Quick answer: It depends on what the lease says.  Last week featured a tug-of-war between a producer and the community in which it operates; this week in HJSA No. 3 LP v. Sundown Energy LP  it’s the producer and the lessor.

HJSA owns the mineral estate under 30,540 acres in Ward County, Texas. Sundown is the lessee. After six years the lease could be maintained only as to individual tracts from which there was production in paying quantities and as to other tracts only if Sundown was engaged in a “continuous drilling program”.

Dueling lease provisions (emphasis mine)

Paragraph 7B says:

The first such continuous development well shall be spudded in on or before the sixth anniversary of the Effective Date, with no more than 120 days to elapse between completion or abandonment of operations on one well and the commencement of drilling operations on the next ensuing well.

Paragraph 18 is a 90-day temporary cessation clause that defines drilling operations as:

“ … actual operations … (spud-in with equipment capable of drilling to Lessee’s objective depth); reworking operations, including fracturing and acidizing; and reconditioning, … “. Continue Reading Spudding? Reworking? What are “Operations” Under an Oil and Gas Lease?

In Town of Flower Mound v. Eagle Ridge Operating LLC, an operator’s injunction against enforcement of a local ordinance was dissolved. EagleRidge operates gas wells in the Flower Mound. A Town ordinance prohibits work on gas wells (other than drilling) at times other than between 7 a.m. and 7 a.m. Monday through Friday and certain times on Saturday.


EagleRidge tried to avoid enforcement of the ordinance by: Continue Reading Gas Well Operator’s Injunction Against Texas Town is Dissolved

Can an email be directed to a particular state? No, said a Texas court in Enerquest Oil & Gas, LLC v. Antero Resources Corporation. The court questioned “the very premise of the contention that an email can be sent to a particular state”. Emails are not sent to a designated computer or electronic device located at a particular place. Email accounts have no physical address. They are sent into cyberspace, saved onto a server or servers, and opened by the recipient wherever that person might happen to be whether, as the court said, “in Texas, Tennessee or Tibet.” Continue Reading Cyberspace Saves an Out-of-State Oil Company

Let’s start with a quiz:

Which of these predictions is most likely to come true:

  1. Senator Sanders’ “bold” climate action plan will gain traction and become the law of the land.
  2. Vegan options will be available at the next landman’s dinner meeting.
  3. As 2020 approaches President Trump will learn his lesson. No more tweets.
  4. After all these years, your cat will finally respect you.
  5. LSU will beat Texas on the gridiron.

Continue Reading Another Bid is in on the Green New Deal

Co-author Paul Yale

What’s good for the goose is not always good for the gander, at least in some places. It appears that the North Dakota Supreme Court has adopted the minority “ Marketable Product Rule” in connection with a 1979 North Dakota state oil and gas lease. We say “it appears” because not so long ago, in its 2009 decision in Bice v. Petro-Hunt, LLC, the Court held that North Dakota was an “at the well” state, like Texas and the majority of other oil producing states. This latest decision is Newfield Exploration Company, et al v. State of North Dakota et al.

The difference between the “Marketable Product Rule” and the “at the well” rule has to do with the deductibility of post-production costs of transporting, compressing, treating and processing from royalty payments. In an “at the well” state such costs are charged proportionately against the royalty owner. In a “Marketable Product” state they are not. Continue Reading North Dakota: A Different Rule for Post-Production Costs In a State Lease.

Co-author Lydia Webb

Nabors Offshore Corp. v. Whistler Energy II LLC  is the rare bankruptcy case where the outcome was consistent with the realities of operating in the oil patch rather than the artificial constraints of the Bankruptcy Code. The Fifth Circuit balanced the debtor’s interest in minimizing the costs of administering its estate with a counterparty’s economic interest in its property sitting idle in the debtor’s possession. The counterparty was not made to eat the costs for the time its equipment sat unused after rejection of their contract.  Continue Reading Bankruptcy Ruling Sides With Oil Field Realities

It’s still true, “Whiskey’s for drinkin’, water’s for fightin’.” Gray Reed lawyers Brock Niezgoda and Stephen Cooney spoke to TIPRO’s summer conference on the use, control and ownership of water in oil and gas operations. Here is their PowerPoint.

The takeaways:

Groundwater Continue Reading Water: The Hot Commodity in the Permian and Elsewhere

Co-author Chance Decker

How long – if ever – has it been since you pondered the difference between a “tenancy in common” and a “joint tenancy”? Same for us, until the wheels came off a family relationship and a lawsuit was filed in Wagenschein v. Ehlinger. This brings to us – and you – the opportunity to review a little Texas property law. Landmen and title examiners, perk up.

Tenancy in common v. joint tenancy Continue Reading Tenancy in Common and Joint Tenancy Explained

In January I commented on the partnership that wasn’t and the lawyer whose actions give the rest of us a bad name. That was Stephens et al. v. Three Finger Black Shale Partnership et al. The court of appeal has substituted its original 66-pages with a 67 page opus. Save yourself the trouble of reading the whole thing and go to pages 41 to 44.

The court concluded that as a result of the recent Supreme Court decision in Agar Corp. v. Electro Circuits Int’l, LLC, several Thunderbird entities and their owner, sleazy lawyer Stephens, were jointly and severally liable to L W Hunt Resources and Raughton for actual and exemplary damages. There were three different conspiracy scenarios for the jury to consider: conspiracy to commit a breach of fiduciary duties related to the attorney-client relationship, breach of fiduciary duties arising from related to the “Alpine Group”, and conspiracy to commit fraud. The jury found a conspiracy on each ground.

The court originally found that because there was no separate jury finding as to the amount of damages related specifically to the conspiracy, the conspiracy findings would not be upheld. Since then the Supreme Court held that a plaintiff’s injury is the damage from the underlying wrong, not the conspiracy. Civil conspiracy is not independent tort. Thus, the Stephens jury didn’t need to answer a conspiracy damage issue separate from a damage issue relative to the underlying tort.

Why does this matter?

Now, a bad player can be liable for conspiring with his own limited liability companies because they are entities separate from their sole member. If your scammer scammed through his LLC you can recover a judgment against the company as well as the scammer. That bodes well for post-judgment collection efforts.

Trigger warnings!

If you agree with the New York Times that all oil exploration everywhere should cease immediately, stop reading now and retire to your safe space. If not, consider this article from Watts Up With That! and a correction casting doubt on the economic sustainability of wind energy.

Not saying you need to accept the premises of the article, but know there are contrarian opinions that don’t attract much attention from the MSM.

We’re running out of Neville Brothers

At Neville, RIP.

Reacting to Hurricane Barry, get it?
Co-author Chance Decker

In Barrow-Shaver Resources Company v. Carrizo Oil & Gas, Inc the Supreme Court of Texas has held again, here in a consent-to-assign dispute, that a contract means what the words say, even if in negotiations a landman said something he didn’t mean, … or changed his mind later, and even if “industry custom” is to the contrary. Continue Reading Industry Custom Does Not Supersede Contract Language