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Trail Enterprises’ efforts to collect an inverse condemnation judgment against the City of Houston have finally come to an end. The US Supreme Court has refused to hear its case. Trail Enterprises’ story is instructive to parties who may be thinking of challenging cities’ decisions to ban drilling within their boundaries.

The dispute has a long history.  Lake Houston is a major source of drinking water for the City of Houston. In 1967, the City passed an ordinance restricting the drilling of new oil and gas wells in a “control area” around the lake. That restriction has remained in place except for an eleven-month gap in 1996-97, when the lake was annexed into the City and the City passed a new ordinance protecting the lake. 

In 1995, Trail Enterprises, an owner of mineral interests in the restricted area around the lake, sued the City, claiming that the 1967 ordinance restriction amounted to a “taking” of the mineral interests in violation of the US Constitution. The trial court dismissed that suit, and the Houston Court of appeals affirmed. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625 (Tex.App.-Houston [14th Dist.] 1997, writ denied). In 1999, Trail sued again, this time arguing that the City’s 1997 ordinance resulted in a taking of its property. The trial court held that the ordinance did not constitute a taking. This time the Houston Court of Appeals reversed and remanded the case for a trial. Trail Enters., Inc. v. City of Houston, 2002 WL 389448 (Tex.App.-Houston [14th Dist.] Mar. 14, 2002, no pet.). But the parties decided to dismiss that case.

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A new study published by The University of Texas’ Bureau of Economic Geology compares the amount of water used in producing oil from shale plays to the water used in producing oil from conventional reservoirs. The study concludes that water use for conventional and unconventional oil production is about the same. “Comparison of Water Use for Hydraulic Fracturing for Shale Oil and Gas Production versus Conventional Oil.“

The study looked at water use in the Bakken and Eagle Ford plays. The ratio of water used to oil produced ranged from 0.2 to 0.4 gallons of water for each gallon of oil produced over the lifetime of a well in both plays – or 0.03 to 0.06 gallons of water per million British thermal units of energy from the oil produced. In comparison, U.S. conventional production uses from 0.1 to 5 gallons of water for each gallon of oil produced.

The study’s conclusion: “the U.S. is using more water because HF [hydraulic fracturing] has expanded oil production, not because HF is using more water per unit of oil production.”

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Michael Brick has written an excellent article in the Houston Chronicle about the Texas Railroad Commission’s new seismologist, David Craig Pearson. The article, “Vexed by Earthquakes, Texas Calls In a Scientist,” relates the events leading up to his hiring, his background, and the RRC’s initial foray into addressing the issue by proposing new rules on injection well operators.

Dr. Pearson grew up in McCamey, worked in the oil fields, studied at SMU, and worked at Los Alamos National Laboratory in New Mexico for 13 years. He left in 2006, returning to West Texas and ranching. He inherited some mineral rights in Upton County. When the RRC advertised for a seismologist, he applied and was hired.

So far, Dr. Pearson has published no conclusions, but the RRC has been praised for its new proposed rules. Pearson testified in August before the House Energy Resources Subcommittee on Seismic Activity that he wants to wait for reports from SMU’s study of seismic and injection activity around the town of Azle, in the Barnett Shale, before drawing any conclusions. 

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In a letter to the Texas Railroad Commission commenting on the RRC’s proposed rules on curbing earthquakes caused by high-pressure injection of waste fluids, the Environmental Protection Agency “applauded the RRC’s efforts to ensure it has sufficient regulatory authority to respond to any event of the type where concerns may arise.” Maybe the agencies will kiss and make up? Not likely. But the EPA agrees with proposed rules published by the RRC that would require applicants for disposal well permits to submit information about the area’s risk for earthquakes as part of their application. The rules also strengthen the RRC’s authority to limit or halt injection from existing wells where earthquake events occur.

Initially the RRC was slow to respond to complaints about earthquakes. At one point, citizens from the town of Azle, particularly affected by earthquakes, staged a protest before the RRC at which Azle citizens serenaded the commission with their own composition based on Elvis Presley’s All Shook Up.  The RRC has now hired its own seismologist, and although Commissioners are cautious about connecting earthquakes to oil and gas activity, the proposed rules are a step in the right direction.

Texas now has more than 3,600 active commercial injection wells; it granted 668 permits last year alone. Earthquakes strong enough to damage homes have occurred in the Barnett Shale region. Similar problems have occurred in Oklahoma and other regions. 

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A study published in the Proceedings of the National Academy of Sciences, examining eight clusters of contaminated water wells in Pennsylvania and Texas, found that the wells’ contamination was either from naturally occurring gas deposits — i.e., the gas is naturally occurring within the aquifer — or from poor casing and cementing of nearby gas wells. The study concluded that the hydraulic fracturing of the wells was not a cause of groundwater contamination. The study was led by a researcher at The Ohio State University and included researchers at Duke, Harvard, Dartmouth and the University of Rochester. The researchers were able to “fingerprint” the gas by measuring the amount of “noble” gases such as helium included with the natural gas. The researchers were able to distinguish between the fingerprints of naturally occurring methane in the aquifers and gas from the Barnett and Marcellus Shale formations. Ohio State’s press release about the study can be viewed here.

I have written previously about the ongoing battle between Range Resources and the Lipskys over the Lipskys’ claims that Range’s wells contaminated their groundwater. A facet of that battle is pending in the Texas Supreme Court. This new study will add fire to the debate.

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There are always nay-sayers who predict that the current boom, whatever it may be, will soon be a bust. Recently, however, some pretty prominent voices have cautioned that all of the rosy predictions about the future of the shale boom, US energy independence, and the continued growth of US oil and gas production are false – a bubble soon to burst.

One of those is J. David Hughes, a geoscientist with the Post-Carbon Institute. He spent 32 years with the Geological Survey of Canada, and coordinated an assessment of Canada’s unconventional natural gas potential. He has authored “Drill, Baby, Drill,” published last year by the Post Carbon Institute and the Energy Policy Forum. It is a pretty comprehensive review of the long-term viability of the shale plays. Some excerpts:

  • “World energy consumption has more than doubled since the energy crises of the 1970s, and more than 80 percent of this is provided by fossil fuels. In the next 24 years world consumption is forecast to grow by a further 44 percent–and U.S. consumption a further seven percent–with fossil fuels continuing to provide around 80 percent of total demand.”
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Last month I wrote about two cases recently decided by the U.S. Court of Appeals for the 5th Circuit in which Chesapeake defeated royalty owners’ efforts to prevent it from reducing their royalties by deducting post-production costs. One of those cases is Potts v. Chesapeake. The plaintiffs in that case have asked the Court of Appeals to reconsider its appeal “en banc,” meaning that it has asked the other judges on the court to grant its petition for rehearing and reconsider the decision of the three-judge panel who decided the case. Plaintiffs’ Petition for Rehearing may be viewed here:  Potts Petition for Rehearing En Banc.pdf

Yesterday, our firm filed a friend-of-the-court brief in the Potts case, on behalf of the Texas Land and Mineral Owners Association and the National Association of Royalty Owners – Texas, asking the Court to grant the plaintiff’s motion for rehearing and either consider the case en banc or refer the question to the Texas Supreme Court for its consideration. A copy of our brief may be viewed here:  Potts v. CHK Amicus Brief.pdf

Meanwhile, in Pennsylvania, suit has been filed against Chesapeake claiming that its conduct in selling gas to its affiliate company at prices well below market, and then selling its affiliate company for a substantial profit, constituted fraud on its royalty owners in violation of the Racketeer Influenced and Corrupt Organizations Act, known as RICO.  That petition can be viewed here:  Suessenbach v. Chesapeake.pdf

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With increasing frequency, my landowner clients have complained about gas flaring, especially in the Eagle Ford Shale.  Landowners are beginning to insist that their leases require royalty payments on flared gas. Landowners also complain of the odors and noise from gas flares.

The San Antonio Express News has recently published a four-part series, Up in Flames,  on flaring in the Eagle Ford, after a year-long investigation. Among its findings:

  • Since 2009, flaring and venting of natural gas in Texas has surged by 400 percent to 33 billion cubic feet in 2012. Nearly 2/3 of the gas flared in 2012 came from the Eagle Ford.
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I ran across an article in the New York Times about a new publication, “The Boom,” becoming popular with oil field workers in the Eagle Ford. It’s a good read. And it’s free online. Check out the article in the August publication, “Eagle Ford Shale Takeaways.” It’s a reprint of an article from Drillinginfo, based on Drillinginfo’s analysis of several thousand wells in the Eagle Ford play. One conclusion from that article:

The very best Eagle Ford Shale operators produce 30% to 40% better than the median FOR THE SAME QUALITY OF ROCK, and they produce three times as much as operators at the low end. … The implications for mineral owners in this scenario are obvious. Massive gaps in production naturally lead to large gaps in royalty payments. A 25% royalty lease with an average operator is equivalent to an 18% royalty lease with the best operators.  That same lease with the worst operators is the same as an 8% lease with the best.

 Also check out Texas Eagle Ford Shale Magazine, another digital publication catering to the Eagle Ford play.

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The 520,000-acre Waggoner Ranch is for sale for $725 million — about $1,400/acre. It is said to be the largest contiguous ranch in the U.S., and has been owned by the Waggoner family for more than 100 years.

Ownership of the Waggoner Ranch has been in litigation for more than 20 years. The suit was originally filed in 1991 by Electra Waggoner Biggs, one of the heirs, who died in 2001. Electra was a sculptor; her sculpture of Will Rogers on his horse Soap Suds is on the Texas Tech University campus. 

The colorful history of the Waggoner family was documented in an article by Gary Cartwright in Texas Monthly in 2004. It’s a great read.

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Contact Information
John McFarland
 Graves, Dougherty, Hearon & Moody, P.C.
401 Congress Avenue, Suite 2700
Austin, Texas 78701
Phone: 512-480-5618
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