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The Texas Supreme Court has reconsidered its decision not to hear two appeals involving retained acreage clauses: XOG Operating, LLC v. Chesapeake Exploration Limited Partnership, No. 15-0935, and Endeavor Energy Resources, L.P. v. Discovery Operating, Inc., No. 16-0155. The Court initially refused to consider the cases, after ordering briefs on the merits in both, but on September 1 the Court reversed itself. It reinstated XOG’s petition for review in XOG v. Chesapeake, and it granted the petition for review and set Endeavor v. Discovery for oral argument on January 9, 2018.TexasBarToday_TopTen_Badge_Small

In XOG v. Chesapeake, the retained acreage clause is included not in an oil and gas lease, but in an assignment of lease from XOG. The assignment provided that, once the continuous development period in the assignment expires:

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Landowners in Texas challenged the right of pipelines to condemn easements for intrastate lines in Texas in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, decided in 2011. The Texas Supreme Court held that a pipeline seeking to exercise the power of eminent domain must prove that the pipeline will be put to a “public use.” The case caused a stir among pipeline companies and their counsel, and resulted in new regulations at the Texas Railroad Commission, which approves intrastate pipeline projects, and efforts to bolster pipeline eminent domain authority by legislation.

A group of landowners has now filed suit challenging the Federal Energy Regulatory Commission’s grant of eminent domain authority for interstate pipeline projects. In Bold Alliance et al. v. FERC et al., No. 1:17-cv-01822 (Bold Alliance v. FERC), in the U.S. District Court for the District of Columbia, the plaintiffs allege that FERC does not require pipeline companies to demonstrate that their projects serve a “public use.”   The plaintiffs seek to enjoin FERC from issuing certificates of need to Mountain Valley Pipeline for its proposed 301-mile 42-inch gas line in West Virginia and Virginia,  and to Atlantic Coast Pipeline for its 564-mile 42-inch line in West Virginia, Virginia and North Carolina.

After all of the concern created by the Texas Supreme Court’s 2011 decision in Denbury, the Court this year finally held that Denbury did in fact have the power to condemn Texas Rice Land Partners’ property. The Court held that “the evidence adduced by Denbury Green on remand established as a matter of law that there was a reasonable probability that, at some point after construction, the Green Line would serve the public by transporting CO2 for one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier.” This is not a high hurdle to overcome. It will be interesting to see what test the DC Court applies to determine whether the projects there challenged will serve a public use.

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From OilPrice.com:

Last year, the value of U.S. energy exports to Mexico was US$20.2 billion, while the value of U.S. energy imports from Mexico was only US$8.7 billion, according to the EIA.

On the other hand, Mexico’s oil and gas output is 40 percent off its peak levels, an S&P Global Platts report showed last week. Mexico’s crude oil output of 2 million bpd in June was far below the 2004 peak of 3.4 million bpd, while dry natural gas production is 3.2 Bcf/d this year, compared to a 2010 peak of 5.1 Bcf/d. Mexico, therefore, relies heavily on U.S. pipeline gas and LNG imports.

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Last May, the San Antonio Court of Appeals issued an opinion in Texas Outfitters Limited v. Nicholson, No. 04-16-00392-CV, addressing the duty of holders of the mineral executive right to its non-executive mineral owner – a case now pending on application for writ of error in the Texas Supreme Court. It is the first significant appellate opinion on the duty of the executive since the Supreme Court’s decision in Lesley v. Veterans Land  Board on the same topic. The case tells the remarkable story of a landowner’s failure to carry out its duty of “utmost fair dealing” in exercising – or in this case failing to exercise – its executive right.

The executive right is the power to lease minerals for oil and gas exploration and development. It is one of the sticks in the bundle of rights that make up the mineral estate. The executive right can be conveyed or reserved separately from the other rights of the mineral owner – the right to bonus, delay rental and royalty. When the right to lease the mineral estate is owned by a different party than the owner of the mineral estate, conflicts can arise between the two on whether, when and on what terms the executive should exercise its right. Courts have struggled to define what duty the executive holds to the non-executive mineral owner.

The two previous cases from the Texas Supreme Court, In re Bass, 113 S.W.3d 735 (Tex. 2003) and Lesley v. Texas Veterans Land Board, 352 S.W.3d 479 (Tex. 2011), sent mixed signals on the scope of the executive-rights holder’s duty. In Bass, the court held that the holder of the executive right had no duty to enter into an oil and gas lease, but only to exercise utmost fair dealing if it elected to lease. In Lesley, the court backed off its previous holding, deciding that the holder of the executive right could breach its duty by failing to lease – or in Lesley’s, case, imposing restrictive covenants on the land that made it impossible to lease.

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With the drop in oil prices has come a wave of litigation over underpayment of royalties. Multiple suits have been filed against Repsol (formerly Talisman) over its royalty payments in the Eagle Ford. Multiple suits against Devon for royalty underpayment have been consolidated into a multi-district docket in San Antonio. A federal court in Fort Worth has certified a class action against Devon for underpayment of royalties in the Barnett Shale. Conoco is settling class actions brought in Oklahoma that also cover class members in Texas. These suits allege underpayments of royalty on oil and gas. The San Antonio multi-district suits also allege breach of lease provisions requiring the lessee to protect the lease against drainage from wells on adjacent properties.

These cases present opportunities for plaintiffs’ attorneys to earn large contingency fees. They also point out the problems faced by land and mineral owners in determining whether their lessee is complying with their oil and gas lease. What should landowners do to monitor lease compliance?

There are no easy answers to these questions. Below are some suggestions.

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In a case of first impression, the Texas Supreme Court has held that the same land can be included in two pooled units, and that the lessee must pay royalties on the same well to the royalty owners in both pooled units. Samson Exploration v. T.S. Reed Properties, Inc., 2017 WL 2713047 June 23, 2017).

Samson created two pooled units, the Joyce DuJay No. 1 Gas Unit and the Joyce DuJay A No. 1 Gas Unit. The boundaries of the two units largely overlapped, but the A No. 1 Gas Unit also included a lease from T.S. Reed Properties, not included in the No. 1 Gas Unit. The two units also overlapped as to the designated depths pooled, and one of the wells located on the two units was located on lands included in both units and produced from the overlapping depth. Samson was thus faced with the possibility of paying royalties on production from that well to the royalty owners in both units. It refused to pay royalties to T.S. Reed Properties, contending that the second pooled unit was invalid.

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A recent report by the Environmental Integrity Project and Environment Texas, reviewing results of state records reporting illegal air releases from oil and gas facilities between 2011 through 2016, finds that the Texas Commission on Environmental Quality imposed fines for less than three percent of 24,839 “upset” events, even though more than 500 million pounds of pollutants were released. EIP has also sued the Environmental Protection Administration for EPA’s alleged failure to prevent the TCEQ from issuing air permits that don’t comply with the Clean Air Act. EIP claims the TCEQ issues “unenforceable permits with illegal loopholes that render useless some of the most basic pollution control requirements of federal and state law.”

EIP and TCEQ debated EIP’s report, “Breakdowns in Enforcement,” in an article in the Midland Reporter Telegram.  EIP found that the Midland area had 2,000 upset incidents in the study period, releasing 34 million pounds of pollution, more than the Houston area. EIP’s report recommended that TCEQ should determine whether an upset event was preventable before deciding whether to pursue enforcement actions, and should consider repeat violators in determining enforcement actions. TCEQ agreed with both recommendations.

The three largest violators, according to the report, were Hess, ConocoPhillips, and DCP Midstream. Spokesmen for those companies told the Midland Reporter Telegram that they take pollution concerns seriously and were working to reduce emissions.

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TP-ticketOnce the largest landowner in Texas with 3.5 million acres of land, Texas Pacific Land Trust now owns 888,333 acres of land in West Texas. The Trust is owned by holders of “shares of proprietary interest” traded on the New York Stock Exchange. TPLT’s story is a window into the history of Texas and railroads in the 19th century.

Texas and Pacific Railway was created by federal charter in 1871. Its charter was to build a southern transcontinental railroad between Marshall, Texas and San Diego, California. Railroad companies were given land grants in exchange for building rail line, and the U.S. Congress granted T&P twenty sections of land per mile in California and forty sections per mile through the territory that is now Arizona and New Mexico. The State of Texas (where there were no federal lands) agreed to grant T&P twenty sections per mile for the portion of the line crossing Texas. The panic of 1873 caused financial difficulties, and by 1876 only 444 miles had been built. In 1879, Jay Gould bought the company and began laying track west. Gould merged T&P with Southern Pacific Railway, and by 1881 it had built a total of 972 miles of track, entitling it to 12.4 million acres of land. But because it had not built all of the line within the time required by its charter, T&P was awarded only 5,173,120 acres, later reduced to 4,917,074 acres – 3.5 million of that in Texas.TP-map

In 1888, the T&P went through bankruptcy and receivership, and the bondholders who financed the railroad were awarded the land in Texas that had been granted to T&P. The bondholders created a trust, Texas Pacific Land Trust, to liquidate those lands for the benefit of the bondholders, receiving 3.5 million acres of land. The certificates of trust issued to the bondholders were later listed on the New York Stock Exchange. The mineral estate under the land was spun off into a separate entity and later sold to Texaco, now Chevron. TPLT owns a royalty interest in almost 500,000 acres of its land.

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