University of Oklahoma College of Law

Jackson, Darla

Contested Sovereignty and Jurisdictional Flux in Oklahoma Indian Country 2025

Naegele, Timothy

Ownership Rights to Produced Water in the New Age of Energy

Little, David R.

Prulhiere, Diana S.

English

Colorado

Graham, Andrew S.

West Virginia

Tovino, Stacey A.

Artificial Intelligence and the HIPAA Privacy Rule: A Primer

Davis, Megan E.A.

A Spoonful of Sugar Won’t Help This Medicine Go Down: The Inflation Reduction Act’s Failure to Address Pharmaceutical Evergreening

OKLAHOMA 
LAW REVIEW
ARTICLES
The 340B Drug Pricing Program: Administration,   Ryan P. Knox &
Litigation, and Reform   Ameet Sarpatwari
First Amendment Rights on Trial: A Critique of the   
Time, Place, and Manner Doctrine   Alec Greven
Modularity, Licensing, and the NRC  Tara Righetti &
   Madeleine Lewis
ESSAY 
Oklahoma’s Constitutional Search and Seizure –    
It’s Always Time for Enlightenment  Stephen E. Henderson
COMMENTS 
A Spoonful of Sugar Won’t Help This Medicine Go  
Down: The Inflation Reduction Act’s Failure to Address    
Pharmaceutical Evergreening  Megan E.A. Davis
A Legal Black Hole: Private Entities Mining    
Extraterrestrial Resources  Devin Lynn Doutaz
NOTE 
The Kids Aren’t Alright: Creating Greater Protections  
for the Children of Family Vloggers   Annie Dunn
 
 VOLUME 77000000000WINTER 2025000000000NUMBER 2
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https://digitalcommons.law.ou.edu/olr/vol77/iss2/1
OKLAHOMA LAW REVIEW
VOLUME 77 WINTER 2025 NUMBER 2
ARTICLES
The 340B Drug Pricing Program: Administration, Litigation,
and Reform  00
Ryan P. Knox & Ameet Sarpatwari 00229
First Amendment Rights on Trial: A Critique of the Time,
Place, and Manner Doctrine
Alec Greven 00285
Modularity, Licensing, and the NRC 
Tara Righetti & Madeleine Lewis 01357
ESSAY
Oklahoma's Constitutional Search and Seizure - It's Always Time
for Enlightenment
Stephen E. Henderson 01429
COMMENTS
A Spoonful of Sugar Won't Help This Medicine Go Down: The
Inflation Reduction Act's Failure to Address Pharmaceutical
Evergreening
Megan E.A. Davis 01439
A Legal Black Hole: Private Entities Mining Extraterrestrial
Resources
Devin Lynn Doutaz 01487
NOTE
The Kids Aren't Alright: Creating Greater Protections for the
Children of Family Vloggers
Annie Dunn 01527
Published by University of Oklahoma College of Law Digital Commons, 2025


Front Pages

Riedel, Andreah

 
319 
 
ONE J 
Oil and Gas, Natural Resources, and Energy Journal 
VOLUME 10                                                                                      NUMBER 3 
 
ARKANSAS 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Andreah Riedel* 
 
Table of Contents 
I. Introduction ........................................................................................... 320 
II. Statutory Law ....................................................................................... 320 
A. New Final Rule D-23 ................................................................... 320 
III. Administrative Law ............................................................................ 320 
 
 * Andreah Riedel is an Of Counsel Attorney at Steptoe & Johnson PLLC and is licensed 
in Ohio and West Virginia.  She proudly graduated from Duquesne University School of Law 
in 2018, and now focuses her practice on mineral title law in West Virginia, Ohio, and 
Pennsylvania.  Andreah would like to extend appreciation and thanks to Taylor Goldstrohm, 
a 2L at West Virginia University School of Law, for her assistance with this article. 
Published by University of Oklahoma College of Law Digital Commons, 2025
320 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10 
  
 
IV. Common Law ..................................................................................... 320 
A. Sufficient Notice found for Challenged AOGC Integration 
Orders ............................................................................................... 320 
B. Deduction of Postproduction Expenses from Integrated Mineral 
Holder Interests found Improper ....................................................... 321 
V. Other .................................................................................................... 323 
A. ExxonMobil Drilled First Lithium Well in Southwest Arkansas .. 323 
VI. Conclusion .......................................................................................... 323 
I. Introduction 
For the period of August 1, 2023, through July 31, 2024, there was 
minimal activity in the courts and legislature of Arkansas leading to any 
significant updates in the oil and gas industry. Notably, however, the first 
lithium well was drilled in Southwest Arkansas, inevitably setting the table 
for legislative changes regarding the mining of lithium. 
II. Statutory Law 
A. New Final Rule D-23 
As of July 4, 2024, amendments to Commission General Rule D-23, 
regarding the regulation of underground natural gas storage projects, were 
made effective, with the most notable amendment being the provision 
allowing for the underground storage of additional gases, such as carbon 
oxides, ammonia, hydrogen, nitrogen, and noble gas.1 
III. Administrative Law 
There were no notable administrative developments in Arkansas during 
the time period of August 1, 2023, to July 31, 2024.  
IV. Common Law 
A. Sufficient Notice found for Challenged AOGC Integration Orders 
In Cambiano v. Arkansas Oil & Gas Commission, the Arkansas Court of 
Appeals, 1st Division, affirmed the Conway County Circuit Court’s decision 
that the Arkansas Oil and Gas Commission (“AOGC”) was justified in 
finding proper notice having been given to holders of certain mineral rights 
prior to the pooling of all uncommitted and unleased mineral interest owners 
 
 1. 118.03.24 Ark. Code R. 002; See also 2023 Ark. Acts 140. 
https://digitalcommons.law.ou.edu/onej/vol10/iss3/3
2025]        Arkansas 321 
 
 
in a unit in Van Buren County, Arkansas.2  In the circuit court case, certain 
holders of mineral interests sought to vacate 2007 and 2019 integration orders 
granted in favor of SEECO, Inc. (“SEECO”), arguing that their predecessors 
in interest were not provided sufficient notice and opportunity to negotiate 
their interests.3  The circuit court found in favor of SEECO, stating that there 
was substantial evidence regarding the efforts made prior to the grant of the 
2019 integration order and, as royalties were being accepted pursuant to the 
2007 order, the mineral holders were bound by the same.4  Upon appeal, the 
Appellants argued, in relevant part, that SEECO did not make reasonable 
efforts to negotiate a lease with certain heirs prior to the 2007 integration 
hearing and the integration application failed to list known heirs as unleased 
mineral owners.5  Alternatively, SEECO argued that the hearings on this 
issue complied with the agency’s rules and regulations.6  
On appeal of a circuit court’s decision regarding an agency decision, the 
appellate court’s review is limited to the decision of the agency, rather than 
the decision of the circuit court.7  Pointing towards the efforts of SEECO, 
including the publication of notice by newspaper where the working interest 
holder had established due diligence to locate unleased mineral owners, the 
execution of a title examination including an eight-months search and 
opinion, and the obtainment of relevant information of record, the appellate 
court found that the AOGC’s orders were supported by sufficient evidence 
of sufficient notice having been provided.8  In large part, this decision serves 
as a reminder to mineral interest holders and oil and gas companies of the 
importance of the procedural and substantive factors that are key to the 
integration of mineral rights.   
B. Deduction of Postproduction Expenses from Integrated Mineral Holder 
Interests found Improper  
In Flywheel Energy Prod., LLC v. Arkansas Oil and Gas Commission, the 
Arkansas Court of Appeals, 2nd Division, was called upon to determine 
whether Flywheel Energy Production, LLC (“Flywheel”) properly deducted 
postproduction expenses from integrated royalty payments, as set forth in 
 
 2. Cambiano v. Arkansas Oil & Gas Comm’n, 2023 Ark. App. 581, 680 S.W.3d (2023), 
reh’g denied (Jan. 24, 2014). 
 3. Id. at 774. 
 4. Id. at 777. 
 5. Id. at 776. 
 6. Id.  
 7. Id. at 777. 
 8. Id. at 779. 
Published by University of Oklahoma College of Law Digital Commons, 2025
322 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10 
  
 
Ark. Code Ann. § 15-72-305(A)(3) (Supp. 2023).9  Historically, the Arkansas 
Oil and Gas Commission (“AOGC”) and oil and gas producers have 
interpreted the phrase “net proceeds” in Ark. Code Ann. § 15-72-305(A)(3) 
to allow only the deduction of taxes, assessments, and true third-party 
expenses; however, Flywheel asserted that it interpreted the phase “net 
proceeds” to require that postproduction expenses, such as any expenses 
incurred between the wellhead and the place the sale occurs, are deducted 
when calculating the statutory royalty.10  Upon receiving complaints from 
royalty holders about the deductions taken by Flywheel, the AOGC set a 
letter to Flywheel requesting an explanation for the additional deductions.11  
Upon escalation to an AOGC hearing, Flywheel contended that the term “net 
proceeds” in  Ark. Code Ann. § 15-72-305(A)(3) is plain and unambiguous, 
as it was common knowledge that “net proceeds” meant that expenses were 
to be deducted, and therefore the extrinsic evidence used by AOGC for its 
interpretation of the statute was a violation of separation-of-powers 
doctrine.12  Oppositely, the AOGC held that the term “net proceeds” was 
ambiguous, as it was not statutorily defined, and found a course of dealing 
that resulted in its model lease permitting royalty deductions only for taxes, 
assessments, and true third-party expenses.13  Upon appeal to the circuit 
court, the circuit court found in favor of the AOGC, holding that the term 
“net proceeds” is ambiguous, and the deduction of postproduction costs acts 
in opposition to the goal of ensuring protection to integrated mineral interest 
holders.14 
Upon appeal to the Arkansas Court of Appeals, Flywheel argued, in most 
relevant part, that the unambiguous language of Ark. Code Ann. § 15-72-
305(A)(3) allows the operator to pay one-eighth proceeds from net proceeds, 
including postproduction expenses, and that the AOGC’s examination of 
extrinsic evidence regarding the meaning of “net proceeds” was improper, as 
the legislation is plain and unambiguous.15  Alternatively, the court found 
that “net proceeds” is ambiguous and open to more than one interpretation, 
and therefore considered extrinsic evidence regarding its meaning.16  While 
 
 9. Flywheel Energy Prod., LLC v. Arkansas Oil & Gas Comm’n, 2023 Ark. App. 483, 
678 S.W.3d 851 (2023), reh’g denied (Dec. 6, 2023), review denied (Jan. 25, 2024). 
 10. Id. at 854–57 
 11. Id. at 854. 
 12. Id. at 858. 
 13. Id.  
 14. Id. at 856–57. 
 15. Id. at 857. 
 16. Id. at 859–62. 
https://digitalcommons.law.ou.edu/onej/vol10/iss3/3
2025]        Arkansas 323 
 
 
Flywheel’s arguments hinge on purported precedence, the court dismisses 
this argument, stating that none of the relied-upon cases even suggest that 
postproduction expenses are chargeable against integrated royalty interests.17  
Instead, the court looks at the AOGC’s long-standing interpretation, 
explaining that “net proceeds” permitted only deductions for assessments, 
taxes, and transportation expenses.18 The decision of this court includes that 
substantial evidence supporting AOGC’s order that interprets “net proceeds,” 
and states that the rationale was based on “valid, legal, and persuasive 
evidence that a reasonable mind might accept as adequate to support a 
conclusion and force the mind to pass beyond conjecture.”19  
V. Other 
A. ExxonMobil Drilled First Lithium Well in Southwest Arkansas 
ExxonMobil started to drill the first lithium well in Southwest Arkansas 
after it acquired the rights to 120,000 gross acres of the Smackover formation 
in 2023.20 The company is hoping for the first lithium production for 2027.21 
After this news broke, the Department of Energy and Environment and the 
Oil and Gas Commission started to prepare for lithium oversight, inevitably 
setting the table for legislative changes regarding the mining of lithium.22  
VI. Conclusion  
During the period of August 1, 2023, to July 31, 2024, there was minimal 
activity in the courts and legislature of Arkansas leading to any significant 
updates in the oil and gas industry.  We look forward to following any 
developments relating to lithium production following the drilling of the first 
lithium well in Southwest Arkansas. 
 
 17. Id. 
 18. Id.  
 19. Id. at 862 (citing Ark. Pro. Bail Bondsman Licensing Bd. V. Oudin, 348 Ark. 48, 69 
S.W.3d 855 (2002)). 
 20. ExxonMobil Drilling First Lithium Well in Arkansas, Aims To Be a Leading Supplier 
for Electric Vehicles by 2030, ExxonMobil, (Nov. 13, 2023), https://corporate.exxonmobil. 
com/news/news-releases/2023/1113_exxonmobil-drilling-first-lithium-well-in-arkansas (last 
visited June 27, 2024). 
 21. Id.  
 22. Aaron Gettinger, Department of Energy and Environment, Oil and Gas Commission 
preparing for lithium oversight, Arkansas Democrat Gazette, (Nov. 18, 2023, 1:51 AM), 
https://www.arkansasonline.com/news/2023/nov/18/department-of-energy-and-environment-
oil-and-gas/ (last visited June 27, 2024). 
Published by University of Oklahoma College of Law Digital Commons, 2025


Arkansas

Jones, Blake C.

 
383 
 
ONE J 
Oil and Gas, Natural Resources, and Energy Journal 
VOLUME 10                                                                                      NUMBER 3 
 
NEW MEXICO 
 
Blake C. Jones* 
I. Introduction 
As New Mexico attempts to strike the appropriate balance between being 
a petroleum powerhouse and crafting a regulatory scheme to protect the 
environment, the 2024 legislative session ended without any major reforms 
to the oil and gas industry despite the introduction of numerous bills.  
 
 * Blake C. Jones is a member of the Energy Transactions practice group at Steptoe & 
Johnson PLLC. He advises exploration and production companies through all phases of 
acquisitions and divestitures, and regularly manages large title due diligence projects for his 
clients. He is a graduate of The Ohio State University (BA), and Capital University (JD). Mr. 
Jones is licensed in New Mexico, Ohio, and Texas. Research assistance for this paper was 
provided by Kara Taylor, rising 3L at the University of Houston Law Center. 
Published by University of Oklahoma College of Law Digital Commons, 2025
384 Oil and Gas, Natural Resources, and Energy Journal [Vol. 10 
  
 
II. Legislative and Regulatory Developments 
A. State Legislative Developments 
Series of Bills Aimed at Reforming the Oil and Gas Industry Fail During 
Legislative Session 
“It was a very good year!” or “frustrating.”1 Two very different ways to 
describe the same New Mexico legislative session. The former being a 
statement by the New Mexico Oil and Gas Association, and the latter a 
description given by Democratic Representative Matthew McQueen, who 
co-sponsored two failing bills.2 Perhaps the most ambitious piece of 
legislation was House Bill 133, which started out as an attempt to overhaul 
the 1935 Oil and Gas Act.3 The initial bill proposed four main reforms: 
“restricting freshwater use by industry; setbacks from homes, schools and 
other sensitive areas for new wells; increases in fines and fees; and 
codification of the state’s 98% methane capture rule, which targets leaks in 
the production process.”4 The bill that eventually made its way to the house 
floor included codification of the gas capture rule, along with fee and fine 
increases.5 The bill passed its House committee hearings before being 
postponed indefinitely without a hearing before the full House.6  
House Bill 48 sought to increase the royalty rate for oil and gas produced 
on state lands from twenty percent (20%) to twenty-five percent (25%).7 
Supporters of the Bill argued that the increase was in line with royalties being 
 
 1. Jerry Redfern, Another New Mexico Legislative Session Ends, and Again—No New 
Oil and Gas Reforms, Capital & Main (Feb. 26, 2024), https://capitalandmain.com/another-
new-mexico-legislative-session-ends-and-again-no-new-oil-and-gas-reforms (last visited 
August 18, 2024). 
 2. Id. 
 3. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis. 
gov/Legislation/Legislation?chamber=H&legType=B&legNo=133&year=24; see also N.M. 
STAT. ANN. § 70. 
 4. Jerry Redfern, Oil and gas regulatory bills still alive in New Mexico Legislature, 
Source NM (Feb. 6, 2024, 2:58 AM), https://sourcenm.com/2024/02/06/oil-and-gas-
regulatory-bills-still-alive-in-new-mexico-legislature/ (last visited August 18, 2024); see also 
H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/24%20 
Regular/bills/house/HB0133.pdf. 
 5. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/ 
24%20Regular/bills/house/HB0133JCS.pdf. 
 6. H.B. 133, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/ 
Legislation/Legislation?chamber=H&legType=B&legNo=133&year=24. 
 7. H.B. 48, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Sessions/ 
24%20Regular/bills/house/HB0048.pdf. 
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2025] New Mexico 385 
 
 
paid to private landowners, and also the rates paid in Texas.8 State lands 
account for less than 1% of leasable land, but the increase would have 
accounted for between $1.5 billion and $2.5 billion in new revenue by 2050.9 
The Bill met a similar fate to HB 133, passing two house committee hearings 
before the session ended without a vote.10 
Senate Bill 64 was introduced to provide a severance tax exemption for 
low producing stripper wells.11 Opponents of the bill argued that the name, 
Severance Tax Exemption for Certain Projects, intentionally hid the tax 
break for the oil and gas industry. While stripper wells, wells producing less 
than 10 barrels of oil per day, account for 20% of the active wells in the state, 
they account for less than 1.5% of oil production, and less than 6% of gas 
production.12 A report issued by the Legislative Finance Committee said that 
the bill would cost the state $9.7 million in lost tax revenue, and $200,000 in 
enforcement costs.13 The industry friendly tax break would also ultimately 
die in chamber.14 
House Bill 2, the state’s General Appropriation Act, funds all state 
expenditures, including the two oil and gas enforcement agencies, the Oil 
Conservation Division (“OCD”) and the New Mexico Environment 
Department. The OCD budget increased 4.8% from the prior year, compared 
to the 6.5% overall budget increase.15 Dylan Fuge, the acting director of the 
Energy Minerals and Natural Resources Department, said “the bill ‘provides 
additional resources to the OCD’ but it does not match what the division had 
asked for.” Still, he called it “a strong investment in OCD.”16 While Matt 
Maez, communications director at the Environment Department, said the bill 
underfunded the division by $4 million.17 
 
 8. See Redfern, supra note 1. 
 9. Id. 
 10. H.B. 48, 56th Leg., Second Sess. (N.M. 2024), https://www.nmlegis.gov/Legislation/ 
Legislation?Chamber=H&LegType=B&LegNo=48&year=24. 
 11. S.B. 64, 56th Leg., Second Sess. (N.M. 2024, https://www.nmlegis.gov/Sessions/24 
%20Regular/bills/senate/SB0064.pdf. 
 12. See Redfern, supra note 1. 
 13. Id. 
 14. S.B. 64, 56th Leg., Second Sess. (N.M. 2024, https://www.nmlegis.gov/Legislation/ 
Legislation?chamber=S&legType=B&legNo=64&year=24. 
 15. See Redfern, supra note 4; see also H.B. 2, 56th Leg., Second Sess. (N.M. 2024), 
https://www.nmlegis.gov/Sessions/24%20Regular/final/HB0002.pdf, at 199 at 199. 
 16. See Redfern, supra note 4. 
 17. Id. 
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III. Judicial Developments 
A. Federal Court Cases 
Landowners Ejectment Claim Against Operator Failed Because It Did 
Not Allege That Defendant Possessed the Property at Commencement of 
the Case 
Landowner Plaintiff Merchant Livestock Company filed suit against 
Defendant Chevron U.S.A., Inc., and its contractor Tetra Technologies, Inc., 
alleging that Defendants improperly used its surface rights, “including 
driving on its roads, cutting fences, and placing produced water lines, in 
furtherance of their oil and gas operations.”18 In its complaint, Plaintiff 
asserted the following claims: trespass and trespass for mesne profits, 
ejectment, unjust enrichment, punitive damages, and equitable and injunctive 
relief.19 Defendant filed a motion to partially dismiss the ejectment claim, 
disgorgement of oil and gas profits, mesne profits, and restitution, and the 
unjust enrichment claim.20 
The court first addressed the ejectment claim, holding that Plaintiff failed 
to state an ejectment claim because, “it does not allege that Defendants 
possessed the property at the commencement of the case. ‘An action at law 
for ejectment lies to recover possession of lands to which a plaintiff is legally 
entitled. In ejectment, the parties' rights to possession are primarily in 
issue.’”21 The court went on to explain that in order to bring an ejectment 
claim under N.M. STAT. ANN § 42-4-1 et al., “a Plaintiff must ‘declare in 
[its] complaint that on some day, named therein, [it] was entitled to the 
possession of the premises, describing them; and that the defendant, on a day 
named in the complaint, afterwards entered into such premises and 
unlawfully withheld from the plaintiff the possession thereof.’"22 Because 
Plaintiff did not allege Defendants possess the property, the court dismissed 
the ejectment claim. 
Next, the court addressed Defendants’ claim that Plaintiff cannot seek 
damages in the form of disgorgement of profits, mesne profits, and punitive 
damages.23 The court began by noting that, “[g]enerally, the appropriate form 
or amount of damages is not a proper subject for dismissal under Fed. R. Civ. 
 
 18. Merch. Livestock Co. v. Chevron U.S.A, Inc., 2023 U.S. Dist. LEXIS 194560, at 1–2 
((D.N.M. 2024). 
 19. Id. at 3. 
 20. Id. at 4. 
 21. Id. at 5–6, (quoting Pacheco v. Martinez, 97 N.M. 37 (N.M. App 1981)). 
 22. Id. at 6 (quoting N.M. STAT. ANN § 42-4-5). 
 23. Id. at 11. 
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P. 12(b)(6), as damages are not independent causes of action or claims.”24 
With respect to punitive damages specifically, the court stated that, “"[a] 
Rule 12(b)(6) motion tests the sufficiency of a claim; it is not a proper 
mechanism for challenging a request for punitive damages."25 Defendants 
argued that Plaintiff did not plausibly allege corporate liability for punitive 
damages, but the court disagreed due to the fact that, “Chevron was provided 
notice (repeatedly), of the illegal trespasses and it knowingly condoned 
and/or failed to prevent the trespasses."26 The court also refused to declare 
whether disgorgement of profits or mesne profits were available to Plaintiff 
because their availability is a fact dependent issue, and they were not 
prohibited under Plaintiff's surviving claims.27 Finally, the court refused to 
dismiss Plaintiff’s unjust enrichment claim because Plaintiff is entitled to 
argue alternate or even inconsistent claims at the pleading stage, and it 
remained unclear whether Plaintiff would be able to obtain an adequate 
remedy at law.28 
B. State Court Cases 
Appellate Court Holds That Void Instrument Could Convey Title to Bona 
Fide Purchaser 
In a dispute involving the ownership of an overriding royalty interest 
(“ORRI”), numerous parties claimed ownership of the ORRI after a series of 
long and complicated transactions, with the parties' competing claims starting 
with assignments from the separate estates of Robert and Anne Koch.29 As 
part of a divorce decree did not resolve the disposition of the ORRI, Robert 
Koch agreed to convey a five-eighths (5/8) interest to Anne Koch, and Robert 
executed an "Assignment of Overriding Royalty Affecting United States Oil 
and Gas Lease" which was not filed with the Bureau of Land Management, 
or recorded in the Eddy County Clerk’s Office.30 Robert died in 1975, with 
his Will being probated in Denver, Colorado probate court, and no ancillary 
probate being conducted in New Mexico. During the administration of his 
estate, Robert’s ORRI was sold to Robert W. David (“Mr. David”). 
 
 24. Id. 
 25. Id. at 11-12 (quoting Atlantis Car Care, Inc. v. Phoenix Ins. Co., 2019 U.S. Dist. 
LEXIS 140249 (W.D. Okla. 2019)). 
 26. Id. at 13 (quoting Complaint, Doc. 1-1 at ¶ 59). 
 27. Id. at 12. 
 28. Id. at 14–15. 
 29. Koch v. David Fam. Oil & Gas Ints. P'ship, 2024 N.M. App. Unpub. LEXIS 241, at 
1–4. (N.M. App. 2024). 
 30. Id. at 5. 
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Subsequently, Anne died testate in 2005, with the ORRI being passed to a 
family trust, and no ancillary probate being opened in New Mexico.31 
At the district court, Anne’s successors in interest argued that Robert 
owned no interest in the ORRI at his death, and in the alternative, the ORRI 
passed to James Koch, his residuary heir under New Mexico law.32 Mr. David 
and Defendants argued that Colorado divorce and probate law controlled, 
that Mr. David was a bond fide purchaser for value (“BFP”) because there 
was nothing of record in Eddy County giving notice of Anne’s potential 
interest, and Plaintiffs’ claims were barred by laches, waiver, and estoppel 
because they approved of the ORRI sale by Robert’s estate.33 The district 
court issued an order granting Plaintiffs’ Motion for Summary Judgment, 
“though on grounds not argued by them.”34 Instead, the court reasoned that 
the assignment from Robert’s estate was void because there was no ancillary 
probate conducted in New Mexico, and that Mr. David was on notice as a 
BFP that the personal representative was only appointed in Colorado.35 
The appellate court reversed and remanded based on two errors in the 
district court’s decision. “First, there is nothing in the record supporting the 
decision that Robert David was on ‘actual’ notice that Mr. Kumagai [Mr. 
David’s personal representative] was only appointed in Colorado.”36 Further, 
Plaintiffs did not argue that Mr. David knew he was dealing with the 
Colorado probate proceeding only. The second basis for reversal was the 
district court’s “interpretation and use of Allen, 1992-NMCA-054.”37 The 
court noted that the Allen case’s facts were distinguishable from the facts in 
the case at hand, and perhaps most importantly, the Plaintiffs in Allen did not 
argue that she should be considered a BFP “as a way to avoid the problem 
caused by the invalid executor's deed.”38 The appellate court went on to 
emphasize that, “New Mexico case law is clear that a ‘void’ or voidable deed 
can serve to convey title to a BFP,”39 and “to the extent that the district court 
 
 31. Id. at 5–6. 
 32. Id. at 7. 
 33. Id. at 7–8. 
 34. Id. 
 35. Id. (citing Allen v. Amoco Prod. Co.,1992-NMCA-054, 114 N.M. 18, 833 P.2d 1199). 
 36. Id. at 9–10 (noting that the assignment from the personal representative did not 
specify the jurisdiction or court handling the case). 
 37. Id. at 12. 
 38. Id. at 13–14. 
 39. Id. at 14–15 (citing State ex rel. State Tax Comm'n v. Garcia, 1967-NMSC-098, 77 
N.M. 703, 427 P.2d 230 (discussing the difference between voidable and void instruments and 
holding that deeds not fraudulent on their face though cancellable by the state did not defeat a 
claim by a BFP); In re Last Will & Testament of Welch v. Welch, 2021-NMCA-028, 493 P.3d 
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relied on Allen to mean that an invalid personal representative's deed cannot 
convey anything that a BFP can rely on, it misread the case.”40 
 
400 (holding that a void heirship proceeding did not invalidate a conveyance to a BFP third 
party); Jeffers v. Doel, 1982-NMSC-116, 99 N.M. 351, 658 P.2d 426 (noting that NMSA 
1978, § 14-9-3 (1923, amended 1990) protects BFPs even if a conveyance was void under 
NMSA 1978, § 40-3-13(A) (1975, amended 1993))). 
 40. Id.  
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