A well operated by Chesapeake Energy Corporation experienced a fiery blowout on Thursday, January 30, 2020. The well, the Daniel H 1 H, is located in Burleson County, Texas near Deanville. The well is in an area where Chesapeake is drilling long lateral well bores to develop Eagle Ford shale deposits. Two of Chesapeake’s subcontractors, C.C. Forbes and Eagle Pressure Control, were operating a service rig to install new hardware on the well at the time of the accident. Unfortunately, three employees of these subcontractors were killed by the fire. News reports indicated that Boots & Coots, a well control company now owned by Halliburton, was hired to get the well under control and put the fire out.
The Texas Supreme Court decided an interesting case last week regarding easements. The case was Copano Energy LLC et al. v. Stanley D. Bujnoch, Life Estate, et al. One of the interesting aspects of this case was the part that emails played in the transaction.
The plaintiffs, who were the landowners, owned land in Lavaca and DeWitt counties. The landowners had previously agreed to a 30 foot wide easement to Copano for a 24 inch oil and gas pipeline. That pipeline was installed. In 2012, Copano asked the landowners for second easement to construct a 24 inch pipeline on the landowners’ property. The landman for Copano and an attorney representing the landowners exchanged a number of emails in the course of negotiating the terms of the proposed easement. In one email, the landman agreed to pay the landowners a specific price and agreed to remedy damage to the landowners’ property caused during the construction of the original pipeline. The attorney replied “In reliance on this representation we accept your offer and will tell our client you are authorized to proceed with the survey on their property.” Later emails from Copano transmitted amendments to the original easement and an amended plat. Some of these later emails offered a lower price per foot for the easement. A still later email from the secretary of the landowners’ attorney transmitted revisions to the original easement agreement pertaining to some, but not all, of the landowners’ property to the landman. A still later email from the landman stated that: “I am fine with these changes”. Finally, the project manager for Copano then sent a “compensation proposal letter” to the landowners’ attorney with completely different compensation terms. There was no written acceptance of these terms.
The second pipeline was never built. The plaintiffs claimed that the series of emails, taken as a whole, created an enforceable written contract that satisfied the Texas Statute of Frauds and sued Copano for breach of contract.
I recently had occasion to review the Texas Supreme Court’s decision on a long-running dispute between BP America and Laddex, Ltd. The case is centered around a disagreement of the terms in a decades old lease and its result has been significant for the energy industry. The case, known as BP America Production Co. v. Laddex, Ltd., began in 2007. British Petroleum America (BP) had been producing out of a single well on property in Roberts County, Texas since 1971, however Laddex believed BP’s lease expired and signed a top lease with the mineral owners. BP believed they still had rights to the land and so Laddex filed suit.
This case reached the Texas Supreme Court after both the initial jury and the Court of Appeals in Amarillo, Texas ruled in favor of Laddex. However, BP argued that the jury’s findings were incorrect as there was not sufficient evidence to support the jury’s verdict. BP also contended that Laddex’s lease is void under the Texas rule against perpetuities. Laddex argued that BP’s well had not been producing “payable quantities of oil” for 15 months and therefore any “prudent operator” would have halted all operations. Thus, according to Laddex, the terms of the BP lease stated that should BP’s production stop, the lease would be terminated and the rights given back to the lessor, allowing Laddex the right to sign a new lease and assume operations on the property.
Recently the Texas Supreme Court decided an interesting case in which it examined whether a will had given a surface estate or a mineral estate to the beneficiaries of the will. In ConocoPhillips et al v. Leon Oscar Ramirez Jr. et al, the testatrix, Leonor Juan, executed a will in 1987 and died the next year. The will devised a life estate in “all of [her] right, title and interest in and to
Ranch ‘Las Piedras’”to her son Leon Oscar Sr. with the remainder to his living children in equal shares and devised the residual of her estate equally to her three children, Leon Oscar Sr.,
Ileana, and Rodolfo. In this case, Leon Oscar Sr.’s children claim that Leonor’s residual estate did not include the mineral interest in Las Piedras Ranch but that it passed to Leon Oscar Sr. as part of his life estate.
Texas has been, unfortunately, home to a number of oil and gas scams over the years. One of the most common is the company who wants to buy your mineral interests and who has you sign a deed before they pay you. Once they have a signed deed in hand, they then decide that your minerals are worth much less than what they originally offered, and they send you a check for a fraction of the purchase price they originally offered.
A more recent scam is the use of “oil and gas royalty leases”. The document the scammers ask you to sign is designed to look like an oil and gas lease and it is actually worded as if it were an oil and gas lease. For example, they often call the purchase price a “bonus”. In fact, the document is a deed for your nonparticipating royalties. Of course, nonparticipating royalty owners cannot sign leases, as a matter of law, but many people do not know this.
I have heard that the scammers in one case admitted that their so-called royalty lease was purposely designed as a lease instead of as a deed because people were afraid to sign deeds but would more readily sign leases.
I negotiate many power line easements on behalf of property owners each year. Generally, the utility company wants to pay for only the easement itself and refuses to acknowledge that the presence of the power line could have an effect on the overall value of the property. In part, that is because there is very little data out there on the effect of power lines on property values.
A recent study in the Journal of Real Estate Research makes some inroads on that lack of data. The study was conducted by David Wyman and Chris Mothorpe of the College of Charleston in Charleston, South Carolina. They used a sample of 5455 vacant lots in Pickens County, South Carolina that were sold between 2000 and 2016 and determined that properties adjacent to high voltage power lines experienced discounts of 44.9% of their value because of the power line. They also determined that there was a discount of 17.9% for vacant properties that were up 1,000 feet away from the power line.
The study used only vacant lots so as to eliminate the effect on value due to varying types of improvements on the land. Professors Mothorpe and Wyman suggest that there are three factors that may influence the amount of the discount. One is the perception of health impacts associated with proximity to high-voltage lines. The unattractive view of a high voltage line on or near property is another factor. Finally, as anyone who has lived near a high-voltage line can attest, the lines produce a humming sound that can be extremely irritating.
The United States Energy Information Administration (EIA) recently issued a report that in September 2019 the United States exported more crude oil and petroleum products than it imported. This is the first month in the history of recorded data (since 1949) that exports have exceeded imports. Specifically, 8.76 million barrels were exported from the U. S. during that month, surpassing the 8.6 million barrels that were imported. The report also indicated that the EIA expects the U. S. to be a net exporter of crude oil and petroleum products through 2020 as well.
Much of this increase is due to the energetic production in the Texas Permian basin and Eagle Ford Shale. Abundant production has significant national security implications. When we are producing enough of our own oil and gas, we are less dependent on the vagaries of foreign governments, such as OPEC. Some of us are old enough to remember when the OPEC manipulations caused gas shortages in the United States and long lines at service stations.
On December 5, 2019 the Texas Supreme Court is hearing the case of Southwestern Electric Power Co. v. Kenneth Lynch et al., 581 S.W.3d 292, (Tex.Civ.App.- Texarkana, 2018 error granted), which involves the challenge by several Texas landowners in Bowie County to Southwestern Electric Power’s (“SWEPCO”) claim that it can unilaterally enlarge the width of an easement on their property.
These easements were for electric lines and were signed with the original landowners in 1949. The pertinent part of each easement reads as follows:
[A]n easement or right-of-way [is granted to Southwestern Gas & Electric Company] for an electric transmission and distributing line, consisting of variable numbers of wires, and all necessary or desirable appurtenances (including towers or poles made of wood, metal or other materials, telephone and telegraph wires, props and guys), at or near the location and along the general course now located and staked out by the said Company over, across and upon the following described lands . . . .
Recently, the U.S. Geological Survey published a new assessment of oil and gas reserves in the Permian Basin in Texas and New Mexico. The assessment, that you can read here, reports undiscovered, technically recoverable, continuous mean resources of 46.3 billion barrels of oil and 281 trillion cubic feet of gas in the Wolfcamp shale and Bone Spring Formation of the Delaware Basin in the Permian Basin Province, southeast New Mexico and west Texas. This means these reserves are the largest in the world.
At the end of 2017, total reserves in the United States were estimated to be 40 billion barrels of crude oil and 465 trillion cubic feet of natural gas. This new assessment therefore reflects a doubling of U.S. crude reserves and a 65% increase in gas reserves.
As these reserves are produced, the economy will benefit in several ways. Mineral owners will be paid royalties. New employees will be hired by oil companies. Tax revenues to local, state and the federal government will increase.
A recent opinion by the Fifth Circuit Court of Appeals addressed a claim by royalty owners that Devon Energy Production Company LP violated its implied duty to market arising from their oil and gas leases with Devon in the Barnett Shale area. That case is Seeligson et al v. Devon Energy Production Company LP (Case 17-10320 October 16, 2018 Unpublished).
The royalty owners/lessors were attempting to obtain class-action certification. As part of their evidence, they showed that Devon sold the gas produced from their wells to a Devon affiliate for a price of 82.5% of the published industry index value of the residue gas and natural gas liquids. The evidence also showed that payment was never made by Devon to its affiliate. In addition, the affiliate “charged” Devon 17.5% of the value of the gas as a processing fee which was claimed to be substantially higher than the current market rate for processing gas. Again, no money actually changed hands between Devon and its affiliate. The royalty owners claimed that this was a sham transaction that resulted in their receiving lower royalty payments than they would have had Devon paid the market price for the gas produced from their wells.
The District Court certified the Plaintiffs’ claims as a class action and Devon appealed. The Fifth Circuit held that the class certification was not an abuse of discretion by the District Court, but that the District Court had failed to consider the effect of potential statute of limitation defenses by Devon on the class certification. As a result, the case was sent back to the District Court to examine the effect of these to defenses on class certification.