Significant cases on oil and gas issues in 2019:
In Texas Outfitters v. Nicholson, the Texas Supreme Court again addressed the duty of the older of executive rights to minerals owned by another.
In Trial v. Dragon, the Supreme Court delved into the arcane theories of the Duhig rule and estoppel by deed.
Happy New Year.
The decade now ending was the decade of the Permian Basin. Its rise in production changed the US to a net oil exporter.
Permian gas production, a byproduct of the search for oil, drove down gas prices and resulted in a frenzied effort to build pipelines to move the gas to the coast.
The Texas Tribune has published an article describing a remarkable settlement in San Antonio Bay Estuarine Waterkeeper and S. Diane Wilson v. Formosa Plastics Corp, a suit claiming environmental damages for Formosa’s plastics pollution discharges into Lavaca Bay. The judge in the US District Court for the Southern District of Texas, Kenneth Hoyt, approved a $50 million settlement – the largest ever for a citizen’s suit against an industrial polluter under the Clean Air Act and Clean Water Act.
Formosa argued that the $121,875 fine imposed by the Texas Commission on Environmental Quality made the suit moot. In an earlier ruling, Judge Hoyt disagreed, calling the company a “serial offender” and saying that “the TCEQ’s findings and assessment merely shows the difficulty or inability of the TCEQ to bring Formosa into compliance with its permit restrictions.” I cited this case in an earlier post about the inadequacy of Texas agencies’ enforcement of environmental laws and the complexities of administrative enforcement actions.
Diane Wilson, a retired shrimper and environmental activist, was represented by Texas Rio Grande Legal Aid and others. Congratulations to Ms. Wilson.
Two recent court of appeals cases address the enforceability of liquidated damages clauses: TEC Olmos, LLC v. ConocoPhillips Company, and Fairfield Industries v. EP Energy E&P Company. The Texas Supreme Court requested the parties in TEC Olmos to file briefs on the merits but recently denied review. In EP Energy, the court denied EP’s petition for review, but EP has filed a forceful motion for rehearing and the court has requested a response. In the meantime, the case has been stayed because of EP Energy’s bankruptcy.
A liquidated damages clause is a provision in a contract specifying a dollar amount (“liquidated damages”) to be paid by a party if the party breaches the contract. Such clauses are common in all types of contracts, particularly in the oil and gas industry. If a contractor promises to complete construction of a building by an agreed date and fails to do so, the contract may provide for a payment of an agreed amount for each day completion is delayed. If a party promises to drill a well in a lease or farmout agreement, the parties may agree that, if the well is not drilled, the defaulting party will pay an agreed amount as damages. If a lessee promises to keep a ranch gate closed, the parties may agree on a liquidated damages amount for each time the lessee leaves the gate open.
Texas courts have imposed judicial restraints on the enforceability of liquidated damages clauses. In 2014, the Texas Supreme Court summarized these restraints in FPL Energy v. TXU Portfolio Management Co.: Continue reading →
Last March the El Paso Court of Appeals decided Cimarex Energy v. Anadarko Petroleum, No. 08-16-00353-CV. The facts are these:
Cimarex leased a 1/6th interest in 440 acres in Ward County. Anadarko leased the remaining 5/6ths. Cimarex asked Anadarko to let Cimarex participate in wells on the leases under a joint operating agreement, but Anadarko refused. Anadarko drilled two wells, carrying Cimarex as a non-consenting co-tenant. Cimarex sued for an accounting. The parties settled, Anadarko agreeing to an accounting and to pay Cimarex its share of net profits from the wells. Cimarex paid its royalty owner for its share of production “according to the terms of its lease, dating back to the date of first production.”
But at the end of the primary term of the Cimarex lease – December 21, 2014 – Anadarko stopped paying Cimarex, claiming its lease had expired. Anadarko took a new lease from Cimarex’s lessor. Cimarex sued Anadarko for breach of the settlement agreement. The trial court held that Cimarex’s lease had expired and dismissed its suit. On appeal, the Court of Appeals affirmed. Cimarex has now filed a petition for review in the Supreme Court.
In 2017 I wrote about consent-to-assign provisions in oil and gas leases, and I commented on a case decided by the Tyler Court of Appeals that year addressing such provisions, Carrizo Oil & Gas v. Barrow-Shaver Resources, 2017 WL 412892. In December last year, the Texas Supreme Court wrote on that case, No. 17-0332, Barrow-Shaver Resources v. Carrizo Oil & Gas. The court split 5 to 4. Although the
consent-to-assign provision in the case was in a farmout agreement, it sheds light on how such provisions in oil and gas leases would be treated by the courts.
The facts of the case are these: Carrizo owned an interest in an oil and gas lease covering 22,000 acres in north-central Texas. It entered into a farmout agreement with Barrow-Shaver under which Barrow-Shaver was granted the right to drill wells and earn assignments of the lease, with Carrizo retaining an overriding royalty. The farmout agreement contained the following provision:
The rights provided to [Barrow-Shaver] under this Letter Agreement may not be assigned, subleased or otherwise transferred in whole or in part, without the express written consent of Carrizo.
Last March the San Antonio Court of Appeals handed down its decision in Bell v. Chesapeake Energy, No. 04-18-00129-CV. Chesapeake has asked the Texas Supreme Court to review the case. The facts bear a resemblance to Murphy v. Adams, decided by the Supreme Court last year. Both involve construction of an express offset clause in an oil and gas lease.
A typical express offset clause provides that, if a well is drilled within a certain distance from the lease boundary, the lessee must either drill an offset well or pay compensatory royalty based on the production from the adjacent well. The lessor is not required to show that the adjacent well is actually draining the leased premises. In Murphy v. Adams, the issue was what constitutes an “offset well.” The Supreme Court held (in a 5 to 4 decision) that, in the context of horizontal drilling in the Eagle Ford formation, any well drilled on the leased premises, regardless of its location, may satisfy the lessee’s obligation to drill an offset well.
In Bell v. Chesapeake, the issue is what amount of compensatory royalty Chesapeake must pay. The wells drilled on tracts adjacent to Chesapeake’s leases were not drilled parallel to the lease line, but a portion of the adjacent wells’ horizontal wellbore was within the minimum distance from the lease line to trigger the offset-well obligation. The lessors contend that Chesapeake must pay compensatory royalty based on 100% of the production from the adjacent well. Chesapeake argues that it should have to pay compensatory royalty only on the portion of the adjacent well’s production coming from perforations or “take points” that are within the minimum distance from the lease line specified in the lease.
In a short opinion, the Supreme Court of North Dakota decided a case brought by Newfield Exploration against the North Dakota Board of University and School Lands to determine how royalties on gas should be calculated under the State’s leases to Newfield. The case illustrates how post-production costs can sometimes be hidden in “percentage-of-proceeds” or “POP” contracts for the sale of gas. Newfield Exploration Company v. State of North Dakota, No. 2019088, 2019 WL 3024639, decided 7/11/2019.
Newfield sold its gas to Oneok. The opinion describes this contract as follows:
Title to the gas passes to Oneok when it receives the gas from Newfield, but payment to Newfield is delayed until after Oneok processes the gas into a marketable form and sells the marketable gas. The price Oneok pays to Newfield for the gas is calculated based on 70-80% of the amount received by Oneok when Oneok sells the marketable gas. The 20-30% reduction of the price for which the marketable gas is sold accounts for Oneok’s cost to process the gas into a marketable form and profit.
The lease royalty clauses provided:
Lessee agrees to pay lessor the royalty on any gas, produced and marketed, based on gross production or the market value thereof, at the option of the lessor, such value to be based on gross proceeds of sale where such sale constitutes and arm’s length transaction.
All royalties on … gas … shall be payable on an amount equal to the full value of all consideration for such products in whatever form or forms, which directly or indirectly compensates, credits, or benefits lessee. Continue reading →
ConocoPhillips always seems to be getting into interesting scrapes.
In 1995, ConocoPhillips bought oil and gas leases from EOG covering 1,058 acres, the Las Piedras Ranch, in Zapata County. At the time there was one producing well on the leases. The minerals belonged to the Ramirez family. One member of that family was Leonor, who died in 1990, owning a 1/4 mineral interest in the Ranch. Her will devised to her son Leon Oscar Sr. “all of my right, title and interest in and to Ranch Las Piedras … during term of his natural life,” and on his death “to his children then living in equal shares.” Leon Oscar Sr. signed an oil and gas lease on the Ranch, which was acquired by ConocoPhillips.
Leon Oscar Sr. died in 2006, survived by three children – Leon, Jr., Minerva and Rosalinda. In 2010 they sued ConocoPhillips and EOG for an accounting and to establish their title to 1/4 mineral interest in the Ranch. They alleged that the oil and gas lease signed by Leon Oscar Sr. was not binding on them as remaindermen following Leon Oscar’s life estate, and that EOG and ConocoPhillips owed them an accounting and payment for 1/4 of the net profits from oil and gas production from the Ranch, from the date of first production. They also sued for prejudgment interest and attorneys’ fees. The plaintiffs settled with EOG, and in 2015 the trial court signed a final judgment against ConocoPhillips awarding plaintiffs title to the minerals and $11.1 million for their share of net profits on production from the Ranch, plus $950,000 in prejudgment interest and $1,125,000 in attorneys’ fees. In 2017, the San Antonio Court of Appeals affirmed. 534 S.W.3d 490. In June of this year the Texas Supreme Court granted ConocoPhillips’ appeal. Oral argument is set for September 17. ConocoPhillips Company, et al. v. Ramirez, No. 17,0822
Three recent cases illustrate a little known aspect of Texas law – administrative law and how it works, and doesn’t work. Although the cases don’t directly affect mineral owners, they show how different the Texas Railroad Commission’s administrative process is from other agencies’.
Many disputes in Texas are resolved not in trial courts but by administrative hearings. In many cases, the law that governs those hearings is the Administrative Procedure Act, found at Chapter 2001 of Texas’ Government Code. The hearings are held before an administrative law judge (ALJ) who works for the State Office of Administrative Hearings (SOAH). If two parties get into a dispute in which the law requires adjudication by an administrative hearing, an evidentiary hearing is held before an ALJ who hears testimony, takes evidence, and prepares a Proposal for Decision (PFD). The PFD then goes before the board of the responsible agency, which either adopts the PFD or makes changes, and issues a final order. That order can then be appealed to a state district court in Travis County. The district court acts as an appellate body, and must uphold the decision if it is supported by “substantial evidence” in the record from the administrative hearing and otherwise complies with the governing law.
The APA limits the grounds on which an agency can change a PFD and requires the agency to explain its reasons for doing so. APA section 2001.058(e) provides:
A state agency may change a finding of fact or conclusion of law made by the administrative law judge, or may vacate or modify an order issued by the administrative judge, only if the agency determines:
(1) that the administrative law judge did not properly apply or interpret applicable law, agency rules, written policies provided under Subsection (c), or prior administrative decisions;
(2) that a prior administrative decision on which the administrative law judge relied is incorrect or should be changed; or
(3) that a technical error in a finding of fact should be changed.
The agency shall state in writing the specific reason and legal basis for a change made under this subsection.
Two cases, both from the Austin Court of Appeals, are appeals of orders by administrative agencies. Hyundai Motor America v. New World Car Imports San Antonio, Inc., No. 03-17-00761-CV, is an appeal of a decision by the Board of the Texas Department of Motor Vehicles. The case involves the obscure laws that govern the relationships between car manufacturers and their dealers. Continue reading →
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