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Two new opinions, one from the San Antonio Court of Appeals and one from the El Paso Court of Appeals, again tackle the task of construing mineral and royalty conveyances and reservations. A spate of these cases has arisen as a result of the recent shale plays, where lands never before productive have suddenly become valuable. As a result, muddy language in old deeds has to be clarified by the courts.

In Laborde Properties, L.P. v. U.S. Shale Energy II, LLC, the San Antonio Court of Appeals was required to construe the following mineral reservation in a 1951 deed:

There is reserved and excepted from this conveyance … an undivided one-half (1/2) interest in and to the Oil Royalty, Gas Royalty and Royalty in other Minerals in and under or that may be produced or mined from the above described premises, the same being equal to one-sixteenth (1/16) of the production.

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Royalty owner opposition to Chesapeake is heating up in Pennsylvania.

Chesapeake has sent royalty owners letters saying it has overpaid them by failing to deduct post-production costs and demanding reimbursement.  Post-production cost deductions are exceeding revenues on Chesapeake’s royalty checks, resulting in a “negative royalty.”  The Commissioners of Bradford County, in the heart of the Marcellus play, have commissioned a video advocating for passage of a bill to require companies to pay a minimum royalty of 1/8th, regardless of the amount of post-production costs. Pennsylvania has a Guaranteed Minimum Royalty Act that requires all leases to contain no less than 1/8th royalty. But the state’s Supreme Court ruled in 2010 that the Act didn’t prevent companies from deducting post-production costs.

Chesapeake has the same problem in Pennsylvania that it had in the Barnett Shale play. In both cases, it made contracts between its affiliated companies to charge high fees for gathering and marketing its gas and then sold those affiliated gathering companies for a substantial premium. It’s now stuck with those very unfavorable post-production costs, and is charging those costs back to the royalty owners.

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I ran across this video from the Austin American Statesman – a reporter asking people what is the business of the Texas Railroad Commission. Not many voters know. Once again, the Sunset Commission has recommended that the Commission’s name be changed to something like the Texas Energy Commission. Sounds like a good idea. But strange things happen at the Legislature.

The RRC has three commissioners, each elected state-wide for terms of six years. There is an open seat this year, so voters will be electing a new commissioner. The Republican candidate is Wayne Christian, a former state lawmaker from East Texas. His campaign platform includes fighting for right to life, supporting gun rights and opposing illegal immigration.  He represented District 9 in the Texas House until 2012, when he was defeated by Chris Paddie. Christian ran for RRC in 2014 and lost in a runoff to Ryan Sitton, currently on the RRC. Christian opposes changing the name of the RRC.

The democratic candidate is Grady Yarbrough.

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The environmental group Ceres has released a map showing the overlap between shale plays and water-stressed areas of the U.S. You can view it here.  It is based on a study of 110,000 wells fracked over the past five years. Read Ceres’ summary of findings here. Its report is an update of an earlier 2014 report on fracking and water use.

In Texas, operators rely almost exclusively on groundwater to frac wells. Operators in the Eagle Ford play rely on the Carrizo Wilcox aquifer, a huge fresh water resource that extends across South Texas – and an aquifer that is being rapidly depleted by pumping for agricultural and municipal uses. Oil and gas operators are exempt from laws in Texas that allow local groundwater districts to regulate and limit pumping.

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In May of this year, the Provost Umphrey law firm filed a class action complaint in federal court in Pennsylvania against Talisman Energy USA, Inc. for underpayment of royalties on production from the Eagle Ford field in South Texas. Regmund v. Talisman complaint  The Plaintiffs are three royalty owners who own royalties in wells drilled by Talisman and Statoil under a joint venture covering several thousand acres of leases in the Eagle Ford. The Plaintiffs had a basis to file in Pennsylvania because Talisman’s principal place of business is in Warrendale, Pennsylvania. The Plaintiffs had a basis to file in federal court under the Class Action Fairness Act of 2005. That act allows federal courts to preside over certain class actions where the amount in controversy exceeds $5 million, the class comprises at least 100 plaintiffs, and at least one plaintiff class member resides in a state other than the residence of the defendant.

Talisman USA is a subsidiary of Talisman Energy, Inc., based in Calgary, Alberta. In May 2015, Talisman Energy, Inc. was acquired by Repsol S.A., the largest Spanish energy company, for $13 billion.

In 2010, Talisman opened a Texas office and started buying oil and gas leases in the Eagle Ford under a joint venture with Statoil, Inc. Under the Joint Development Agreement, each company would own a 50% interest in the leases. Each company separately marketed its share of oil and gas and paid royalties on its share of production. Under a modification of the Joint Development Agreement, Statoil operated wells in the eastern part of the joint development area, and Talisman operated wells in the Western part.  In December 2015, Statoil took responsibility for operating all jointly owned wells and acquired a portion of Talisman’s ownership, so that their joint venture is now 63%/37%.

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Apache has announced that it is sitting on as much as 75 trillion cubic feet of rich gas and 3 billion barrels of oil under 352,000 acres in southern Reeves County. It calls its prospect the “Alpine High.”  The hydrocarbons are in a 4-5,000-foot thick segment encompassing 2-3,000 locations in the Woodford, Barnett, and Pennsylvanian formations. So far Apache has drilled 19 wells, and nine have started producing. (Click on image to enlarge.)

Apache high

Here is the power point presentation by Apache CEO John Christmann at Barclays CEO Energy-Power Conference on September 7: 2016-0907_Barclays_IR_Presentation_vFINAL

Here is the transcript of Christmann’s presentation: 2016-0907_Barclays_IR_Presentation_vFINAL


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The Denbury case that caused such a stir on the Texas Supreme Court’s first review of the case, is back before the Court again. In the first Denbury opinion, the Court held that a pipeline seeking to assert eminent domain authority had to make a showing that it was in fact a “common carrier.” The case went back to the trial court which again granted summary judgment for the pipeline company. But the court of appeals reversed, holding that fact issues existed on whether Denbury is a common carrier.

Our firm represents Texas Rice Land Partners in the appeal, and Bill Christian argued the case. The oral argument can be viewed here.

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From Texas Tribune:

A major metro paper endorses a third-party statewide candidate… The Houston Chronicle has endorsed Libertarian Mark Miller in the race to replace David Porter on the three-member Texas Railroad Commission.

“Our editorial board interviews scores of candidates for political office every election year, but seldom do we find ourselves wholeheartedly endorsing a nominee from the Libertarian Party,” the editorial board wrote Tuesday night.  “Then again, seldom have we met a Libertarian candidate like Mark Miller.”

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The Oklahoma Corporation Commission and the Environmental Protection Agency have ordered the shut-in of 54 disposal wells in Osage County, Oklahoma, after a magnitude 5.6 earthquake on Saturday, September 3. The wells are in an oval with a 10-mile radius around the center of the quake, a 211-mile area (click to enlarge):

OK quake Sept 2016
The EPA ordered 17 wells shut-in in the blue area above because EPA is responsible for regulation of oil and gas operations in the Pawnee Nation reservation area.

The quake was about the same magnitude as one near Prague, Oklahoma in 2011 that was the largest recorded quake in Oklahoma.

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Last week the Texas Supreme Court agreed to hear three petitions for review of lower court opinions addressing oil and gas issues of interest to land and mineral owners.

BP America Production Co. v. Laddex Ltd., No. 15-0248

BP owned a lease that was granted in 1971 and was held by production from a single well. The mineral owners granted a top lease to Laddex, and Laddex sued BP contending that BP’s lease had expired for failure to produce in paying quantities. The jury found for Laddex, and the court of appeals affirmed. BP argues that the jury charge is faulty and that there is no evidence to support the jury’s answers; it also contends that Laddex’s top lease is void under the rule against perpetuities. Briefs of the parties are here. Oral argument October 11.

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