Ian Urbina, the New York Times reporter who has written several articles recently about oil and gas exploration and the perils of hydraulic fracturing, recently wrote an article, “Learning Too Late of Perils in Gas Well Leases,” that appeared on the front page of the Times on December 2. In research for the article the Times obtained and reviewed more than 111,000 oil and gas leases covering lands in Texas, Maryland, New York, Ohio, Pennsylvania and West Virginia – a remarkable effort. Urbina’s article points out several ways in which the leases fail to protect the interests of landowners:
— They do not require companies to compensate landowners for water contamination.
— They do not address well locations, destruction of trees, or other surface use issues.
— They do not disclose environmental risks and liabilities.
— They allow extensions of the primary term without landowner approval.
— They don’t contain Pugh clauses requiring release of lands not included in units.
— They don’t require the operator to test the quality of nearby water wells before commencing operations.
Urbina also discusses the pressure tactics employed by some landmen to convince owners to sign leases.
As a lawyer representing landowners in lease negotiations, I consider Urbina’s article a good advertisement for why owners should retain attorneys to help them with their leases. The article also got me to thinking about my experience with landmen and their style and tactics in obtaining oil and gas leases. I thought it might be a good topic for this venue.
My experience with landmen is principally in Texas, where landmen have been practicing for many years. In general my experience has been good; when dealing with me, landmen generally are professional, avoid pressure tactics, are not misleading, and value their reputation for fair dealing and veracity. As with any profession (including attorneys), there are exceptions. I have learned to spot landmen who do not live up to professional standards.
My advice to landowners dealing with landmen:
First: Find out who the landman works for. Exploration companies usually hire groups of independent landmen on a contract basis to research title in an area and acquire leases from mineral owners on behalf of the company. Sometimes the landman will acquire the lease in the name of their landman group rather than in the name of the company for whom they are working. The company may want to keep its presence in the play confidential for as long as possible, to avoid escalation of bonuses. My advice is to insist that the real party in interest be disclosed.
Second: Don’t be afraid to ask questions. Why is the company leasing in this area? What other companies are leasing in the area? How much acreage has the company acquired so far? What other leases does the company have covering adjacent lands, or other undivided interests in the same tract? How did the landman determine the mineral interest I own? What kind of wells are likely to be drilled – oil, gas, horizontal, depth? Are there any recently drilled wells in the area? Particularly if you are not certain about your ownership, this is the opportunity to get good title information about your interest. Get the landman to explain to you how you came to own the interest that he/she wants to lease. Ask for copies of the relevant documents.
Third: Do your homework. Don’t take the landman’s information for granted. If you know other landowners in the area, find out what they know. Find out what wells have been drilled so far in the area and their rates of production. Go on the web and check out the company. If there are any publicly owned lands in the area, find out if they have been leased and what lease terms were negotiated.
Fourth: Understand the lease you have been offered. If you need help, get it. You wouldn’t sell your land without professional help – why should you sign a lease, which might have much more financial value than a sale, without professional assistance?
Fifth: Investigate state and local laws relating to oil and gas exploration and development. Some states have laws requiring the company to compensate the surface owner for uses of and damage to the land. State laws regulate well spacing and pooling. Local ordinances may affect well locations, drilling practices and well production activities.
Sixth: If you feel that the landman with whom you are negotiating is not being helpful or truthful, ask to speak to his boss, or to a company representative. Companies know that landmen are representing them, and the company should be told if a landman they hired is engaging in unhelpful or unethical negotiation tactics.
Seventh: Don’t get in a hurry. Landmen often leave the impression that you may lose the opportunity to lease if you don’t sign up soon. That is seldom the case. To be a good negotiator you must leave the impression that you can take it or leave it, depending on whether you get the terms you want. Don’t make or accept an offer unless and until you are confident that you will be happy with it.
Urbina’s article mentions two websites as helpful to landowners negating leases. One of these, Landman Report Card, is an interesting effort by the Center for Future Civic Media at Massachusetts Institute of Technology, in collaboration with the Oil and Gas Accountability Project. It allows individuals who have had good or bad experiences with a particular landman to post their experiences and grade the landman’s performance – along the same lines as Angie’s List. It appears to be just getting off the ground – there are only a few posts so far, and there are thousands of landmen now working to acquire leases, from Pennsylvania to Ohio to Colorado. The other is PAGasLeases.com, which focuses on leasing in the Pennsylvania Marcellus Shale.
Landmen have resisted efforts at mandatory licensing of the profession, so there is no requirement that they have any particular skills or education. Anyone can call him or herself a “landman” and jump right in. Particularly in new areas such as the Marcellus and now the Utica and Antrim plays in Michigan and Ohio, I suspect that companies have hired people as landmen who have very little experience. The best landmen are members of the American Association of Petroleum Landmen, which has developed ethical standards that all of its members must agree to abide by. AAPL has very good education programs for its members and certifies landmen as having met certain education requirements and professional qualifications. If you have bad experiences with a landman who is an AAPL member, you can report such conduct to the AAPL.
In general, I have found landmen to be an interesting group – independent, gregarious, friendly, and knowledgeable. Just remember that their job is to acquire a lease with the lowest bonus and royalty that they can negotiate for their client, the company. They are not representing your interest. Be courteous, but be smart.