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State challenges landowner’s mineral rights
W.V. “Bill” Hyman
FLORESVILLE -- As water flowed above the ground in the form of much-needed rain to replenish parched lands, water in another form -- water rights -- was one of the topics discussed, along with mineral rights, at the Jan. 19 meeting of the South Central Texas Independent Cattlemen’s Association.
Independent Cattlemen’s Association of Texas (ICA) and ICA Executive Director W.V. “Bill” Hyman updated the cattlemen on groundwater issues being settled in the state’s last legislative session (SB 332) that clarified that groundwater is considered as real property, and the landowner has the vested right to drill, produce, and sell groundwater to another entity. Hyman explained that groundwater is considered surface estate (rights).
Due to the state population’s growth and the lingering drought, Hyman explained that once the domestic and livestock needs have been met, then the sale of water comes into play, known as senior and junior water rights. See “Brazos River Authority” for more on this.
A Texas water foundation, H204TEXAS Coalition, was formed to assist landowners, water districts, and other entities with water needs. While cities and the ag industry are working together, each has different ideas to meet the state’s water needs, and they cannot agree on solutions, Hyman said.
While the water distribution scenario continues, a different estate -- mineral rights -- is being challenged in the courts of West Texas. Hyman said property owners should be aware of the situation, since the outcome could set a precedent for others in the state.
Hyman spoke briefly of the CEMEX case, in which the Mexican company was taken to court over surface mining. Due to a state appeals court decision -- in favor of Texas -- the company must pay the state millions in mining royalties. See “CEMEX background” for more on the case.
Now, a landowner is being sued by Texas, since the state contends it retained the mineral rights to this estate; Texas is seeking 40 years’ back lease on the gravel sold from this property.
The Independent Cattlemen’s Association of Texas, the Texas Farm Bureau, and the Texas Wildlife Association are among 20 groups that filed as Friends of the Court in late January, in defense of the landowner.
Hyman wondered aloud if the gravel on a property belongs to the landowner, under “mineral estate [rights].”
Hyman also addressed national and state issues. See related article, page 1D.
In September 2011, CEMEX was ordered to pay the state of Texas $558 million in mining royalties due to a state appeal court’s ruling in favor of Texas.
According to TexasInsider.org, Texas Land Commissioner Jerry Patterson took CEMEX to court in 2009 “alleging the Mexican-based multinational corporation failed to pay Texas schoolchildren from mining millions of tons of minerals from McKelligon Canyon, located in the Franklin Mountains just north of downtown El Paso.”
According to the website, due to the Mining Act of 1985, “‘all deposits of granite, limestone, gravel, sand, and any other mineral substances of whatever kind or character having commercial value located on McKelligon Canyon lands as herein identified are reserved to the State of Texas.
“When Texas joined the Union, those vacant lands remained in the state’s public domain. The surface of most of the vacant lands was slowly sold off for nominal amounts and used by the original purchasers for grazing, agricultural, and related purposes. The state however, retained all valuable materials on, in, and under the state’s land for the benefit of public education.”
Brazos River Authority
According to The Brazos River Authority website, “Senior rights have an earlier priority date and claimants who hold them have a higher priority to divert water from a stream or water body than those with more junior rights. However, in times of scarcity, when there is not enough water to meet demand in a basin, those who need water for domestic and livestock use have first right to water, regardless of one’s priority date.
After domestic and livestock needs are met, those with senior water rights can insist diversions by those with junior water rights upstream be reduced or suspended until their senior rights are met downstream.”
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