USCA11 Case: 22-11375 Document: 33-1 Date Filed: 01/05/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11375
Non-Argument Calendar
____________________
P.D. MILLER FARMS, LLC,
Plaintiff-Counter Defendant-Appellant,
versus
BASF CATALYSTS, LLC,
Defendant-Counter Claimant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:21-cv-00019-LAG
____________________
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2 Opinion of the Court 22-11375
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
P.D. Miller Farms, LLC holds the surface rights in fee simple
title to a 600-acre property in Decatur County, Georgia and BASF
Catalysts, LLC owns the mineral rights. P.D. Miller Farms now
seeks a declaratory judgment that under Georgia’s mineral lapse
statute it has gained ownership of the mineral rights through
adverse possession. To prevail, P.D. Miller Farms must prove that
BASF “neither worked nor attempted to work the mineral rights
nor paid any taxes due on them for a period of seven years”
preceding the action. O.C.G.A. § 44-5-168(a).
The district court granted summary judgment in favor of
BASF. It found that there was no genuine question of material fact
that the mineral rights were “worked” when BASF drilled four
holes on the property to extract core samples. On appeal, P.D.
Miller Farms challenges that finding, and we reverse. The evidence
BASF provided leaves open a genuine question whether the drilling
occurred on the property, and P.D. Miller Farms submitted
evidence that it did not. We also conclude that a genuine question
exists as to whether BASF paid taxes on the mineral rights.
Accordingly, we reverse the district court’s order granting
summary judgment in favor of BASF.
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22-11375 Opinion of the Court 3
I.
In 1943, W. B. Miller acquired fee simple title from the
Floridin Company to a 600-acre property in Decatur County,
Georgia subject to a reservation of the mineral rights in favor of the
grantor. The surface rights have been in the Miller family since
then and are now held by P.D. Miller Farms, LLC. The mineral
rights were later conveyed to the Engelhard Corporation, which
was subsequently acquired by BASF Catalysts, LLC.
In November 2020, BASF entered the property with
personnel and equipment with the intent to explore the minerals.
Their personnel noticed that new pines were planted on the
property, prompting BASF to contact P.D. Miller, Jr., the owner
and manager of P.D. Miller Farms. At a meeting the next day,
Miller disputed that BASF owned mineral rights in the property
and requested that BASF remove its equipment. BASF complied
with Miller’s request.
P.D. Miller Farms then filed a complaint for declaratory
judgment in the Superior Court of Decatur County, Georgia. It
alleged that BASF’s mineral rights on the property had lapsed and
that as owner of the real property, P.D. Miller Farms was entitled
to the mineral rights in the property under Georgia’s mineral lapse
statute, O.C.G.A. § 44-5-168.
BASF removed the action to the Middle District of Georgia,
alleging that removal was proper because the district court had
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4 Opinion of the Court 22-11375
diversity jurisdiction over this action.1 BASF filed an answer and
counterclaim for declaratory judgment of its own. It requested
that the district court issue a judgment declaring that: (1) BASF’s
mineral rights on the property are valid; and (2) BASF has the right
to exercise its mineral rights on the property without the
interference of P.D. Miller Farms.
BASF then filed a motion for summary judgment. In its
memorandum in support, BASF presented evidence that it says
proves it paid the assessed taxes on the mineral rights during the
statutory period and that it “worked” those mineral rights in 2019.
That evidence included affidavits and supporting
documentations from BASF employees. Randolph Jenkins, a BASF
Mining Supervisor, attested that in 2019 he and Nathalie LeGare, a
BASF Mine Engineer, “arranged for the Miller property to be
drilled by our drilling contractor.” He added that BASF’s surveying
company “would have entered the property and marked the
proposed drill hole locations” and that the results of the drilling
“showed that there appeared to be a large deposit of valuable
minerals on the Miller tract.”
LeGare also submitted an affidavit. She attested that she
contacted the survey company to locate the hole locations on the
1 BASF removed this action pursuant to
28 U.S.C. §§ 1332, 1441, and 1446.
On
appeal, we granted BASF’s motion to supplement the record to establish that
it is a citizen of Delaware and New Jersey. Because P.D. Miller Farms is a
citizen of Georgia, we concluded that the parties are diverse.
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22-11375 Opinion of the Court 5
Miller property for Logan Drilling USA—BASF’s “normal drilling
company”—to drill. She attached a survey plot identifying the hole
locations on the Miller property, and invoices from Logan Drilling
that she claims leads her to believe “Logan entered the Miller
property to drill” four holes and obtain core samples. The invoices
covered work performed from June 21, 2019 to June 29, 2019 and
from July 8, 2019 to July 11, 2019. LeGare says that the “holes were
drilled on July 11 on the Miller property.” Based on the results of
this drilling, LeGare attests that BASF made plans for further
exploration on the Miller property.
In response, P.D. Miller Farms submitted an affidavit by
P.D. Miller, Jr., who attested that he has been on the farm “virtually
everyday” and that he has “not seen, observed, heard of, nor seen
signs of anyone working, or attempting to work, the mineral
rights.” Further, Miller attested that he “found no evidence on the
property” that the activities described in the Jenkins and LeGare
affidavits were conducted. He says that “[n]one of my trees, roads,
ditches, pasture indicate that equipment and personnel were ever
on the property” and that “[n]either I nor anyone in my employ
observed equipment and personnel on the property.”
The parties also disputed whether BASF has paid taxes on
the mineral rights within the preceding seven years. BASF
provided proof that it paid taxes on the mineral rights associated
with MR0080—the number assigned by the county for taxation of
the mineral rights—every year since 1998 (except for 2009). But
due to a clerical error, all parties agree that MR0080 did not
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6 Opinion of the Court 22-11375
correspond to the mineral rights on the Miller property. Miller
submitted an affidavit from Jon Mark Harrell, the Tax
Commissioner of Decatur County, Georgia. Based on his review
of the county records, he attested that he has found “no record of
BASF Catalysts, LLC, nor its predecessor, Engelhard Corporation,
being invoiced for, or paying, any taxes for the mineral
interests/mineral rights reserved with respect to the property.”
Miller’s other affiant, Amy Rathel, the Chief Appraiser at the
Decatur County Georgia Tax Assessors Office, explained that
BASF had been invoiced for, and paid taxes on, mineral rights
associated with a different nearby piece of property owned in fee
simple by BASF.
The district court granted BASF’s motion for summary
judgment.2 The district court concluded that the evidence on the
record established that BASF worked its mineral rights, within the
meaning of the applicable statute, in June and July 2019.
Accordingly, there was “no genuine issue of material fact to be
tried, as Defendant has presented unrefuted evidence that it
worked its mineral rights to a sufficient degree to retain those rights
under O.C.G.A. § 44-5-168.” Because this conclusion resolved the
summary judgment motion in BASF’s favor, the district court did
2 After issuing a set of jurisdiction questions to the parties, we previously
determined that the district court’s order granting BASF’s motion for
summary judgment resolved P.D. Miller Farm’s claim as well as BASF’s
counterclaim. Accordingly, the order is a final order subject to appeal under
28 U.S.C. § 1291.
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22-11375 Opinion of the Court 7
not address whether BASF also paid taxes on the mineral rights
during the statutory period.
II.
A district court’s ruling on a motion for summary judgment
is reviewed de novo. Westchester Gen. Hosp., Inc. v. Evanston
Ins. Co.,
48 F.4th 1298, 1301 (11th Cir. 2022). We “apply the same
legal standards as the district court and view all facts and reasonable
inferences in the light most favorable to the nonmoving party.”
Id.
at 1301–02 (quotation omitted and alteration adopted). Summary
judgment is proper when a “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
Georgia’s mineral lapse statute provides that if the owner of
the mineral rights has “neither worked nor attempted to work the
mineral rights nor paid any taxes due on them for a period of seven
years,” then the owner of the real property in fee simple may gain
absolute title to the mineral rights. O.C.G.A. § 44-5-168(a). Put
another way, when the mineral rights are separately held from the
surface rights, “the owner of the mineral rights loses them by
nonuse plus nonpayment of taxes.” Fisch v. Randall Mill Corp.,
262 Ga. 861, 862 (1993) (quotation omitted).
So to be entitled to summary judgment, BASF must show
that there is no genuine question of material fact that it has worked
or attempted to work the mineral rights or paid taxes on such rights
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8 Opinion of the Court 22-11375
in the preceding seven years. O.C.G.A. § 44-5-168(a); Hayes v.
Howell,
251 Ga. 580, 583 (1983). BASF argues that it is entitled to
summary judgment because it “worked or attempted to work” the
mineral rights by drilling and collecting core samples in June and
July 2019. P.D. Miller Farms contests that the drilling occurred on
the property as a factual matter and also contends that as a legal
matter this activity would be insufficient under the statute.
We start with the legal question. If BASF can demonstrate
that it drilled holes and collected core samples on the Miller
property, it will meet the statutory requirement of working or
attempting to work the mineral rights. The Georgia Supreme
Court has instructed that to meet this standard “the owner of the
mineral interests must carry on an operation to explore for, use,
produce, or extract minerals in the land.” Fisch,
262 Ga. at 862.
This means that the “owner of a mineral interest must do more
than conduct genealogical research and pick up rock samples to
meet the statutory requirement of working or attempting to work
the mineral rights.”
Id. at 863. Consequently, in Fisch, “walking
the property and collecting ten to twelve rock samples for analysis”
was insufficient as a matter of law.
Id. at 861–63.
Here, BASF contends that they did not simply collect rock
samples; they drilled holes on the property and extracted core
samples. This is categorically different than collecting surface rock
samples. If proven, this activity is sufficient to establish that BASF
carried on an operation to explore for and extract minerals in the
land.
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22-11375 Opinion of the Court 9
Moving to the facts, we conclude that a genuine question of
fact exists as to whether the drilling was done on the Miller
property. In support of its motion, BASF provided the survey of
the property identifying four holes to be drilled. It also provided
invoices from Logan Drilling for work performed between June
21st and July 18th. In total, the invoices show that sixty holes were
drilled during this period. According to LeGare’s affidavit, four of
these holes were drilled on the Miller property on July 11.
BASF has not demonstrated that these invoices correspond
to holes drilled on the Miller property. On their face, the invoices
do not identify the location of the drilling. The invoices say that
the drilling was performed at “Complex A” but Complex A is not
identified or defined. And the holes identified in the survey plot do
not correspond to the holes that BASF claims were drilled on July
11. The survey plot identifies holes with “CSH” numbers of 5001,
5002, 5003, and 5004. The invoices, however, show that CSH 1008,
1002, 1003 and 1009 were drilled on July 11. Though the invoices
may very well be for worked performed on the Miller property, the
record presented to the district court does not conclusively
establish that they are. Accordingly, the supporting
documentation attached to BASF’s affidavits do not show that no
genuine question of material fact exists.
With the documents submitted by BASF not resolving the
factual question, we are left with dueling and contradictory sets of
affidavits. P.D. Miller avers that he has not found any evidence that
BASF drilled on the property nor is aware of any evidence. BASF’s
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10 Opinion of the Court 22-11375
affiants claim that they did. While we agree with the district court
that Miller’s affidavit is relatively weak evidence, “an affidavit
which satisfies Rule 56 of the Federal Rules of Civil Procedure may
create an issue of material fact and preclude summary judgment
even if it is self-serving and uncorroborated.” United States v.
Stein,
881 F.3d 853, 854 (11th Cir. 2018) (en banc). And at summary
judgment, it is not the role of the district court to weigh competing
evidence or determine the credibility of witnesses. A.L. ex rel. D.L.
v. Walt Disney Parks & Resorts US, Inc.,
900 F.3d 1270, 1289 (11th
Cir. 2018). Taking the evidence in the light most favorable to P.D.
Miller Farms, a genuine question of material fact exists as to
whether BASF drilled on the Miller property.
Finally, we conclude that BASF has also not demonstrated
that it is entitled to summary judgment on the ground that it paid
taxes on the mineral rights in the seven years preceding the
complaint. While BASF has demonstrated that it paid taxes on
parcel MR0080, the affidavits of Harrell and Rathel create a genuine
question of material fact as to whether those taxes correspond to
the mineral interests associated with the Miller property. We
therefore cannot affirm the district court’s order on this alternative
ground.
* * *
To prevail on summary judgment, BASF was required to
demonstrate that there was no genuine question that it either
worked or attempted to work the mineral rights or paid taxes on
those mineral rights. Because BASF failed to meet this burden, we
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22-11375 Opinion of the Court 11
REVERSE the district court’s order granting summary judgment
in favor of BASF and REMAND to the district court for further
proceedings.
