Is helium a mineral or surface right in Colorado

[BCP]

I am trying to clarify whether helium is considered a mineral right or surface right in Colorado. I was told that since it is not a hydrocarbon, it could possibly be classified as a surface right. I own some mineral rights where they are starting to look for helium and any advice on this would be appreciated.

Thanks

[Richard_Winblad]

I’m not licensed in Colorado and do not give legal advice under this forum. But look at your land records. If oil, Gas and other minerals were reserved, I believe that gas (mineral or other form) would be a product.

An Arizona Case stated:

¶13 As to the mineral reservation, we addressed whether a deed reservation of “all … minerals whatsoever” included helium and other substances. Id. at 474, 694 P.2d at 304. We noted other courts examining general mineral reservations focused on the definition of “mineral” with "widely divergent results."1 Spurlock , 143 Ariz. at 474, 694 P.2d at 304. After considering these divergent approaches,

[471 P.3d 656]

we found the term “minerals” was unambiguous and held that a deed “reservation of ‘all minerals whatsoever’ reflects a general intent of the parties to sever the surface estate from the underlying mineral estate.” Id. at 478, 694 P.2d at 308 (citing Maynard v. McHenry , 271 Ky. 642, 113 S.W.2d 13 (1938) ). We stated that, for that reason, it was “the court’s duty to determine the extent of a general reservation as a matter of law, without resorting to extrinsic evidence” to determine the parties’ intent. Id. Under a deed creating a general mineral reservation, the holder of the mineral estate “retains ownership of all commercially valuable substances separate from the soil,” and the holder of the surface estate “assumes ownership of a surface that has value in its use and enjoyment.” Id. (citing Watt v. W. Nuclear, Inc. , 462 U.S. 36, 48-56, 103 S.Ct. 2218, 76 L.Ed.2d 400 (1983) ).

¶14 We quoted with approval a treatise observing that when parties create a general reservation of all minerals—without qualifying language—they intend to sever the entire mineral estate from the surface estate. Id. (citing 1 E. Kuntz, A Treatise on the Law of Oil and Gas § 13.3, at 305-06 (1962) (additional citations omitted)). We further held that in determining how the holder of a mineral estate can “develop his estate,” courts “should examine the four corners of the document and give effect to any specific provisions regulating the use of the surface estate by the mineral owner.” Id. at 479, 694 P.2d at 309 (emphasis added) (citations omitted).

¶15 Applying that general analytical framework, we held the word “minerals” as used in the general mineral reservation there was unambiguous and indicated the parties’ general intent to sever the mineral estate from the surface estate. Id. at 481, 694 P.2d at 311. We also found no specific intent to limit that reservation in other provisions of the deed. Id. Accordingly, we held that helium and other inorganic, commercially valuable substances distinct from the soil itself were minerals, and Santa Fe owned them under the general mineral reservation. Id. Paulden Indus. LLC v. Big Chino Materials LLC, 249 Ariz. 442, 471 P.3d 653 (Ariz. App. 2020)

Probably the same result in Colorado

[779342]

I once had to accounting for helium and the State of Colorado indicated I had to pay oil and gas severance taxes so I am thinking mineral. The information on the Colorado Oil and Gas Commission site was not very helpful on this but that is where I would start and hopefully information is now clearer. And the last time I researched Helium prices used to be set by the federal government and sometimes are paid more than other oil royalties. Hope this is helpful.

[BCP]

Thanks for the help with this.