Oil and Gas Lawyer Blog
The Texas Supreme Court has ruled 5 to 4 that Chesapeake cannot deduct post-production costs from the Hyder family’s gas royalties.
The case in the Supreme Court actually addresses only the Hyders’ overriding royalty. As part of the Hyders’ oil and gas lease, the Hyders agreed that Chesapeake could use their land to drill horizontal wells producing from their neighbors’ land — the surface location on the Hyders’ land, but all of the productive lateral of the well under the neighbor’s property. In exchange, Chesapeake agreed to pay the Hyders a 5% royalty on production from such wells. Because the Hyders have no mineral interest in the lands from which these wells produce, the parties referred to this royalty as an overriding royalty.
The Hyders’ lease contains very specific provisions prohibiting Chesapeake from deducting post-production costs from the Hyders’ royalty on production from their lands. But the lease provision granting the overriding royalty on production from wells bottomed under their neighbors’ property is not so clear. Although Chesapeake originally fought to deduct post-production costs from both the royalties and the overriding royalties, the trial court and court of appeals ruled for the Hyders on all claims, and Chesapeake elected to appeal to the Texas Supreme Court only on the issue of deductibility of post-production costs from the Hyders’ overriding royalty.
The lease provision granting the overriding royalty calls for “a perpetual, cost-free (except only its portion of production taxes) overriding royalty of five percent (5%) of gross production obtained” from wells bottomed under neighbors’ land.” The lease also provided that “Lessors and Lessee agree that the holding in the case of Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996) shall have no application to the terms and provisions of this Lease.”
Justice Hecht wrote the majority opinion, joined by Justices Green, Johnson, Boyd and Devine. The parties’ arguments in their briefs and at oral argument focused on what was meant by “cost-free (except only its portion of production taxes).” Chesapeake argued that “cost-free” refers only to production costs. The Hyders argued that an overriding royalty is by definition free of production costs, so “cost-free” must refer to post-production costs. Justice Hecht said that “We disagree with the Hyders that ‘cost-free’ … cannot refer to production costs. … But Chesapeake must show that while the general term ‘cost-free’ does not distinguish between production and post-production costs and thus literally refers to all costs, it nevertheless cannot refer to post-production costs.”
Chesapeake made another argument, based on the requirement that the overriding royalty be based on “gross production.” It reasoned that “gross production” meant all gas, measured at the well when produced, so the value of that production must be measured at the wellhead, and any costs incurred thereafter must be shared by the royalty owner. The overriding royalty is expressed as a fraction of “gross production,” a royalty payable in-kind. Chesapeake argued that, if the Hyders elected to separately market their share of the gas, they would have to incur those post-production costs to get the gas to market, so the parties intended that the Hyders should bear those costs if Chesapeake sold the gas and paid the Hyders their 5% share of proceeds. Hecht disagreed. “The fact that the Hyders might or might not be subject to post-production costs by taking the gas in kind does not suggest that they must be subject to those costs when the royalty is paid in cash.” Hecht concluded that “‘cost-free’ in the overriding royalty provision includes post-production costs.”
Four justices dissented. Justice Brown wrote the dissenting opinion, joined by Justices Willett, Guzman and Lehrmann. The dissenters agreed with Chesapeake that, because the overriding royalty was on “gross production,” the Hyders had to bear post-production costs. They concluded that “Though the overriding royalty may not have been expressed using the familiar market-value-at-the-well language, I read its value as being just that. Cf. Heritage, 939 S.W.2d at 131 (Owen, J., concurring).” Further discussing Heritage, Justice Brown said:
As recognized in Heritage, royalty clauses that purport to modify a royalty valued at the well are inherently problematic. 939 S.W.2d at 130 ((Owen, J., concurring)(“The concept of ‘deductions’ of marketing costs from the value of the gas is meaningless when gas is valued at the well.”). Here, no post-production costs have been incurred at the time of production, and it means nothing to say that the overriding royalty is free of those yet-to-be incurred costs.
In short, Justice Brown gave controlling effect to the “gross production” language, while Justice Hecht gave controlling effect to the “cost-free” language.
Justice Hecht’s opinion is interesting in its discussion of two other lease provisions. Although the case before the court did not encompass whether Chesapeake could deduct post-production costs from the Hyders’ royalty, Justice Hecht discussed the royalty clause. One of the provisions in the royalty clause states that the Hyders’ royalty shall be
free and clear of all production and post-production costs and expenses, including but not limited to, production, gathering, separating, storing, dehydrating, compression, transporting, processing, treating, marketing, delivering, or any other costs and expenses incurred between the wellhead and Lessee’s point of delivery or sale of such share to a third party.
Remarkably, Justice Hecht considered this language “surplusage”:
The gas royalty in the lease does not bear post-production costs because it is based on the price Chesapeake actually receives for the gas through its affiliate … after post-production costs have been paid. Often referred to as a ‘proceeds lease’, the price-received basis for payment is sufficient in itself to excuse the lessors from bearing post-production costs. And of course, like any other royalty, the gas royalty does not share in production costs. But the royalty provision expressly adds that the gas royalty is ‘free and clear of all production and post-production costs and expenses,’ and then goes further by listing them. This addition has no effect on the meaning of the provision. It might be regarded as emphasizing the cost-free nature of the gas royalty, or as surplusage.
Another provision in the Hyders’ lease disclaimed the holding in Heritage v. NationsBank:
Lessors and Lessee agree that the holding in the case of Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118 (Tex. 1996) shall have no application to the terms and provisions of this Lease.
The royalty clause in Heritage provided that Lessor’s royalty is
1/5 of the market value at the well 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 court in Heritage held that the lessee could deduct transportation costs from the royalty, and that the “no-deductions” proviso was “mere surplusage.”
The Hyders argued that the “Heritage disclaimer” clause in their lease showed the parties’ intent that their overriding royalty should be free of post-production costs. Justice Hecht disagreed:
Heritage Resources does not suggest, much less hold, that a royalty cannot be made free of post-production costs. Heritage Resources holds only that the effect of a lease is governed by a fair reading of its text. A disclaimer of that holding, like the one in this case, cannot free a royalty of post-production costs when the text of the lease itself does not do so. Here, the lease text clearly frees the gas royalty of post-production costs, and reasonably interpreted, we conclude, does the same for the overriding royalty. The disclaimer of Heritage Resources’ holding does not influence our conclusion.
The dissent also discussed Heritage. Justice Brown notes that, unlike the gas royalty clause, the oil royalty clause in the Hyder lease provides for payment based on the “market value at the well” of the oil, just as in Heritage. Justice Brown questions Justice Hecht’s conclusion that the “Heritage disclaimer” in the Hyders’ lease should have no effect even as applied to the oil royalty clause: “The disclaimer could be interpreted as a belt-and-suspenders attempt to ensure the ‘free and clear’ language is given effect despite its conflict with the oil royalty’s market-value-at-the-well definition.” In other words, the Heritage disclaimer might not be “surplusage.” But the four dissenting justices would nevertheless in effect follow Heritage. They would give effect to the “gross production” language in the overriding royalty clause, and would hold that this term is equivalent to the “at the well” clause in the Heritage royalty provision; and they would then hold that, because the overriding royalty is to be valued “at the well,” the language making the overriding royalty “cost-free” is, under Heritage, surplusage.
So, what should royalty owners and their counsel take from these opinions?
This firm filed an amicus brief in Hyder on behalf of the Texas Land and Mineral Owners’ Association and the National Association of Royalty Owners-Texas, in which we urged the court to clarify how royalty clauses should be construed in relation to post-production costs, and how much, if at all, the court’s prior decision in Heritage v. NationsBank should be relied on as precedent. Unfortunately, this case does not provide much guidance. Justice Hecht does note in a footnote that, on rehearing in Heritage, the court re-aligned itself, and one justice recused himself. The result, not mentioned in the footnote, is that the court was evenly divided on whether the Court’s original opinion was correct. And Justice Hecht’s opinion does say that “Heritage Resources holds only that the effect of a lease is governed by a fair reading of its text.” Perhaps this is Justice Hecht’s way of saying that Heritage has little precedential value where the text of the royalty clause differs from that in Heritage. But the continued power of Heritage is reflected in the fact that four justices dissented and would hold that Heritage requires a reading of the Hyder overriding royalty clause that would allow Chesapeake to deduct post-production costs, despite its “cost-free” language.
One lesson royalty owners and their lawyers should take away from Hyder: a “Heritage disclaimer” clause in a lease, without more, will not insulate the royalty owner from post-production costs.