(1)Geothermal leases
may be awarded by the state board of land commissioners for lands under its
jurisdiction through negotiation or by competitive bidding, but no such lease may be
awarded prior to a public notice period of thirty-five days.
(2)Where the property right to a severable geothermal resource has been
severed, reserved, or transferred with the subsurface estate, its owner may enter
upon the overlying surface parcel at reasonable times and in a reasonable manner
to prospect for and produce the energy from such resource, if adequate
compensation is paid to the owner of the surface parcel for damages and
disturbance in accordance with subsection (3) of this section. This right of entry
shall not include the right to construct surface utilization facilities, and such
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(1) Geothermal leases
may be awarded by the state board of land commissioners for lands under its
jurisdiction through negotiation or by competitive bidding, but no such lease may be
awarded prior to a public notice period of thirty-five days.
(2) Where the property right to a severable geothermal resource has been
severed, reserved, or transferred with the subsurface estate, its owner may enter
upon the overlying surface parcel at reasonable times and in a reasonable manner
to prospect for and produce the energy from such resource, if adequate
compensation is paid to the owner of the surface parcel for damages and
disturbance in accordance with subsection (3) of this section. This right of entry
shall not include the right to construct surface utilization facilities, and such
facilities may be constructed only upon agreement with the surface owner in
accordance with subsection (3) of this section.
(3) (a) (I) A developer of any type of geothermal resource shall develop the
resource in a manner that accommodates the surface owner by minimizing intrusion
upon and damage to the surface of the land.
(II) As used in this section, minimizing intrusion upon and damage to the
surface means selecting alternative locations for wells, roads, pipelines, or heat
exchange or generation facilities, or employing alternative means of operation, that
prevent, reduce, or mitigate the impacts of the geothermal development on the
surface, where such alternatives are technologically sound, economically
practicable, and reasonably available to the developer.
(III) The standard of conduct set forth in this subsection (3) does not prevent
a developer from entering upon and using that amount of the surface as is
reasonable and necessary to explore for and develop the geothermal resource.
(IV) The standard of conduct set forth in this subsection (3) does not
abrogate or impair a contractual provision that is binding on the parties and that
expressly provides for the use of the surface for the development of geothermal
resources or that releases the developer from liability for the use of the surface.
(b) A geothermal resource developer's failure to meet the requirements set
forth in this subsection (3) or, if applicable, subsection (2) of this section, gives rise
to a cause of action by the surface owner. Upon a determination by the trier of fact
that such failure has occurred, a surface owner may seek compensatory damages
or such equitable relief as is consistent with paragraph (a) of this subsection (3) or,
if applicable, subsection (2) of this section.
(c) (I) In any litigation or arbitration based upon subsection (2) of this section
or paragraph (a) of this subsection (3), the surface owner shall present evidence
that the developer's use of the surface materially interfered with the surface
owner's use of the surface of the land. After such showing, the developer bears the
burden of proof of showing that it met the standard set out in paragraph (a) of this
subsection (3) and, if applicable, subsection (2) of this section. If a developer makes
that showing, the surface owner may present rebuttal evidence.
(II) An operator may assert, as an affirmative defense, that it has conducted
geothermal resource development in accordance with a regulatory requirement,
contractual obligation, or land use plan provision that specifically applies to the
alleged intrusion or damage.
(d) Nothing in this section:
(I) Precludes or impairs any person from obtaining any and all other remedies
allowed by law;
(II) Prevents a developer and a surface owner from addressing the use of the
surface for geothermal resource development in a lease, surface use agreement, or
other written contract; or
(III) Establishes, alters, impairs, or negates the authority of local and county
governments to regulate land use related to geothermal resource development.