Even as the Pennsylvania Supreme Court continues hearing arguments in the Butler appeal, the focal point remains the same: the 130-year-old Dunham Rule and its definition of the term ‘mineral.’

In overturning the trial court decision in Butler v. Powers, the Pennsylvania Superior Court ruled that scientific testimony was needed to determine whether shale gas is considered a mineral.

But as Buchanan Ingersoll & Rooney Energy Shareholder Gregory C. Krock wrote in arguments filed for the appeal, such evidence “is irrelevant in determining what ordinary people intended to include in their term ‘mineral’ when they negotiated their deed.”

Read the full article – “Pennsylvania Top Court Weighs Marcellus Shale Rights,” (Bloomberg – October 16, 2012, subscription required)

“The very foundation of the Dunham presumption is that ordinary people don’t use the word mineral in the scientific sense," Krock explained in Supreme Court hearings. “No expert can testify as to whether someone would know if people [100 years ago] knew the value of shale.”