Oil and Gas Lawyer Blog

Published on: April 11, 2016

Friends of Lydia Ann Channel v. Corps of Engineers

I have generally tried to avoid using this platform to promote or brag on my law firm. But every rule should have its exceptions, and I want to brag about Graves Dougherty’s representation of the Friends of Lydia Ann Channel. Lydia Ann Channel is a feature on the Texas Gulf Coast near Port Aransas, a fishing and recreation community dear to many Texans’ hearts. Below is a shot from Google Earth showing the channel. (click to enlarge)

The Friends of Lydia Ann Channel are a group of environmentally conscious citizens who are seeking to cancel a permit granted by the Corps of Engineers for installation of a facility allowing barges to be moored in the channel. With our firm as counsel, the Friends sued to require the Corps to revoke the permit, remove the barge moorings and restore the affected habitat along the channel. The facility is essentially a mile and a half parking lot for mooring of up to 200 barges that carry oil, chemicals and hazardous cargo.

The Friends allege that the permit was granted without the necessary environmental reviews, and that the facility risks harm to the environmental, recreational, historical and archeological environment of the channel. The area is home to eight federally listed threatened or endangered species, including the whooping crane and sea turtles.

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Published on: April 6, 2016

Marsden v. Titan – A Case to Watch

By John McFarland

Marsden v. Titan Operating, decided by the Fort Worth Court of Appeals in August 2015, is another case in which a landowner sought nuisance damages from the drilling of wells close to their home. After a jury trial, the trial court awarded damages of $36,000 to the Marsdens. The court of appeals reversed. The Marsdens have asked the Texas Supreme Court to hear the case.

The facts are these. The Marsdens bought 6 acres in Parker County in 1997, near Aledo, where they made their home with their two daughters. They signed an oil and gas lease covering the property in 2004. It was on the company’s printed form, but the Marsdens negotiated provisions they added by an addendum to the lease. The printed form provided that no well could be drilled nearer than 200 feet to any house on their property. But the addendum provided that no drilling operations could be conducted on the surface of their property – a “no-surface-use” lease.

In 2011, Titan, who acquired the Marsden lease and leases on adjacent properties, constructed a pad site immediately adjacent to the Marsdens’ property and within about 200 feet of their home. The rig for the initial well on the pad site was just over 300 feet from the house. The well was completed on a pooled unit in which the Marsdens’ property was included, and the Marsdens signed division orders and receive royalties from the unit. Titan subsequently drilled five more wells on the pad.

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Published on: April 4, 2016

$4.2 MM Verdict Against Cabot in Dimock, PA

By John McFarland

The township of Dimock, Pennsylvania has been the focus of controversy over the environmental impact of hydraulic fracturing. Residents of Dimock rely on groundwater, and in 2009 they were forced to obtain alternate sources because of contamination of their groundwater that they blamed on wells drilled by Cabot. Cabot had drilled and fracked 62 wells in an nine-square-mile area around Dimock. Cabot denied, and has continued to deny, that its wells were responsible for the contamination. Dimock featured prominently in the anti-fracking “documentary” Gasland.

Last month, a case filed by Dimock residents against Cabot, Ely v. Cabot Oil & Gas Corporation, filed in 2009, finally went to trial. A large number of residents originally joined the suit, but most settled with Dimock in 2012. Cabot, represented by Norton Fulbright, vigorously fought the case with pretrial motions. The plaintiffs originally had claims for negligence, gross negligence, private nuisance, strict liability, breach of contract, fraudulent misrepresentation, and claims under the Pennsylvania Hazardous Sites Cleanup Act. By the time of trial, Cabot had convinced the judge to dismiss all of plaintiffs’ claims except negligence and private nuisance. Two families remained as plaintiffs, the Elys and the Huberts. They still live in Dimock and still truck their drinking water to their homes. The Elys and Huberts, represented by two local attorneys, Leslie Lewis and Elisabeth Radow. Their case was financed by crowd-funding and the Energy Justice Network.

During trial, the judge dismissed the plaintiffs’ negligence claim and held that potential damages in the sole remaining claim for private nuisance should be limited to “inconvenience and discomfort” cause by the nuisance, excluding any claim for mental and emotional discomfort or the cost of replacing the water. The judge also ruled that plaintiffs could not discuss before the jury consent decrees between Cabot and the Pennsylvania Department of Environmental Protection relating to the Dimock groundwater contamination.

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Published on: April 1, 2016

NASA Photos of Cotulla

By John McFarland

NASA has published before-and-after photos of the area around Cotulla, Texas, in the heart of the Eagle Ford, showing the impact of oil and gas development in the region. Photos are below. Full report can be viewed here.

The area in 2009:

The area today:

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Published on: March 29, 2016

An Excellent Article in Scientific American on Earthquakes and Injection Wells

By John McFarland

Anna Kuchment does an excellent job of summarizing the different regulatory reactions to increased earthquake activity across the country triggered by huge increases in wastewater injection, in “Drilling for Earthquakes.”

Published on: March 28, 2016

Abbott Names Members of Seismic Advisory Panel

By John McFarland

Last year the Texas legislature passed House Bill 2, including a supplemental appropriation of $4.5 million to fund a study of the causes of earthquakes in the Dallas-Fort Worth area. The funds are being used to purchase and run seismic monitoring equipment and analysis of data to test the connection between oil and gas activity in the area and recent seismic activity. The legislation also required the governor to name a technical advisory committee to advise on the project, which is led by the University of Texas Bureau of Economic Geology. Yesterday, the governor named the members of the advisory committee:

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Published on: March 21, 2016

Ruling on Remand in Hooks v. Samson

By John McFarland

In January of last year the Texas Supreme Court decided Hooks v. Samson, a suit by royalty owners against Samson Lone Star Limited Partnership. I wrote a post on the Supreme Court’s decision, found here. The Hooks obtained a $21 million fraud judgment against Samson, but the First District Court of Appeals reversed and rendered judgment that the Hooks should take nothing. The Hooks appealed to the Texas Supreme Court. The focus of the Supreme Court’s opinion was whether the Hooks’ claim was barred by limitations — whether the Hooks should have discovered Samson’s conduct more than four years before it sued Samson. The court of appeals had held that, under prior Supreme Court cases, it was bound to rule that the Hooks’ case was barred by limitations and should be dismissed. But the Supreme Court distinguished its prior opinions and held that, when the fraudulent documents Samson gave to Hooks were filed by Samson in the Railroad Commission, the Hooks could rely on them, even if the documents are contradicted by other public records.

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Published on: March 8, 2016

The Passing of Aubrey McClendon

By John McFarland

Aubrey McClendon, the founder of Chesapeake Energy, died in a car crash last Wednesday, a day after he was indicted on federal charges of conspiring to rig the price of oil and gas leases. Numerous articles have reviewed his life and legacy. Russell Gold, senior energy writer for the Wall Street Journal and an energy journalism fellow at UT Austin, wrote in the Wall Street Journal that “Aubrey McClendon will be remembered … for helping to usher in an era of abundant natural gas, a weakened OPEC and a grievously wounded American coal industry. We are all living in the energy world that he envisioned a decade ago. ” McClendon was 56 years old.

In some respects, McClendon follows the tradition of wildcatters like Roy Cullen, H.L. Hunt, and Clint Murchison – taking big risks, re-inventing the industry. In other respects, he was the 21st century energy entrepreneur. He was single-handedly responsible for reviving the natural gas industry in the U.S. and, as reported by Gold, “grievously wounding” the U.S. coal industry. He did not invent hydraulic fracturing, but he used it to reinvigorate the oil and gas industry in the U.S.

McClendon was forced out of Chesapeake in 2012, after growing the company into the second largest natural gas producer in the U.S. He started his new company, American Energy Partners, and was recently working on a deal to exploit a shale play in Argentina.

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Published on: March 7, 2016

Oil Prices, Rig Count and Production Rates

By John McFarland

Here’s a great interactive graphic from Bloomberg, “Watch Five Years of Oil Drilling Collapse in Seconds,” that illustrates the relationship between oil price, rig count and U.S. oil production. The U.S. rig count has dropped from a high of 1930 in late 2014 to 502 last month. U.S. crude production continued to climb until mid-2015. Since then, it has dropped from 9.6 mmb/day to 9.2 mmb/day.

RigData provides another way to look at the market, in Texas (click to enlarge):

It may come as a surprise to some that the average daily oil production per well in Texas is only 16 barrels. There are a lot of wells in Texas that produce a barrel a day or less. The change in average daily oil production per well is a way to gauge the health of the industry. In Mary 2015, Texas average production per well reached a height of 19.6 bbl/day. Between October 2014 and October 2015, Texas oil production declined by 343,00 bbl/day, from 3.3 million to 2.9 million – a decline of 2.2 bbl/day/well.

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Published on: February 29, 2016

Division Orders- How Do I Know My Decimal Interest is Right?

By John McFarland

So you have received a division order, and it says that ABC Oil Company will pay you for a .015625 royalty interest in the Barn Burner Unit #1 Well. How do you know whether the .015625 interest is correct?

I’ve written previously about the purpose and legal effect of division orders, and you can read that post here. The purpose of a division order is to protect the company paying the royalty (“payor”) from double liability. If you sign a division order and it turns out that you should have been paid a larger interest than shown on the division order, the company is protected as long as it paid according to the division order. If you sign a division order and it turns out that your interest is less than the interest shown on the division order, you are legally obligated to pay back the money that you weren’t entitled to. A payor is legally entitled to require that you sign a division order correctly setting forth your interest as a condition to payment.

To understand division orders, it is helpful to understand how exploration companies handle royalty payments. When a company decides it wants to drill a well in a particular area, it first hires landmen who investigate the mineral title to the tracts in the area where the well will be drilled and identify the mineral owners of those tracts. The company or its landmen then contact those mineral owners and negotiate oil and gas leases covering their interests. Depending on the complexity of the mineral title, there may be dozens or even hundreds of mineral owners from whom oil and gas leases must be obtained. The company may want to acquire leases in a large area around its proposed drillsite, in order to lock up the minerals in that general area so that additional wells can be drilled if the exploratory well is successful. Continue reading →