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Southwest Research Institute in San Antonio is developing smart technology to improve the industry’s ability to detect pipeline and industry facility emissions of hydrocarbons into the atmosphere. The system uses smart computer algorithms that learn to distinguish emissions from natural atmospheric conditions and report them to be repaired. Watch the story here. Great idea. Let’s hope the industry embraces it.

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Last week the Texas Supreme Court granted petitions to hear appeals of two cases that could significantly affect the rights of Texas land and mineral owners: Atmos Energy Corp v. Town of DISH, 15-0613, and Lightning Oil Co. v. Anadarko E&P Onshore LLC, 15-0910. Last month, the court agreed to hear Sabine Oil & Gas Corporation’s appeal in Forest Oil Corp. v. El Rucio Land and Cattle Company, 14-0979, a case in which the court had previously denied the petition for review. Oral argument in the Forest Oil case is set for February 8. Dates for oral argument in Atmos v. DISH and Lightning Oil v. Anadarko have not yet been set.

In Atmos v. DISH, the town of DISH and residents of the town are seeking damages for injuries they claim are caused by noise and emissions from defendants’ gathering and compression facilities located in and near the town. The trial court dismissed plaintiffs’ claims, but the Amarillo Court of Appeals held that the plaintiffs had stated causes of action and were entitled to trial. For a more detailed description of the case, read my post here.  Among other arguments, the pipeline companies assert that plaintiffs’ claims are barred because their activites were authorized by governmental regulations and imposing liability for lawful activities would allow judicial regulation of activities sanctioned by statute and regulation. The Amarillo court disagreed: “Just because Appellees are operating their natural gas compression facilities within the applicable regulatory guidelines does not mean that Appellants have not suffered compensable injuries as a result of those operations.”

Sabine Oil & Gas makes a similar argument in Forest Oil v. El Rucio. (My prior posts on this case can be found here and here.) Sabine (formerly known as Forest Oil) argues that Jimmy McAllen’s $20 million arbitration award for damages caused by pollution of his ranch should be reversed because the case interferes with the Railroad Commission’s jurisdiction over oil field contamination. The RRC has jurisdiction over cleanup of environmental contamination related to oil and gas activities and has an open proceeding relating to Sabine’s efforts to remediate contamination on McAllen’s ranch. The Corpus Christi Court of Appeals held that Texas law expressly grants a landowner a private cause of action for damages caused by violation of Texas conservation laws and that McAllen’s claims should not be barred or stayed by the ongoing remediation activities supervised by the RRC. The court made reference to sections 85.321 and 85.322 of Texas Natural Resources Code, the first of which expressly grants a private cause of action for damages for violation of Texas conservation laws, and the second of which provides that nothing in the law governing Railroad Commission jurisdiction “shall impair or abridge or delay a cause of action for damages or other relief that an owner of land …. may have or assert against any party violating any rule or order of the commission or any judgment under this chapter.”

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This article appeared yesterday in the New York Times:  Land Rush in Permian Basin, Where Oil Is Stacked Like a Layer  Cake. Exxon announced a $6.6 billion deal to buy the Bass family’s position in the Permian.  Noble Energy agreed to buy Clayton Williams Energy for $2.7 billion, acquiring Williams’ 120,000 acres in the Permian. Anadarko announced it is selling its Eagle Ford shale leases to Sanchez Energy and Blackstone Group for $2.3 billion so it can concentrate on developing its leases in the Permian. SM Energy and EOG Resources are also selling assets in other fields to acquire larger interests in the Permian. According to the Times, there have been more than $25 billion of mergers and acquisitions in the Permian since June last year. The frenzy to acquire assets has become known as “Permania.” Companies claim they can make money at as little as $40/bbl. The reason: multiple “stacked” zones in the Permian, principally the Spraberry and Wolfcamp formations, allow multiple wells at different depths on each property.

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I read an article today saying that Russia Today has been publishing articles critical of hydraulic fracturing in an effort to suppress U.S. shale production and help Russia regain its footing as the world’s largest gas producer. I had never heard of Russia Today, so I looked it up – on Wikipedia, of course. According to Wikipedia, Russia Today is a news TV and news network owned by the Russian government that operates stations out of Moscow and provides internet content in several languages, including Russian and English. It has been accused of being a propaganda outlet for the Russian government and spreading disinformation – now called “false news.” It has indeed published articles highlighting the alleged environmental dangers of hydraulic fracturing. Russia Today alleges that it has 70 million viewers.

In light of the recent news about Russian interference in the presidential election, it is interesting that the Russian government is also trying to influence U.S. public opinion for its benefit “in plain sight” with its news/propaganda TV and Internet presence.

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Last week the Texas Supreme Court wrote the final chapter in Texas Rice Land Partners’ efforts to prevent Denbury Green Pipeline-Texas, LLC from condemning an easement across its land for a CO2 pipeline. The court held in Denbury Green Pipeline-Texas, LLC, v. Texas Rice Land Partners, Ltd., et al., No. 15-0225, Denbury opinion, that Denbury had shown as a matter of law that its line would serve a “public use.” (Our firm represented Texas Rice Land Partners in this appeal.)

This fight began in 2007, when Texas Rice Land Partners denied Denbury permission to enter its property to survey for a CO2 pipeline. Under the law as then understood, Denbury had obtained the requisite permit from the Texas Railroad Commission to construct its line and under that authority asserted that it had the right to condemn an easement for the line and therefore the right to survey Texas Rice Land’s property to construct the easement. Texas Rice Land denied Denbury’s right to survey, asserting that Denbury’s use of the line would be only for its private purposes and not for a “public use.” The trial court denied Texas Rice Land’s effort to stop the surveying; Denbury surveyed the easement and constructed its line across Texas Rice Land’s property. But Texas Rice Land appealed the trial court’s ruling. The Beaumont court of appeals affirmed the trial court but, in 2012 the Texas Supreme Court reversed and remanded the case.  Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas LLC (363 S.W.3d 192 (Tex. 2012) (Texas Rice I)

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The protest movement over the Dakota Access pipeline in North Dakota has moved to West Texas. According to the Houston Chronicle, three camps are taking shape – two camps to protest the proposed Trans Pecos pipeline, near Alpine, and one camp in Toyahvale, home to the famous spring and pool at Balmorhea State Park, to protest Apache’s plan to develop its Alpine High discovery. Energy Transfer Partners, the owner of the Dakota Access line, is also the developer and owner of the Trans Pecos line. Some of the protesters who camped out in North Dakota are moving down to the camps in Reeves County. The segment of the Dakota Access line being protested in North Dakota has been at least temporarily halted by the Corps of Engineers, but efforts to block construction of the Trans Pecos line have so far been unsuccessful.

Efforts to protect the spring at Balmorhea State Park focus more on use of fresh groundwater for hydraulic fracturing than on risk of pollution of the springs. Apache claims it will not tap the spring’s aquifer but will use deeper brackish water for fracking.  But protestors remember Clayton Williams’ use of unrestricted pumping rights from the aquifer that supplied Comanche Springs in Fort Stockton. In 1951, Clayton Williams Sr. drilled 52 irrigation wells into the aquifer that fed the springs, and within hours the spring flow slowed to a trickle, and has never recovered. The Texas Supreme Court held that, under Texas’ “rule of capture,” Williams had the right to pump as much water as he wanted and had no liability for drying up the springs.

More recently, Clayton Williams Jr. has sought to sell water from these same wells for municipal supply to the City of Midland, but so far the Middle Pecos Groundwater Conservation District has blocked his efforts. The case is now pending on appeal in the El Paso Court of Appeals, Cause No. 08-16-00382-CV, Fort Stockton Holdings, L.P. v. Middle Pecos Groundwater Conservation District.

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Section 91.402(h) of the Texas Natural Resources Code, the “division order statute,” provides that

the execution of a division order … shall not change or relieve the lessee’s specific, expressed or implied obligations under an oil and gas lease ….

Section 91.402(g) of the division order statute provides that

Division orders are binding for the time and to the extent that they have been acted on and made the basis of settlements and payments, and from the time that notice is given that settlements will not be made on the basis provided in them, they cease to be binding. Division orders are terminable by either party on 30 days written notice.

But in Ohrt v. Union Gas Corporation, 398 S.W.3d 315 (Tex.App.–Corpus Christi 2012, pet. denied), the court held that, by signing a division order, plaintiffs had ratified a pooled unit that their oil and gas lease did not authorize, and that plaintiffs’ revocation of their division orders did not allow them to challenge the validity or effective date of the pooled unit.

The plaintiffs in Ohrt signed division orders for the Ohrt-Heinold Gas Unit, containing 690 acres. The well on that unit was located on plaintiffs’ tract. Their lease said that the maximum size of a pooled unit for the well would be 352 acres. The well was completed and started producing in September 2000. The unit designation was not filed until January 15, 2001. The division order provided that the division of interest stated thereon would be effective as of the date of first production from the unit. Under the terms of plaintiffs’ leases, a pooled unit does not become effective until the unit designation is filed. Continue reading →

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I recently read a biography of R.B. Masterson, famous cattleman, written by his son-in-law Z.T. Scott in 1930. Scott listed as Masterson’s first outstanding quality his honesty. “Schooled in the days when a man’s word was his bond and elaborate contracts with legal perplexities were unthought of, his sense of honor and justice made valid every promise; and no man may point to an agreement broken or a pledge unkept.” The cowboy way.

Our firm represented a cowboy, a rodeo team roper named Clint Sanders, in a dispute with another roper,  Eric Randle, over “mount money.” The Waco Court of Appeals recently affirmed a judgment for Sanders, for $39,501. In affirming the judgment, the Court of Appeals quoted fictional cowboy hero Hopalong Cassidy, who suggested that agreements made the “cowboy way” are held to a higher standard. “The highest badge of honor a person can wear is honesty. Be truthful at all times”; “If you want to be respected, you must respect others. Show good manners in every way”; and “Only through hard work and study can you succeed. Don’t be lazy.”

Mount money is known in the rodeo business as the share of winnings a roper pays to the owner of the horse he rides when he borrows another cowboy’s horse. Randle’s horse came up lame and he borrowed Sanders’ horse Tex, and won $158,000. But Randle denied he owed Sanders any mount money. The jury found that he did.

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The article below appeared in the latest newsletter of the Texas Land and Mineral Owners Association. It reviews the Texas Railroad Commission’s recent amendment of its Rule 15, dealing with dormant oil and gas wells. Thanks to TLMA and the author, Trey Scott, for giving me permission to publish his article. TLMA submitted comments on the proposed rule, arguing that the proposed amendments should not be adopted. Abandoned wells are a huge problem for Texas landowners and the public at large. Landowners should consider addressing the problem in their oil and gas leases, since the RRC has failed to do so.

RAILROAD COMMISSION ADOPTS RULE CHANGES AFFECTING
INACTIVE WELLS

As part of Railroad Commissioner Christi Craddick’s Texas Oilfield Relief Initiative, the Railroad Commission has adopted two proposed rulemakings to ease the administrative burden on oil-and-gas companies. The Commissioners amended Statewide Rule §3.15 (“Rule 15”) to relax the production requirements to return a well in active status, and the changes to Statewide Rule §3.28 will minimize the frequency of deliverability testing requirements for gas wells. Continue reading →

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