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.
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.
Yet another suit alleging underpayment of royalties has been filed against Chesapeake in the Barnett Shale. The petition can be viewed here: Addax v. Chesapeake Among the long list of plaintiffs is Kimbell Art Foundation. The petition alleges that plaintiffs are lessors under more than 8,000 leases in 280 pooled units with more than 725 producing gas wells. Defendants are Chesapeake and its working interest partner in the Barnett, Total E&P USA, Inc. Plaintiffs’ counsel is Burns Charest LLP.
The suit focuses on two complaints against the defendants. The first is based on the gathering agreement between Chesapeake and Access Midstream. The second is based on how Chesapeake has calculated the plaintiffs’ royalty interests in the pooled units. Continue reading →
Trans-Pecos Pipeline is pursuing condemnation proceedings to acquire right-of-way for its pipeline, a project of Energy Transfer Partners to build a 143-mile, 42-inch pipeline from Fort Stockton into Mexico. Presidio County landowner John Boerschig is challenging the company’s right to use eminent domain to acquire an easement across his ranch. Last week he sued the company in U.S. District Court in Pecos, contending that Texas laws on eminent domain deny him due process of law in the condemnation process. He argues that pipeline companies asserting the right to use eminent domain should have to prove their right to condemn before they can obtain a judgment awarding an easement. Boerschig’s attorney Renae Hicks said “It’s a no-strings-attached, standard-less delegation of government power to a private entity. There’s no accountability, they do not have to report to anyone.” He argues that a pipeline’s status as a public utility, which under Texas law entitles it to use eminent domain, can be legally challenged only after the condemnation award of the special commissioners appointed to determine the amount owed for the condemned easement. After the commissioners’ award, the pipeline’s right to condemn can be challenged in court, but in the meantime the pipeline has the right to tender the amount awarded by the commissioners into court and begin laying the pipeline on the easement awarded. So the pipeline can be constructed even while the landowner is challenging the company’s condemnation authority.
That is what happened in the latest condemnation case decided by the Texas Supreme Court, Texas Rice Land Partners v. Denbury, , 363 S.W.3d 192 (Tex. 2012). In that case, Denbury sought to condemn an easement for a pipeline that would carry carbon dioxide across Texas Rice Land’s property. Texas Rice Land challenged Denbury’s right to condemn an easement; the trial court sustained Denbury’s authority, and it built its easement. But the Supreme Court held that Texas Rice Land had the right to challenge Denbury’s use of eminent domain, whether it was a common carrier. It remanded the case to the trial court for trial on that issue. On remand, the trial court again agreed that Denbury had eminent domain powers, but the Beaumont Court of Appeals reversed and remanded again, 457 S.W.3d 115 (Tex.App.-Beaumont 2015). Denbury has appealed to the Texas Supreme Court, which granted Denbury’s petition for review on April 1. In the meantime, Denbury has constructed its pipeline across Texas Rice Land’s property and is using it to transport carbon dioxide.
The Gardiners claimed that a compressor station across the road from their property created a nuisance that damaged the value of their property. A trial resulted in a $2 million judgment for the Gardiners. After an eight-year battle, the Texas Supreme Court decided the Gardiners would have to try their case again. The case is another in a recent spate of cases alleging nuisance damages for operations in the oil field. Continue reading →
The Fourth Court of Appeals in San Antonio handed down an opinion this week in Adams v. Murphy Exploration & Production Co.-USA, deciding the meaning of “offset well” as used in an oil and gas lease.
The plaintiffs in the case signed an oil and gas lease to Murphy containing the following provision:
It is hereby specifically agreed and stipulated that in the event a well is completed as a producer of oil and/or gas on land adjacent and contiguous to the leased premises, and within 467 feet of the premises covered by this lease, that Lessee herein is hereby obligated to, within 120 days after the completion date of the well or wells on the adjacent acreage, as follows:
(1) to commence drilling operations on the leased acreage and thereafter continue the drilling of such offf-set well or wells with due diligence3 to a depth adequate to test the same formation from which the well or wells are producing from on the adjacent acreage; or
(2) pay the Lessor royalties as provided for in this lease as if an equivalent amount of production of oil and/or gas were being obtained from the off-set location on these leased premises as that which is being produced from the adjacent well or wells; or
(3) release an amount of acreage sufficient to constitute a spacing unit equivalent in size to the spacing unit that would be allocated under the lease to such well or wells on the adjacent lands, as to the zones or strata producing in such adjacent well.
The Supreme Court last week denied the petition for review of the Corpus Christi Court of Appeals’ decision in Forest Oil v. El Rucio Land and Cattle Company. Forest was acquired by Sabine Oil & Gas during the course of the case, which started in 2004. Jimmy McAllen and his company obtained a $20 million arbitration award against Forest, and the Corpus Christi Court affirmed the award. The Texas Supreme Court has now declined to hear the case. I have written about this interesting case here and here.
The Texas Supreme Court last week handed down its opinion in Coyote Lake Ranch v. City of Lubbock, holding, in a case of first impression, that the accommodation doctrine applies to govern the City’s right to use the surface of the Ranch to develop its groundwater.
Coyote Lake Ranch covers 40 square miles in Bailey County, on the Texas-New Mexico border northwest of Lubbock. In 1953, the then owners of the Ranch sold the groundwater under the Ranch to the City of Lubbock. The Ranch reserved the right to use groundwater for domestic use, ranching operations, oil and gas production, and agricultural irrigation, but the conveyance limits the Ranch to one or two wells in each of 16 specified locations. The Deed contains lengthy, detailed provisions on the City’s right to use the land. It grants to the City the right “at any time and location [to] drill water wells and test wells” on the Ranch, and to build roads, power lines and other improvements and otherwise make use of the Ranch lands “necessary and incidental” to the production of groundwater.
The groundwater underlying the Ranch is the Ogallala Aquifer, a huge aquifer that underlies much of north Texas as well as parts Oklahoma, New Mexico, Kansas, Colorado, and Nebraska. Water from the aquifer has made the arid high plains one of the most prolific agricultural regions of the United States. It is also a depleting resource and has been depleted in substantial areas of the Texas Panhandle. Continue reading →
I have generally tried to avoid using this platform to promote or brag on my law firm. But every rule should have its exceptions, and I want to brag about Graves Dougherty’s representation of the Friends of Lydia Ann Channel. Lydia Ann Channel is a feature on the Texas Gulf Coast near Port Aransas, a fishing and recreation community dear to many Texans’ hearts. Below is a shot from Google Earth showing the channel. (click to enlarge)
The Friends of Lydia Ann Channel are a group of environmentally conscious citizens who are seeking to cancel a permit granted by the Corps of Engineers for installation of a facility allowing barges to be moored in the channel. With our firm as counsel, the Friends sued to require the Corps to revoke the permit, remove the barge moorings and restore the affected habitat along the channel. The facility is essentially a mile and a half parking lot for mooring of up to 200 barges that carry oil, chemicals and hazardous cargo.
The Friends allege that the permit was granted without the necessary environmental reviews, and that the facility risks harm to the environmental, recreational, historical and archeological environment of the channel. The area is home to eight federally listed threatened or endangered species, including the whooping crane and sea turtles.
Marsden v. Titan Operating, decided by the Fort Worth Court of Appeals in August 2015, is another case in which a landowner sought nuisance damages from the drilling of wells close to their home. After a jury trial, the trial court awarded damages of $36,000 to the Marsdens. The court of appeals reversed. The Marsdens have asked the Texas Supreme Court to hear the case.
The facts are these. The Marsdens bought 6 acres in Parker County in 1997, near Aledo, where they made their home with their two daughters. They signed an oil and gas lease covering the property in 2004. It was on the company’s printed form, but the Marsdens negotiated provisions they added by an addendum to the lease. The printed form provided that no well could be drilled nearer than 200 feet to any house on their property. But the addendum provided that no drilling operations could be conducted on the surface of their property – a “no-surface-use” lease.
In 2011, Titan, who acquired the Marsden lease and leases on adjacent properties, constructed a pad site immediately adjacent to the Marsdens’ property and within about 200 feet of their home. The rig for the initial well on the pad site was just over 300 feet from the house. The well was completed on a pooled unit in which the Marsdens’ property was included, and the Marsdens signed division orders and receive royalties from the unit. Titan subsequently drilled five more wells on the pad.