Golden Eagle Resources II LLC v. Rice Drilling D LLC. presents a small step in the development of subsurface trespass law in Ohio. The federal court considered a motion to dismiss, in which it evaluated the sufficiency of the complaint to state a cause of action. Such a motion is not a challenge to
Texas Supreme Court Reverses Subsurface Trespass Judgment
Regency Field Services LLC v. Swift Energy Operating LLC, draws one’s attention to the difficult analyses that should be made before bringing a subsurface trespass claim.
A mineral estate lessee (Swift) alleged that H2S (“brimstone” if you follow the Old Testament) injected into the Wilcox formation by an injection well (owned by Regency) migrated and injured its interests in the minerals underlying nearby properties. The issue for the court was when the lessee’s claims accrued. We will ignore parts of the decision discussing pleadings and summary judgment evidence (trial lawyers, pay attention!).
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Pennsylvania Rule of Capture Still Bars Subsurface Trespass Claim
Co-author Brittany Blakey
After a trial court order, two appellate opinions, a dissent, and another appellate opinion, the tension between a well operator and an adjacent mineral owner over whether hydraulic fracturing can constitute a subsurface trespass in Pennsylvania has, for the most part, been resolved. In Briggs v. Southwestern Production Company, several points of Pennsylvania law have been confirmed:
- Well operators may use hydraulic fracturing to drain oil and gas from under another’s property, at least in the absence of physical invasion.
- The rule of capture does not preclude trespass liability if the operation creates a physical invasion.
- The mineral owner’s complaint must specifically allege that the operator engaged in horizontal drilling that extended onto their property or that the operator propelled frack fluids and proppants across the property line.
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Pennsylvania Supreme Court Says No Trespass by Fracking
Co-authors Paul Yale and Rusty Tucker
Herein, highlights from the Pennsylvania Supreme Court in Briggs, et al. v. Southwestern Energy Production Company. The rule of capture applies to oil and gas produced from wells completed using hydraulic fracturing and precludes trespass liability for drainage from under nearby property, where the well is drilled solely on and beneath the driller’s own property and frack fluids are injected solely beneath the driller’s own property.
Why is this a big deal?
This decision is only the second application by a state supreme court of the rule of capture to hydraulic fracturing (from Texas, Coastal Oil & Gas Corp. v. Garza Energy Trust was the first). The Pennsylvania Supreme Court has reached a similar result – drainage resulting from hydraulic fracturing does not itself constitute trespass.
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Trespass But no Damages in a Texas Case
What does it take these days to get money from a Texas jury? Not much, it seems; in XTO v. Goodwin the trick was convincing a higher court that you should keep it.
Let’s start with the minefield that is the law of evidence:
- Expert opinion testimony must be based on facts, and sound reasoning and methodology.
- Conclusory or speculative opinion testimony is not relevant.
- An opinion with no factual substantiation is speculative or conclusory.
- Expert testimony based on unreliable data or flawed methodology is unreliable and does not satisfy the relevancy requirement.
- Unreliable expert testimony is legally no evidence.
Texas Subsurface Trespass Law Clarified
Co-author Chance Decker
We know that in Texas the mineral owner has the right to explore for and produce the minerals. What does that leave for the surface owner? In Lightning Oil Company v. Anadarko E&P Onshore, LLC the Texas Supreme Court tells us he owns the right to possess the specific place or space where the minerals are located. Absent pooling or some other contractual arrangement, with that comes the right to grant (for a price) or deny an off-lease operator the right to drill through the mineral estate to reach minerals under an adjacent tract.
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You Own the Oil. Do You Own the Rock?
Riddle: What’s the difference between a hydrocarbon molecule and the underground structure which the molecule inhabits?
Answer: In Texas, you can own one and not the other, according to Lightning Oil Co. v. Anadarko E&P Onshore LLC.
This was a subsurface trespass case between lessees on two adjacent mineral estates. The Cutlass…
Listen to the Words In the Injunction Battle
If it’s an injunction you want, some words are your friend and others aren’t. For example:
“Imminent” = friend
“Might” = not friend
“Likely” = friend
“Could” = not friend
“Irreparable” = friend
“Money damages” = not friend
In Lightning Oil Company v. Anadarko E&P Offshore, LLC, the surface and 1/6 of the minerals…