Legal Issues Affecting Foresters and Forest Landowners

Transcription

1 Legal Issues Affecting Foresters and Forest Landowners March 4, 2010 Presented by Derald J. Hay, Esq

2 Overview Topics: - Addressing liabilities associated with independent logging contractors - Summary of natural resource protection and rights associated with oil and gas drilling - Liability protections for landowners under the Pennsylvania Recreational Use of Land and Water Act - Change to the SFI to address US Lacey Act

3 Independent Logging Contractors Understanding the transactional and contractual relationships - Landowner - Forester - Mill - Loggers

4 Independent Logging Contractors Pennsylvania Workers Compensation legal requirements - Not required for self employed - Required for one or more employee - Not required for independent contractors - May be required if there is sufficient control over the independent contractor

5 Independent Logging Contractors Potential Liability Exposures - Workers compensation Independent contractor is not independent Borrowed employee - Tort liability Protection against negligence claims

6 Independent Logging Contractors When is an Independent Contractor an employee - Based on control of the person: Courts weight factors Are landowners or foresters employers of independent logging contractors?

7 Independent Logging Contractors Potential for Tort Liability - Landowner Warn of known dangerous conditions Potential duty to inspect and maintain property - Forester Negligence Timber harvest plan Known hazards

8 Independent Logging Contractors Controlling Liability Exposure - Contracts, contracts, contracts - Provisions to include in contracts with Mills Indemnification Insurance Release of claims Warning of potential dangers and assume the risk of the activities

9 Marcellus Shale Gas Development Two schools of landowners: - Stuck with a (generally a very old) existing lease or severance of gas rights - Looking for new lease

10 Marcellus Shale Gas Development New Leases: Terms for Natural Resource Management - Location of above ground structures - Water resource protection - Natural resource damages/compensation - Restoration upon completion Many other terms (indemnification, insurance, right to terminate, etc.) are also necessary to protect the landowner

11 Marcellus Shale Gas Development Existing Leases or Severances - Oil and gas owner has implied easement to surface rights for reasonable and necessary operations to extract the oil and gas - CAREFUL: not all leases or severances are created equal

12 Marcellus Shale Gas Development Rights under Oil and Gas Act - Notice prior to drilling - Object to permit and right to request DEP to require alternative location for the placement of a well that impacts surface use - Well placement restrictions Minimum distances from water supplies, residences and boundaries - Restore water quality

13 Marcellus Shale Gas Development Emerging Laws for existing leases - Pennsylvania Minimum Royalty Act Minimum 12.5% Royalty for all minerals Pending PA Supreme Court & Federal case - Surface Owners Protection Act Provide landowners with ability to control the surface use and obtain compensation for losses Stalled in committee need to notify legislature of support and need for this law

14 Recreational Use of Land and Water Act Duty to maintain safe conditions - Trespassers Protect from extreme and known risks of harm and protect children from attractive nuisances - Personal purposes Known but hidden dangerous conditions that create unreasonable risk of harm - Business purposes Same as above, but also owe duty to inspect property

15 Recreational Use of Land and Water Act Provides statutory protection from liability when permit recreational use at no charge Benefits - No duty to inspect, warn, or prevent injuries - Applies to those you invite or trespass

16 Recreational Use of Land and Water Act Limitations on liability protection - Improvements - Willful or malicious acts

17 Change to the SFI Primary legal change is to address the U.S. Lacey Act - Prevent illegal logging and fiber sourcing Landowner Outreach Require BMPs in contracts

18 Miscellaneous Forest Carbon Trading California Climate Action Reserve s withdrawal of the FPP Habitat Conservation Banking Indiana Bat

19 Contact Information Derald J. Hay, Esq