Recent Cases

Published on: January 28, 2011

The Importance of Audit Rights in Oil and Gas Leases: Shell v. Ross

I always counsel my clients to provide in their oil and gas leases that they have the right to inspect and copy all documents of the lessee necessary to determine whether royalties have been paid correctly, and to audit the records of the lessee to confirm accurate payment of royalties. Royalty owners generally assume that the royalty payments they received have been calculated and paid as required by their leases. This is not always the case, as illustrated by a recent case, Shell Oil Company SWEPI LP v. Ross, 2010 WL 670549 (Tex.App.-Houston [1st Dist.], decided February 25, 2010. The case illustrates typical schemes used by producers to underpay royalty owners, and their efforts to prevent royalty owners from knowing how royalties are calculated and, when the royalty owners discover the underpayment, to prevent royalty owners from recovering the underpayment.

In Shell v. Ross, the trial court and Houston Court of Appeals held that Shell had underpaid royalties due to Ross. Shell has appealed to the Texas Supreme Court. The Texas Supreme Court refused to consider the case, but Shell has filed a motion for re hearing that is still pending. Other producers are very interested in the case: friend-of-the-court briefs have been filed by Chesapeake, Texas Oil & Gas Association, and the American Petroleum Institute asking the Court to reverse the Court of Appeals.

The facts of the case require some explanation but illustrate well the importance of verifying the correct calculation of royalties.

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Published on: December 23, 2010

Update on EPA Order Against Range Resources, Parker County

By John McFarland

EPA’s order against Range Resources for allegedly charging groundwater with gas from its Barnett Shale wells has caused quite a stir.

The Texas Railroad Commission has issued two news releases, one on December 7 and one on December 8. Commission Chairman Victor Carrillo said that he has told EPA Regions 6 Administrator Al Armendariz that “EPA’s actions are premature as the Railroad Commission continues to actively investigate this issue and has not yet determined the cause of the gas. This EPA action is unprecedented in Texas, and commissioners will consider all options as we move forward.” Commissioner Michael Williams said “this is Washington politics of the worst kind. The EPA’s act is nothing more than grandstanding in an effort to interject the federal government into Texas business.” The December 8 press release said that the Commission has called a hearing for January 10 and “expects both parties, the EPA as well as Range Resources representatives, to appear before Hearings Examiners and testify as to the allegations made yesterday.” Range has said it will attend the hearing, but it understands that the EPA will not.

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Published on: December 7, 2010

EPA Orders Range Resources to Investigate Drinking Water Contamination in Parker County

By John McFarland

The Dallas Office of the Environmental Protection Agency issued the following press release today:

The U.S. Environmental Protection Agency (EPA) has ordered a natural gas company in Forth Worth Texas to take immediate action to protect homeowners living near one of their drilling operations who have complained about flammable and bubbling drinking water coming out of their tap. EPA testing has confirmed that extremely high levels of methane in their water pose an imminent and substantial risk of explosion or fire. EPA has also found other contaminants including benzene, which can cause cancer, in their drinking water.

EPA has determined that natural gas drilling near the homes by Range Resources in Parker County, Texas has caused or contributed to the contamination of at least two residential drinking water wells. Therefore, today, EPA has ordered the company to step in immediately to stop the contamination, provide drinking water and provide methane gas monitors to the homeowners. EPA has issued an imminent and substantial endangerment order under Section 1431 of the Safe Drinking Water Act. Parker County is located west of Fort Worth, Texas.

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Published on: September 18, 2010

Water Fight in the Texas Panhandle

By John McFarland

T. Boone Pickens has filed a lawsuit to protect his water rights in Hemphill County, a suit that highlights the problems with Texas’ attempt to regulate pumping from aquifers in the State. The suit, Mesa Water, L.P. and G&J Ranch, Inc. v. Texas Water Development Board, was filed in Travis County in April. Water is a little outside the scope of my blog, but this fight concerns the Ogallala Aquifer in the Texas Panhandle, where I was born and grew up, and so is of special interest to me.

To understand the litigation, it is necessary to know something about the Ogallala and about Texas’ efforts to regulate underground water resources.

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Published on: September 8, 2010

Texas Supreme Court Asked to Re-examine NGPL v. Pool

By John McFarland

A case now before the Texas Supreme Court that addresses issues important to Texas mineral owners. The case, BP America Production Company, et al., v. Stanley G. Marshall, Jr., et al., No. 09-0399, asks the Texas Supreme Court to address the applicability of the laws of adverse possession to mineral interests for the first time since the Court’s decision in the Pool case, Natural Gas Pipeline Co. of America v. Pool, decided in 2003. To understand the importance of BP v. Marshall, it is necessary to first review the Pool case.

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Published on: April 23, 2010

Gatti vs. State of Louisiana – a Challenge to Multiple-Well Pooling Orders in Louisiana

By John McFarland

An interesting case has recently been filed in Louisiana challenging the authority of the Louisiana Department of Conservation to approve pooled units containing multiple wells. In Gatti et al. vs. State of Louisiana, et al., Number 589350, Division 23, filed in the 19th Judicial District Court in East Baton Rouge Parish, the plaintiffs sued the State Department of Conservation and several operators in the Haynesville field, including Chesapake, Encana, Exco, Conoco Phillips, Petrohawk, SWEPI, EOG, Questar, Forest and XTO, claiming that the Department of Conservation was routinely allowing the drilling of “alternate unit wells” on previously established units, in violation of Louisiana law. A copy of the petition may be found here.

Gatti v. St of Louisiana.pdf.

Louisiana has a forced-pooling statute that allows an operator to propose to the Department of Conservation a unit for a well which, if approved, forces all mineral owners in the unit to pool their interests for the drilling and production of that well. According to the plaintiffs, this statute only authorizes the Department to approve units large enough to cover an area drained by one well. The practice in Lousiana for the Cotton Valley and Haynesville fields is to obtain orders for 640-acre units, and later obtain approval to drill additoinal “alternate unit wells” on those units. The suit contends that this practice is unfair to the owners of minerals and royalties in the unit, and violates state law. The suit seeks certification of a class action on behalf of all owners of mineral rights in Haynesville Zone in Louisiana. It seeks a declaration that the Department has no authority to establish a unit having an area in excess of the area drainable by one well, and that any such unit is “null and void.” The suit also seeks unspecified damages against the defendant companies.

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Published on: April 9, 2010

BLM Agrees to Consider Effect of Oil and Gas Leasing in Montana on Greenhouse Gas Emissions

By John McFarland

The Bureau of Land Management has signed a settlement agreement in which it agreed to “suspend” oil and gas leases covering BLM lands in Montana until it has completed a review of the effect of oil and gas development on greenhouse gas emissions.

The settlement was entered in Montana Environmental Information Center, et al. v. United States Bureau of Land Management, Case No. 08-178-M-DWM, in the U.S. District Court for the District of Montana, Missoula Division, on March 11, 2010. The case was brought by citizens groups who contended that federal law required the BLM to consider the cumulative impacts of oil and gas development on the environment, and specifically the greenhouse gas emissions caused by oil and gas well drilling and production, before granting oil and gas leases on lands in Montana.

The plaintiffs’ petition contains some interesting facts:

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Published on: March 31, 2010

Strauss Charges Texas Legislature to Look at Local Ordinances Governing Surface Use in Barnett Shale

By John McFarland

Speaker of the House Joe Strauss has charged the House Committee on Energy Resources as follows for the next legislative session:

“Survey current local ordinances governing surface use of property in oil and gas development. Recommend changes, if any, to the authority of the Railroad Commission to regulate the operation of oil and gas industries in urban areas of the state, particularly the Barnett Shale.”

It seems evident from this charge that operators in the Barnett Shale will be asking the Texas Legislature to curtail the authority of municipalities to issue drilling permits for areas within their jurisdiction, or at least to limit what conditions they can place in those permits. Drilling ordinances such as those in Fort Worth and surrounding cities are becoming quite sophisticated, and place significant conditions on the granting of permits, including distances from houses and other structures, sound limits, handling of frac water, produced water and other wastes, safety requirements, traffic, and damage to surrounding streets. The City of Grapevine has revised its drilling ordinance to require an 8-foot masonry wall around the wellsite and shrubbery between 3 and 5 feet high along the wall. The City of Flower Mound is considering revision of its drilling ordinance to require companies to report their airbrorne emissions and use vapor recovery technology. In some cases, municipal ordinances are so stringent that as a practical matter they prevent drilling within city limits. I expect that eventually constitutional takings claims will be made against cities whose restrictions prevent any mineral development within their limits.

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Published on: March 14, 2010

Devon Appeals Temporary Field Rules for Carthage (Haynesville Shale) Field

By John McFarland

In a previous post I reported on the application of Devon Energy asking the Texas Railroad Commission to include in the new Field Rules for the Carthage (Haynesville Shale) Field a provision allowing it to drill horizontal wells across lease or pooled unit boundaries. These new rules apply to wells drilled in the Haynesville and Bossier formations in Harrison, Nacogdoches, Panola, Shelby and Rusk Counties in East Texas. Devon asked that the rules provide what it calls a “default allocation method” for horizontal wells drilled across unit boundaries.The rule proposed by Devon reads as follows:

“Operators shall be permitted to drill and complete horizontal wells that traverse one or more units and/or leases as long as that operator has a lease or other mineral ownership right to produce from each such unit or lease. If such a well is not already subject to an agreement regarding the allocation of production, the following allocation formula will be presumed to constitute a fair and reasonable allocation of production from a well in this field and shall be utilized by the Commission in assigning acreage attributable to the separate units/leases traversed by the horizontal drainhole: an allocation of acreage and production to each of the units and/or leases traversed by and completed in the horizontal well based on the percent of said horizontal well from first take point to last take point that lies under each unit or lease.”

The Commission concluded that it had no authority to adopt such a rule, because pooling is a contractual issue between private parties, and (except as provided in the Mineral Interest Pooling Act) the Commission has no right to impose allocations of production among different tracts penetrated by a horizontal well.

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Published on: December 24, 2009

Texas Railroad Commission Adopts New Temporary Field Rules for Carthage (Haynesville Shale) Field

By John McFarland

On December 15, the Railroad Commission adopted new field rules for a newly designated field, the Carthage (Haynesville Shale) Field, in East Texas. It also consolidated several previously designated fields in East Texas that produce from the Haynesville and Bossier formations into this single RRC-designated field. These rules will govern the development of the Haynesville and Bossier formations in Harrison, Nacogdoches, Panola, Rusk and Shelby Counties in East Texas. These new rules are important to landowners principally because they will give operators a basis to form pooled units of up to 640 acres or more for development of the field.

A little backrgound is in order: Large portions of the land in East Texas within the Haynesville and Bossier play were previously drilled to develop the shallower Travis Peak and Cotton Valley formations. The field rules originally adopted for the Cotton Valley fields provided that only one well could be drilled for each 640 acres of land. Over time, the field rules were amended to allow operators to drill wells in the Cotton Valley with a density of as little as 40 acres per well. Operators initially formed pooled units of up to 704 acres, a size allowed by most lease standard pooling clauses. Cotton Valley wells drilled on these pooled units are still producing, thus keeping in force the leases included in the pooled units. Generally, the pooled unit designations filed by operators for the Cotton Valley wells pooled all depths under the units, including the Haynesville and Bossier formations, which lie immediately below the Cotton Valley formation. Companies now desire to develop the deeper Haynesville and Bossier formations under these Cotton Valley units.

Field rules are special rules adopted by the Railroad Commission governing the spacing of wells in a designated field. Once special field rules are adopted for a field, they govern how wells must be spaced in that field and how much acreage an operator must have to drill a well in the field. Special field rules are adopted in response to an application made by an operator of wells in the field. The operator presents evidence to hearings examiners at the RRC as to the characteristics of the formation and how much area will be drained by a well in that field, and the operator proposes rules to be adopted by the RRC. The hearing examiners review the evidence and may or may not adopt the rules requested by the applicant. The hearing examiners make a recommendation to the three RRC commissioners, and the commissioners may either adopt the recommendations of the examiners or make changes in those recommendations.

Devon Energy Production Co., LP made application to the RRC for new field rules for development of the Haynesville and Bossier formations in East Texas, and it requested that several fields previously designated by the RRC be consolidated into a single “field” for purposes of the new rules. The new rules proposed by Devon would govern wells completed in the Haynesville and Bossier formations in Harrison, Nacogdoches, Panola, Rusk and Shelby Counties. In effect, Devon proposed that the Haynesville and Bossier formations be treated as a single formation for RRC regulatory purposes. Devon identified the Haynesville-Bossier formation as the formation found at depths between 9,568 feet and 11,089 feet in the Devon-Hull Unit A Lease, Well No. 102 (API No. 42-365-36749), in Panola County. This interval is more than 1,500 feet in thickness.

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