Comparing Subsurface Trespass Jurisprudence—Geophysical Surveying and Hydraulic Fracturing

This article examines the basics of two types of subsurface activity— geophysical prospecting (and the myriad of different surveys that comprise same) and hydraulic fracturing (or “fracing” sometimes herein)—describing the purpose of both, comparing the physical science background, field activities necessary, and data gathered in both, and analysis of the motivations of the parties conducting the activities. The article also contains an examination of selected germane subsurface trespass jurisprudence from New Mexico, Texas, and beyond. The article ends with thoughts and about what ought to be the state of subsurface trespass jurisprudence related to geophysical surveying and fracing and whether any uniformity exists between the two that could be applied to other activities. Ultimately, this article concludes that regulated fracing, which is currently less controllable than similar subsurface activities such as seismic reflection surveys, should not be liable for common law trespass claims in order to strengthen domestic energy security, prevent waste, and promote responsible self-development by mineral owners