Communicating with your Attorney
Several years back, I was fortunate enough to have a farmer invite me out to his place to show me around a bit. His goal was to help me understand some of the very significant, everyday impacts oil and gas development can have on a farmer or rancher out in northwestern North Dakota. Although I learned a lot about these impacts, I also learned once again the importance of good communications between farmers and ranchers, and their attorneys.
For example, in many pipeline easements, there are provisions which require the easement holder to return the surface of the easement right-of-way to its original condition. Most attorneys can craft some standard language to this effect in an easement. Understanding the problems that arise when this is not done, however, helps an attorney draft language to avoid a very real problem, rather than an abstract concern. While I traveled around the farmer’s field, he showed me the edge of an oil pipeline right-of-way, which had a ridge between 6-10 inches. His son, just a day prior to my visit, had attempted to cross the small ridge and had broken a chain on his equipment.
Another useful example relates to the rocks pushed onto this farmer’s hay field from a nearby access road. An oil company built the road to access one of its wells in the area, and during a long winter of heavy snow, the company regularly plowed the snow out into the farmer’s field. Unfortunately, with the snow came a significant number of rocks and other debris. Additionally, the plows turned up areas of the field making it extremely uneven in places. The farmer explained that he and his son had baled hay in two sections, and he broken only a few guards on their baler. In this single field which had all the rocks pushed into it, they broke close to fifteen guards in only a few passes before giving up on a large part of the field.
As attorneys, we see a lot of pipeline easements and other legal documents which often contain stock phrases and typical provisions. We may not always know precisely why a provision is important, though. It was incredibly helpful to me to understand that if a company fails to return the surface to its original contour, it could potentially prevent the movement of machinery across a field. It is also helpful to understand that rocks in a field could literally prevent a farmer from baling a significant portion of that field.
Most of these issues are obvious to a farmer, and luckily North Dakota is blessed with a large number of attorneys who grew up on the farm and can carry that experience into their legal practice. There are a number of issues for which farmers and ranchers may find themselves needing the advice or services of an attorney. When it is necessary to use an attorney, I would encourage farmers, ranchers, and attorneys alike to discuss not simply the legal issue at hand, but very specifically how that issue bears on the practical daily workings of the farm.
Although my trip taught me about the frustrations and problems farmers and ranchers are facing out in the oil patch, this advice is relevant for all farmers and ranchers. Whether it is a pipeline easement or an easement for a road running through the back forty, if an attorney understands exactly what you do with that back forty, she will be better able to tailor a legal agreement to meet your needs with more specific information.
(Posted by Derrick Braaten)