Recent Cases

Published on: June 18, 2018

Supreme Court to Weigh In On Duty of Holder of Executive Rights

Last week the Texas Supreme Court agreed to hear Texas Outfitters Limited v. Carolyn Grace Nicholson, No. 17-059, from the San Antonio Court of Appeals. I wrote about this case when the Court of Appeals decided it last year. Interesting facts. The issue is whether the holder of executive rights can be liable for refusing to lease. The courts below said yes and awarded the plaintiff $867,000 in lost bonus money. Briefs on the merits have already been filed. No date yet for oral argument. The Court of Appeals’ opinion may be found here.

Published on: June 14, 2018

Another Retained Acreage Clause Case Arrives in Supreme Court

By John McFarland

Litigation of retained acreage clauses seems to be on the rise. Apache Deepwater, LLC, v. Double Eagle Development, LLC, decided by the El Paso Court of Appeals last year, is now before the Supreme Court on petition for review, and the Court has asked the parties to file briefs on the merits. This after the Court recently issued two opinions on the same subject.

The lease in question in Apache v. Double Eagle covers a section of land in Reagan County. Four vertical wells were drilled and completed on the lease prior to the end of the primary term, and the lessee designated four proration units, 160 acres each, for those four wells. After the end of the primary term, three of those wells ceased producing. The lease has the following retained acreage clause:

Notwithstanding anything to the contrary in the foregoing, Lessee covenants to release this lease after the primary term except as to each producing well on said lease, operations for which were commenced prior to or at the end of the primary term and the proration units as may be allocated to said wells under the rules and regulations of the Railroad Commission of Texas or 160 acres, whichever is greater, insofar as said proration units cover from the surface to the base of the deepest formation penetrated by the deepest of said wells. The description of said tracts around said well shall be compiled and prepared by the Lessee for purpose of executing such release.

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Published on: May 23, 2018

Royalty Owners and Cotenancy: Devon Energy Production Co. v. Apache Corporation

By John McFarland

In Devon v. Apache, No. 11-16-00105-CV, the Eleventh Court of Appeals sheds some light on a vexing problem that remarkably has never been addressed by a Texas court. To understand the problem, consider the facts in Devon v. Apache:

Norma Jean Hester leased her one-third mineral interest in land in Glasscock County to Apache, reserving a one-fourth royalty. The remaining mineral owners leased to Devon, also reserving a one-fourth royalty. Apache and Devon were not able to reach agreement on joint development of the property, and Apache drilled seven wells on the property without Devon’s participation. Under Texas law, Devon and Apache were co-tenants, and Apache is obligated to account to Devon for 2/3rds of the net profits from the wells, which Apache did. But Apache refused to pay Devon’s royalty owners. Continue reading →

Published on: May 11, 2018

Reservations vs. Exceptions

By John McFarland

On April 27 the Texas Supreme Court issued its opinion in Perryman v. Spartan Texas Six Capital Partners, Ltd., No. 16-0804. The dispute was over ownership of the royalty interest in 206 acres of land in Montague County and construction of a royalty reservation in a conveyance of the property. The Supreme Court disagreed with the trial court’s and court of appeals’ construction of the deed reservation and with the construction argued by both sides in the dispute. The case illustrates the need to be clear in drafting deed reservations and exceptions.

In 1977, Ben Perryman conveyed the 207 acres to his son and daughter-in-law, Gary and Nancy Perryman. The deed contains the following:

LESS, SAVE AND EXCEPT an undivided one-half (1/2) of all royalties from the production of oil, gas and/or other minerals that may be produced from the above described premises which are now owned by Grantor.

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Published on: April 27, 2018

Texas Anti-SLAPP Statute Used in Oil & Gas Lease Dispute

By John McFarland

Lona Hills Ranch, LLC v. Creative Oil & Gas Operating, LLC, et al., No. 03-17-00743-CV, Austin Court of Appeals.

Creative Oil & Gas held an oil and gas lease on Lona Hills Ranch’s property. Lona Hills concluded that the lease had expired, but Creative disagreed and filed for a permit to drill a new well on the lease. Lona Hills protested the permit on the ground that the lease had expired. But the Texas Railroad Commission ruled that Creative had a “good-faith claim” that its lease was still in effect and granted the permit. So Lona Hills sued Creative in Lee County for trespass and trespass to try title on the ground that the lease had expired.

In response to Lona Hills’ suit Creative filed counterclaims for breach of the lease “by wrongfully claiming the Lease has terminated and wrongfully repudiating the Lease.” Lona Hills then filed a motion to dismiss Creative’s counterclaims under Texas’ Anti-SLAPP statute, the Texas Citizens Participation Act (TCPA), Tex.Civ.Prac. & Rem. Code Chapter 27. Continue reading →

Published on: April 16, 2018

Texas Supreme Court Opines on Retained Acreage Clauses

By John McFarland

Last Friday the Texas Supreme Court issued opinions in XOG Operating, LLC v. Chesapeake Exploration Limited Partnership et al., No. 15-0935, and Endeavor Energy Resources, L.P. et al. v. Discovery Operating, Inc. et al., No. 16-0155. In both cases, the Court affirmed the decisions of the trial courts and courts of appeals. Both cases garnered substantial attention from the industry, as evidenced by amicus briefs from the Permian Basin Petroleum Association, the Texas Independent Producers and Royalty Owners’ Association, the Railroad Commission and the Texas Oil and Gas Association, among others.

Both cases construe retained acreage clauses. The opinion in Endeavor includes a good explanation of the purpose and effect of retained acreage clauses, the purpose and operation of field rules and proration units, and the interplay between the two. I summarized the facts and results in both of these cases when the Supreme Court granted the petitions for review. My prior post can be viewed here. I have also previously written about the relationship between field rules and retained acreage clauses. I’ve said that it is a mistake to rely on field rules and proration units to determine how much acreage can be retained under a retained acreage clause; these cases illustrate why that is so.

One comment on Endeavor: the field rules applicable in that case were for the Spraberry (Trend Area) Field. Those rules provide for “standard” proration units of 80 acres but allow the operator to assign up to 160 acres to a well, with a corresponding increase in its allowable rate of production. The allowable rate for a well on an 80-acre proration unit is 515 barrels per day. The retained acreage clause provided that the lease would expire except for the “proration unit assigned to a well,” and that each proration unit would “contain the number of acres required to comply with” Railroad Commission rules “for obtaining the maximum allowable.” Endeavor assigned 80 acres to each of four wells, and Discovery said the lease expired except as to those four proration units “assigned” to the wells. Endeavor argued that it was entitled to 160 acres per well because that amount of acreage was necessary “for obtaining the maximum allowable.” The Supreme Court agreed with Discovery. In discussing Endeavor’s argument on the “maximum allowable” language, the Court quotes from two CLE papers: Continue reading →

Published on: April 11, 2018

Superior Court of Pennsylvania Disagrees with Texas Supreme Court on Whether Rule of Capture Applies to Hydraulic Fracturing

By John McFarland

On April 2, the Superior Court of Pennsylvania issued its opinion in Briggs v. Southwestern Energy Production Co., 2018 PA Super 79, No. 1351 MDA 2017. It held that “hydraulic fracturing may constitute an actionable trespass where subsurface fractures, fracturing fluid and proppant cross boundary lines and extend into the subsurface estate of an adjoining property for which the operator does not have a mineral lease, resulting in the extraction of natural gas from beneath the adjoining landowner’s property.” In doing so, the court rejected the reasoning of the Texas Supreme Court in Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008), which held that the rule of capture prevented any such cause of action. The court agreed with the conclusion of a federal district court in West Virginia in Stone v. Chesapeake Appalachia, LLC, No. 5:12-CV-102, 2013 WL 2097397 (N.D.W.Va. Apr. 10, 2013), which held that hydraulic fracturing can give rise to a trespass claim. The court also agreed with Justice Johnson’s dissent in Coastal v. Garza, in which he said that he “would not apply the rule [of capture] to a situation … in which a party effectively enters another’s lease without consent, drains minerals by means of an artificially created channel or device, and then ‘captures’ the minerals on the trespasser’s lease.”

The court concluded:

… we are persuaded by the analysis in the Coastal Oil dissent and Stone, and conclude that hydraulic fracturing is distinguishable from conventional methods of oil and gas extraction. Traditionally, the rule of capture assumes that oil and gas originate in subsurface reservoirs or pools, and can migrate freely within the reservoir and across property lines, according to changes in pressure. … Unlike oil and gas originating in a common reservoir, natural gs, when trapped in a shale formation, is non-migratory in nature. … Shale gas does not merely “escape” to adjoining land absent the application of an external force. …

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Published on: April 5, 2018

When Does No Warranty Mean No Warranty?

By John McFarland

The Texas Supreme Court recently decided JPMorgan Chase Bank v. Orca Assets GP, LLC, No. 15-0712, an interesting exposition on the value and risks of including no-warranty language in an oil and gas lease.

JPMorgan was trustee of the Red Crest Trust, which owns about 40,000 acres of minerals in the Eagle Ford Shale. In 2010, JPMorgan leased about 1,800 of those acres to GeoSouthern Energy. Later that year, JPMorgan was approached by another company, Orca Assets GP, to lease some of the same land. JPMorgan’s trust offer erroneously concluded that the acreage Orca wanted had not been previously leased to GeoSouthern, and he negotiated a deal to lease to Orca. But he put the following provision in the proposed leases to Orca:

Negation of Warranty. This lease is made without warranties of any kind, either express or implied, and without recourse against Lessor in the event of a failure of title, not even for the return of the bonus consideration paid for the granting of the lease or for any rental, royalty, shut-in payment, or any other payment now or hereafter made by Lessee to Lessor under the terms of this lease.

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Published on: March 26, 2018

ConocoPhillips v. Koopmann: does a reserved term royalty interest violate the Rule Against Perpetuities?

By John McFarland

Last week the Texas Supreme Court issued its opinion in ConocoPhillips Co. v. Koopmann, No. 16-0662. Its opinion rejected Burlington’s argument based on the Rule Against Perpetuities.

Strieber sold 120 acres in Dewitt County to Koopmann, reserving one-half of the royalty for a term of 15 years and as long thereafter as there is production in paying quantities. The 15-year term ended on December 27, 2011. At that time the 120 acres was under lease to Burlington. Burlington included the 120 acres in a pooled unit and drilled a well in 2011, but the well was not producing on December 27. Prior to that time, Strieber conveyed to Burlington 60% of her reserved term royalty, “presumably as an incentive to motivate Burlington to begin drilling.” The parties – Koopmann on one side, contending the term royalty had expired, and Strieber and Burlington, on the other, contending it had not — then joined suit.

Burlington and Strieber contended that the interest the Koopmanns claimed – the one-half-of-the-royalty that would be owned by her on expiration of the 15-year term – was void because it violates the Rule Against Perpetuities. In effect, they argued that the royalty reserved by Strieber should remain in effect indefinitely because of the Rule. The court disagreed, holding that the future interest conveyed to Koopmann was “vested” and therefore did not violate the Rule. After a detailed discussion of the Rule and its application, the court followed more modern scholarship that construes the Rule based on its purpose and intent rather than by archaic application of terms and concluded that application of the Rule in this instance would not serve the Rule’s purposes.

Oil and gas attorneys will be greatly relieved at this result, since it is and for many years has been common for grantors to reserve term royalties in conveyances of their land. The rule advocated by Burlington would have made all such royalty reservations perpetual. Continue reading →

Published on: March 13, 2018

Challenge to Devon Allocation Well

By John McFarland

Our firm filed suit last week to challenge Devon Energy Production Company’s permit for an “allocation well” in Ward County. Monroe Properties, Inc., et al. v. Railroad Commission of Texas, Cause No. D-1-GN-18-001111, 53rd District Court, Travis County. A copy of the petition may be viewed here. Monroe v. RRC

Devon’s proposed well is called the NI Helped 120 6H Well. (The odd name comes from an old TV commercial in which the line “‘n I helped!” appears.) The permit and plats for the well can be viewed here. N I Helped 120 6H Permit and Plat

Our firm filed a similar suit a few years ago on behalf of the Klotzman family challenging an allocation well permitted by EOG. EOG and the Klotzmans settled their dispute shortly after they appealed the RRC’s grant of EOG’s permit. For my discussions of the Klotzman case, search for “Klotzman” in this site’s search engine.

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