"Notwithstanding Anything To The Contrary" Language Disputed In Recent Case

Drafters frequently use language such as “Notwithstanding anything [in this section] or [in this agreement]” to emphasize and make clear the importance and priority of the provision that follows. But sometimes the intent is not so clear. Recently, the 7th Circuit Court of Appeals issued an opinion on just this type of language and its interpretation. (Pronschinske Trust Dated March 21, 1995 v. Kaw Valley Companies, Incorporated, and KC Proppants, LLC, 7th Circuit Court of Appeals, No. 17-2889, August 10, 2018)

The Pronschinske Trust Dated March 21, 1995 (“Pronschinske”) owned land in Wisconsin that contained frac sand, used in gas and oil fracking operations. In June, 2012, Pronschinske entered into a Mining Lease Agreement (“Lease”) with Kaw Valley Companies (“Kaw Valley”). The Lease gave Kaw Valley the right, but not an obligation, to mine the sand, stone and rock products on the land. Kaw Valley spent approximately $750,000 in preparing to operate the mine. These