Quick answer
North Dakota's pore space chapter states that leasing pore space is not a severance prohibited by that chapter, so an owner can grant storage rights while keeping title.[2]
A carbon dioxide storage easement that North Dakota's Board of University and School Lands considered in January 2025 provided for payments in stages: an initial payment, annual per-acre payments until injection begins, and then the owner's proportionate share of a storage rate for each metric ton injected, escalating every five years.[3] That staged structure means the payment stream changes character once injection starts, moving from acreage-based payments to payments tied to the volume stored.[3]
Federal rules require the operator to keep monitoring a site after injection stops, under an approved post-injection site care plan, for at least 50 years or an alternative timeframe the permitting authority approves, though the authority may authorize site closure earlier if the operator shows the project no longer endangers underground sources of drinking water.[4] EPA also requires Class VI operators to maintain financial instruments that cover corrective action, plugging the injection well, post-injection site care, and emergency and remedial response.[1]
Wyoming declares that ownership of all pore space in all strata below the surface lands and waters of the state is vested in the owners of the surface above.[5]
In Wyoming, a conveyance of the surface also conveys the pore space unless the pore space was already severed or is explicitly excluded, and a conveyance of mineral interests does not convey pore space unless it says so explicitly.[5]
For a transfer of pore space rights made after July 1, 2008, Wyoming lets the surface owner treat the transfer as void if the transfer instrument does not contain a specific description of the location of the pore space being transferred.[5]
North Dakota vests title to pore space in the owner of the overlying surface estate and provides that title to pore space may not be severed from title to the surface, though its pore space chapter does not affect transactions before April 9, 2009 that severed pore space from the surface estate.[2]
Montana presumes that the surface owner owns a geologic storage reservoir only when ownership cannot be determined from the deeds or severance documents for the property by reviewing statutory or common law; the statute does not apply within an Indian reservation unless the tribe adopts a carbon sequestration law and enters a cooperative agreement with the state.[6]
Texas: in a 2025 salt cavern case, the Supreme Court of Texas held that, absent an agreement otherwise, the surface owner, and not the mineral lessee, owns the possessory rights to the space under the property's surface.[16]
Texas Water Code section 27.041, as amended by House Bill 1284 in 2021, gives the Railroad Commission jurisdiction over the injection and geologic storage of carbon dioxide on land in Texas.[7]
Unless a contract, deed or other legally binding document or other law expressly provides otherwise, Texas law treats anthropogenic carbon dioxide stored in a geologic storage facility as the property of the storage operator, which addresses the injected gas rather than the space it occupies.[8]
That Texas ownership rule does not apply to carbon dioxide injected for the primary purpose of enhanced recovery operations.[8]
What Buckhead buys depends on the deal, and Buckhead tells the seller up front which interest it is offering to buy — for example, the payments for the rest of the current lease term, a term easement, or a longer-term interest. A pore space lease is one form of storage right: North Dakota law allows pore space to be leased and states that leasing it is not a severance, so the owner keeps title to the pore space while the lease runs.[2] A storage easement is another form; the North Dakota state agreement considered in January 2025 was a carbon dioxide storage easement with an initial term and payments that continue once injection begins.[3]
Where state law allows it, pore space itself can be conveyed: in Wyoming, a deed can sever or explicitly exclude pore space, a conveyance of mineral interests does not carry pore space unless it says so explicitly, and a transfer made after July 1, 2008 is void at the surface owner's option unless it specifically describes the location of the pore space.[5] Apart from severances made before April 9, 2009, which North Dakota's pore space chapter leaves in place, title to pore space there cannot be severed from the surface, so the pore space stays with the surface estate whatever storage rights are granted.[2] In Texas, absent an agreement otherwise, the surface owner keeps the possessory rights to the space under the property, while the mineral owner keeps its right to reasonable use of the subsurface to produce minerals.[16]
Before North Dakota approves a storage facility, the storage operator must have made a good-faith effort to get the consent of all pore space owners and must have the consent of owners of at least 60 percent of the storage reservoir's pore space.[9] North Dakota requires notice of the hearing to each mineral lessee, mineral owner and pore space owner within the storage reservoir and within one-half mile of its boundaries, and to each surface owner of land over that area.[9] Nebraska requires the operator to have the consent of owners of reservoir estates comprising at least 60 percent of the physical volume of the defined storage reservoir, and requires that all nonconsenting reservoir estate owners are or will be equitably compensated.[17]
Louisiana requires written consent to geologic storage from at least 85 percent of the owners in interest within a proposed storage unit before the commissioner considers a unit application, measured in proportion to the surface acreage of the unit, with a tract owned in indivision credited by its acreage times the consenting parties' undivided interest.[10] A Louisiana storage unit order must provide just and equitable compensation to all owners in interest, including owners who did not consent in writing to geologic storage.[10] Louisiana law states that eminent domain or expropriation powers do not allow the expropriation of reservoir storage rights for geologic storage, and the statute carves out Caldwell Parish separately.[11] Before starting any eminent domain proceeding for a carbon sequestration storage facility or pipeline in Louisiana, the owner or operator must give the landowner written notice of the intent to acquire property or property rights.[11]
The Supreme Court of Texas explained that empty space is not a mineral, while the mineral owner remains entitled to make reasonable use of the surface and subsurface to produce the property's minerals.[16] Before Nebraska permits a carbon dioxide storage facility in a reservoir that contains commercially valuable minerals, its commission must be satisfied that the mineral owners' or lessees' interests will not be adversely affected or have been addressed in an arrangement with the storage operator.[17] Nebraska's storage act also does not prevent a mineral owner or lessee from drilling through or near a storage reservoir to develop minerals, if the work complies with commission requirements that preserve the storage facility's integrity.[18] North Dakota requires that mineral owners and mineral lessees within a proposed storage reservoir, and within one-half mile of it, receive notice of the permit hearing.[9]
In North Dakota, the storage operator holds title to the injected carbon dioxide, and is liable for damage it may cause, until the commission issues a certificate of project completion.[9] North Dakota may not issue that certificate until at least ten years after injection ends, and only after the operator shows the stored carbon dioxide has become stable and the wells have been plugged and the site reclaimed.[9] Once the certificate issues, title to the storage facility and the stored carbon dioxide transfers to the state without compensation, the operator is released from the facility's regulatory requirements, and monitoring becomes the state's responsibility.[9]
Besides Colorado, EPA lists six states with primary enforcement authority for Class VI wells: Arizona, Louisiana, North Dakota, Texas, West Virginia and Wyoming.[13] EPA's approval of Colorado's Class VI program takes effect on November 12, 2026; EPA remains the Class VI permitting authority in Colorado until then, and on Indian lands in Colorado afterward.[12] EPA's approval of Texas's program revision, effective December 15, 2025, allows the Texas Railroad Commission to issue and enforce Class VI permits for geologic carbon sequestration wells, except on Indian lands, where EPA remains the permitting authority.[14] EPA's Administrator signed the final rule approving Colorado's Class VI primacy on October 8, 2026, and EPA has proposed approving applications from Utah and Alaska, with public comment periods closing in December 2026.[13]
Payment stage: in the North Dakota state easement, payments before injection are per acre, and payments after injection begins are a share of a storage rate tied to the tons injected.[3]
Permit and project status: a Class VI permit sets requirements an operator must meet, including financial responsibility for plugging, post-injection site care and emergency response.[1]
Title: in Wyoming, whether the pore space was severed or excluded in an earlier deed, and whether a transfer made after July 1, 2008 specifically describes the location of the pore space, can decide who holds it, so the chain of title matters to any sale.[5]
Pore Space Rights vs Mineral Rights
Class VI Injection Wells and Mineral Owners
Saline Aquifer CO2 Storage: Mineral Owner Guide
Mississippi CO2 Sequestration and 45Q
Wabash Valley CCS Hub: Mineral Owner Guide
Mississippi EOR and CCUS Basin
Jackson Dome and the NEJD CO2 Pipeline
Gas and Hydrogen Storage Leases
Water, Brine and Saltwater Disposal Royalties
Coal Mineral Rights and Royalties
Educational information only — not legal, tax, or investment advice. Consult a qualified attorney, CPA, or landman about your specific situation.
North Dakota law allows pore space to be leased and states that leasing pore space is not a severance prohibited by its pore space chapter, so the owner keeps title while granting storage rights.[2] Some agreements take the form of a storage easement instead, such as the North Dakota state agreement, which provides for per-acre payments before injection and a share of a storage rate after it.[3]
In Wyoming, pore space is vested in the surface owner unless it was severed or excluded in an earlier conveyance, and a transfer made after July 1, 2008 that does not specifically describe the location of the pore space is void at the surface owner's option.[5] In North Dakota, title to pore space is vested in the surface owner and cannot be severed from the surface, though the pore space chapter does not affect transactions before April 9, 2009 that severed pore space from the surface estate.[2] Montana presumes the surface owner owns the storage reservoir only when the deeds and severance documents, reviewed under statutory or common law, do not answer the question, and the statute does not reach land within an Indian reservation unless the tribe has adopted a carbon sequestration law and a cooperative agreement with the state.[6]
The Supreme Court of Texas described Texas law as reasonably clear that underground storage space generally belongs to the surface owner absent a contrary agreement, and held that the mineral estate does not include ownership of that empty space.[16] Nebraska addresses mineral owners directly: where a storage reservoir contains commercially valuable minerals, a permit may issue only if the mineral owners' interests will not be adversely affected or have been addressed in an arrangement with the storage operator.[17]
Nebraska's storage act states that it does not prevent a mineral owner or lessee from drilling through or near a storage reservoir if the drilling complies with commission requirements that preserve the facility's integrity.[18]
The North Dakota state storage easement considered in January 2025 provides for an initial payment, annual per-acre payments until injection begins, and then a proportionate share of a storage rate for each metric ton injected, escalating every five years.[3]
Section 45Q is a federal tax credit for carbon oxide sequestration: qualified carbon oxide that is captured and then disposed of in secure geological storage, used as a tertiary injectant in an enhanced oil or natural gas recovery project, or utilized.[15]
Louisiana law states that its eminent domain and expropriation powers do not allow the expropriation of reservoir storage rights for geologic storage, apart from a separate Caldwell Parish provision.[11]
The Texas Railroad Commission has jurisdiction over the injection and geologic storage of carbon dioxide in Texas.[7] Since EPA's approval took effect on December 15, 2025, the Railroad Commission issues and enforces Class VI permits for geologic carbon sequestration wells in Texas, except on Indian lands, where EPA remains the permitting authority.[14]
Buckhead Energy buys pore space rights and carbon storage royalties.
[1] Class VI - Wells used for Geologic Sequestration of Carbon Dioxide — U.S. Environmental Protection Agency (accessed November 1, 2026)
[2] N.D.C.C. Chapter 47-31, Subsurface Pore Space Policy — North Dakota Legislative Branch (accessed November 3, 2026)
[3] Board of University and School Lands, January 23, 2025 Agenda Packet: Carbon Dioxide Storage Easement Agreement — North Dakota Department of Trust Lands (accessed November 1, 2026)
[4] 40 CFR 146.93, Post-injection site care and site closure — Electronic Code of Federal Regulations (accessed November 3, 2026)
[5] Wyoming Statutes Title 34, Section 34-1-152, Ownership of pore space underlying surfaces — Wyoming Legislature (accessed November 3, 2026)
[6] MCA 82-11-180, Preservation of property rights — Montana Legislature (accessed November 3, 2026)
[7] Texas Water Code Chapter 27, Injection Wells (Subchapter C-1) — Texas Legislature (accessed November 1, 2026)
[8] Texas Natural Resources Code Chapter 121 — Texas Legislature (accessed November 3, 2026)
[9] N.D.C.C. Chapter 38-22, Carbon Dioxide Underground Storage — North Dakota Legislative Branch (accessed November 1, 2026)
[10] La. R.S. 30:1104.2, Unitization — Louisiana State Legislature (accessed November 3, 2026)
[11] La. R.S. 30:1108, Eminent domain — Louisiana State Legislature (accessed November 1, 2026)
[12] Colorado Underground Injection Control (UIC) Program; Class VI Primacy (final rule) — U.S. Environmental Protection Agency, Federal Register (accessed November 3, 2026)
[13] Primary Enforcement Authority for the Underground Injection Control Program — U.S. Environmental Protection Agency (accessed November 1, 2026)
[14] Texas Underground Injection Control (UIC) Program; Class VI Primacy Application (90 FR 51021) — Federal Register (accessed November 3, 2026)
[15] 26 CFR 1.45Q-1, Credit for carbon oxide sequestration — Electronic Code of Federal Regulations (accessed November 3, 2026)
[16] Myers-Woodward, LLC v. Underground Services Markham, LLC, No. 22-0878 (Tex. May 16, 2025) — Supreme Court of Texas (accessed November 1, 2026)
[17] Neb. Rev. Stat. 57-1610, Permit; issuance; findings — Nebraska Legislature (accessed November 1, 2026)
[18] Neb. Rev. Stat. 57-1615, Act; permit; how construed — Nebraska Legislature (accessed November 1, 2026)
Buckhead Energy buys pore space rights and carbon storage royalties.
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