Date: 01-07-2011

Case Style: Dunn-McCampbell Royalty Interest, Inc. v. National Park Service

Case Number: 09-40187

Judge: E. Grady Jolly

Court: United States Court of Appeals for the Fifth Circuit on appeal from the Southern District of Texas

Plaintiff's Attorney:

Defendant's Attorney:

Description: Before 1963, there was no Padre Island National Park off the coast of the State of Texas. It took a lot of maneuvering between the State of Texas and the United States to create the national park out of these coastal island lands, much belonging to the State of Texas, some belonging to private parties. The Texas Consent Statute, the deeds of conveyance, the federal Enabling Act of 1962, and the Oil and Gas Management Plan of 2001, as well as the Energy Policy Act of 2005, are all involved in this appeal.

Now, almost fifty years later, this appeal presents a conflict between the National Park Service (the “Service”) and owners of certain mineral estates in 1 the Padre Island National Seashore (the “Seashore”), with respect to those mineral owners’ rights of ingress and egress over the Seashore’s surface; such rights, if recognized, would allow the owners to exploit the subsurface minerals contained on the Island. The Service must manage the Seashore to preserve the environment for recreational use while respecting the legal rights of the mineral estate owners to extract oil and natural gas. In 2001, the Service attempted to strike this balance through its Oil and Gas Management Plan (the “Plan”). In this federal action, three related companies (collectively, “Dunn-McCampbell”) seek declaratory relief under the Administrative Procedure Act (“APA”), 5 U.S.C. § 1 et seq., arguing that the Plan exceeds the Service’s regulatory power over the Seashore because it denies Dunn-McCampbell its rights of ingress and egress as provided by the special provisions of state and federal law that established the Seashore. The district court agreed and entered a declaratory judgment in Dunn-McCampbell’s favor. The Service now appeals. Although we assume that the Service’s normally broad regulatory authority over park lands is limited by the agreements between Texas and the Service that were made when the Seashore was established, we hold that these limitations do not provide the relief Dunn-McCampbell seeks today. We reverse, vacate, and remand.

I.

Padre Island is a narrow barrier island that stretches from Corpus Christi, Texas, nearly to the Mexican border. Long barren and inaccessible, the island began to draw interest from real estate developers after causeways were completed at either end. Developers and the federal government were not the only ones interested in the island. Oil companies had discovered the island’s oil and gas resources, and by the time the Seashore was created, there was extensive mineral exploitation on the Island.

Congress authorized the Seashore’s creation in 1962. See 16 U.S.C. §§ 459d-459d-7 (collectively, the “Enabling Act”). The Enabling Act provides that the Service is to administer the Seashore consistent with the law widely known as the National Park Service Organic Act (“Organic Act”), 16 U.S.C. §§ 1, 2–4, except as otherwise provided in the Enabling Act. Id. § 459d-4. Congress authorized the Service to acquire private property and interests in such property by purchase, condemnation, or otherwise, but provided that it could obtain state lands from Texas only with the state’s “concurrence.” Id. § 459d-1(a).

Thereafter, on April 4, 1963, Texas’s Legislature passed the “Consent Statute,” authorizing the federal government to acquire public and private lands within the State “subject to the limitations contained in this Act.” TEX. REV. CIV. STAT. art. 6077t § 3. Texas reserved its “entire mineral estate [with] the right 2 of occupation and use of so much of the surface of the land or waters as may be required for all purposes reasonably incident to the mining, development, or removal of the minerals. . . .” Texas also concurred in the Service’s acquisition of private land, “provided that the acquisition of lands in such area shall not deprive the grantor or successor in title the right of ingress and egress for the purpose of exploring for, developing, processing, storing and transporting minerals from beneath said lands and waters with the right of housing employees for such purposes.” Id. § 6. 3

The Consent Statute is reproduced in the Appendix. 2

As we shall see, the phrase “grantors or successors in title” is crucial in applying the 3 Consent Statute to Dunn-McCampbell’s interests.

The Texas legislature directed the School Land Board to execute a deed incorporating the conditions set forth in the Consent Statute. Id. at § 3. The deed by which the State conveyed the State’s land expressly provided that such conveyance of State lands was “subject to certain limitations, exceptions, and reservations set forth in the” Consent Statute, which, as we have just noted, addressed the acquisition of private lands as well. The Service, by virtue of this deed, acquired Texas’s lands, and the Service separately acquired private lands.

The Service acquired only surface, not mineral, estates.

In 1979, the Service implemented nationwide regulations concerning exploitation of mineral rights not owned by the Service within all national parks and seashores. 36 C.F.R. § 9.30, et seq. Dunn-McCampbell challenged those regulations in 1994, but the district court dismissed its suit as barred by the statute of limitations. Dunn-McCampbell Royalty Interest, Inc. v. Nat’l Park Serv., 964 F. Supp. 1125, 1132–33 (S.D. Tex. 1995), aff’d 112 F.3d 1283, 1287 (5th Cir. 1997). Those regulations are not at issue here, although the Service argued below that the current suit should be barred under res judicata principles, an argument that the district court rejected, and that is not appealed.

The regulations at issue stem from the Service’s 2001 Oil and Gas Management Plan (the “Plan”). The Plan designates certain areas of the Seashore as Sensitive Resource Areas (SRAs) that contain “particularly rare and/or vulnerable resources.” These areas cover 52.7 percent of the Seashore and carry with them various restrictions. The Plan notes that it “effectively close[s] surface use . . . [for] drilling operations” in 7.6 percent of the Seashore. The Plan at 9. On the other hand, it projects that “all oil and gas would be accessible,” although there would likely be “increased costs for operators to design operations to avoid or reduce impacts to SRAs.” Id. at 121–22. Further, the Plan notes that these increased costs might discourage resource exploitation. Id.5

Dunn-McCampbell brought suit in the Southern District of Texas under the APA, seeking a declaratory judgment that the Plan unlawfully violates the Enabling Act by closing certain areas of the Seashore to oil and gas activities and otherwise impairing Dunn-McCampbell’s rights of ingress and egress. Dunn-McCampbell and the Service filed cross-motions for summary judgment.

In its motion for summary judgment, Dunn-McCampbell contended that its rights of ingress and egress are protected by two provisions in the Enabling Act and that the Plan prevented it from exercising those rights. Specifically, it argued that the Enabling Act incorporated the Texas Consent Statute into federal law, and that the Consent Statute requires the Service to recognize Dunn-McCampbell’s rights of ingress and egress. Dunn-McCampbell further argued that its rights of ingress and egress are preserved by a provision of the Enabling Act that protects the right of surface access for those who remove minerals from “outside the [Seashore’s] boundaries.” Finally, Dunn-McCampbell argued that the Energy Policy Act of 2005 demonstrates that Congress intended for the Enabling Act to preserve existing mineral interests. The Service argued that, under the Organic Act, it had the right to regulate easements, and, in doing so, to close certain lands to all drilling operations, and that the Enabling Act affords Dunn-McCampbell no special protection. It did not dispute Dunn- McCampbell’s argument that the Plan is inconsistent with the rights of ingress and egress.

Since the Service issued the Plan, several entities successfully have proposed Plans 5 of Operations within the Seashore. See Sierra Club v. Norton, No. 03-40710, 2003 WL 22018886, at *1–2 (5th Cir. Aug. 27, 2003).

The district court held that the Consent Statute is assimilated into federal law, and thus is binding on the Service; that the Consent Statute protects Dunn- McCampbell’s rights of ingress and egress; and that the designation of the 6 Sensitive Resource Areas, and accompanying regulations, deprive Dunn- McCampbell of that right. The district court entered a declaratory judgment, 7 declaring the Plan invalid insofar as it “close[s] certain areas of the [Seashore] or otherwise deprive[s] Dunn-McCampbell’s rights of ingress and egress for the purpose of developing their oil and gas interests.” The district court, however, also held the Enabling Act does not otherwise protect Dunn-McCampbell, regardless of any provisions in the Energy Policy Act of 2005. The Service filed a motion for an amended judgment under FED. R. CIV. P. 59(e), which the district court denied. The Service timely appealed to this court.8

II.

The overarching question presented by the Service’s appeal is whether the trial court erred in granting summary judgment to Dunn-McCampbell on the grounds that the Plan, under the APA, 5 U.S.C. § 1, et seq, “transgressed the bounds fixed by Congress.” W. Coal Traffic League v. United States, 694 F.2d 378, 383 (5th Cir. 1983). We review the district court’s ruling on summary judgment de novo. Croft v. Governor of Tex., 562 F.3d 735, 742 (5th Cir. 2009). Notably, the district court did not address whether Dunn-McCampbell is a “grantor 6 or successor in title,” under Sections 3 and 6 of the Consent Statute. The district court also held that, under the Consent Statute, the Texas Railroad 7 Commission was authorized to regulate surface access, but that such regulations, and the Consent Statute generally, are binding on the Service only to the extent that they do not interfere with the Service’s ability to administer the Seashore as a national park. The district court further held that the government had failed to show that the rights of ingress and egress interfered with administering the Seashore as a national park.

Dunn-McCampbell cross-appealed to preserve its ability to argue for upholding the 8 district court’s judgment on grounds rejected by the district court. As the Service has conceded that Dunn-McCampbell can make these arguments without appealing, Dunn-McCampbell moved to dismiss its appeal before oral argument. The motion was granted.

III.

Dunn-McCampbell presents three arguments to support its position that the Plan violates the APA. First, it argues that the Plan is inconsistent with the Congressional grant of power to the Service to promulgate regulations, insofar as the Plan violates Dunn-McCampbell’s rights of ingress and egress that are protected in the Consent Statute, and hence in the Enabling Act. Second, Dunn- McCampbell argues that because the Service does not own the mineral estate which lies beneath the park, and because the mineral estate is thus outside the Seashore’s boundaries, under the terms of the Enabling Act, it has special rights of ingress and egress. Third, and finally, Dunn-McCampbell argues that Congress, speaking through a Sense of Congress provision contained in the Energy Policy Act of 2005, has expressly provided that the Service, under the terms of the Enabling Act, must respect Dunn-McCampbell’s rights of ingress and egress.9

IV.

The grant of summary judgment in favor of Dunn-McCampbell should be affirmed only “if the record demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Croft, 562 F.3d at 742 (quotation marks and citation omitted). The ultimate question that we must answer is whether the trial court erred in holding that the Service’s regulations are contrary to law, and thus in violation of the APA, insofar as the regulations apply to Dunn-McCampbell’s rights of ingress and egress.

We do not address whether the Plan is itself a proper exercise of the Service’s 9 authority under the Organic Act, because the question on this appeal is not so broad. Instead, we only address whether, after assuming the Federal Enabling Act limits the power traditionally afforded the Service under the Organic Act, such limitations entitle Dunn- McCampbell to the declaratory relief it seeks.

It is of course basic that the Constitution affords Congress the power to make laws that apply on federal lands, and it has been accepted that such “power over the public land . . . is without limitations.” Kleppe v. New Mexico, 426 U.S. 529, 540 (1976); United States v. San Francisco, 310 U.S. 16, 29 (1940). Unlike Congress, however, agency power is not so broad; the Service can act only within its statutory authority. We therefore must apply the Enabling Act, which created the Seashore, authorized the Service to acquire land for the Seashore, and set out the Service’s regulatory authority. It provides, in pertinent part: Except as otherwise provided in sections 459d to 459d-7 of this title, the property acquired by the Secretary under such sections shall be administered by the Secretary, subject to the provisions of sections 1 and 2 to 4 of this title, as amended and supplemented, and in accordance with other laws of general application relating to the areas administered and supervised by the Secretary through the National Park Service; except that authority otherwise available to the Secretary for the conservation and management of natural resources may be utilized to the extent he finds such authority will further the purposes of sections 459d to 459d-7 of this title.

16 U.S.C. § 459d-4. The reference to “sections 1 and 2 to 4 of this title” is to the Organic Act. The Enabling Act thus provides that the Organic Act, subject to certain exceptions, shall apply to the Seashore. Two of these exceptions are crucial to our analysis, and we discuss each below.

A.

The first relevant exception to the Organic Act contained in the Enabling Act provides that “[a]ny property, or interest therein, owned by the State of Texas or political subdivision thereof may be acquired only with the concurrence of such owner.” 16 U.S.C. § 459d-1(a). The Service contends that the Consent 10 The specifics of Texas’s concurrence are found in the Consent Statute and in the deed 10 conveying State lands to the Service. In this opinion, we examine the Consent Statute, but not the deed, as the parties’ arguments center on the former, and the deed reflects the terms of the Consent Statute.

Statute does not limit its authority to regulate the Seashore. For the purposes 11 of this case, however, we will assume that the terms of the Consent Statute bind the Service. We further assume that, although the Enabling Act requires the 12 concurrence only of the State of Texas, the Consent Statute’s special protections extend to certain private mineral interests referenced in the Statute.

We thus turn to determine whether, after applying these assumptions, Dunn-McCampbell’s rights of ingress and egress are, under the Consent Statute, excepted from the Service’s regulations. In making this determination, as set out more fully below, we will first examine the plain language of the Consent Statute; only then, if it is necessary, will we consider the legislative history.

Section 3 of the Consent Statute provides, in relevant part, that [i]n all conveyances of said park property under Sections 3 and 6 hereof to the United States of America, the Secretary of the Interior shall permit a reservation by the grantor of all oil, gas, and other minerals in such land or waters with the right of occupation and use of so much of the surface of the land or waters as may be required for the purposes of reasonable development of oil, gas, and other minerals. . . .

Tex. REV. CIV. STAT. art. 6077t § 3. Section 6 similarly provides that the Service “shall not deprive the grantor or successor in title of the right of ingress and egress for the purpose of exploring for, developing, processing, storing and transporting minerals from beneath said lands and waters with the right of housing employees for such purposes.” TEX. REV. CIV. STAT. art. 6077t § 6.

Dunn-McCampbell suggests that Sections 3 and 6 of the Consent Statute are ambiguous, and the intent of the statute is effectively to recognize Dunn- McCampbell’s rights of ingress and egress. The Service argues that the 13 Consent Statute, in express terms, protects only those private mineral owners who conveyed surface land to the Service, or their successors in title; consequently, Dunn-McCampbell is not protected, because Dunn-McCampbell concedes that neither it nor any of its predecessors ever transferred surface land to the Service; that is to say, the mineral estate owned by Dunn-McCampbell had been severed from the surface estate before the surface estate was conveyed to the Service. The key question, then, is whether, the term, “grantor or successor in title,” can be construed--or ignored--so as to allow Dunn- 14 McCampbell’s rights of ingress and egress to come within coverage of the Consent Statute.

To reiterate, we begin our analysis with the plain text of the Consent Statute: “when the plain language of a statute is unambiguous and does not An argument raised by Dunn-McCampbell centers on its general property right under 13 Texas law to exploit its mineral estate. Dunn-McCampbell may well be correct that the Service transgressed Texas property rights. The question before us, however, is whether the Service has transgressed the boundaries of its authority as set by Congress. If Congress has authorized the Service to appropriate Dunn-McCampbell’s property interests, Dunn- McCampbell may have a claim in the nature of a taking, but this is not a claim we can decide today.

We recognize that Dunn-McCampbell argues that Section 3 provides protection to 14 private landowners, and not just to Texas, as the Service argues. Again, we will assume, without deciding, that Dunn-McCampbell’s position is correct, i.e., that the terms of Section lead to an absurd result, our inquiry begins and ends with the plain meaning of that language.” United States v. Clayton, 613 F.3d 592, 596 (5th Cir. 2010) (quotation marks and citation omitted). The plain language of the Consent Statute affords Dunn-McCampbell no protection. Dunn-McCampbell had no ownership interest in the surface estate above its land, did not convey or “grant” any land to the Service, and is not a successor of any party that did convey land to the Service; in short, Dunn-McCampbell, unambiguously, is simply not a grantor or a successor in title. Consequently, we must interpret the Consent Statute to exclude Dunn-McCampbell’s interest, unless to do so is absurd or causes an absurd result.

Dunn-McCampbell argues that it is absurd to assume that Texas’s Consent Statute only extends its protections to the unsevered private mineral estates. Dunn-McCampbell contends that, under this interpretation, the Consent Statute fails to address the majority of the mineral estates within the Seashore because, when the Seashore was created, “[o]wnership of the mineral interests in Padre Island ha[d] been separated largely, if not completely, from the ownership of the surface interests.” S. REP. NO. 1226, at 12-13 (1962). Dunn-McCampbell argues further that it is absurd to conclude that the Texas Legislature, which was concerned with protecting the right to exploit all mineral interests, would intend that the rights of ingress and egress be protected only to the extent such interests are held by “grantors or successors in title.” Dunn- McCampbell also contends that the federal legislative history of the Enabling Act shows that Congress, in passing the Enabling Act, sought to protect the private rights of ingress and egress. On the other hand, the Service contends that no absurd result follows from giving the terms in the Consent Statute a plain meaning. While apparently conceding that such an interpretation could lead to a “checkerboard of ownership rights depending upon how and when the oil and gas estate was severed from the surface estate[,]” the Service contends that “[c]heckerboard ownership...is not a novelty in federal land management,” and that nothing in the record demonstrates congressional intent to avoid this type of arrangement.

It is certainly true that we should “avoid any interpretation that would lead to absurd or unreasonable outcome[,]” see Carpenters Dist. Council of New Orleans & Vicinity v. Dillard Dept. Stores, Inc., 15 F.3d 1275, 1285 (5th Cir. 1994), but we cannot agree that applying the plain language of the Consent Statute leads to an absurd result. Legislative history might well support an argument that some members of the Texas Legislature and some members of Congress intended specially to protect the rights of ingress and egress held by all mineral estate owners, including those of the character of Dunn-McCampbell. We, however, do not turn to legislative history in this case, as the statute is not ambiguous, and applying the literal language does not create an absurd result.

It cannot be labeled absurd that the State of Texas referred only to grantors and successors in title, when severed mineral interest holders were not parties or potential parties to the transactions establishing the park; such interests were not involved in obtaining parklands; and negotiations with the federal government here did not immediately threaten those private interests at the time. Indeed, protecting grantors’ rights to their mineral estates may have provided an assurance and an inducement for surface owners to convey their surface estates to the Service, without going through a condemnation process. Moreover, the fact that Texas referred to “grantors” throughout the Consent Statute indicates the word choice was not an accident, and thus that interpreting the word literally does not lead to an unintended result. If Texas had intended to address such interests as Dunn-McCampbell’s, it easily could have done so by using broader language in crafting its consent, e.g., “All existing easements on the land, irrespective of whether the owners of such easements convey any land to the federal government, must be fully respected.” As we have seen, such language was not used. Nor can it persuasively be argued that the omission of such interests was a mere oversight; as Dunn-McCampbell itself points out that when the Seashore was created, it was well understood that the majority of the subsurface mineral estates had been severed from the surface estates. See S. REP. NO. 1226, at 12-13 (1962). Notwithstanding this well known fact, the Consent Statute specifically protected only grantors and their successors in title. Finally, the checkerboard ownership of public and private ownership within the park exists in other parks, further suggesting that the plain meaning of the statute does not lead to a ridiculous result. See Sierra Club v. Babbitt, 65 F.3d 1502, 1505 (9th Cir. 1995); Mountain States Legal Found. v. Hodel, 799 F.2d 1423, 1424 (10th Cir. 1986). Although it is true we are surmising reasons for supporting the wording of the Consent Statute’s language, and each of these reasons may not have been specifically in the minds of those who engaged in these transactions in 1962 and 1963, we set them out to show only that giving the terms “grantor or successor in title” a plain meaning is not absurd or unreasonable.

Thus, in sum, we have assumed that Section 459d-1(a) of the Enabling Act, implicitly reflecting the terms of the Consent Statute, provides an exception to the Service’s Organic Act authority to regulate mineral interests in national parks. We have concluded, however, that because Dunn-McCampbell is not a grantor or successor in title as provided in Sections 3 and 6, the plain language of the Consent Statute affords Dunn-McCampbell no protection; and we further have concluded that applying the plain language of the Consent Statute is not an absurdity. We have thus rejected Dunn-McCampbell’s argument that we should resort to legislative or congressional history for interpretative guidance. Consequently, we hold that Dunn-McCampbell is not protected by the terms of the Consent Statute.

B.

Having determined that Dunn-McCampbell is not protected under the Texas Consent Statute, we must decide whether Dunn-McCampbell is, as it argues, protected by a second relevant exception to the Organic Act contained in the Enabling Act, which provides that:

Any acquisition hereunder shall exclude and shall not diminish any right of occupation or use of the surface under grants, leases, or easements existing on April 11, 1961, which are reasonably necessary for the exploration, development, production, storing, processing, or transporting of oil and gas minerals that are removed from outside the boundaries of the national seashore and the Secretary may grant additional rights of occupation or use of the surface for the purposes aforesaid upon the terms and under such regulations as may be prescribed by him.

16 U.S.C. § 459d-3(b) (emphasis added).

The Service urges that this exception does not apply because Dunn- McCampbell’s mineral estate is within the Seashore’s boundaries. Dunn- McCampbell counters that because the Service owns only the surface estate, its subsurface mineral estate is outside the property that the Service owns and thus outside the park boundaries of the Seashore, and that this means that the minerals removed from these estates “are removed from outside the park boundaries.” Dunn-McCampbell thus argues that its easements under Texas law are protected by the provisions of Section 459d-3(b).

At this point, it is worthwhile for us to refer to the facts underlying this argument. Under the terms of the Texas Consent Statute, the Service was permitted to acquire only the surface estate; it was specifically not permitted to acquire, and did not acquire, the subsurface mineral estates. Therefore, the question raised, for purposes of Dunn-McCampbell’s argument, is whether the land beneath the surface estate is within the Seashore’s boundaries. The Service, acknowledging that it does not own the mineral estates, contends that precedent from other circuits makes clear that privately owned property can exist within the boundaries of a national park; thus, whether the mineral estates are privately owned does not determine the boundaries of this national park.

Dunn-McCampbell disagrees, arguing that because the Service did not acquire the mineral estates, these estates are necessarily outside the park boundaries. Dunn-McCampbell further argues that because the authority relied on by the Service concerns only horizontal, and not vertical boundaries, this authority is irrelevant to the question raised by the mineral estates located beneath the surface estate. Dunn-McCampbell’s argument is, in effect, that when the Service acquired the surface estate, the conveyance included no subsurface soil or space, and that all subsurface land, including the mineral estates underlying the Seashore, is therefore “outside the boundaries of the national seashore,” within the meaning of the Enabling Act. Dunn-McCampbell offers no authority that would directly support this novel proposition.16

In addition to the arguments we address in the body of this opinion, 16 Dunn-McCampbell also argues that a Sense of Congress provision contained in the Energy Policy Act of 2005 (attached to this opinion as Appendix II) suggests that the “outside the boundaries” language was intended to preserve Dunn-McCampbell’s rights of ingress and egress over the Seashore’s surface. See Pub. L. No. 109-58 § 373, 119 Stat. 594 (August 8, 2005). The argument is that although this 2005 expression of the Sense of Congress does not define “outside the boundaries,” it nonetheless demonstrates the enacting Congress’s intent, as reflected in the Enabling Act, to provide broad protections to all owners of mineral estates, irrespective of whether such estates are located under public land. Dunn-McCampbell thus contends that if we are to honor this broad congressional intent, we must interpret Section 459d-3(b) of the Enabling Act to protect Dunn-McCampbell’s rights. The question arises, however, whether the Sense of Congress is an appropriate interpretative tool to aid our decision today. Unlike the consistent regulatory interpretations that shed light on the Supreme Court’s decision in Red Lion v. F.C.C., 395 U.S. 367, 380-81 (1960), in the 43 years that elapsed between the passage of the Enabling Act and the Energy Policy Act, the Service promulgated no regulation that would justify our ruling in Dunn-McCampbell’s favor. Red Lion hardly did more than note that the 1959 Congress had reaffirmed the agency’s

Although it is true that Dunn-McCampbell and others own mineral estates beneath the Seashore’s surface, the conveyance of mineral rights ownership does not convey the entirety of the subsurface. As the Texas Supreme Court has stated, “[t]he minerals owner is entitled, not to the molecules actually residing below the surface, but to a fair chance to recover the oil and gas. . . .” Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 15 (Tex. 2008). In other words, if there are no minerals beneath the surface of the Seashore, Dunn- McCampbell owns the legal fiction of an estate that is nothing.

Here, there was a conveyance of land to the Service. “[L]and includes the surface of the earth and everything over and under it, including minerals in place...” Averyt v. Grande Inc., 717 S.W.2d 891, 894 (Tex. 1986). In this case, the minerals were not “in place” since they had been severed or were reserved. Although “[t]here is a difference . . . between the estate granted and the land described [in that] [l]and is the physical earth in its natural state, while an estate in land is a legal unit of ownership in the physical land[,]” see id., it unbearably strains credulity to suggest that a surface estate, conveyed in a deed describing the land in horizontal terms, only touches a millimeter of the surface, and excludes all other land below the surface. If, as here, the surface estate alone is conveyed, and a mineral reservation is made, the conveyance “vests in the grantee such rights to the use thereof as are usually exercised by owners in fee subject only to the right of the grantor to remove the minerals reserved.” Fleming Found. v. Texaco, Inc., 337 S.W.2d 846, 851 (Tex. Civ. App. 1960) (emphasis added). As we have noted, the mineral estate owner does not own the “molecules actually residing below the surface.” Coastal Oil & Gas Corp., 268 S.W.3d at 15. It thus stands to reason that the Service, not Dunn-McCampbell, owns all non-mineral “molecules” of the land, i.e., the mass that undergirds the surface of the National Seashore.

With respect to Dunn-McCampbell’s argument that its privately owned property cannot be within the boundaries of a public park, it undoubtedly is true that Dunn-McCampbell privately owns the mineral estate beneath the publicly owned surface of the Park. The ownership of property, however, does not establish a park’s boundaries, as has been made clear by at least three circuits, which have held that land that is not owned by the Service can still exist within the boundaries of a national park. See United States v. Stephenson, 29 F.3d 162, 164 (4th Cir. 1994); Free Enter. Canoe Renters Ass’n of Mo. v. United States, 711 F.2d 852, 856 (8th Cir. 1983); Macomber v. Bose, 401 F.2d 545, 547 (9th Cir. 1968). Although Dunn-McCampbell is correct that these cases deal with horizontal boundaries, the reasoning of these cases is applicable to defining park boundaries in whatever abstraction of space the question may be presented. Stephenson, in particular, is instructive: the Fourth Circuit stated that “[t]he primary inquiry in determining the applicability of Park laws to a given area must therefore be whether that area is within the statutory boundaries of the Park, not whether [the Service] holds title to the land in question.” 29 F.3d at 164.

To summarize, Dunn-McCampbell does not own the land below the Seashore’s surface, and, even if it did, the subsurface land would still be within the park’s boundaries. Texas law establishes that the holder of a mineral estate has the right to exploit minerals, but does not own the subsurface mass. We have also relied on precedent from other circuits to hold that land that is not owned by the National Park Service can nonetheless be within the boundaries of a National Park. We thus hold Dunn-McCampbell’s mineral estate is within the Seashore’s boundaries, and that Section 459d-3(b) therefore does not provide Dunn-McCampbell with any special right of ingress and egress over the Seashore’s surface.

V.

We will now wrap up. We have assumed that the Service, pursuant to 16 U.S.C. § 459d-1(a), is bound by the terms of Texas’s concurrence when it deeded its land to the Service. The terms of the concurrence, which are set out in the Consent Statute, provide, in relevant part, that owners of private land who convey land to the Service may preserve their mineral rights and the rights of ingress and egress to exploit their mineral estates, for themselves and for their successors in title. We have held, however, that these provisions do not apply to Dunn-McCampbell, as it is neither a grantor nor a successor in title as referred to in the Consent Statute.

We have also assumed that 16 U.S.C. § 459d-3(b) requires the Service to recognize the rights of ingress and egress possessed at the time of Texas’s conveyance by those who remove minerals from outside the Seashore’s boundaries. We have held, however, that the mineral estate owned by Dunn- McCampbell, although not owned by the Service, and beneath the surface of the Seashore, is within the Seashore’s boundaries.

We thus conclude that because Dunn-McCampbell does not fall under any of the special protections provided in the Enabling Act, the trial court erred in granting Dunn-McCampbell summary judgment, and accordingly we thus reverse and vacate the district court’s declaratory judgment and remand for entry of judgment in favor of the Service.

* * *

See: http://www.ca5.uscourts.gov/opinions%5Cpub%5C09/09-40187-CV0.wpd.pdf

Outcome: REVERSED in part, VACATED and REMANDED.

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