By Jay Carr and Mark Hylton on Posted in EnergyOn June 1, 2020, the Seventh District Court of Appeals once again addressed the level of diligence required to identify holders of a severed mineral interest under the 2006 version of Ohio’s Dormant Mineral Act (2006 DMA). In Fonzi v. Gary D. Brown & Eclipse Res., 2020-Ohio-3631, the appellee-surface owner filed his notice of abandonment… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn July 6, 2020, the U.S. Supreme Court issued an Order partially granting a motion to stay a Montana District Court’s injunction barring the use of the Army Corps’ streamlined Nationwide Permit 12 (NWP 12) governing pipeline and other utility construction activities that impact a water of the United States regulated under the Clean Water… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn June 4, 2020, U.S. EPA proposed a rule to improve the consistency and transparency of benefit cost analyses (BCAs) for all “significant” proposed and final regulations under the Clean Air Act (CAA). The proposed rule, developed in response to comments on U.S. EPA’s June 12, 2018 Advance Notice of Proposed Rulemaking and Administrator Wheeler’s… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn June 1, 2020, U.S. EPA finalized amendments to the rules governing the Clean Water Act (CWA) Section 401 water quality certification (WQC) process, which had not been updated since 1971. The final amendments establish a more robust framework for the WQC process which is intended, in large part, to ensure that certifying agencies take… Continue Reading
By Ilya Batikov on Posted in EnergyOn May 21, 2020, the Sixth Circuit Court of Appeals ruled for a lessee in an oil and gas lease dispute, finding that the lessee properly considered post-production costs when calculating the landowners’ royalties. See Henceroth v. Chesapeake Exploration, LLC, 6th Cir. No. 19-3942. The lessee, Chesapeake Exploration (Chesapeake), produced oil and gas from the… Continue Reading
By Jay Carr on Posted in EnergyRecently, in Peppertree Farms v. Thonen, 2020-Ohio-3043, Ohio’s Fifth Appellate District considered whether certain ancient royalty and fee oil and gas reservations terminated upon the grantor’s death. The Court held that they did because the grantors failed to include words of inheritance in their reservation clauses. As a result, each grantor’s reserved oil and gas… Continue Reading
By Jay Carr on Posted in EnergyThe Ohio Department of Commerce, Division of Real Estate & Professional Licensing, recently reached out to Ohio’s “land professionals” (i.e., oil and gas landman registered with the Division) concerning renewing their registerations. Ohio law requires land professionals to renew their registrations annually on or before April 30. However, in light of House Bill 197, land… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn April 23, 2020, the U.S. Supreme Court, in a 6-3 decision, held that a permit is required for either “a direct discharge of pollutants from a point source into federally regulated navigable waters, or when there is the functional equivalent of a direct discharge.” County of Maui, Hawaii v. Hawaii Wildlife Fund et al.,… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn April 21, 2020, U.S. EPA and the Army Corps of Engineers published the final Navigable Waters Protection Rule amending the definition of “Waters of the United States” (the “2020 WOTUS Rule”). Under the 2020 WOTUS Rule, four categories of jurisdictional WOTUS are subject to regulation under the Clean Water Act (CWA): 1. The territorial… Continue Reading
By Jay Carr on Posted in EnergyThe United States Court of Appeals for the Sixth Circuit recently ruled that a certain group of landowners were not entitled to have Ohio’s 4-year oil and gas royalty statute of limitation tolled against Chesapeake Appalachia, LLC, finding that Chesapeake did not engage in fraudulent concealment. In Lutz v. Chesapeake Appalachia, L.L.C., No. 19-3315, certain… Continue Reading
By Jake Bartlett on Posted in Energy,EnvironmentAs discussed in an earlier post, found here, the Council of Environmental Quality (“CEQ”) recently published proposed amendments to update the procedural regulations used to implement the National Environmental Policy Act (“NEPA”). The proposed amendments were published in the Federal Register on January 10, 2020 and can be found here. Public comments on the proposed… Continue Reading
By Ilya Batikov on Posted in EnergyOn January 22, 2020, the Supreme Court of Pennsylvania decided Briggs v. Southwestern Energy Prod. Co. The issue before the Court was whether the rule of capture applies when a developer drains oil and gas from an adjacent property by drilling a well “using hydraulic fracturing solely within the developer’s property.” (emphasis in original). The… Continue Reading
By Jay Carr on Posted in EnergyOn January 21, 2020, the Supreme Court of Ohio accepted an appeal from the Seventh District Court of Appeals’ decision in West v. Bode, Case No. 18-MO-0017. The issue accepted for review by the Court is whether, due to a perceived conflict between the statutes, the Ohio Dormant Mineral Act (R.C. 5301.56), being the specific… Continue Reading
By Jake Bartlett on Posted in Energy,EnvironmentThe Council for Environmental Quality recently published proposed amendments to update the procedural regulations used to implement the National Environmental Policy Act (“NEPA”). The proposed amendments were published in the Federal Register on January 10, 2020 and can be found here. The main goal of NEPA is to assure that federal agencies adequately consider the… Continue Reading
By Jay Carr on Posted in EnergyIn Pavsek v. Wade, 18 MO 0024, Ohio’s Seventh District Court of Appeals considered whether a lessor must serve notice upon its lessee demanding that the lessee drill additional wells on the leasehold prior to seeking a partial forfeiture of the lease due to the lessee’s breach of the implied covenant of reasonable development. The… Continue Reading
By Ilya Batikov on Posted in EnergyOn November 26, 2019, the Supreme Court of Ohio clarified that a declaratory judgment claim that an oil and gas lease terminated for lack of production is subject to the 21-year statute of limitations for recovery of title to or possession of real property in R.C. 2305.04. See Browne v. Artex Oil Co., Slip Op.… Continue Reading
By Ilya Batikov on Posted in EnergyIn July, we wrote about Gerrity v. Chervenak (5th Dist., Guernsey County), involving the level of due diligence that the Ohio Dormant Mineral Act requires surface owners to use when notifying mineral holders of abandonment proceedings. On October 15, 2019, the Supreme Court of Ohio agreed to hear Gerrity. The Court will consider the following… Continue Reading
By Jay Carr on Posted in EnergyThe Seventh District Court of Appeals reaffirmed that claimants can use both Ohio’s Marketable Title Act (“MTA”) and Dormant Mineral Act (“DMA”) to extinguish and abandon, respectively, mineral interests. In West v. Bode, 2019-Ohio-4092, the appellant-surface owners attempted to extinguish a severed oil and gas royalty interest under the MTA. The holders of the royalty interest… Continue Reading
By Ilya Batikov on Posted in EnergyThe Marcellus and Utica Shales contain around 214 tcf of undiscovered, technically recoverable natural gas, according to a new U.S. Geological Survey (USGS) assessment. “This is a significant increase from the previous USGS assessments of both formations. In 2011, the USGS estimated a mean of 84 trillion cubic feet of natural gas in the Marcellus… Continue Reading
By Ryan Elliott on Posted in EnergyOn September 24, 2019, U.S. EPA proposed amendments to the 2012 and 2016 New Source Performance Standards for the Oil and Natural Gas Industry under 40 CFR Part 60, Subparts OOOO and OOOOa. For details regarding U.S EPA’s proposed amendments to NSPS OOOO and NSPS OOOOa, see our recent Client Alert.… Continue Reading
By Jay Carr on Posted in EnergyThe Division of Real Estate & Professional Licensing issued new guidance for Ohio’s Oil and Gas Land Professionals (“Land Professionals”). First, the Division updated its Land Professional Disclosure Form. Ohio law requires Land Professionals to provide this disclosure form to landowners prior to or at its first meeting with landowners. Second, the Division is requesting… Continue Reading
By Jay Carr on Posted in EnergyThe Fifth Appellate District recently addressed whether an internet search to identify / locate the holders of severed mineral interests is always required under Ohio’s Dormant Mineral Act (“ODMA”). See, Gerrity v. Chervenak, 2019-Ohio-2687. In 1965, Jane Richards obtained title to certain severed mineral interests located in Guernsey County, Ohio (“Gerrity Minerals”). In 1997, Ms.… Continue Reading
By Ryan Elliott on Posted in Energy,EnvironmentOn June 24, 2019, Ohio EPA issued a draft Vapor Intrusion Sampling and Evaluation Guidance (Guidance). The draft Guidance, which is intended to update the 2010 version of Ohio EPA’s Vapor Intrusion Guidance, is applicable to sites subject to CERCLA, RCRA, and Ohio Voluntary Action (VAP) oversight. Comments on the draft Guidance must be submitted… Continue Reading
By Ilya Batikov on Posted in EnergyOn June 19, 2019, Ohio’s Seventh District Court of Appeals decided a case involving the interplay of a private oil and gas lease and Ohio’s statutory unitization law. See Paczewski v. Antero Resources Corp., 18 MO 0016. When signing an oil and gas lease, the original contracting parties struck a voluntary unitization clause. Unable to… Continue Reading
