If you have been contacted by an oil or gas pipeline company, a wind farm developer or a solar array developer, you may wonder if the lease you authorize will allow you to continue using your land. A single parcel of land could conceivably contain a pipeline or well, solar panels and wind turbines. Plus, you might still want to use it for farming, ranching or hunting. Can you?
As is the case with many legal issues, it depends. Once you have signed a lease for one type of energy development, you may have signed away your right to authorize other types. Or, you may retain the right to lease or your land for a second or third type of development.
The first step is to evaluate your legal rights under any existing leases. Does the lease restrict concurrent uses of the land? If not, you probably have the right to develop new leases. However, each additional lease will need to reference the existing leases and agreements and respect their terms.
Is a concurrent use feasible?
In some cases, it may not even be feasible to use your land concurrently. For example, it is harder to develop concurrent leases when you have already leased to a solar array, simply because a solar array tends to consume the entire surface of the land it occupies.
As a result, if you are considering a solar lease, you should make sure you negotiate payments for any surface damages, such as buried or overhead lines.
On the other hand, a wind turbine could easily allow some kinds of concurrent uses because of its relatively small footprint. However, not all concurrent uses are feasible. The turbine or turbines could interfere with farming, for example.
The same goes for oil and gas pipelines. These are generally buried, so your land may seem just as usable as before. However, you will need to grant access rights to the pipeline for construction and maintenance, and you have to consider what would happen if there were a leak.
Craft concurrent use accommodations early
If you are considering leasing your land for more than one purpose but still wish to access it for hunting, for example, you may need an accommodation agreement. This is created by analyzing each existing lease to determine if concurrent uses are allowed. Assuming they are, and they are feasible, you will need to ensure your accommodation agreement clearly spells out each party’s rights and responsibilities.
If you are considering multiple leases on your land, it is important to work with an attorney who has concrete experience in the types of energy projects you are considering. Experience drafting accommodation agreements will allow your lawyer to identify your opportunities for energy leasing, mineral rights, surface uses and concurrent uses like farming or ranching.
