Co-author Chance Decker

 Burlington Resources Oil & Gas Company, LP. v. Texas Crude Energy, LLC et al is another chapter in the back-and-forth over deduction of post-production costs from royalty payments. In “clarifying” (royalty owners might say “retreating from”) Chesapeake Exploration & Production, LLC v. Hyder, the Texas Supreme Court held that a royalty delivered into the pipeline or tanks is akin to a royalty delivered “at the wellhead.” The lessee was entitled to deduct post-production costs from its royalty calculation, notwithstanding that the calculation was based on the “amount realized” from downstream sales.

Don’t read too much into it? Continue Reading Texas Supreme Court Clarifies Hyder

Co-author Travis Booher

Welcome to part two of the hair-splitting decision in Chesapeake Exploration, L.L.C. v. Hyder. See our prior post about the basic facts.

More Facts

In addition to their cost-free royalty clause for wells on the leased premises, the Hyders also received an overriding royalty interest on wells drilled from pads located on the leased premises and completed on adjacent tracts. Chesapeake drilled seven of these “off-lease wells”.

The Royalty Clause

…within sixty (60) days from the date of the first production from each off-lease well, …convey a perpetual, cost-free (except only its portion of production taxes) overriding royalty of five percent (5%) of gross production obtained from each such well payable….

Again, the parties disagreed over what “cost-free” means.

Chesapeake’s Position

“Cost free” merely reinforces current Texas law that an overriding royalty interest is free of production costs, but subject to its proportionate share of post-production costs.

The Hyder’s Position

“Cost free” refers to all costs (except the Hyder’s portion of production taxes), including post-production costs.

The Court’s Position (The one that matters)

Under Texas law, it is clear that an overriding royalty is normally free of production costs, but subject to post-production costs. However, the parties may modify this default rule by agreement. Chesapeake cited four cases for its position that post-production costs should be deducted, and the court addressed each (we briefly summarize the holdings):

  • XAE Corp. v. SMR Prop. Mgmt. Co., 968 P.2d 1201 (Okla. 1998) – the ORRI was an in-kind interest with delivery at the well head, and the lessee had no duty other than to deliver gas. Therefore, the lessee was not responsible for lessor’s share of post-production costs and expenses. Hyder is not about taking gas in-kind, and the Hyder lease contains a provision that expressly says the ORRI is “cost free.”
  • Heritage Resources Inc. v.  Nations Bank (see the prior post for a link) – the Hyder’s lease specifically says, that “Heritage Resources shall have no application to this lease.” As result, it has no applicability to this ORRI.
  • Martin v. Glass and Dancinger Oil Refineries v. Hamill Drilling Co. – In those Texas cases the ORRI was “free and clear of all costs of drilling, exploration or operation…” and ‘free and clear of operating expenses.” The court noted all of those costs are production costs. Under the Hyder facts, the lease language is not limited to production costs, it simply says “cost free”, meaning all costs – production and post production.

The court concluded by saying parties can modify the default rule that ORRIs “are normally subject to post production costs.” Here, as indicated by the four corners of the document, that is what the parties did. In short, the Hyders are responsible for their portion of production taxes only.

The Takeaway

In writing a lease, say what you mean. Sometimes, a “cost-free royalty” really is a cost free royalty.

In honor of the lawyers and their clients who dance a lot over the words in the lease, we end this offering with a dance contest. Feel “free” to pick your favorite:

Candidite 1  

 Candidate 2 

 Candidate 3 

 

 

Co-author Travis Booher

Chesapeake Exploration, L.L.C. v. Hyder is another hair-splitting Texas decision about “cost-free royalties”

The Facts

The Hyder family executed a lease covering 1,037 acres. Chesapeake drilled 22 wells on the leased premises. The Hyders believed their lease provided for a “cost free” royalty; that is, no post-production deductions. Chesapeake deducted post-production costs, and the Hyders sued for breach of contract.

More Facts

A summary of how gas is moved downstream from the lease might be helpful (Hint: if it starts with a “C”, it’s a Chesapeake entity). COI produces the gas and sells to CEMI, who delivers the gas to several “points of delivery” for gathering by CMP. CMP transports to unaffiliated third-party interstate pipelines, who transfer the gas downstream to a “point of sale”, and then title passes from CEMI to the third-party purchaser. The Hyders were paid based on a weighted average sales price calculated on the sales to various third parties.

The Royalty Clause

The Hyders where to be paid:

…for natural gas … produced from the Leased Premises, twenty-five (25%) of the price actually received for such gas. The royalty … shall be free and clear of all production and post-production costs and expenses, including but not limited to, production, gathering, separating, storing, dehydrating, compressing, transporting, processing, treating, marketing, delivering, or any other costs and expenses incurred between the wellhead and lessee’s point of delivery or sale of such share to a third party. (underline ours)

The lease specifically said that, “ … Heritage Resources, Inc. v. NationsBank shall have no application to the terms and provisions of this lease.” (that was the 1996 Texas Supreme Court case holding that a “no deduct” provision was “surplusage as a matter of law.”)

Chesapeake’s Contention

They could deduct post-production costs incurred between the “point of delivery” and “point of sale.” Because of the disjunctive “or” between “delivery” and “sale”, they could choose either the point of delivery or the point of sale to determine whether the royalty clause permits the deduction of post-production costs after the point of delivery but before the point of sale. Therefore, they deducted costs such as third-party transportation costs.

Hyders’ Contention

Chesapeake’s distinction doesn’t matter. The royalty clause prohibits deduction of any post-production cost, regardless of where incurred, and provides for royalty “free and clear” of all costs. What about “free and clear” can’t be understood?

The Holding

The court agreed with the Hyders. The plain reading of the royalty clause, along with the parties’ agreement that Heritage did not apply, should be interpreted to mean no deductions. Therefore, in this case a “cost-free royalty” really meant a cost-free royalty.

The Takeaway

  • This is a common theme. It is necessary to carefully review the specific wording in the lease. Sometimes, “free” does mean “free”.  Sometimes it doesn’t. A court will construe a lease so that no provision will be rendered meaningless.
  • This post is about wells on the premises.  We will soon discuss the overriding royalty interest due the Hyders for seven Chesapeake off-premises wells.
  • As royalty clauses go, it looks like lessors have found a keeper.  (Or maybe you prefer the live version.)