Last week, we published our national 2024 Ag Law Year in Review.  Today, we will focus a little closer to home on the biggest agricultural law related stories here in Texas.

Photo by Perry Merrity II 

Ownership of produced water pending before Texas Supreme Court.

In my mind, the most important legal issue for Texans in 2024 involves the ownership of produced water.  This issue was raised in Cactus Water Services, LLC v. COG Operating, LLC and this case has important implications for Texas landowners.  Produced water is the water that is extracted along with oil or gas operations.  This water has to be separated from the oil or gas and, historically, has been disposed of by the oil and gas operator, often in underground disposal wells.  Recently, treatment has been created that allows this produced water to be reused in oil and gas operations.  This led to an important question of who owns the produced water–the landowner or the mineral lessee?  The lower courts held that produced water is owned by the mineral owner, with the El Paso Appellate Court deciding this based upon classifying produced water as “oil and gas waste.”  To read more about this decision, click here. This decision was appealed to the Texas Supreme Court.  Briefing is set to be complete on January 6, 2025.  After that, the Court will decide on whether to hear the case.

Ownership of underground salt caverns before Texas Supreme Court.

The question of who owns salt caverns beneath the surface is also currently before the Texas Supreme Court.  In Myers-Woodward, LLC v. Underground Services Markham, LLC, the issue is whether an underground salt cavern is owned by the surface owner or mineral owner.  The only Texas case ever deciding this issue was Mapco v. Carter, a 1991 decision from the Beaumont Court of Appeals, which sided with the mineral owner.  However, the Corpus Christi Court of Appeals declined to follow that approach and sided with the surface owner in Myers-Woodward, ruling that such caverns are owned by the surface owner.   The parties appealed, and the Texas Supreme Court agreed to hear the case.  Oral argument before the Texas Supreme Court was held in October, and a decision is expected next year. You can read a summary of this case here.

Farms file lawsuits alleging PFAS contamination. 

A group of Texas farmers from Grandview filed lawsuits related to alleged PFAS contamination of their land.  The plaintiffs claim that their land, water, and livestock were contaminated by fertilizer made from biosolids that was spread on neighboring land.  They allege that the fertilizer contained highly hazardous chemicals known as PFAS. Two lawsuits have been filed thus far.  The first, Farmer v. Synagro Tech., Inc., was filed against the company that manufactured and sold the fertilizer.  [Read Complaint here and summary here.]  The second,  Farmer v. EPA, involves claims that the EPA failed to identify PFAS as toxic pollutants in sewage sludge and failed to regulate PFAS.  [Read summary here.]    The Texas Tribune did an in depth story on this situation here.

Two lawsuits related to Endangered Species Act Listings. 

There were two lawsuits filed in Texas involving the listing of certain animals under the Endangered Species Act.  Texas v. US Department of the Interior involves a challenge to the listing of the dunes sagebrush lizard.  Texas claims the listing violates the ESA and EPA by failing to rely on the best scientific and commercial data when making the listing decision and failed to account for voluntary conservation efforts already in place. [Read Complaint here and article here.]   In the other Texas v. US Department of the Interior, the State of Texas challenges the listing of the freshwater mussel as threatened under the Endangered Species Act, arguing that the listing violates the ESA, APA, and the National Environmental Policy Act.  [Read Complaint here and article here.]

There are several other issues to watch in 2025.

In addition to the issues discussed above, there are a number of new and interesting legal issues to keep an eye on in 2025.

• Brine mining is a hot topic issue in East Texas where some landowners are leasing the right to extract lithium from groundwater beneath their properties.  To learn more, click here for a podcast episode I did with Josh Ellis.
• Pore space ownership and leasing is another area of the law where we have recently seen a lot of questions.  This is related to the salt cavern ownership issue but is broader to encompass additional types of pore space.  Who owns the pore space beneath a piece of property?  What should be included in a lease document when the rights to use that pore space is being granted to someone else?  I will have information on this topic on my blog and podcast in 2025!
• There have been a number of oil and gas cases decided this year related to Texas oil and gas law.  John McFarland has a great blog where he keeps track of oil and gas opinions here.