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Here are bills filed in the current Texas Legislative session that may be of interest to mineral owners:

House Bill 539: This is the bill to prohibit municipalities from banning drilling within their jurisdictions.

Senate Bill 540: The Senate’s version of House Bill 539.

House Bill 1552: Filed by Representative Craddick, this bill declares that “allocation wells” – horizontal wells drilled across multiple tracts without pooling – are allowed by oil and gas leases unless expressly prohibited, and requires the Texas Railroad Commission to rule on how production should be allocated among the tracts crossed by the wellbore if the mineral owner disputes the lessee’s allocation method.

Senate Bill 118: Filed by Senator Van Taylor, this is the new and improved version of his bill from last session, authorizing forced pooling of tracts for secondary and tertiary recovery units. Titled (ironically) “Oil & Gas Majority Rights Protection Act for Secondary & Tertiary Recovery Operations.”

Senate Bill 402: This bill requires a company paying royalties, if requested, to provide the formula used to calculate the royalty owner’s decimal interest on a division order.

The text and status of these bills can be found at Texas Legislature Online.

 

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A team of lawyers in Pennsylvania has filed an anti-trust suit against Chesapeake and Williams Partners (Formerly Access Midstream Partners) alleging that they conspired to restrain trade in the market for gas gathering services in and around Bradford County, Pennsylvania. The plaintiffs also sued Anadarko, Statoil, and Mitsui, all of whom own interests in Chesapeake’s leases. The suit alleges violation of the oil and gas leases granted by the plaintiffs, violations of ant-trust law, and violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). A copy of the complaint, filed in federal court in Pennsylvania, can be found here.

The team of lawyers who filed this suit have their own website, “Marcellus Royalty Action.” They say that their approach differs from other suits against Chesapeake in that they will not seek class action status, they intend to pursue discovery before negotiating settlements, and they will sue all working interest owners responsible for royalty payments.

Royalty owner suits against Chesapeake have become a growth industry for attorneys. Recently, Chesapeake requested that multiple royalty owner suits against it in the Barnett Shale region of Texas be assigned to a pretrial court for consolidated and coordinated pretrial proceedings.  (Defendants Joint Motion for Transfer and Request for Stay) The request says that more than 3,200 landowners have filed 97 separate suits in Johnson, Tarrant and Dallas Counties alleging that Chesapeake and Total E&P, USA, Inc. (Chesapeake’s working interest partner in the Barnett Shale) have charged excessive post-production costs. This request results primarily from multiple suits filed by the McDonald Law Firm. See http://royaltyripoff.com/.  McDonald has said he does not oppose Chesapeake’s request.

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On February 6, 2015, The Supreme Court of Texas released its second opinion in FPL Farming Ltd. (“FPL”) v. Environmental Processing Systems, L.C. (“EPS”).  The Beaumont court of appeals had held that injected fluids that migrate beyond the boundary of the land owned by the surface owner constitute a trespass on a neighbor’s property.  The Supreme Court declined to address whether or not subsurface wastewater migration is actionable as a common law trespass in Texas, and instead focused on consent as a general element of a trespass cause of action.

Until recently, subsurface wastewater migration had never been addressed by a Texas appellate court, and the assumption in the disposal industry was that such incursion was not actionable. But the Beaumont Court of Appeals, in FPL v. EPS, concluded that the neighbor does have a trespass claim.  The Beaumont Court issued two opinions in the case; the first was appealed to the Supreme Court which reversed and remanded to the Court of Appeals, and the second resulted in the opinion released February 6.

The facts in FPL are these: EPS operates an injection well for non-hazardous waste on land adjacent to the land owned by FPL. FPL had previously objected to an amendment of EPS’s permit that increased the rate and volumes allowed to be injected. The Austin Court of Appeals affirmed the permit amendment over FPL’s objections, ruling that “the amended permits do not impair FPL’s existing or intended use of the deep subsurface.” FPL Farming Ltd. v. Tex. Natural Res. Conservation Comm’n, 2003 WL 247183 (Austin 2003, pet. denied). FPL then sued EPS for trespass and negligence, alleging that injected substances had migrated under FPL’s tract causing damage. FPL lost a jury trial and appealed. The Beaumont Court affirmed, holding that because EPS held a valid permit for its well, “no trespass occurs when fluids that were injected at deep levels are then alleged to have later migrated at those deep levels into the deep subsurface of nearby tracts.” FPL Farming Ltd. v. Environmental Processing Systems, L.C., 305 S.W.3d 739, 744-745 (Tex.App.-Beaumont). The Supreme Court reversed, holding that Texas laws governing injection well permits “do not shield permit holders from civil tort liability that may result from actions governed by the permit.” FPL Farming Ltd. v. Environmental Processing Systems, L.C., 351 S.W.3d 306, 314 (Tex. 2011). But the court was careful to say it was not deciding that owners of injection wells could be guilty of trespass if their injected fluids migrated onto other lands. “We do not decide today whether subsurface wastewater migration can constitute a trespass, or whether it did so in this case.” The court remanded to the court of appeals for it to consider the other issues raised by the appeal. Continue reading →

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On January 30, the Supreme Court issued its opinion in Hooks v. Samson Lone Star, Limited Partnership, No. 12-0920. In doing so, it kept alive a $21 million verdict against Samson and limited its prior holdings barring suits by mineral owners based on the statute of limitations.

The principal claim the Hooks made against Samson alleged breach of a lease provision intended to protect the Hooks’ lease against drainage from wells on adjacent lands. The lease provided that, if a gas well is drilled within 1,320 feet of the lease, Samson must either drill an offset well, release sufficient acreage for an offset well to be drilled, or pay “compensatory royalty” – the amount of royalty the Hooks would be entitled to if the well on adjacent lands had been drilled on their lease.

In 2000, Samson permitted a well on lands adjacent to the Hooks lease, and it approached the Hooks asking permission to pool portions of the Hooks land with that well. Mr. Hooks asked Samson how close the well would be to the Hooks lease boundary. Samson sent him a plat showing that the location of the well would be 1,400 feet from the lease. Based on this, the Hooks agreed to the pooling.

In 2007, in connection with related litigation, the Hooks discovered that the adjacent well in fact was located within 1,320 feet of the Hooks lease, and the Hooks sued Samson for misrepresenting the well’s location and inducing them to agree to the pooling. They sought damages under the lease compensatory royalty clause – the royalty they would have received had the offending well been located on the Hooks’ lease. They argued that the four-year statute of limitations applicable to their claim should not apply because Samson had fraudulently induced them to believe that the well was 1,400 feet from their lease. The jury found that the Hooks should not have discovered the true facts until less than four years before bringing suit. It awarded more than $20 million damages to the Hooks. Continue reading →

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Earthquakes linked to oil and gas activity are in the news.  A recent study in Ohio linked a rash of small earthquakes to fracing of wells in the area. Earthquakes in Oklahoma have increased tenfold since 2009. A swarm of small earthquakes hit the Dallas-Fort Worth area recently. The US Geological Survey is raising its evaluation of earthquake hazard risk in Texas as a result. 

In Texas, the spate of small earthquakes is tentatively tied to injection wells rather than fracing of new wells. The theory is that the injected water lubricates lithologic layers, allowing them to slip and causing quakes.

The Environmental Protection Agency estimates that there are 144,000 Class II injection wells in the US. The RRC has permitted more than 50,000 Class II injection wells in Texas since the 1930’s. These injection wells are used to dispose of water and waste produced from wells, both that from the fracing process and water produced with oil and gas in the production phase. Many oil wells produce hundreds of barrels of water for each barrel of oil produced. Without injection wells, the Texas oil and gas industry would screech to a halt.

In response to the increased seismic activity in Texas, the Texas Railroad Commission hired its own seismologist
and proposed new rules for those applying for permits to drill disposal
wells. The RRC’s proposed rules originally were drafted to require applications for injection well permits to provide a calculation of the estimated “five pounds per square inch, 10-year pressure front boundary,” as a way to determine whether or not the well would likely cause seismic activity in the area. When water is injected into a formation underground, it increases the pressure in the formation, and that pressure spreads through the formation over time. The five-psi, 10-year pressure front is the distance from the injection well to which pressures will increase by five psi if the well is operated at the permitted rate and pressure over a 10-year period.

The RRC published the proposed rule for comments and received 36 comments, including comments from the Environmental Defense Fund, the Sierra Club, the Texas Alliance of Energy Producers, some groundwater conservation districts, the EPA, the US Geological Survey, and Chevron USA. In response to comments, the RRC changed its proposed rule. Instead of requiring the five-psi, 10-year pressure front study, the RRC will require each applicant to provide copy of a USGS map showing all recorded seismic events within 9 kilometers of the proposed well location (about 6.1 miles).  The pressure-front study will be required “only in certain limited circumstances where additional information is necessary to demonstrate that fluids will be confined if the well is to be located in an area where conditions exist that may increase the risk that fluids will not be confined to the injection interval.”

The original proposed rule also said that the RRC could modify, suspend or terminate a permit “if injection is suspected of or shown to be causing seismic activity.” The final rule modifies this language to read “if injection is likely to be or determined to be causing seismic activity.”

The RRC’s discussion of comments, and the final rule, can be found here. rrc earthquake rule.pdf

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In a special section of the January 17 edition of The Economist, Edward Lucas gives a broad overview of the world energy outlook and the future for renewable energy. His is an optimistic forecast for cleaner, cheaper and more plentiful energy. His article can be found online here.

First, the article provides this view of current world energy production and consumption:

economist.pngThis picture doesn’t present a very optimistic view. Almost 60% of energy production is “wasted energy.” Oil still provides 33% of all energy consumed, while wind supplies only 1.1%, and solar only 0.2%. And the EIA projects that global demand for energy will increase by 37% in the next 25 years.

But Lucas says things are changing. Solar electricity, and ways of storing it, are becoming cheaper and better. China invested $56 billion in renewable energy in 2013, and it installed 13 gigawatts of solar, more than its new fossil-fuel and nuclear capacity combined. Wind now provides a third of Denmark’s energy supply and a fifth of Spain’s. Solar is becoming competitive with traditional fossil fuels, and costs are continuing to decline.

Lucas says solar is pulling ahead of wind. In 2013, additions of solar electricity generation exceeded that in wind for the first time. The cost of solar panels has reduced by a factor of five in the past six years. EIA predicts that solar will provide 16% of world electric power by 2050.

Lucas also describes “distributed generation” – domestic fuel cells, rooftop solar generation, “net metering rules” — and breakthroughs in electricity storage, up to now the stumbling block for wind and solar generation, which is intermittent and unreliable. And he recounts breakthroughs in reducing energy consumption, including better building insulation and more efficient vehicles. Lucas mentions Austin, Texas, where “7,000 households have signed up for a scheme in which they get an $85 rebate on an internet-enabled thermostat.” With those thermostats, “Austin Energy can shave 10 MW from its summer peak demand.”

Lucas’s five keys for the future of energy: (1) abundant energy, largely from the growth of cheap solar; (2) development of storage technologies; (3) growth of distributive energy – making consumers small producers and storers of energy; (4) intelligent use of energy – smart meters, better management of electricity distribution, “smart grids”; and (5) new business models to finance these new energy systems.

A good read.

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Over the last 100 years courts have developed a body of case law in disputes between lessors and lessees of oil and gas leases. Courts have held that certain provisions are “implied” in the contracts, even though there is no language in the lease to support those provisions. The rationale behind these implied provisions goes back to cases interpreting hard mineral leases, and back to the cradle of the oil industry, Pennsylvania. The idea behind these implied provisions is that they are necessary for both parties to get the benefit of their bargain and to make the lease work as intended. Because the lessee has control over what operations are conducted under the lease, most of these implied provisions are intended to benefit the lessor, who generally has less bargaining power in negotiation of the lease and no say in whether and how the lease is developed.

An example: oil and gas leases generally provide that the lease will remain in effect for the primary term and for as long thereafter as oil or gas is produced from the leased premises. Courts have implied a requirement that, for the lease to remain in effect, the production must be in “paying quantities.” The production must be sufficient for the lessee to realize a profit over operating costs.

Another example: what if the well on the lease temporarily ceases production at some point after the end of the primary term. Does the lease terminate, even if the well can be repaired and restored to production? Courts developed the implied provision that a “temporary” cessation of production will not cause the lease to terminate, as long as the lessee acts with reasonable diligence to restore production.

Cases have also imposed implied obligations on the lessee — obligations that are not expressed in the lease. In Texas, the Supreme Court has described those implied obligations as a duty “(1) to develop the premises, (2) to protect the leasehold, and (3) to manage and administer the lease.” Amoco v. Alexander, 622 S.W.2d 563, 567 (Tex. 1981). Other commentators have described these implied obligations as a duty to (1) develop the lease, (2) protect the lease against drainage, (3) market production, and (4)  act as a reasonably prudent operator. Courts have held that these obligations are implied in every lease unless the lease expressly disclaims the duties.

Whole books have been written about these implied covenants, the most recent of which is an excellent book by John Burritt McArthur, “Oil and Gas Implied Covenants for the 21st Century” (Juris Publishing, Inc. 2014). Courts in different states differ on the scope and meaning of these implied covenants, but they are generally recognized in every oil-producing jurisdiction — and they are fertile ground for litigation.

A recent example of courts’ differing interpretations of implied covenants is evidenced by recent cases involving the covenant to market. It is generally recognized that the lessee has a duty to market oil and gas from the leased premises once it has been discovered, including the duty to obtain the best price obtainable. In some jurisdictions, courts have interpreted this duty to require the lessee to put the production into marketable condition for sale. Because most oil is marketable in the condition it is in when produced, this “marketable condition” requirement applies mostly to gas. Gas usually has to be treated, compressed, processed and/or transported to become “marketable.” Courts who have adopted this “marketable condition rule” have held that all costs incurred to make the gas marketable must be borne by the lessee, unless the lease provides otherwise. No such costs can be charged to the royalty owner.

Many producing states have now adopted the marketable condition rule, including Colorado, West Virginia, Oklahoma, Kansas, Arkansas, Alaska, Virginia and perhaps New Mexico. Nevada, Wyoming and Michigan have barred the deduction of downstream field costs by statute. Cases vary on which costs are deductible from royalties.

Texas, on the other hand, along with Louisiana, Kentucky, Mississippi, Montana, Pennsylvania, North Dakota, Utah and California, although agreeing that the lessee has the obligation to put gas in marketable condition, hold that downstream costs must be borne in part by the royalty owner under the typical oil and gas lease. Texas has gone so far as to say that, if a lease provides for royalties based on the market value “at the well,” the lease must inevitably allow deduction of post-production costs from royalties, regardless of what else the lease may say. The seminal Texas case is Heritage v. NationsBank, 939 S.W.2d 118 (Tex. 1996), reh’g denied, 960 S.W.2d 619 (Tex 1997). In his book, John Burritt McArthur criticizes Heritage as taking an “absolutist approach [that] treats ‘at the well’ as magic words that fully determine what deductions are allowed, as the beginning and end of the analysis, and that when present leave no room for other terms no matter how specific they are.”

Although implied covenants do provide protections for the lessor, they are necessarily very general in their development and application, and provide no bright lines for measuring the lessee’s conduct. The lessee must only act as a “prudent operator.” Implied covenant cases are therefore often prohibitively expensive for a lessor to pursue except in the most egregious circumstances.

Modern lease forms drafted by landowners’ counsel have crafted express provisions that supplement or replace the implied covenant obligations of the lessee with express obligations regarding development, protection against drainage, marketing, and management and administration of the lease. The express provisions are intended to give more certainty to the parties by expressing their intent and providing objective criteria for compliance and express remedies for breach.

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The Colorado Oil and Gas Conservation Commission now allows landowners with complaints against operators to file their complaint online. Go to http://cogcc.state.co.us/ and click on “Complaints” in the left-hand column.If you’re a surface owner with no mineral rights and you have objections to a proposed well location, you can also get the COGCC to inspect the site and consider your objections and require the operator to accommodate your concerns.

The online portal is very user-friendly and a real effort to make it easier for the public to participate in the process. The Texas Railroad Commission should take note.  The COGCC has also significantly increased its oversight staff, increased its collaboration with local governmental entities, sponsored studies on air and water impacts, and adopted policies on health and safety issues.

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