BERNICE M. BALDASARRE AND MARGARET M. NEUMANN, PLAINTIFFS-RESPONDENTS, v. WILLIAM B. BUTLER, PAUL M. DIFRANCESCO, JR., HOOLEY, BUTLER, DIFRANCESCO & KELLY, NEALE F. HOOLEY, DONALD T. DIFRANCESCO AND GERALD C. KELLY, DEFENDANTS-APPELLANTS.
*281 Arnold K. Mytelka argued the cause for appellants William B. Butler, Hooley, Butler, DiFrancesco & Kelly, Neale F. Hooley, Donald T. DiFrancesco and Gerald C. Kelly (Clapp & Eisenberg, attorneys; Mr. Mytelka, Agnes I. Rymer, and Madeline E. Cox, on the briefs).
A. Dennis Terrell argued the cause for appellant Paul M. DiFrancesco, Jr. (Shanley & Fisher, attorneys; Mr. Terrell, Andrew P. Slowinski, and Kenneth J. Wilbur, on the briefs).
Edwin J. McCreedy argued the cause for respondents (McCreedy and Cox, attorneys).
This appeal concerns the legal problems that arise from an attorney's dual representation of both buyer and seller in a real estate transaction. Initially, plaintiffs, the sellers, commenced an action alleging legal and equitable fraud against the attorney, his law firm, and the buyer. Shortly before oral argument, the parties informed the Court that plaintiffs had settled their claims against the attorney and his firm. Therefore, the only issues remaining are, first, whether one client, the buyer, is vicariously liable for the legal and equitable fraud allegedly perpetrated by his attorney against the attorney's other clients, the sellers; and second, whether the sellers are liable for intentional tortious interference with the buyer's prospective economic gain.
In 1982, plaintiffs, Beatrice Baldasarre and Margaret Neumann, inherited from their father, Arthur Santucci, a tract of 40.55 acres of undeveloped land in Warren Township, Somerset County, New Jersey. Plaintiffs retained defendant William B. Butler of the law firm of Hooley, Butler, DiFrancesco & Kelly to act as attorney for their father's estate and for them as co-executrices *282 of the estate. Butler also represented plaintiffs and their spouses in other legal matters. Plaintiffs had first met Butler when their father had consulted him about a legal matter.
Plaintiffs' father's will directed that the Warren property be sold and the proceeds divided between the two daughters. In 1986 and 1987, plaintiffs received several unsolicited offers to purchase the property, ranging in price from $60,000 to $117,000 per lot. Several offers were made by PML Associates, whose owners included Robert Santye, Frank Pasquerello, and Charles Messano. At one time plaintiffs informed Butler that Mrs. Baldasarre and her husband would purchase the property. However, the Baldasarres were unable to obtain financing, and that proposal fell through. Plaintiffs rejected all the other offers for various reasons.
In January 1987, Baldasarre and Neumann met with Butler. The parties disagree about whether plaintiffs solicited Butler's assistance or whether Butler volunteered it, but the three agreed that Butler would help find a buyer for the property. Plaintiffs told Butler that they wanted a price of $110,000 per lot, with no purchase money mortgage and with the contract subject only to preliminary major subdivision approval.
The Sellers have requested that you represent them regarding this matter. I have also asked you to represent me as Buyer. You have pointed out to me potential conflicts. All these matters were discussed in detail at the conference in your office on February 5, 1987. Notwithstanding potential conflicts, I still request that you represent me as Buyer, knowing full well that you will also be representing the Sellers. I feel as though your representation of both the Sellers and the Buyer in this matter will actually facilitate and expedite the obligation of both parties under the aforesaid contract.
Butler then met with plaintiffs. He conveyed DiFrancesco's offer and disclosed his relationship with DiFrancesco. He reviewed and explained the additional conditions sought by DiFrancesco. Butler also informed them that he could not represent DiFrancesco if they objected.
You have indicated to us that you will be representing Paul M. DiFrancesco, Jr. regarding the Buyer's obligation set forth in the aforesaid proposed contract. You have suggested that we take this contract to other counsel and review it before we sign the same. You have pointed out to us potential conflicts if you represented the undersigned as Sellers and Paul M. DiFrancesco, Jr., the Buyer. Notwithstanding such conflicts, we request that you represent us regarding the sale of the subject property. Your association with this property goes back to the death of our late father, Arthur H. Santucci, on September 23, 1982, at which time you acted as attorney for the estate and attorney for the undersigned as co-executrices. We have received written offers from third parties to purchase the subject property. We had previously instructed you that we would sell the subject property to a client of yours for a price of $110,000.00 per single family building lot. The aforesaid contract contains that price and we have concluded that the *284 other terms, provisions and conditions set forth in the proposed contract are fair and reasonable. You discussed all of the above with us in detail at the conference in your office which took place on February 9, 1987.
The Buyer has asked William B. Butler, Esq., 190 Elm Street, Westfield, New Jersey to represent him regarding the aforesaid preliminary major sub-division application. In the event the Buyer assigns the within contract pursuant to paragraph 17 above, the assignee shall be required to continue utilizing the engineering services of Fisk Associates and the attorney services of William B. Butler. The purpose of this provision is to insure expediency in the application process so that the applicable dates regarding the obtaining of preliminary major sub-division approval and the anticipated time of closing shall not be interfered with or delayed as a result of the aforesaid assignment.
The contract did not require DiFrancesco to notify the sellers of any assignment. Plaintiffs do not dispute that Butler explained the provisions of the contract and both conflicts letters with them in detail, although they later claimed they had not understood the assignment clause. Plaintiffs also do not dispute that Butler recommended that they review the contract and conflicts letter with another attorney. They did not do so, and on February 12, 1987, plaintiffs signed the contract and the conflicts letter.
In April 1987, DiFrancesco, represented by Butler, entered into a contract (the "Messano contract") to sell the subject property for $200,000 per "approved lot" to Messano Construction Co., Inc., whose principal, Charles Messano, had earlier participated in PML's unsuccessful attempts to purchase the property. DiFrancesco did not assign his rights under the *285 Baldasarre contract to Messano, but rather contracted to sell the property to Messano once he purchased it from plaintiffs. The Messano contract was contingent on DiFrancesco's taking title to the property and obtaining preliminary subdivision approval within eighteen months. The Messano contract contained an "assignment clause" that permitted the buyers to assign only the "whole contract and not part of this contract." The Messano contract also contained a "confidentiality clause" that barred Messano from entering the property, listing it for sale, or advertising it until his closing. The purpose of the confidentiality clause was "among other things, not to jeopardize the seller from obtaining the approvals set forth in paragraph 10," which referred to securing the preliminary major subdivision approval. Butler did not inform plaintiffs of the Messano contract, although Butler testified, and the trial court found, that in May 1987, Butler had informed Bernice Baldasarre's husband of the Messano contract when he was representing him on an unrelated matter and had asked him to relay the information to plaintiffs.
DiFrancesco was unable to obtain preliminary subdivision approval within six months and sought the ninety-day extension provided for in the Baldasarre contract. Plaintiffs agreed to the extension, apparently relying on Butler's assurance that DiFrancesco was "moving as expeditiously as practicable" on the application. Still unable to complete the subdivision process, DiFrancesco sought another extension. Approximately five to six weeks before the subdivision contingency would expire, DiFrancesco requested Butler to ask plaintiffs if they would grant him a further extension in exchange for the release of the $50,000 deposit. Butler conveyed the offer to plaintiffs and explained that DiFrancesco had the options either to terminate the contract or to waive the contingency and close. He further told plaintiffs, in response to their question, that he did not know which option DiFrancesco would choose if the extension were denied.
*286 Butler did not advise plaintiffs whether to grant or deny the extension and did not inform them of the Messano contract. Plaintiffs discussed the request in private and agreed to grant the requested extension in exchange for the release of the deposit. Butler prepared an amendment to the contract providing for an extension that gave DiFrancesco another six months in which to secure planning board approval, with a possible additional three-month extension if he was proceeding "as expeditiously as practicable." Plaintiffs signed the amendment on October 7, 1987.
Plaintiffs allege that it was not until early January 1988 that they first heard rumors that DiFrancesco had contracted to sell the property. Mrs. Neumann, one of the plaintiffs, immediately called Butler, who suggested that she attend a Board of Health meeting on January 12, 1988, and ask DiFrancesco about the rumors. Mrs. Neumann and her husband attended that meeting, as did Butler and DiFrancesco. However, no one mentioned the Messano contract. Later in January, plaintiffs learned from Santye, one of the principals of PML Associates, of the Messano contract and that Butler had represented DiFrancesco in that transaction. Plaintiffs felt aggrieved that Butler had not told them of the Messano contract and they retained other counsel.
On March 3, 1988, DiFrancesco sent letters to plaintiffs informing them that the subdivision application was complete and was expected to be heard in April. On March 17, 1988, plaintiffs brought the present action alleging legal and equitable fraud and seeking rescission of the contract and compensatory and punitive damages against Butler, his law firm, and DiFrancesco. DiFrancesco counterclaimed, charging tortious interference with his prospective economic advantage from the Messano contract and seeking specific performance and compensatory and punitive damages.
in order that defendant, Paul M. DiFrancesco, Jr., can close a contract with Messano Construction Company on condition that defendant, Paul M. DiFrancesco, Jr., will agree that following the completion of the closing of the Messano contract, he will hold in escrow the difference or approximately $1,620,000 until this action is decided on the merits or concluded by agreement of the parties.
On September 19, 1988, the trial court ordered plaintiffs to close and accept payment on or before October 9, 1988 "on the conditions set forth in the application." However, the closing did not occur before the October 9 deadline because DiFrancesco's title insurance company would not insure title because the pendency of plaintiffs' rescission claim rendered the title unmarketable. Messano then notified DiFrancesco that their contract was null and void because DiFrancesco could not convey marketable title within the eighteen-month period required by the Messano contract.
as I informed you I would think it wise to make sure that the order presented to Judge Ross makes it very clear that in the event Messano Construction does not make itself ready, willing and able to close title by such date, that under no event should the order compel your clients to convey title to DiFrancesco. I have learned through a reliable source that DiFrancesco has obtained mortgage financing of an amount sufficient to permit him to acquire title from your clients regardless whether Messano Construction closes title with him. Obviously, the game plan of Mr. Terrell [DiFrancesco's attorney] is to obtain title from your clients at any cost, again regardless whether Messano shows up.
The trial court on July 3, 1990, issued a written opinion holding that Butler and DiFrancesco were not guilty of fraud but that Baldasarre and Neumann were guilty of tortious interference with DiFrancesco's prospective economic advantage from the Messano contract. The court awarded compensatory *288 damages to DiFrancesco but denied his claim for punitive damages.
Plaintiffs appealed. The Appellate Division reversed the trial court judgment in almost every aspect. 254 N.J. Super. 502, 604 A.2d 112 (1992). The Appellate Division found that Butler had violated his ethical obligations as an attorney and that his failure to disclose the Messano contract to plaintiffs constituted equitable and legal fraud. The court found DiFrancesco vicariously liable for Butler's fraud because of the principal-agent relationship between DiFrancesco and Butler. Because plaintiffs had conveyed title to DiFrancesco on December 31, 1990, and he had installed improvements and sold the property, the remedy of rescission was by that time impossible. Therefore, the Appellate Division, accepting the trial court's finding that if plaintiffs had refused the extension, DiFrancesco would have waived the subdivision contingency and closed title immediately, awarded plaintiffs the original contract price, with interest from November 26, 1987, against defendants, jointly and severally. The court remanded the case for a hearing on plaintiffs' punitive damage claims. The Appellate Division also rejected the trial court's finding that the correspondence between plaintiffs and Messano established the requisite malice to sustain DiFrancesco's tortious interference counterclaim, and reversed the trial court's judgment against plaintiffs on that counterclaim.
Butler, his law firm, and DiFrancesco petitioned for certification, which we granted, 130 N.J. 10, 611 A.2d 649 (1992). Shortly, before oral argument, plaintiffs and Butler and the law firm settled the issues between them. Therefore, the only issues before this Court are plaintiffs' fraud claim against DiFrancesco and DiFrancesco's tortious interference with prospective economic advantage claim against plaintiffs.
We first examine Baldasarre's and Neumann's fraud claim against DiFrancesco. Plaintiffs do not charge that DiFrancesco *289 personally perpetrated a fraud on them. Nor do the parties dispute that the terms of the initial contract were fair and reasonable and that Butler explained the terms of the contract to them. Rather, plaintiffs make the two-pronged argument that Butler acted fraudulently in not disclosing the Messano contract to plaintiffs when he obtained their approval for the October 1987 extension, and that DiFrancesco is liable as a principal for the fraud perpetrated by his agent, Butler.
The courts below reached directly opposite conclusions concerning whether Butler's conduct towards plaintiffs was fraudulent. We need not and do not decide whether Butler's nondisclosure constituted a fraud on plaintiffs. That claim has been settled between Butler and plaintiffs, and it need not be settled between plaintiffs and DiFrancesco because we find that even if Butler's nondisclosure did constitute fraud, DiFrancesco cannot be held vicariously liable. To address plaintiffs' vicarious liability argument, however, we will assume that Butler's failure to disclose the Messano contract to plaintiffs was tortious.
Plaintiffs' argument has a superficial appeal. Butler was DiFrancesco's agent. Generally, a principal is liable for the tortious acts of an agent acting within the scope of his or her authority. Therefore, it would appear to follow syllogistically that DiFrancesco is liable for the tortious acts of Butler. Indeed, that argument was adopted by the Appellate Division.
The problem with that argument, however, is that it oversimplifies the facts of the case and the governing principles. Butler was the dual agent of two principals, with each principal-agent relationship giving rise to its own set of duties. By failing to recognize the two separate agency relationships and their two separate sets of duties, plaintiffs and the Appellate Division have charged DiFrancesco with vicarious liability for Butler's act, which was tortious only within the context of his separate relationship with plaintiffs as their agent. Butler's duty to disclose the Messano contract to plaintiffs arose solely *290 because he was the agent and the attorney of the plaintiffs. Indeed, although Butler may have violated a duty to plaintiffs by his failure to disclose, if he had disclosed, he might have breached a duty to his other client, DiFrancesco.
It is undisputed that under the terms of the contract, DiFrancesco had every right to enter into a contract to sell the property once he obtained it, and no duty to inform plaintiffs of such a contract. DiFrancesco cannot be held vicariously liable for not disclosing the existence of the Messano contract when he himself had no duty to disclose it.
To the extent that Butler's nondisclosure was tortious, it was tortious because Butler breached obligations of his own that were beyond the scope of his agency relationship with DiFrancesco. Although Butler's act of remaining silent about the Messano contract was within the scope of his attorney-client relationship with DiFrancesco, that act derives its tortious character from Butler's separate duties to plaintiffs. Those duties were not part of the DiFrancesco-Butler principal-agent relationship, and therefore Butler's breach of those duties is not attributable to DiFrancesco. "[O]ne principal is not civilly liable to another for the tortious acts of an agent who acts for both parties with their consent, unless he in some manner participates in the wrong." 3 Am.Jur.2d Agency § 280 (1986).
The point is easily illustrated by imagining that Butler did not represent plaintiffs. If that had been the case, then Butler would have committed no tort by not disclosing the existence of the Messano contract to plaintiffs, because DiFrancesco had no duty, either directly or through his attorney, to *291 inform the sellers of an assignment. Unfortunately, Butler did represent both parties to the transaction, but DiFrancesco is not responsible for the conflicts generated by Butler's dual representation. It is the attorney's responsibility to avoid conflicts of interest, and if the attorney fails to do so, it is the attorney and not an innocent client who will be liable to any injured client.
Another problem with the theory adopted by the Appellate Division is that it fails to distinguish between those agency relationships that give rise to vicarious liability in the principal for the misconduct of the agent and those that do not.
Generally, therefore, the principal is not vicariously liable for the torts of the independent contractor if the principal did not direct or participate in them.
The status of independent contractor is "characterized by the attributes of self-employment and self-determination in the economic and professional sense." Rokos v. State, Dep't of Treasury, 236 N.J. Super. 174, 181, 564 A.2d 1217 (App.Div. 1989). Those attributes are generally present in the attorney-client relationship. Attorneys generally are not subject to their clients' actual control or direction. Indeed, most clients have an attorney because they are unfamiliar with the law and want an attorney to guide them through the intricacies of that field. As *292 professionals, attorneys are deemed responsible for their own acts, and, as in this case, most clients have legal recourse against the attorney and his law firm for their actions. See Feliberty v. Damon, 72 N.Y.2d 112, 531 N.Y.S.2d 778, 781, 527 N.E.2d 261, 264 (1988) (treating attorney as independent contractor and holding client not vicariously liable); Palmer v. Ted Stevens Honda, Inc., 193 Cal. App. 3d 530, 238 Cal. Rptr. 363, 368 (1987) (stating that attorney is independent contractor); but see Lynn v. Superior Court, 180 Cal. App. 3d 346, 225 Cal. Rptr. 427, 428 (1986) (reasoning that attorney is independent contractor in role as trial counsel but may be [employee] agent for business transactions); contra Peterson v. Worthen Bank & Trust, 296 Ark. 201, 753 S.W.2d 278 (1988) (applying traditional agency principles and finding client vicariously liable for attorney's torts within scope of employment); Southwestern Bell Tel. v. Wilson, 768 S.W.2d 755, 759 (Tex. App. 1988) (same).
An examination of Butler's relationships with DiFrancesco and plaintiffs discloses that he was an independent contractor in his representation of both his clients. Therefore, in the absence of evidence that DiFrancesco had participated in or had authorized fraudulent conduct by Butler, he cannot be held liable for Butler's alleged fraudulent conduct. "[A] client is not responsible for any illegal action taken or directed by his attorney which the client did not advise, consent to, participate in, and which was not justified by any authority he had given." 7A C.J.S. Attorney & Client § 190 (1980).
An innocent client should not be held vicariously liable for the wrongful conduct of his or her attorney against the attorney's other clients if the client does not direct, advise, consent to or participate in the attorney's improper conduct. A dual agent's wrongful conduct should not be attributed to one innocent principal over the other. Furthermore, it would be unreasonable to hold a client vicariously liable for an act that would not be tortious had he committed it himself. Where the *293 client did no wrong, the injured client's recourse is, and properly should be, against the wrongdoing attorney.
We turn now to DiFrancesco's claim that Baldasarre and Neumann intentionally interfered with his prospective economic advantage from the Messano contract. In order to succeed on this claim, DiFrancesco must show that he had a reasonable expectation of economic advantage arising from the Messano contract, and that this prospective advantage was lost as a result of the defendants' malicious interference with his pursuit of that advantage. "Malicious," in this circumstance, is defined to mean that "the harm was inflicted intentionally and without justification or excuse." Printing Mart v. Sharp Elec., 116 N.J. 739, 751, 563 A.2d 31 (1989).
DiFrancesco asserts that the harm inflicted by plaintiffs was the intentional maintenance of their rescission suit. As long as that claim was pending, plaintiffs could not convey "good and marketable title" to DiFrancesco. DiFrancesco was therefore unable to satisfy his obligation, under the Messano contract, to provide "good and marketable title" within eighteen months of that contract's execution, and DiFrancesco lost the benefits of the Messano contract.
In support of his interference claim, DiFrancesco cites Santye's encouragement of plaintiffs to obtain new counsel, the initiation of the suit, plaintiffs' failure to comply with the trial court's September 19, 1988, order requiring them to convey good and marketable title, and correspondence between the attorneys for Messano, plaintiffs, and another potential assignee. DiFrancesco concludes that those facts indicate a conspiratorial attempt to cut DiFrancesco out of the deal so that plaintiffs could usurp his profit.
The trial court agreed and found that plaintiffs had attempted to cut DiFrancesco out of the deal and had engaged in a course of conduct they knew would result in the Messano *294 contract's expiration. Therefore, the trial court concluded plaintiffs' conduct was malicious.
In reversing, the Appellate Division concluded that DiFrancesco had failed as a matter of law to prove "malice." 254 N.J. Super. at 526, 604 A.2d 112. The Appellate Division ultimately concluded that plaintiffs were "motivated by their well-founded desire to protect their legitimate interests in seeking rescission rather than an intention to gain an economic advantage by undermining DiFrancesco's agreement with Messano." Ibid.
ORDERED, that plaintiffs be and are hereby required to close and accept payment on their contract with the defendant, Paul M. DiFrancesco, Jr., on or before October 9, 1988 on the conditions set forth in the application.
an Order requiring plaintiffs to close and accept payment on their contract with the defendant, Paul M. DiFrancesco, Jr., on or before October 9, 1988 in order that defendant, Paul M. DiFrancesco, Jr., can close a contract with Messano Construction Company on condition that defendant, Paul M. DiFrancesco, Jr., will agree that following the completion of the closing of the Messano contract, he will hold in escrow the difference o[f] approximately $1,620,000 until this action is decided on the merits or concluded by the agreement of the parties.
DiFrancesco argues that "the conditions set forth in the application" that were incorporated by reference into the Order include the clause "in order that defendant, Paul M. DiFrancesco, Jr., can close a contract with Messano Construction Company * * *." DiFrancesco could close his contract with Messano only if plaintiffs conveyed marketable title. Therefore, DiFrancesco argues, the Order should be interpreted as requiring plaintiffs to convey marketable title. However, plaintiffs could *295 not convey marketable title unless they dismissed their rescission claim. DiFrancesco claims that plaintiffs were therefore obliged to dismiss the rescission claim in order to comply with the Order.
We find it much more probable that the Order, in referencing "the conditions set forth in the application," was referring to the clause in which DiFrancesco agreed to put the profits from the Messano contract in escrow until the action was concluded. That reading is all the more plausible because the Notice of Motion referred to the escrow provisions as a "condition," whereas the language pertaining to the Messano closing is not referred to as a condition and appears to function as a reason for the granting of the Order rather than a condition on it.
Even if our reading is incorrect and DiFrancesco's is correct, we cannot say that plaintiffs are guilty of malice for failing to accept and act in accordance with DiFrancesco's interpretation. In the absence of a clearer statement by the trial court requiring plaintiffs to dismiss the rescission claim, plaintiffs' refusal to do so cannot be construed as an intentional, unjustified, and unexcused interference with DiFrancesco's opportunities under the Messano contract. Although we have ultimately concluded, in light of a fully-developed factual record, that plaintiffs' claims against DiFrancesco are without merit, we do not consider them to have been frivolous. Given the uncertainty of both the relevant facts and law that existed at the time of the Order, plaintiffs could have believed in good faith that their claim for rescission was meritorious and could have refused to dismiss it on that sound basis. Therefore, a finding of malice based on their refusal to dismiss the rescission claim is unwarranted.
This case graphically demonstrates the conflicts that arise when an attorney, even with both clients' consent, undertakes the representation of the buyer and the seller in a complex commercial real estate transaction. The disastrous *296 consequences of Butler's dual representation convinces us that a new bright-line rule prohibiting dual representation is necessary in commercial real estate transactions where large sums of money are at stake, where contracts contain complex contingencies, or where options are numerous. The potential for conflict in that type of complex real estate transaction is too great to permit even consensual dual representation of buyer and seller. Therefore, we hold that an attorney may not represent both the buyer and the seller in a complex commercial real estate transaction even if both give their informed consent.
We hold that whatever Butler's liability to plaintiffs might be, it is not imputable to DiFrancesco. Therefore, we reverse the Appellate Division's award to plaintiffs of compensatory damages against DiFrancesco and its remand to the trial court for a further hearing on plaintiffs' punitive damage claim against DiFrancesco. We affirm the Appellate Division's dismissal of DiFrancesco's tortious interference with prospective economic advantage claim and his punitive damage claim against plaintiffs. Because DiFrancesco has not yet paid plaintiffs in full for the property, we order that he pay them the unpaid purchase price remaining on the sale of the property under the terms of the original contract, with interest from the date on which the conveyance occurred.
For affirmance in part, for reversal in part Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN 6.


text:
The Complainants are Sanofi-Aventis, Paris, France, and Aventis Pharma Deutschland GmbH, Frankfurt am Main, Germany, represented by Selarl Marchais De Cand�, France.
The Respondent is Reardon Health Partners LLC, Long Valley, New Jersey, United States of America.
The disputed domain name <lantusforlife.com> is registered with Go Daddy Software, Inc.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September�29,�2006, by e-mail, and on October�3,�2006, in hard copy. On October�3,�2006, the Center transmitted by email to Go Daddy Software, Inc. a request for registrar verification in connection with the domain name at issue. On October�3,�2006, Go Daddy Software, Inc. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October�9,�2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October�29,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October�30,�2006.
The Center appointed Manoel J. Pereira dos Santos as the sole panelist in this matter on November�13,�2006. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph�7.
The trademark upon which the Complaint is based is LANTUS. According to the documentary evidence and contentions submitted, Complainants own a number of trademark applications and registrations for the LANTUS trademark around the world, including the U.S. Trademark Registration No. 2,183,182 issued August�25,�1998, and assigned to Aventis Pharma Deutschland GmbH as of April�2,�2001, for antidiabetic pharmaceutical preparations in class 5. Reference is made to Annexes 5 through 10 of the Complaint.
According to the documentary evidence and contentions submitted, Complainants own, directly or through affiliates, the domain name <lantus.com>, which was registered with Network Solutions, Inc. on August�3,�1998. Reference is made to Annex 11 of the Complaint.
According to the documentary evidence and contentions submitted, “Lantus” is a drug manufactured and sold by Complainant Sanofi-Aventis which provides a slow, steady release of insulin to help control blood glucose for patients suffering from diabetes. The “www.lantus.com” website provides all relevant information related to the “Lantus” product. Complainant Sanofi-Aventis is a well-known pharmaceutical company which resulted from the merger of Sanofi-Synthelabo and Aventis, present in a large number of countries, including the United States of America, and Aventis Pharma Deutschland GmbH is a company of the Sanofi-Aventis Group.
According to the documentary evidence and contentions submitted, Respondent registered the domain name <lantusforlife.com> with Go Daddy Software, Inc. on May�29,�2003. On July�5,�2006, Complainants sent an e-mail to Respondent requiring the transfer of the disputed domain name. Reference is made to Annex 17 of the Complaint. Complainants state that Respondent did not answer to this e-mail message.
Complainants argue that the domain name <lantusforlife.com> reproduces entirely the trademark LANTUS, which is distinctive and is the dominant part of the disputed domain name, and that the terms “for life” are generic and descriptive of the Complainants’ product. Therefore, Complainants argue that the disputed domain name is confusingly similar to the trademark in which Complainants have rights.
Complainants further contend that Respondent uses the domain name <lantusforlife.com> to attract consumers to other websites offering to sell online various products and/or services, that the Sanofi-Aventis Group never licensed or otherwise permitted the Respondent to use the trademark LANTUS, and that there is no relationship between the parties. Therefore, Complainants argue that Respondent has no right or legitimate interests in respect of the disputed domain name.
Finally, Complainants contend that Respondent must have been aware of the existence of the “Lantus” product and name, of the domain name <lantus.com> and of the website to which that domain name resolves, reason why registration of the domain name <lantusforlife.com> was made in bad faith. They further argue that the website to which the disputed domain name resolves supports “sponsored links” which direct the Internet user to websites offering competing and other products, and that Respondent is intentionally attempting to attract for commercial gain Internet users by creating a likelihood of confusion with the Complainants’ trademark. Therefore, Respondent is also using the domain name <lantusforlife.com> in bad faith.
This Panel finds that there are no exceptional circumstances for the failure of the Respondent to submit a Response. As a result, the Panel infers that the Respondent does not deny the facts asserted and contentions made by Complainants from these facts. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No.�D2005-0084; Ross-Simons, Inc. v. Domain.Contact, WIPO Case No. D2003-0994. Therefore, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by the Complainants. Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; RX America, LLC. v. Matthew Smith, WIPO Case No. D2005-0540.
The trademark LANTUS is distinctive and the domain name <lantusforlife.com> incorporates such trademark in its entirety. The words “for life” are generic terms and, as argued by Complainants, are descriptive of the fact that the product “Lantus” is to be used for life, which is the case for people suffering from diabetes.
Therefore, the addition of generic and descriptive terms to an otherwise distinctive trademark name is to be considered confusingly similar to the registered trademark. Quixtar Investments, Inc. V. Dennis Hoffman, WIPO Case No. D2000-0253 (finding that Quixtar and <quixtarmortgage.com> are legally identical); Sanofi-Aventis v. US-Meds.com, WIPO Case No. D2004-0809 (finding that the addition of the generic words “buy” and “online” does not remove a domain name from being confusingly similar); F. Hoffman La Roche AG v. DNS Administrator/ Turvill Consultants Ltd-RD, WIPO Case No. D2006-0047 (finding that the suffix “purchase” is descriptive and adds no distinctiveness to the domain name <purchasevalium.com> which incorporates complainant’s trademark); F. Hoffman La Roche AG v.Pinetree Development, Ltd., WIPO Case No. D2006-0049 (finding that the words “buy” and “online” are not sufficient to render a domain name dissimilar or to prevent consumer confusion).
The addition of the suffix “.com” is non-distinctive because it is required for the registration of the domain name. RX America, LLC v. Mattew Smith, WIPO Case No.�D2005-0540; Sanofi-Aventis v. US Online Pharmacies, WIPO Case No. D2006-0582. In this type of combination it is clear that the registered trademark stands out and leads the public to think that the disputed domain name is somehow connected to the owner of the registered trademark. Utensilerie Associate S.p.A. v. C & M, WIPO Case No. D2003-0159 (finding that the term “shop” is non-distinctive and may create an association with the registered trademark to which it is added).
Therefore, the Panel concludes that the domain name <lantusforlife.com> is confusingly similar to the trademark LANTUS in which Complainants have rights. As a result, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is met.
The Panel finds as reasonable Complainants’ contentions that (i) Respondent does not need to use the disputed domain name for its activity as its name is Reardon Health Partners LLC, (ii) there is no license, consent or other right by which Respondent would have been entitled to register or use the disputed domain name, and (iii) there is no relationship between Complainants and the Respondent.
The extracts from the Respondent’s website “www.lantusforlife.com” (as contained in Annex 15 of the Complaint) indicate that Respondent provides various “sponsored links” to other websites offering to sell online various products and/or services to consumers. Use of a domain name incorporating a registered trademark for a website with sponsored links to competing or related products and services does not constitute a bona fide offering of goods or services pursuant to paragraph 4(c)(i) of the Policy.
The Panel also accepts Complainants’ contention that Respondent’s use of the domain name in dispute is intentionally misleading on-line consumers by re-directing them to other websites with the exclusive intention to get profits from such diversion. Therefore, Respondent is not making a legitimate fair use of the domain name pursuant to paragraph 4(c)(iii) of the Policy.
In short, the Complainants have satisfied their burden of providing sufficient evidence to make a prima facie case showing that Respondent lacks rights to or legitimate interests in the disputed domain name, and the Respondent has failed to provide the Panel with any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that Respondent has any rights or legitimate interests in the disputed domain name. Berlitz Investment Corp. v. Stefan Tinculescu, WIPO Case No. D2003-0465.
It can not reasonably be argued that the Respondent could have been unaware of the trademark LANTUS when registering the domain name for the following basis reasons: (a) “Lantus” is the name of a drug developed and sold by Complainants and is a registered trademark in the United States of America since 1998; (b) Complainants registered in 1998 the domain name <lantus.com> which resolves to the official website of this particular line of product, and (iii) the domain name <lantusforlife.com> resolves to a website with links to competing or related products and services.
Since the Respondent has formed the domain name <lantusforlife.com> by only adding the descriptive phrase “for life” to the registered trademark LANTUS, one can infer that the Respondent’s motivation in registering such domain name was to exploit user or consumer confusion as to source, sponsorship, affiliation or endorsement of any “Lantus” branded product.
The Panel also finds that the disputed domain name is being used in bad faith because Respondent is taking advantage of Complainants’ reputation by attracting Internet users and consumers of the public at large for commercial gain. In fact, use of a domain name incorporating a registered trademark for a website with sponsored links to competing or related products and services does constitute an evidence of bad faith use of a domain name.
One final issue should be addressed: does the fact that Complainants delayed for a couple of years following registration of the disputed domain name to bring this action against Respondent act as a bar to a finding in favor of Complainants? The Panel is of the view that a delay in bringing a claim does not generally act as a waiver of the right to do so. Tom Cruise v. Network Operations Center / Alberta Hot Rods, WIPO Case No. D2006-0560.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <lantusforlife.com> be transferred to the Complainant Aventis Pharma Deutschland GmbH, as requested by Complainants.

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text:
441 U.S. 463 - Smith v.
441 US 463 Smith v.
ARKANSAS STATE HIGHWAY EMPLOYEES, LOCAL 1315, et al.
In grievance proceedings initiated by employees of the Arkansas State Highway Department, the State Highway Commission will not consider a grievance unless the employee submits his written complaint directly to the designated employer representative. The District Court for the Eastern District of Arkansas found that this procedure denied the union representing the employees the ability to submit effective grievances on their behalf and therefore violated the First Amendment. 459 F.Supp. 452 (1978). The United States Court of Appeals for the Eighth Circuit affirmed.1 585 F.2d 876 (1978). We disagree with these holdings; finding no constitutional violation in the actions of the Commission or its individual members, we grant certiorari and reverse the judgment of the Court of Appeals.
The First Amendment protects the right of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances. And it protects the right of associations to engage in advocacy on behalf of their members. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). The government is prohibited from infringing upon these guarantees either by a general prohibition against certain forms of advocacy, NAACP v. Button, supra, or by imposing sanctions for the expression of particular views it opposes, e. g., Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).
In the case before us, there is no claim that the Highway Commission has prohibited its employees from joining together in a union, or from persuading others to do so, or from advocating any particular ideas. There is, in short, no claim of retaliation or discrimination proscribed by the First Amendment. Rather, the complaint of the union and its members is simply that the Commission refuses to consider or act upon grievances when filed by the union rather than by the employee directly.
Were public employers such as the Commission subject to the same labor laws applicable to private employers, this refusal might well constitute an unfair labor practice. We may assume that it would and, further, that it tends to impair or undermine if only slightly3—the effectiveness of the union in representing the economic interests of its members. Cf. Hanover Township, supra.
But this type of "impairment" is not one that the Constitution prohibits. Far from taking steps to prohibit or discourage union membership or association, all that the Commission has done in its challenged conduct is simply to ignore the union. That it is free to do.
Now this Court is deciding vital constitutional questions without even a plenary hearing. I dissent.
This Court has long held that the First Amendment protects the right of unions to secure legal representation for their members. Mine Workers v. Illinois State Bar Assn., 389 U.S. 217, 221-222, 88 S.Ct. 353, 355-356, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 8, 84 S.Ct. 1113, 1117, 12 L.Ed.2d 89 (1964); see Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); Eastern Railroad Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). Based on this precedent and on Arkansas' recognition of public employees' right to organize and join a union, Potts v. Hay, 229 Ark. 830, 315 S.W.2d 826 (1958), the Court of Appeals concluded that the First Amendment also encompasses respondent union's right to file grievances on behalf of its members. If under Mine Workers and Railroad Trainmen a public employer may not refuse to entertain a grievance submitted by a union-salaried attorney, it is not immediately apparent why the employer in this case should be entitled to reject a grievance asserted by the union itself.
"[E]ach employee sent a letter to Local 1315, explaining the nature of their grievance and requesting the union to process the grievances on their behalf. In each case the union forwarded the employee's letter to the designated employer's representative and included its own letter stating that it represented the employees and decided to set up a meeting. The employer's representative did not respond to the union's letter. Thereafter each employee filed a written complaint directly with the employer representative. Local 1315 represented each employee at subsequent meetings with the employer representative." 585 F.2d, at 877.
The individual Commissioners of the Arkansas State Highway Commission and the Director of the State Highway Department were named as defendants, and are the petitioners in this Court.
See Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456, 461 (CA7 1972), quoting Indianapolis Education Assn. v. Lewallen, 72 LRRM 2071, 2072 (CA7 1969) (" 'there is no constitutional duty to bargain collectively with an exclusive bargaining agent' ").
The union does represent its members at all meetings with employer representatives subsequent to the filing of a written grievance. See n. 1, supra. The "impairment" is thus limited to the requirement that written complaints, to be considered, must initially be submitted directly to the employer representative by the employee. There appears to be no bar, however, on the employee's securing any form of advice from his union, or from anyone else. Cf. Mine Workers v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967); Railroad Trainmen v. Virginia, ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).
Moreover, summary reversal seems to me an especially inappropriate means of resolving conflicts between the United States Courts of Appeals. Compare Arkansas State Highway Employees Local 1315 v. Smith, 585 F.2d 876 (CA8 1978), with Hanover Township Federation of Teachers v. Hanover Community School Corp., 457 F.2d 456 (CA7 1972).

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Repealed by 1995 c 265 § 27, effective July 1, 1995.
Savings--1995 c 265: See note following RCW 70.47.015.
43.72.020 Washington health services commission — Generally.
43.72.030 Chair — Powers and duties.
43.72.040 Commission powers and duties.
43.72.050 Economic viability of certified health plans threatened — Modification of maximum premium — Submission to legislature.
43.72.060 Advisory committees and special committees.
43.72.070 Continuous quality improvement and total quality management.
Repealed by 1995 c 265 § 27, effective July 1, 1995; and repealed by 1995 c 267 § 12, effective July 1, 1995.
43.72.080 Health insurance purchasing cooperatives — Designation of regions by commission — Information systems — Minimum standards and rules.
43.72.090 Uniform or supplemental benefits — Provision by certified health plan only — Uniform benefits package as minimum.
Reviser's note: This section was also amended by 1995 c 2 § 1 without cognizance of the repeal thereof. For rule of construction concerning sections amended and repealed in the same legislative session, see RCW 1.12.025.
43.72.100 Certified health plans — Duties.
43.72.110 Limited certified dental plan.
43.72.120 Registered employer health plans.
43.72.130 Uniform benefits package design.
43.72.140 Small business economic impact statement.
43.72.160 Certified health plan benefit packages — Offering, filing, and approval of forms.
43.72.170 Uniform and supplemental benefits — Rates — Filing and approval.
43.72.180 Legislative approval — Uniform benefits package and medical risk adjustment mechanisms.
Reviser's note: This section was also amended by 1995 c 2 § 2 without cognizance of the repeal thereof. For rule of construction concerning sections amended and repealed in the same legislative session, see RCW 1.12.025.
43.72.190 Supplemental and additional benefits negotiation.
Repealed by 1995 c 265 § 27, effective July 1, 1995; and repealed by 1995 1st sp.s. c 6 § 9, effective July 1, 1995.
43.72.240 Small firm financial assistance.
43.72.320 Transfer of health services commission duties to the health care policy board.
Repealed by 1997 c 274 § 9, effective July 1, 1997.
43.72.800 Long-term care integration plan.
43.72.810 Code revisions and waivers.
43.72.820 Reports of health care cost control and access commission.
43.72.830 Legislative budget committee evaluations, plans, and studies.
43.72.850 Workers' compensation medical benefits.
43.72.870 Tax credits — Recommend legislation.
Repealed by 2009 c 479 § 29, effective July 1, 2009.
43.72.904 Health system capacity account.
43.72.906 Personal health services account.
43.72.913 Captions not law-1993 c 492.


Plaintiff Joe Gallegos appeals the final decision of the Acting Commissioner of Social Security (“SSA”) denying his application for disability insurance benefits under Title II Social Security Act, 42 U.S.C. § 401 et seq. I have considered the parties' briefs (ECF Nos. 12-13) and the administrative record (ECF No. 9) (“AR”). Oral argument would not materially assist me in determining this appeal.
Mr. Gallegos argues the administrative law judge (ALJ) improperly weighed the medical opinion evidence in the record and improperly evaluated Mr. Gallegos's testimony. He also argues that SSA's Appeals Council failed to properly consider relevant medical evidence on appeal. Because I agree that the Appeals Council failed to consider new, relevant, and material evidence, I REVERSE this case and REMAND with instructions to consider that evidence. I decline to reach Mr. Gallegos's other arguments, which may be impacted by the new evidence.
In July 2014, Mr. Gallegos filed an application for disability insurance benefits with SSA, alleging disability beginning June 19, 2014. AR 136-37. After SSA initially denied his claim, AR 58-73, Mr. Gallegos requested a hearing before an ALJ, AR 85. The hearing took place on April 5, 2016. AR 38-57. On May 12, 2016, the ALJ denied Mr. Gallegos's claim, concluding he was not disabled within the meaning of the Social Security Act. AR 20-37. Mr. Gallegos asked SSA's Appeals Council to review the ALJ's decision. AR 18-19. On May 4, 2017, the Appeals Council denied review, AR 1-7, making the ALJ's decision the final decision of SSA, see Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On July 10, 2017, Mr. Gallegos timely filed this appeal. (ECF No. 1.) I have jurisdiction pursuant to 42 U.S.C. § 405(g).
A claimant is “disabled” under Title II of the Social Security Act if he is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also Bowen v. Yuckert, 482 U.S. 137, 140 (1987). SSA has established a five-step sequential evaluation process for determining whether a claimant is disabled and thus entitled to benefits. 20 C.F.R. § 404.1520.
At step one, SSA asks whether the claimant is presently engaged in “substantial gainful activity.” If he is, benefits are denied and the inquiry stops. § 404.1520(b). At step two, SSA asks whether the claimant has a “severe impairment”-that is, an impairment or combination of impairments that “significantly limits [his] physical or mental ability to do basic work activities.” § 404.1520(c). If he does not, benefits are denied and the inquiry stops. If he does, SSA moves on to step three, where it determines whether the claimant's impairment(s) “meet or equal” one of the “listed impairments”-impairments so severe that SSA has determined that a claimant who has them is conclusively disabled without regard to the claimant's age, education, or work experience. § 404.1520(d). If not, SSA goes to step four. At step four, SSA determines the claimant's residual functional capacity (“RFC”)-that is, what he is still able to do despite his impairments, and asks whether the claimant can do any of his “past relevant work” given that RFC. § 404.1520(e). If not, SSA goes to the fifth and final step, where it has the burden of showing that the claimant's RFC allows him to do other work in the national economy in view of his age, education, and work experience. § 404.1520(g). At this step, SSA's Grid rules may mandate a finding of disabled or not disabled without further analysis based on the claimant's age, education, and work experience. 20 C.F.R. Pt. 404, Subpt. P, App. 2. In contrast with step five, the claimant has “the burden of establishing a prima facie case of disability at steps one through four.” Doyal, 331 F.3d at 760.


For decades, Tribes either have been required to use, or have acquiesced to, a system of “rights of way” to allow access across tribal lands held in trust by the United States and to “leases” for other uses of those lands. After Congress amended 25 U.S.C. §81, Tribes became entitled to issue licenses under a tribal permit system without the regulation, interference, or delay imposed by the Bureau of Indian Affairs. The Northern Arapaho Tribe is one of several Tribes which have embraced this opportunity and promotes the use of tribal licenses to liberate itself, and those who want to do business in Indian country, from the burdens of a federal bureaucracy.
(1) The term “Indian lands” means lands the title to which is held by the United States in trust for an Indian Tribe or lands the title to which is held by an Indian Tribe subject to a restriction by the United States against alienation.
(2) The term “Indian Tribe” has the meaning given that term in section 450b(e) of this title.
(3) The term “Secretary” means the Secretary of the Interior.
(b) Approval. No agreement or contract with an Indian Tribe that encumbers Indian lands for a period of 7 or more years shall be valid unless that agreement or contract bears the approval of the Secretary of the Interior or a designee of the Secretary.
Under the plain language of Section 81, agreements which do not encumber the trust land do not require BIA approval, a fact which recently has been amplified and clarified by the federal courts. See Gasplus L.L.C. v. U.S. Dept. of the Interior, __ F.Supp. __ (D.D.C. 2007), 2007 WL 2506402. A contract which “encumbers Indian lands” is one that, “by its terms, provides a third party with a legal interest in the land itself; that is, a right or claim attached to the real property that would interfere with the Tribe’s exclusive proprietary control over the land.” Id. at p.9. Mortgages and other liens on real property are examples of such “encumbrances.” Id., citing U.C.C. 9-102(a)(32). In Gasplus, the Tribe entered into an agreement for the company to manage the Tribe’s gasoline distribution business, located on trust land. According to the BIA, the agreement gave the company “nearly exclusive proprietary control over tribal land” and therefore required BIA approval. Gasplus, supra, at 10. The Court disagreed, however, saying the BIA’s “conclusion does not follow as a matter of law or logic.” Id. Nothing in the agreement explicitly or implicitly gave the company “a legal right attached to the real property.” Id. Because the agreement created no encumbrance on the land, it was not subject to BIA approval.
Unlike mortgages and other liens, licenses are not “encumbrances.” See Black’s Law Dictionary (8th ed. 2004) (“ license, n. 1. A permission, usu. revocable, to commit some act that would otherwise be unlawful; esp., an agreement (not amounting to a lease or profit à prendre) that it is lawful for the licensee to enter the licensor’s land to do some act that would otherwise be illegal, such as hunting game . . .”); see also C.J.S. Easements §9; Licenses §88 (“[A] license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein . . .”).
The Northern Arapaho Tribe’s standard licensing agreement provides, by its terms, that it “does not constitute or create an encumbrance upon lands pursuant to 25 U.S.C. §81 . . .” By contracting with third-parties who wish to use the Tribe’s land through licenses, rather than leases or rights of way, the Tribe is able to enjoy the protections that are afforded by keeping its land in trust, while avoiding the bureaucratic nightmares that can result from BIA administration of leases and rights of way.
While a prospective licensee might be initially cautious about entering license agreements, Tribes that commit to a licensing approach can quickly overcome this by explaining the legal underpinnings of the licensing approach, and, where necessary, by defending their licenses.
The Northern Arapaho Tribe has aggressively protected its licensees from interference by the BIA. The U.S. District Court for the District of Wyoming has recognized the Tribe’s right to issue these licenses and to protect tribal licensees from unwarranted interference from the federal government. Northern Arapaho Tribe v. Superintendent of the BIA, U.S. District Court for the District of Wyoming, 06-CV-0271-J, August 30, 2007, Order, p. 19. The Court dismissed the suit as moot after the United States conceded “in unequivocal terms” that the BIA could not interfere with tribal licenses which did not encumber trust lands, or did not encumber them for more than seven years. (The Court said “the Tribe already has the sword it needs [25 U.S.C. §81] . . . future litigation may be brought [against the BIA] if the facts and the need arise.”) The license in that case was issued to a third party to cross trust lands in order to access his private property. The BIA had interfered with the tribal license, then changed its position after the lawsuit was filed, admitting that such interference was unlawful.
Sometimes, the BIA sees its regulations as the entire universe of lawful options for Tribes and their economic partners – a view which is contrary to principles of Tribal sovereignty, federal trust obligations, Section 81, Congressional policy, and the whole body of jurisprudence on property law. One need only turn to authorities like the Restatement of Property to see the wide variety of rights and privileges parties may create between themselves with respect to land, and to see that the BIA regulations address only a few of those subjects. Moreover, with the 2000 amendments to Section 81, Congress made it clear that greater freedom of contract and self-determination are necessary to promote economic development in Indian Country. In light of these federal policies, Tribes should not hesitate to look beyond standard BIA forms of agreement.
In many states, utility companies provide service to customers across lands controlled by the State through the use of licenses. The Wyoming Department of Transportation, for example, issues licenses for power lines, not rights of way. As a result, the license approach is familiar to most companies which routinely require access across another’s property.
Tribes should take full advantage of the increase in their sovereign authority over trust lands provided in the amendments to 25 U.S.C. §81. With these amendments, Congress has provided Tribes a powerful tool that allows for more efficient and sophisticated management of real estate resources. Independence from the BIA allows Tribes to engage businesses and economic developers more straightforwardly, which, in turn, empowers Tribes to tailor economic development to best serve their sovereign interests. In the experience of the Northern Arapaho Tribe, the use of licensing has created more efficient and better defined solutions to land use problems on trust lands, and increased revenue to tribal government from licensing fees.
* The authors represented the Tribe in Northern Arapaho Tribe v. Superintendent of the BIA, cited above, and can be contacted through Baldwin, Crocker & Rudd, P.C., a firm emphasizing the practice of Indian law.


text:
Assuming that claims 1 and 2 of reissued letters patent No. 9803, granted July 12, 1881, to George W. Heyl, assignee of Henry R. Heyl, the inventor, for an "improvement in devices for inserting metallic staples," are valid, they are not infringed by the "Victor tool," made under and in accordance with letters patent No. 218,227, granted to William J. Brown, Jr., August 5. 1879, and a second patent, No. 260,365, granted to the same person, July 4, 1882.
through layers of stock to be united and simultaneously bend over its projecting ends, substantially as and for the purpose set forth."
"2. In a device for inserting metallic staples, the combination of the staple guide B, anvil A', spring D, and reciprocating driver, provided with the knob G, the whole arranged to operate substantially as and for the purpose set forth,"
it must, in view of the language of the claims, and of the state of the art, and of the limitations imposed by the Patent Office in allowing those claims, be held that the staple support or anvil is required to be stationary, and the slotted or recessed hammer or driver to be reciprocating.
In the "Victor tool," the anvil is movable and the hammer or driver is stationary.
Bill in equity to restrain alleged infringement of letters patent and for an accounting. Decree for complainants. Respondent appealed. The case is stated in the opinion of the Court.
an interlocutory decree adjudging the reissued patent to be valid as respects claims 1 and 2, and that those claims had been infringed by the defendant, and awarding a perpetual injunction, and referring it to a master to take an account of profits and damages. On his report, a final decree was entered in May, 1884, in favor of the plaintiffs, for $225.75 damages and for costs.
"To all whom it may concern: Be it known that I, Henry R. Heyl, of the City and County of Philadelphia and State of Pennsylvania, have invented a new and useful improvement in paper fasteners, which improvement is fully set forth in the following specification and accompanying drawings, in which figures 1 and 5 are side elevations of the fastener embodying my invention. Fig. 2 is a vertical section in line x x, Fig. 1. Fig. 3 is a side elevation, partly sectional. Fig. 4 is a horizontal section in line y y, Fig. 1. Similar letters of reference indicate corresponding parts in the several figures."
"My invention consists of an implement of the form of a hand stamp, by which metallic staples may be forced through sheets of paper documents and secured by clinching the legs on the reverse side."
"Referring to the drawings, A represents a stationary anvil, which is secured to or formed with an arm rising from a suitable stand of convenient form for use upon a writing desk, and B represents a sliding guide-block fitted to the anvil A by a sliding joint, and having grooves C C, which match with the tongue of the anvil, the upper face of the block being flat. The normal position of the guide B is elevated and, in order to keep it in this position or from dropping prematurely, I employ a spring D, which may press up under the guide, or a spring D', which may press against it, and thus produce the necessary friction. E represents a reciprocating driver whose underface is flat, and in the same is a concave recess F, said driver having a knob G for receiving the blows of the hand, and provided with a spring H for causing the return or elevation of the driver."
"The operation is as follows: a staple is placed within the grooves C C, with its crown resting on the anvil A, the points thus being upward. The papers to be united are now placed upon the face of the guide B, over the staple points, and by a sharp blow of the hand upon the knob G, the driver is forced downward upon the papers. The guide B gives way, and the staple legs come up through the papers into the recess F, where they are bent over preparatory to the final clinching. The hand is now released from the knob of the driver, the latter then rising, and the papers are drawn somewhat forward until the staple crown rests upon the face of the guide B, when another blow is imparted to the driver, and the flat portion of its face descends forcibly on the staple legs so as to bend the latter close to the paper, thus completing the operation."
"It will be seen that the grooves C C, serve to support and guide the staple legs during their penetration through the papers, and the recess F is so shaped that, as the staple legs enter thereinto, they will strike the concave or slanting walls of said recess and thus be bent inward toward each other sufficiently to insure their being bent down properly when again struck between the faces of the guide B and driver E. A plate a may be advantageously employed to overlap the staple crown for preventing the latter from binding while the legs are being forced through the papers."
"Having thus described my invention, what I claim as new, and desire to secure by letters patent is --"
"@1. The reciprocating driver E, constructed with a flat face recessed, substantially as described, whereby the projecting ends of staples may be first bent over by entering the recess and then flattened down by pressure from the flat face."
"2. The self-adjusting guide block B, having staple-guiding grooves C C and a flat face upon which to complete the clinching of the staple, substantially as and for the purposes set forth."
"3. The combination of the stationary staple support or anvil A, with the sliding-guide B, grooved to partially embrace and guide the staple legs, substantially as and for the purpose set forth."
"4. The combination of the stationary staple support or anvil A with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united and simultaneously bend over its projecting ends, substantially as and for the purpose set forth.@"
"To all whom it may concern: Be it known that I, Henry R. Heyl, of the City and County of Philadelphia and State of Pennsylvania, have invented a new and useful improvement in paper fasteners, which improvement is fully set forth in the following specifications and accompanying drawings, in which figures 1 and 5 are side elevations of the fastener embodying my invention. Fig. 2 is a vertical section in line x x, Fig. 1. Fig. 3 is a side elevation, partly sectional. Fig. 4 is a horizontal section in line y y, Fig. 1. Similar letters of reference indicate corresponding parts in the several figures."
"My invention consists of an implement of the form of a hand stamp by which metallic staples may be forced through sheets of paper or documents and secured by clinching the legs on the reverse side."
"Referring to the drawings, A' represents a stationary anvil, which is secured to or formed with an arm rising from a suitable stand of convenient form for use upon a writing desk, and B represents a sliding guide block fitted to the anvil A' by a sliding joint, and having grooves C C which match with the tongue of the anvil, the upper face of the block being flat. The normal position of the guide B is elevated and, in order to keep it in this position or from dropping prematurely, I employ a spring D, which may press up under the guide, or a spring D', which may press against it and thus produce the necessary friction. E represents a reciprocating driver whose underface is flat, and in the same is a concave recess F, said driver having a knob G for receiving the blows of the hand and provided with a spring H for causing the return or elevation of the driver."
"The operation is as follows: a staple is placed within the grooves C C with its crown resting on the anvil A', the points thus being turned toward the bending recess F. The papers to be united are now placed beneath the driver and, by a sharp blow of the hand upon the knob G, the driver is forced downward upon the papers. The staple legs come through the papers into the recess F, where they are bent over by the slanting ends thereof."
"It will be seen that the grooves C C serve to support and guide the staple legs during their penetration through the papers, and the recess F is so shaped that as the staple-legs enter thereinto, they will strike the concave or slanting walls of said recess and thus be bent inward toward each other, as shown in Figs. 2 and 3. A plate a may be advantageously employed to overlap the staple crown, for preventing the latter from bending while the legs are being forced through the papers."
"@It will be seen that the staple support or anvil A', with the slotted or recessed hammer, operates to insert a staple through layers of stock to be united and simultaneously bends over its projecting ends."
"In my original specification, I described the further separate operation of completely flattening down the ends of the staple thus bent over by a second blow between the upper and lower jaw of the implement, believing that the same was new, but I have since learned that the same result was obtained by devices described in previous letters patent of the United States. Should the legs of the staple, when bent over by the same blow which drives the same, as is hereinabove described, be found not to lie sufficiently close to the surface of the paper, the same may be further flattened down by a second blow between flat surfaces in front of the staple channel and bending recess, respectively, provided therefor."
"Figs. 1, 2, and 3 show a hand stamp embodying my invention in which the driver reciprocates in a fixed head in the manner of a plunger, while Fig. 5 shows the same invention embodied in a hand stamp in which the driver is mounted at the end of a vibrating arm pivoted at its rear extremity to the base, which rests upon the table. It will be seen that the devices which constitute my invention are to be found in both these modifications, and that both operate in precisely the same manner to insert by a blow upon the knob G of the hand stamp the staple through layers of stock to be united, and simultaneously bend over the projecting and in the opposite bending recess provided therefor.@"
"Having thus described my invention, what I claim as new and desire to secure by letters patent is --"
"@1. The combination of the stationary staple support or anvil A' and the sliding staple guide B with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united and simultaneously bend over its projecting ends, substantially as and for the purpose set forth."
"2. In a device for inserting metallic staples, the combination of the staple guide B, anvil A', spring D, and reciprocating driver, provided with the knob G, the whole arranged to operate substantially as and for the purpose set forth."
"3. A staple-inserting implement having two opposite jaws arranged with relation to each other, substantially as shown, one of which is provided with a recess, the other with a vertically channeled staple guide, an anvil, and a spring so that when the jaws are separated after driving a staple, the guide will be open for the reception of the succeeding staple, substantially as described."
"4. An implement for inserting metallic staples consisting of two opposite jaws, one of which is provided with a staple-bending recess and the other with staple-guiding grooves and an anvil fitted thereto, in combination with a knob to receive the blow of the hand and insert a staple by a sudden percussion, substantially as described."
"5. In a staple-inserting machine constructed to operate substantially as described, the staple-guiding block B having staple-holding grooves C C, forming side extensions of the vertical slot S, substantially as shown and described."
"6. An implement for inserting metallic staples consisting of two opposite jaws, one of which is provided with a staple-bending recess and the other with staple-guiding grooves and an anvil fitted therein, the said jaws being arranged to be separated and stand apart to admit the requisite manipulation for conveniently placing a staple in the open end of the staple-guiding grooves, substantially as set forth."
"7. The combination of the stationary staple support or anvil A' with the sliding-guide B, grooved to partially embrace and guide the staple legs, substantially as and for the purpose set forth."
"8. In an implement for inserting metallic staples, a reciprocating driver provided with a knob to receive the blow of the hand, in combination with a grooved staple-guiding block, and an anvil attached to a stand of convenient form for use upon a writing desk, the said stand having an arm arising therefrom, and over and above it a guide for the purpose of guiding the said driver to the said anvil, substantially as and for the purpose set forth.@"
In the original, in stating the operation of the machine, it is said that the points of the staple point "upward" when the staple is within the grooves. In the reissue it is stated that those points are "turned toward the bending recess, F."
In the original it is said that the papers to be united are "placed upon the face of the guide B over the staple points." In the reissue it is said that the papers to be united are "placed beneath the driver."
In the original, it is said that "the guide B gives way, and the staple legs come up through the papers into the recess F, where they are bent over preparatory to the final clinching." In the reissue, it is said that "the staple legs come through the papers into the recess F, where they are bent over by the slanting ends thereof."
"The hand is now released from the knob of the driver, the latter then rising, and the papers are drawn somewhat forward, until the staple crown rests upon the face of the guide B, when another, blow is imparted to the driver and the flat portion of its face descends forcibly on the staple legs, so as to bend the latter close to the paper, thus completing the operation."
the guide B and driver E and substitutes the statement that when the staple legs strike the slanting walls of the recess, they will be bent inward toward each other, as shown in Figs. 2 and 3.
"It will be seen that the staple support or anvil A', with the slotted or recessed hammer, operates to insert a staple through layers of stock to be united and simultaneously bends over its projecting ends."
The specification of the reissue then states that the separate operation, described in the original, of flattening down by a second blow the ends of the staple when bent over was not new, but that the legs of the staple, if not laid sufficiently close to the surface of the paper when bent over by the driving blow, may be further flattened down by a second blow between fiat surfaces.
Fig. 5 of the drawings, though contained in the drawings of the original patent, was not described or referred to in the original specification, but the reissued specification speaks of Figs. 1, 2, and 3 as showing a hand stamp in which the driver reciprocates in a fixed head in the manner of a plunger, while Fig. 5 shows a hand stamp in which the driver is mounted at the end of a vibrating arm, pivoted at its rear extremity to the base which rests upon the table; that the devices which constitute the invention are found in both of these modifications, and that both operate to insert, by a blow upon the knob G of the hand stamp, a staple through layers of stock to be united, and to simultaneously bend over the projecting ends in the opposite bending recess provided therefor.
On the question of novelty, the alleged prior invention principally relied upon is a patent of the United States, No. 187,189, granted to George L. Ward and Orianna S. Smyth, assignees of James C. Smyth, February 6, 1877, for an "improvement in machines for stitching books with staples."
latter claim was read in the light of the specification, and that the defendant's device infringed claims 1 and 2 of the reissue.
Claim 1 of the reissue is for a combination of (1) the stationary staple support or anvil, (2) the sliding staple guide, and (3) the reciprocating slotted or recessed hammer or driver, the conjoined operation of the three being to insert a staple through layers of stock to be united and to simultaneously bend over its projecting ends. Claim 2 of the reissue is for a combination, with the same three elements, of (4) the spring D and (5) the knob G. Claim 4 of the original patent was for a combination of only two of these elements, namely (1) the stationary staple support or anvil and (2) the reciprocating slotted or recessed hammer or driver. It left out the sliding staple guide, and yet the claim stated that the combination of the two elements, without the staple guide, would operate to insert the staple, and simultaneously been over its projecting ends. It would, however, wholly fail to so operate without the use of the sliding staple guide. The use and operation of the sliding staple guide, its arrangement so as to slide, the use of the spring D to keep it in its normal elevated position, so that it will not drop prematurely, and the use of the knob G with which to impel the driver, are fully set forth in the original specification and described as necessary, in combination with the stationary staple support and the reciprocating slotted or recessed hammer, to insert a staple through layers of stock and simultaneously bend over its projecting ends, and the invention is stated in the original specification to consist in a hand stamp by which metallic staples may be forced through sheets of "paper documents" and secured by clinching the legs on the reverse side. We do not find it necessary, however, to decide whether the reissue is to be considered a proper one, so far as claims 1 and 2, rightly construed, are concerned, on the view that it was an inadvertence, accident, or mistake to have left out of claim 4 of the original the elements which, by the description in the original specification, were made necessary to the performance of the operation specified in that claim. We dispose of the case on the assumption that the reissued patent is valid as respects claims 1 and 2.
What is the proper construction of those claims? In claim 1, the staple support or anvil is described as being "stationary," and the slotted or recessed hammer or driver as being "reciprocating." In claim 2, the anvil must be regarded as a "stationary" anvil, and the hammer or driver is expressly stated to be "reciprocating." In claim 4 of the original, the staple support or anvil is said to be "stationary," and the slotted or recessed hammer to be "reciprocating." So in claim 1 of the original, the driver is said to be "reciprocating" and in claim 3 of the original the staple support or anvil is said to be "stationary." In the description in the original specification, the anvil is described as being "a stationary anvil" and the hammer or driver as being "a reciprocating driver." In the specification of the reissue, the staple support is described as being "a stationary anvil" and the driver or hammer as being "a reciprocating driver."
"1. The staple guide B, driving head A', operating therein, recessed bending block E, spring D, and knob G, combined and operating substantially as and for the purpose set forth."
"9. The combination of the anvil or driving head A', with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united and simultaneously bend over the projecting ends, substantially as and for the purpose set forth."
"1. The combination of the stationary staple support or anvil A' with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united and simultaneously bend over its projecting ends, substantially as and for the purpose set forth. "
"2. In a device for inserting metallic staples, the combination of the staple guide B, anvil A', operating therein, spring D, recess F, and knob G, the whole arranged to operate substantially as and for the purpose described."
"Upon further consideration of this matter in connection with amended specification, applicant is advised that the first clause of claim does not present an operative combination of mechanical devices for the purpose stated. It is obvious that without a staple-holding device, the parts enumerated would be inoperative, in view of which a staple holding device should be included. In reference to the 2d and 3d classes of claim, the statement that the anvil operates in the guide block is unwarranted inasmuch as the anvil is stationary, and the guide-block slides up and down upon the anvil. With proper correction as to this point, the second and third clauses of claim may be allowed."
"1. The combination of the stationary staple support or anvil A' and the sliding staple guide B with the reciprocating slotted or recessed hammer, operating to insert a staple through layers of stock to be united and simultaneously bend over its projecting ends, substantially as and for the purpose set forth."
"2. In a device for inserting metallic staples, the combination of the staple guide B, anvil A', spring D, recess F, and knob G, the whole arranged to operate substantially as and for the purpose described."
"Upon further consideration of this matter in connection with the last amendment, it is obvious that the 'recess F' should not form an element of the mechanical combination, as such recess is a provision of the 'hammer' referred to in the first clause of claim, and such recess is not an operative element independent of such hammer. "
"2. In a device for inserting metallic staples, the combination of the staple guide B, anvil A', spring D, and knob G, the whole arranged to operate substantially as and for the purpose described."
"Upon further consideration of this matter with a view to final action, the second clause of claim is found defective in the absence of any mechanical combination between the 'knob G' and the other elements included in the combination. To obviate this objection, a 'reciprocating driver' should be added to the combination."
"in the automatic adjustment to various thicknesses of paper, by means of which, without any added parts, the jaws are adapted to grip and hold all thicknesses of paper while being stapled and clinched; in their capacity for being opened to allow the eye to see the staple while being inserted by hand at the open end of the staple case, whereby a length of staple may be adapted or selected to suit the material; in the retracing spring to keep the staple case constantly open for a new staple; in a hand knob for driving down the plunger, and in the general construction and adaptation of all the parts to be used as a light portable desk tool, low in price, simple in construction and operation, and of universal use."
In prior devices, the clinching part was the base and the inserting device was above it. This arrangement did not permit of the proper support of the staple in the tube. Heyl reversed the position of the parts, and placed the inserting device on the base, so that the staple could be inserted by hand into the open mouth of the tube and be supported, until it should be driven, by the tube and its contained driver; this reversal of the parts necessitating the use of a spring underneath to support the tube and keep it above the end of the driving blade, or of a spring at the side to press against the guide, and keep it in place by friction. Claims 1 and 2 of the reissued patent must therefore be limited to the specific combinations and arrangements of parts described and shown in the specification and drawings, and enumerated in those claims. The staple support or anvil must be stationary, and the slotted or recessed hammer or driver must be reciprocating.
An expert for the plaintiffs testifies that he regards the lower part of the defendant's device, which is fixed or stationary, and contains the clinching cavity and resists the driving and clinching blow of the hand from the opposite part of the tool, as the equivalent for the "reciprocating driver, provided with the knob G" mentioned in claim 2 of the reissue. As the defendant's tool is constructed with the stationary recessed clinching base made to rest upon a table and to receive the impact from above of the detached driving tool, it is a misnomer to say that such stationary base is the mechanical equivalent of the reciprocating driver E of the Heyl patent. The patentee having imposed words of limitation upon himself in his claims, especially when so required by the Patent Office in taking out his reissue, is bound by such limitations in subsequent suits on the reissued patent. Such have been the uniform decisions of this Court in like cases. Leggett v. Avery, 101 U. S. 256; Goodyear Dental Vulcanite Co. v.
Davis, 102 U. S. 222, 102 U. S. 228; Fay v. Cordesman, 109 U. S. 408; Mahn v. Harwood, 112 U. S. 354, 112 U. S. 359; Cartridge Co. v. Cartridge Co., 112 U. S. 624, 112 U. S. 644; Sargent v. Hill Safe & Lock Co., 114 U. S. 63; Shepard v. Carrigan, 116 U. S. 593; White v. Dunbar, 119 U. S. 47; Sutter v. Robinson, 119 U. S. 530; Bragg v. Fitch, 121 U. S. 478; Snow v. Lake Shore Railway Co., 121 U. S. 617.
Assuming, therefore, that claims 1 and 2 of the reissued patent are valid, they are to be construed as covering only the precise combinations enumerated in them and described in the specification and shown in the drawings, and they do not cover the defendant's device, which has a stationary recessed clincher and a movable detached staple-inserting tool, because claims 1 and 2 of the reissued patent expressly call for a reciprocating clincher and a stationary staple supporting anvil. Those elements, in those forms, in claims 1 and 2 were made necessary by the requirements of the Patent Office before it would grant the reissue, and the applicant, having voluntarily made the limitations, is bound by them.
Although, in the proofs, the plaintiffs undertook to show that three other claims of the reissued patent, in addition to claims 1 and 2, were infringed by the "Victor Tool," the circuit court, in its interlocutory decree, states that it considered only claims 1 and 2, and, as the decree holds those claims alone to be valid and to have been infringed, and the master's report and the final decree apply only to those claims, and the counsel for the plaintiffs does not contend in his brief that any other claim is infringed, we necessarily have confined our consideration of the case to those two claims, leaving all questions as to every other claim of the reissued patent entirely open for consideration in a case which may involve them.
The decree of the circuit court is reversed, and the case is remanded to that court, with a direction to dismiss the bill of complaint.

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The rig count in the Marcellus is down at 45. (Source: BakerHughes).
The Henry Hub natural gas spot price is down at $2.81/MMBtu as of 10/6/2017. (Source: EIA).
In the Marcellus and Utica region, spot prices are down as of 10/6/2017. At Dominion South in northwest Pennsylvania, spot prices are down at $0.84/MMBtu. On Transco’s Leidy Line in northern Pennsylvania, spot prices are down at $0.92/MMBtu. (Source: EIA).
Oil prices are down at $56.09/bbl as of 10/6/2017. (Source: WSJ).
PA Superior Court Addresses Interplay Between Habendum Clause, Lease Expiration, and Limitation-of-Forfeiture Clause. The Pennsylvania Superior Court concluded that a trial court erred by granting judgment on the pleadings to a landowner in a lease-busting suit, concluding that an ambiguity in the oil and gas lease authorized parol evidence to determine whether the lease expired at the expiration of its primary term even though the landowner did not give the lessee notice of termination under the limitation-of-forfeiture clause and the lessee resumed operations and produced oil within the cure period (180 days) following the expiration of the primary term. L.D. Oil & Gas Enterprises, Inc. v. Loop, — A.3d —, No. 1883 WDA 2016, 2017 WL 4001655 (Pa. Super., Sept. 12, 2017).
Third Circuit Upholds Injunction Against Landowner for Transco Condemnation under Natural Gas Act. The Third Circuit Court of Appeals upheld an injunction issued by the district court under the Natural Gas Act, concluding that Transco obtained a FERC certificate of public convenience for its pipeline project and met the requirements for a proper condemnation under the act after landowner negotiations for a right-of-way broke down. In re Transcontinental Gas Pipe Line Co., — F.3d —, No. 17-1829, 2017 WL 4005011 (3d Cir., Sept. 12, 2017).
PA Superior Court Concludes that Deed Created Reservation of Royalties, not Reservation of Oil and Gas. The Pennsylvania Superior Court concluded that a deed “[r]eserving, also from this conveyance one half of the oil and gas royalty” in a 1919 deed created a reservation of the royalty payments from the oil and gas leases then in effect, not one-half of the oil and gas. Clutter v. Brown, — A.3d —, No. 1542 WDA 2016, 2017 WL 4179747 (Pa. Super., Sept. 21, 2017).
Ohio Appellate Court Addresses Oil and Gas Lease’s Treatment of a Well “Capable of Producing Gas.” A court of appeals in Ohio concluded that a “well unit for gas” as used in the oil and gas lease did not necessarily cover an oil well drilled by the lessee an used to form a 640-acre unit (for gas wells) as opposed to for a 40-acre unit (for oil wells) because the lease was ambiguous about whether an oil well that might produce gas is “capable of producing gas” based on a separate shut-in provision and sent the case back to the trial court to figure it out. Bond v. Halcon Energy Properties, Inc., — N.E.3d —, No. 15 MA 0178, 2017 WL 4220361, 2017-Ohio-7754 (Ohio Ct. App., Sept. 21, 2017).
Ohio Court of Appeals Says Holder of Interest in Oil and Gas Lease with Right to Approve Well Locations did not Retain “Interest in Land” for Purpose of Statute of Limitations. A court of appeals in Ohio concluded that a landowner who reserved an interest in an oil and gas lease with certain rights to control certain activities on the leased premises (such as approving locations of wells, tanks, access roads, and pipelines) did not create an “interest in land” for purposes of applying a 21-year statute of limitations for recovering title and possession of real property versus a 10-year statute. Schlabach v. Kondik, No. — N.E.3d —, No. 16 HA 0017, 2017 WL 4350984, 2017-Ohio-8016 (Ohio Ct. App., Sept. 29, 2017).
PUC Gets High Marks for Pipeline Safety from PHMSA. The PUC scored 50 out of a possible maximum of 50 points on the annual PHMSA Progress Report, along with a score of 115 out of a total 116 points in the Annual Program Evaluation Review. These in-depth evaluations are intended to assess the overall pipeline safety performance of various state agencies, covering six different areas: damage prevention programs, inspection activities, inspector qualifications, leak management, enforcement and incident investigations. A copy of the press release may be accessed here.
OK Federal Court Rejects Motion to Abstain under CAFA for Oil and Gas Royalty Dispute. A federal court in Oklahoma concluded that plaintiffs removed from state court under the Class Action Fairness Act failed to establish that more than two-thirds of the class plaintiffs complaining about royalty payments resided in Oklahoma. Nichols v. Chesapeake Operating, LLC, — F. Supp. 3d —, 16- 1073, 2017 WL 4052810 (W.D. Oklahoma, September 13, 2017).
ND Supremes Address Ownership of Minerals Underlying Streambeds. The Supreme Court of North Dakota reversed and remanded a trial court order concluding that the Board of University and School Lands of the State of North Dakota (“Land Board”) owns certain property below the ordinary high watermark of the Missouri River, concluding that although the district court considered the equal footing doctrine and prior case law and decided the State owns the mineral interests at issue in this case, the North Dakota legislature enacted legislation governing state mineral ownership of lands inundated by the Pick-Sloan Missouri Project dams and remanded for a determination of the issues in light of the recent enactment. Wilkinson v. Bd. of Univ. & Sch. Lands, — N.W.2d —, No. 20160199, 2017 WL 4296216, 2017 ND 231 (N.D., Sept. 28, 2017).
Federal Court Rejects BLM’s Delay of Venting Rule. The U.S. District Court for the Northern District of California ruled that the Interior Department violated federal law in June when it froze provisions of the Bureau of Land Management’s rule designed to “reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian (other than Osage Tribe) leases . . . [and] also clarify when produced gas lost through venting, flaring, or leaks are subject to royalties, and when oil and gas production may be used royalty-free on-site.” The court found that BLM misused a provision of the Administrative Procedure Act to justify postponing upcoming compliance deadlines. California v. Bureau of Land Management, No. 17-3804-EDL (N.D. Cal., October 4, 2017).

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