means

of injection and production wells constituted an actionable trespass). Thus, SEECO has


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appropriated Gawenis’s property, and Gawenis is entitled to a jury trial to determine his full

compensation.

       Thus, I respectfully dissent.

       Matt D. Campbell, for appellant.

       Dustin McDaniel, Att’y Gen., by: Jennifer L. Merritt, Ass’t Att’y Gen., for appellee.




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