Articles Posted in Oil and Gas Law

In Scout Energy Management, LLC v. Taylor Properties, 704 S.W.3d 544 (2024), the Texas Supreme Court addressed a case where the Plaintiff claimed that two leases had terminated because a shut in royalty payment was made late.

The leases in question had a pretty standard shut in royalty clause that allowed a payment of $50.00 per well per year to maintain the leases when there was neither sale nor use of produced gas. Production on the only well ceased in September 2017. Scout’s predecessor, ConocoPhillips, made shut in royalty payments for each lease to the Lessor in September 2017. Then in October 2017, Scout made second shut in royalty payments to the Lessor on both leases.

Scout next made shut in royalty payments to the Lessor in December 2018. The Lessor sued and requested declaratory judgment that the leases had terminated.

In Premcor Pipeline Co. v. Wingate, No. 09-22-00117-CV (Tex. Civ. App. Apr. 11, 2024), the Court considered a dispute regarding Premcor’s use of Wingate’s roads and bridges to service its pipelines. Wingate filed suit for injunctive relief and for a declaratory judgment to limit Premcor’s access to a fixed width adjacent to the pipelines. The pipeline easements did not set a width for the easements and did not contain any limitation on the use of the land crossed by the pipelines.

The trial court issued an injunction restraining Premcor from using any of Wingate’s property located more than ten feet on either side of the centerline of the route of its pipelines.

The Beaumont Court of Appeals reversed and held that because the grants of Premcor’s easements were not limited to a fixed width, the trial court’s supplying a width based on extrinsic evidence was erroneous. The Court of Appeals held that the grant of a general easement without a fixed width does not render the easement ambiguous, and that the easements had to be interpreted as a matter of law without considering extrinsic evidence that would contradict, vary, or add to the terms of the unambiguous easements. The Court noted that Premcor’s use was limited to what was reasonably necessary.

A somewhat unsettled question in Texas law is just who owns the water that is produced in some wells along with the oil and gas. Produced water has usually been considered a waste product, and the operator/lessee had to pay to have it hauled away. However, some operators are selling the produced water to a company that recycles it and then sells it for use in fracking. That means produced water may become a valuable commodity and so the question of who owns it becomes critical.

In Cactus Water Servs., LLC v. COG Operating, LLC, 676 S.W.3d 733 (Tex. Civ. App.—El Paso 2023), pet. granted, the El Paso Court of Appeals addressed this question. COG Operating LLC (“COG”) was operating a lease in which water was produced. The surface owner, believing he owned the water, sold the rights to the produced water to Cactus Water Services LLC (“Cactus”). When Cactus served notice on COG that Cactus owned the water, COG sued Cactus.

The Court of Appeals declared that COG owned the produced water that was part of COG’s product stream. The petition for review filed by Cactus in the Supreme Court was granted. It will be interesting to see how the Texas Supreme Court rules on this question.

In 2022, in a case decided by the Corpus Christi Court of Appeals, the issue was who owns the right to use underground salt caverns: the mineral owner or the surface owner? In this case, Myers-Woodward, LLC v. Underground Services Markham, LLC and United Brine Pipeline Co., ___ S.W.3d ___, 2022 WL 2163857 (Tex.Civ.App.—Corpus Christi–Edinburgh 2022), pet. granted (Aug. 30, 2024), the Court also considered how a salt royalty should be calculated.

Underground Services Markham, LLC (“USM”) owns the minerals as well as a right of ingress/egress to mine the salt. Myers owns the surface and a 1/8 royalty in the minerals. The underground caverns were created by a salt extraction process by USM. USM is currently using the salt caverns to store hydrocarbons.

The Court of Appeals held that: 1) the surface owner owns the subsurface caverns; 2) since the deed to USM specified the caverns’ use, USM could not use the caverns to store hydrocarbons; and 3) the royalty due Myers is 1/8 of the value of salt production at the wellhead. The Court specifically declined to follow an earlier case by the Beaumont Court of Appeals, Mapco, Inc. v. Carter, 808 S.W.2d 262, 278 (Tex.Civ.App.-Beaumont 1991), rev’d in part on other grounds, 817 S.W.2d 686 (Tex. 1991) that held that the salt (i.e., mineral) owner owns and is entitled to compensation for the use of an underground storage cavern.

Whether a royalty granted or reserved in a deed is a “fixed” or “floating” royalty has resulted in a lot of litigation in Texas. The Corpus Christi Court of Appeals considered the issue again in Hahn v. ConocoPhillips Co., ___ S.W.3d ___, 2022 WL 17351596 (Tex.Civ.App.—Corpus Christi 2022, pet. granted).

The Plaintiff sold land to a third party and reserved a 1/8 royalty nonparticipating royalty interest (fixed royalty language). Years later, the third party leased to the Defendant, ConocoPhillips. The Plaintiff then signed a ratification of that lease to allow pooling. In addition, the Plaintiff and third party signed a stipulation of interest in which the Plaintiff agreed he owned a 1/8 of royalty (floating royalty language).

The question is: does the stipulation of interest change the original fixed royalty into a floating royalty? If the royalty is floating, the Plaintiff’s interest would be decreased by the 25% royalty in the lease between the third party and ConocoPhillips. The trial court found for ConocoPhillips and the third party. The Court of Appeals reversed and held that the stipulation of interest should not be considered, and that the Plaintiff owned a 1/8 fixed royalty. ConocoPhillips has appealed the case to the Texas, on the grounds that: 1) the stipulation changed the royalty from fixed to floating, and 2) when the Plaintiff ratified the third-party lease, he was ratifying the whole lease (including the 25% royalty) and not just the pooling clause in the lease.

In a recent case, the Texas Supreme Court considered whether interest on late royalty payments was supposed to be simple or compound interest.

In Samson Exploration, LLC v. Bordages, 662 S.W.3d 501, 2024 (Tex. June 7, 2024), the Plaintiff’s oil and gas leases had a late charge provision that provided for interest on unpaid royalties at a rate of 18% and said the charge was due and payable on the last day of each month. When Samson paid previously unpaid royalties to the Plaintiff, it included simple interest. The Plaintiff claimed that the interest should be compounded.

The Court looked at cases and laws in other states and said that there is a modern-day general rule that compound interest will not be imposed absent clear and specific contractual or statutory authorization. The Court stated that compound interest is disfavored, and that interest on late royalties should not be compounded absent an express, clear, and specific provision for compound interest. The Court went on to say that language such as “per annum”, “annually”, or “monthly”, by themselves, are insufficient to sustain the assessment of compound interest.

Lithium mining is apparently becoming the next boom activity in Northeast Texas, particularly in Cass, Franklin, Morris and Titus Counties. There are a few things to know about lithium leasing.

First, be aware that Northeast Texas is becoming Ground Zero for lithium production. It is estimated that the lithium contained in brine from the Smackover Formation that underlies Southwest Arkansas and Northeast Texas contains some of the highest lithium concentrations in the country.

Historically, lithium mining involved pumping the brine into huge evaporation ponds on the leased property and retrieving the lithium once the brine evaporated. Brine is much more saline than saltwater, and these ponds were incredibly destructive of property. However, there is a new technique called Direct Lithium Extraction in which the brine is processed in small tanks, either on the property or at another site, to remove the lithium. The leftover brine water is then pumped back into the formation. It is critical that lithium leases prohibit the evaporation pond technique and require the newer Direct Lithium Extraction technique in order to prevent irreparable damage to the property. It is also critical that your lease contain appropriate language that helps prevent other damage to your property and that contains indemnities by the lessee for any damage that does occur.

The Texas Supreme Court recently considered oil and gas leases that involved the interaction of the “free use of gas” clause and the royalty due on gas used off the leased premises.

In Carl v. Hilcorp Energy Co., ___ S.W.3d ___, 2024 WL ___ (Tex. May 17, 2024), individuals brought a class action against Hilcorp, claiming Hilcorp owed royalties on gas used off-lease for post-production activities. According to the leases, royalties were paid based on the value of gas at the well, and this language allows deduction of post-production expenses. The leases stated that Hilcorp must pay as royalties “on gas . . . produced from said land and sold or used off the premises . . . the market value at the well of one-eighth of the gas so sold or used.” The leases also provided that Hilcorp “shall have free use of . . . gas . . . for all operations hereunder.”

The Court was answering two certified questions from the Fifth Circuit. In answering those questions, the Court held that a market-value-at-the well lease containing an off-lease-use-of-gas clause and free-on-lease-use clause can be interpreted to allow for the deduction of gas used off lease in the post-production process. The Court also discussed that the deduction could use either the value per unit of gas, or the units of gas, to determine the gas upon which royalties must be paid, since either calculation yielded approximately the same results.

The Texas Supreme Court is going to hear a case in which the issue is whether the interest to be paid on past due royalties is simple or compound interest.

In the case of Samson Exploration, LLC v. Bordages, 662 S.W.3d 501 (Tex. Civ. App.—Beaumont 2022, pet. granted September 1, 2023), the lessors executed a number of oil and gas leases with Samson. The leases provide for an 18% late-charge penalty on past-due royalties to be calculated each month but do not expressly state whether the interest should be compound or simple.

The specific language in the lease is: