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A study published in the Proceedings of the National Academy of Sciences, examining eight clusters of contaminated water wells in Pennsylvania and Texas, found that the wells’ contamination was either from naturally occurring gas deposits — i.e., the gas is naturally occurring within the aquifer — or from poor casing and cementing of nearby gas wells. The study concluded that the hydraulic fracturing of the wells was not a cause of groundwater contamination. The study was led by a researcher at The Ohio State University and included researchers at Duke, Harvard, Dartmouth and the University of Rochester. The researchers were able to “fingerprint” the gas by measuring the amount of “noble” gases such as helium included with the natural gas. The researchers were able to distinguish between the fingerprints of naturally occurring methane in the aquifers and gas from the Barnett and Marcellus Shale formations. Ohio State’s press release about the study can be viewed here.

I have written previously about the ongoing battle between Range Resources and the Lipskys over the Lipskys’ claims that Range’s wells contaminated their groundwater. A facet of that battle is pending in the Texas Supreme Court. This new study will add fire to the debate.

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There are always nay-sayers who predict that the current boom, whatever it may be, will soon be a bust. Recently, however, some pretty prominent voices have cautioned that all of the rosy predictions about the future of the shale boom, US energy independence, and the continued growth of US oil and gas production are false – a bubble soon to burst.

One of those is J. David Hughes, a geoscientist with the Post-Carbon Institute. He spent 32 years with the Geological Survey of Canada, and coordinated an assessment of Canada’s unconventional natural gas potential. He has authored “Drill, Baby, Drill,” published last year by the Post Carbon Institute and the Energy Policy Forum. It is a pretty comprehensive review of the long-term viability of the shale plays. Some excerpts:

  • “World energy consumption has more than doubled since the energy crises of the 1970s, and more than 80 percent of this is provided by fossil fuels. In the next 24 years world consumption is forecast to grow by a further 44 percent–and U.S. consumption a further seven percent–with fossil fuels continuing to provide around 80 percent of total demand.”
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Last month I wrote about two cases recently decided by the U.S. Court of Appeals for the 5th Circuit in which Chesapeake defeated royalty owners’ efforts to prevent it from reducing their royalties by deducting post-production costs. One of those cases is Potts v. Chesapeake. The plaintiffs in that case have asked the Court of Appeals to reconsider its appeal “en banc,” meaning that it has asked the other judges on the court to grant its petition for rehearing and reconsider the decision of the three-judge panel who decided the case. Plaintiffs’ Petition for Rehearing may be viewed here:  Potts Petition for Rehearing En Banc.pdf

Yesterday, our firm filed a friend-of-the-court brief in the Potts case, on behalf of the Texas Land and Mineral Owners Association and the National Association of Royalty Owners – Texas, asking the Court to grant the plaintiff’s motion for rehearing and either consider the case en banc or refer the question to the Texas Supreme Court for its consideration. A copy of our brief may be viewed here:  Potts v. CHK Amicus Brief.pdf

Meanwhile, in Pennsylvania, suit has been filed against Chesapeake claiming that its conduct in selling gas to its affiliate company at prices well below market, and then selling its affiliate company for a substantial profit, constituted fraud on its royalty owners in violation of the Racketeer Influenced and Corrupt Organizations Act, known as RICO.  That petition can be viewed here:  Suessenbach v. Chesapeake.pdf

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With increasing frequency, my landowner clients have complained about gas flaring, especially in the Eagle Ford Shale.  Landowners are beginning to insist that their leases require royalty payments on flared gas. Landowners also complain of the odors and noise from gas flares.

The San Antonio Express News has recently published a four-part series, Up in Flames,  on flaring in the Eagle Ford, after a year-long investigation. Among its findings:

  • Since 2009, flaring and venting of natural gas in Texas has surged by 400 percent to 33 billion cubic feet in 2012. Nearly 2/3 of the gas flared in 2012 came from the Eagle Ford.
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I ran across an article in the New York Times about a new publication, “The Boom,” becoming popular with oil field workers in the Eagle Ford. It’s a good read. And it’s free online. Check out the article in the August publication, “Eagle Ford Shale Takeaways.” It’s a reprint of an article from Drillinginfo, based on Drillinginfo’s analysis of several thousand wells in the Eagle Ford play. One conclusion from that article:

The very best Eagle Ford Shale operators produce 30% to 40% better than the median FOR THE SAME QUALITY OF ROCK, and they produce three times as much as operators at the low end. … The implications for mineral owners in this scenario are obvious. Massive gaps in production naturally lead to large gaps in royalty payments. A 25% royalty lease with an average operator is equivalent to an 18% royalty lease with the best operators.  That same lease with the worst operators is the same as an 8% lease with the best.

 Also check out Texas Eagle Ford Shale Magazine, another digital publication catering to the Eagle Ford play.

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The 520,000-acre Waggoner Ranch is for sale for $725 million — about $1,400/acre. It is said to be the largest contiguous ranch in the U.S., and has been owned by the Waggoner family for more than 100 years.

Ownership of the Waggoner Ranch has been in litigation for more than 20 years. The suit was originally filed in 1991 by Electra Waggoner Biggs, one of the heirs, who died in 2001. Electra was a sculptor; her sculpture of Will Rogers on his horse Soap Suds is on the Texas Tech University campus. 

The colorful history of the Waggoner family was documented in an article by Gary Cartwright in Texas Monthly in 2004. It’s a great read.

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The 5th Circuit Court of Appeals in New Orleans has ruled for Chesapeake in two cases, holding that it can deduct post-production costs from gas royalties. Potts v. Chesapeake Exploration, No. 13-10601, and Warren v. Chesapeake Exploration, No. 13-10619. Both cases were decided by the same three judges, and both opinions were written by Judge Priscilla R. Owen. In both cases, Judge Owen relied on the Texas Supreme Court case of Heritage Resources v. NationsBank, 939 S.W.2d 118 (Tex. 1996). Judge Owen was on the Texas Supreme Court when Heritage v. NationsBank was decided, and she wrote an opinion in that case. Judge Owen cites her own opinion in Heritage as the principal precedent for her opinions in Potts and Warren.

The Potts and Warren cases were tried in federal district court. Because Chesapeake’s home office is in Oklahoma, it has the right to remove suits filed against it in Texas to federal court. Federal courts have “diversity” jurisdiction over cases between citizens of different states. In diversity cases, federal courts must follow the law of the states. No federal law is involved. So, in deciding Potts and Warren, the 5th Circuit judges were attempting to predict what a Texas court would do, following prior precedent from Texas courts — in this case, Heritage v. NationsBank.

Heritage v. NationsBank is a seminal case in oil and gas law, some would say infamous. The question in Heritage was whether Heritage, the lessee, could deduct transportation costs for gas from royalties owed to NationsBank. NationsBank’s lease provided that royalties on gas would be “the market value at the well of 1/5 of the gas so sold or used, … provided, however, that there shall be no deductions from the value of the Lessor’s royalty by reason of any required processing, cost of dehydration, compression, transportation or other matter to market such gas.” The Texas Supreme Court held that Heritage could deduct transportation costs from NationsBank’s royalty. In her concurring opinion, Justice Owen said that the no-deductions proviso on NationsBank’s lease was “circular” and “meaningless”:

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The Atlantic Council, a Washington-based think tank, has published a draft white paper on the exploration industry’s use of water in Texas. The draft paper, “Sustainable Water Management in the Texas Oil and Gas Industry,” was written by John Tintera, of the Austin firm Sebree & Tintera. Tintera, formerly executive director of the Texas Railroad Commission, is now president of the Texas Water Recycling Association.  The draft paper can be viewed here: DID264_1_073014.pdf. The Atlantic Council also has a white paper, “Produced Water: Asset or Waste?“, on its website.

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Jimmy McAllen’s battle against Forest Oil has moved one step closer to conclusion. Last week the Corpus Christi Court of Appeals affirmed an arbitration award of more than $20 million against Forest Oil for environmental and other damages to the McAllen Ranch and personal injuries to Mr. McAllen.

The fight began in 2004, when McAllen sued Forest. He claimed that Forest had buried mercury-contaminated iron sponge wood chips on the 27,000-acre McAllen Ranch. The wood chips are waste from Forest’s gas plant on the Ranch. He also claimed that he had contracted cancer from pipe containing naturally occurring radioactive material (NORM) that Forest had given him to build pens on his Santillana Ranch.  The pens were built to house endangered rhinoceroses.  McAllen contracted cancer that required amputation of his leg.

Forest responded that McAllen was bound by a prior settlement agreement that required him to arbitrate any claims arising out of Forest’s operations on his ranch.  McAllen opposed arbitration. The trial court denied Forest’s motion to require arbitration, and the Corpus Christi Court of Appeals affirmed. Forest appealed to the Texas Supreme Court, which held that McAllen was bound by the arbitration agreement. Forest Oil v. McAllen, 268 S.W.3d 51 (Tex. 2008).

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The Texas Railroad Commission has published a proposed rule that will change how pipelines are classified as “common carriers” and “gas utilities.” That classification determines whether pipelines can exercise the power of eminent domain — the power to condemn rights-of-way for pipelines.

In 2011, the Texas Supreme Court held in Texas Rice Land Partners v. Denbury Green Pipeline-Texas, LLC that the Railroad Commission’s method of classifying pipelines as common carriers and gas utilities was not sufficient to grant them eminent domain authority. The court held that, in order for a pipeline to have condemnation powers, it must serve a “public purpose,” and that in order for a pipeline to serve a public purpose, “a reasonable probability must exist, at or before the time common-carrier status is challenged, that the pipeline will serve the public by transporting gas for customers who will either retain ownership of their gas or sell it to parties other than the carrier.” Once a landowner challenges its status as a common carrier, “the burden falls upon the pipeline company to establish its common-carrier bona fides if it wishes to exercise the power of eminent domain.” The court held that the RRC’s policy of classifying pipelines as common carriers or gas utilities based solely on the pipelines’ checking of a box on a form filed with the RRC was not sufficient to establish the public purpose of the line. 

Since Denbury, the pipeline industry has struggled to find a way to efficiently establish pipelines’ common-carrier status without having to litigate the issue with every landowner it wants to cross over. Initially the industry sought legislation authorizing the RRC to have one hearing to establish that a proposed new line will in fact qualify for common-carrier status. Under the bill, that determination would then be binding on all landowners whose property will be crossed by the pipeline. Those landowners would be given the opportunity to participate in the hearings; notice of the hearings would be given by publication in local newspapers. The Texas Farm Bureau, the forestry industry, and other landowner groups opposed the bill. Most major oil and gas associations favored the bill. The bill never made it out of committee.

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