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

still freeWhat is your guiding principle when writing agreements?

“The more the words the less the meaning, and how does that profit anyone?” Ecclesiastes 6:11.


“The beginning of wisdom is the definition of terms.” Socrates

The Legal Issue

A lease grants “a perpetual, cost-free (except only its portion of production taxes) overriding royalty of five percent … of gross production obtained” for directional wells drilled on the lease but bottomed on nearby land (emphasis mine). Are deductions of post-production costs allowed? No, says the Texas Supreme Court in Hyder v. Chesapeake Exploration, a decision long-awaited by those of us who pay attention to these matters.

The court of appeals decision was the subject of a prior post.  The Supreme Court affirmed the court of appeal, which had affirmed the trial court.

Is This a Big Deal?

It certainly is for the Hyders and lessors with the same provision. Otherwise, I’m not so sure.

  • The court was split five to four.
  • The court emphasized that it was merely determining the parties’ intentions based on the language of the lease, disclaiming a broader agenda.
  • The court recognized a basic proposition in Texas law: A royalty is usually subject to post-production costs, but the parties can modify the general rule by agreement. They just didn’t do it in this case, said the court.
  • The court declined to read into Heritage Resources, Inc. v. NationsBank anything other than that the meaning of a lease is governed by a fair reading of its text.

The Rationale

In the Hyder lease the basis for royalty payment is the price received by the lessee, which the court noted is often sufficient in itself to excuse lessors from bearing post-production costs. “Cost free”, said the majority, is not merely a synonym for an ORRI. Scriveners often include “cost free” in a royalty clause to make certain that everybody understands the royalty is free of production costs, but not necessarily post-production costs, even though the language is not necessary (royalties are cost-free as a matter of law).

The court did not believe that “cost free” means free of post-production costs. But the Ecclesiastes way didn’t serve Chesapeake well.  In order to prevail Chesapeake had to prove that “cost free” could not refer to post-production costs.  The court concluded that the ORRI was to be paid on the price received by Chesapeake after post-production costs are paid.

The Dissent

Four justices would have gone with the default – ORRIs bear post-production costs. The way they saw it:

  • The ORRI clause did not allow valuation of the ORRI downstream at any point of sale. It implicated only one location – the wellhead. Post-production activities would add value to the Hyders’ ORRI, but had not yet done so at the wellhead.
  • Although the ORRI may not have been expressed using the familiar market-value-at-the-well language, they read its value to be just that. The “cost free” designation did not express an intent to abrogate the default rule. They would recognize that “cost free” simply stressed the cost free nature of the royalty without struggling to ascertain any additional meaning.
  • Siding with Socrates, they focused on the vast differences between the royalty and ORRI provisions in the Hyder lease, concluding that if the extensive, specific, and detailed free-and-clear language in the royalty clause was surplusage, so should be bare bones “cost free” designation in the ORRI clause. “Cost free” is redundant, but not meaningless. We discussed the court of appeal interpretation of the detailed royalty clause in another post.

Today’s musical interlude: Backup singers.

Bobby King, Terry Evans, and (?) Herman Johnson

Mary Wilson and Florence Ballard

All of the Platters except the dude in the middle

Consider this while celebrating the resurrection of Big Tex: When a lease prohibits post-production cost deductions, can a lessee deduct those costs from a lessor’s royalty? Yes, says Potts v. Chesapeake Exploration, L.L.C. In a market value lease, where lessee sells the gas “at the well” and the court applies the netback approach to calculating market value, the lessee is entitled to deduct post-production costs incurred after the point of sale.

That might make more sense when you know the facts. 

The lease had a “no deduct” provision:

Royalties on gas were ” … the market value at the point of sale of 1/4 of the gas so sold or used. … , [a]ll royalty paid to Lessor shall be free of all costs and expenses related to the exploration, production and marketing of oil and gas production from the lease including, but not limited to, costs of compression, dehydration, treatment and transportation.”

Chesapeake sold the gas “at the well”, and deducted no expenses attributable to Potts’ royalty payments from the time the gas was produced at the well until its first sale. To arrive at the value of the gas at this point Chesapeake took the value of the downstream market-based sale and subtracted costs and expenses incurred between the point of sale and the downstream resale point.

Potts contended that Chesapeake breached the express provisions of the no-deduct clause.

The difference in the parties’ positions arose out of how post-production marketing costs are treated in the calculation. Potts contended that Chesapeake deducted post-production costs to calculate the royalty. Chesapeake, on the other hand, contended that when applying the netback approach, post-production costs may be used to determine the market value of the gas.

The “point of sale” is the point where there is a transfer of title in an arms-length transaction in exchange for compensation.  Potts contended that “point of sale” must be read together with the no-deduct language to ascertain its meaning and when doing so, point of sale means the point where the gas is ultimately sold off of the premises. The court didn’t agree.

According to the court, ” … the netback method requires ascertaining the market value of the gas where available downstream and then subtracting reasonable post-production costs from that point to the point where it is agreed to calculate the market value for royalty purposes. In this case it was the point of sale.

The court distinguished Heritage Resources v. NationsBank, even though the royalty clauses were similar. The factual difference was that the sale in Heritage took place off-premises. Had the royalty in Heritage been calculated at the off-premises point of sale, the no-deduct clause would have prevented deducting post-production costs incurred from the point of production at the well to the point of the off-premises sale.

In this case, the sale was at the well. Therefore, the no deduct provision is consistent with Heritage.

Takeaways – the best-laid plans … 

Potts said their argument had to be correct because they wrote the no-deduct provision to comply with Heritage. But what they didn’t, and perhaps couldn’t, count on was the way Chesapeake sold its gas. Did Chesapeake plan it this way?. That seems unlikely, because at one point prior to litigation it agreed that it couldn’t deduct post-production costs.

Chesapeake’s sale was to an affiliate, about which Potts didn’t  complain. With 20-20 hindsight, maybe he should have.

The court told Potts to give it up or turn it loose (their claim, that is), but not quite in this way.