On Friday, March 9, 2018, West Virginia Governor Jim Justice signed into law a state statute permitting the leasing of oil and gas interests owned by seven or more “royalty owners,” if at least 75% of the owners agree to the lease. The law, which takes effect on July 1, 2018, eliminates the need to… Continue Reading
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Oil and Gas Title Washing Survives Another Judicial Challenge
Posted in EnergyIn its February 2018 unpublished decision of Woodhouse Hunting Club, Inc. v. Hoyt, the Pennsylvania Superior Court upheld yet another challenge to the Commonwealth’s unique, historical concept of “title washing.” Many oil and gas title attorneys are familiar with the concept, whereby reservations of oil and gas underlying “unseated” lands are erased following tax sales. The… Continue Reading
Supreme Court of Ohio Rejects Constitutional Challenge to Unitization Order
Posted in EnergyOn January 30, 2018, the Supreme Court of Ohio rejected a constitutional challenge to a statutory unitization order issued by the Ohio Department of Natural Resources, Division of Oil and Gas Resources Management. In State ex rel. Kerns v. Simmers, the Division issued an order under Ohio’s unitization statute, R.C. 1509.28, that consolidated the relators-landowners’… Continue Reading
U.S. Supreme Court Determines Jurisdiction for WOTUS Challenges
Posted in Energy, EnvironmentOn January 22, 2018, the U.S. Supreme Court held that lawsuits challenging the joint EPA-Army Corps rule defining “waters of the United States” (WOTUS) must be filed in federal District Courts. The Supreme Court’s decision overturns the Sixth Circuit’s February 2016 decision that the federal Circuit Courts have exclusive jurisdiction, pursuant to Section 1369(b)(1) of… Continue Reading
Supreme Court of Ohio Rejects Implied Covenant to Explore Further in Oil and Gas Leases
Posted in EnergyIn a January 3, 2018 decision, the Supreme Court of Ohio held that Ohio does not recognize an implied covenant to explore further as a distinct implied covenant in oil and gas leases. See Alford v. Collins-McGregor Operating Co., Slip Opinion No. 2018-Ohio-8. Read more about this case in our Client Alert.… Continue Reading
PA DEP Halts Mariner East II Pipeline
Posted in EnergyYesterday, the Pennsylvania Department of Environmental Protection halted construction of Sunoco Logistic LP’s Mariner East II pipeline, citing violations of environmental laws, reports the Pittsburgh Tribune-Review: Sunoco violated its permits, using unauthorized drilling methods that leaked nontoxic drilling fluid into trout streams and water wells across the state, according to the DEP. The state discovered… Continue Reading
Ohio Appellate Court Finds The Duhig Rule Persuasive
Posted in EnergyIn Talbot v. Ward (2017-Ohio-9213), Ohio’s Seventh District Court of Appeals found the Duhig rule “persuasive” in interpreting a deed containing an exception for royalties, bonuses, and rentals. The Duhig rule, first enacted in Texas in 1940, bars a grantor and his successors and assigns from claiming title in a reserved fractional mineral interest when doing so would, in effect,… Continue Reading
Recent Ohio Oil and Gas Decisions
Posted in EnergyOver the last several weeks, Ohio courts issued a few decisions involving oil and gas issues that we wanted to briefly mention: Schillo v. Chesapeake Exploration, LLC (Harrison Cty. C.P., Oct. 16, 2017) – Here, the dispute was whether the lessee properly extended an oil and gas lease through the tender of delay rental payments. … Continue Reading
Eclipse Res.—Ohio, LLC v. Madzia
Posted in EnergyLast week, the United States Sixth Circuit Court of Appeals issued its decision in Eclipse Res.—Ohio, LLC v. Madzia, concerning a dispute between a landowner and a lessee regarding the latter’s drilling rights. Among other things, the court found: The lease, which conveyed to the lessee a broad grant of rights to use the landowner’s… Continue Reading
Supreme Court of Ohio to Hear Landman Licensing Case
Posted in EnergyIn March, we posted about Dundics v. Eric Petroleum Corp., a decision by Ohio’s Seventh District Court of Appeals ruling that landmen were required to obtain real estate broker’s licenses in order to sue for compensation for brokering deals between landowners and oil and gas companies. Today, the Supreme Court of Ohio agreed to review… Continue Reading
U.S. District Court Finds Ohio Would Follow the “At the Well” Rule for Post-Production Costs
Posted in EnergyIn a decision released yesterday, the United States District Court for the Northern District of Ohio concluded that Ohio would adopt the “at the well” rule regarding the deduction of post-production costs, the first time the issue has been squarely addressed under Ohio law. Lutz v. Chesapeake Appalachia, L.L.C., N.D.Ohio No. 4:09-cv-2256 (Oct. 25, 2017).… Continue Reading
Ohio Court Holds Deed Reserving “All of the Minerals and Coal” Did Not Reserve Oil and Gas
Posted in EnergyIn Sheba v. Kautz, 2017-Ohio-7699, Ohio’s Seventh District Court of Appeals held that a deed executed in 1848 reserving “all of the minerals and coal” did not reserve oil and gas. In reaching its decision, the Court applied ordinary principles of contract interpretation, and heavily relied upon the Supreme Court of Ohio’s decision in Detlor… Continue Reading
10th Circuit Court of Appeals Dismisses BLM Hydraulic Fracturing Rule Litigation
Posted in EnergyLast year, we posted about litigation concerning the Bureau of Land Management’s controversial rule purporting to regulate hydraulic fracturing on federal and Indian lands. After a federal court found that the rule exceeded the scope of the BLM’s regulatory authority, appeals were filed with 10th District Court of Appeals. Earlier this year, the BLM announced… Continue Reading
Federal Appeals Court Affirms Decision Striking Down Fayette County, WV Wastewater Injection Ban
Posted in EnergyOn August 30, 2017, the United States Court of Appeals for the Fourth Circuit upheld a district court’s decision striking down a Fayette County, WV ordinance prohibiting wastewater injection. EQT Production Company challenged the ordinance—which restricted “storage, treatment, injection, process or permanent disposal” of wastewater within the county, including specifically, the use of injection wells… Continue Reading
Federal Court Rejects Class Action Alleging Improper Deduction of Post-Production Costs
Posted in EnergyOn August 24, 2017, the United States District Court for the Northern District of West Virginia granted summary judgment to producers in a class action lawsuit concerning the deduction of flat-rate post-production costs. In Kinney v. CNX Gas Company, LLC, et al., the parties’ leases provided that the lessors would receive a percentage of the… Continue Reading
Ohio Court Elaborates on Paying Quantities Test
Posted in EnergyOn June 16, 2017, Ohio’s Seventh District Court of Appeals issued its decision in Paulus v. Beck Energy Corp. 2017-Ohio-5716, which addresses a number of issues concerning Ohio’s standard for determining whether an oil and gas lease is producing in “paying quantities,” a test that must ordinarily be met in order to continue a lease during its… Continue Reading
D.C. Circuit Vacates Stay of Oil and Gas Methane Emissions Rule
Posted in Energy, EnvironmentThis post provides an important update to our April 20, 2017 post regarding U.S. EPA’s reconsideration of its rule regulating methane emissions from the oil and gas industry (“NSPS OOOOa”). On June 5, 2017, EPA published a notice of reconsideration and partial stay of NSPS OOOOa. Specifically, EPA stayed the effectiveness of the fugitive emissions… Continue Reading
Court Clarifies which References are “Specific” for Purposes of Applying the Ohio Marketable Title Act
Posted in EnergyOhio’s Seventh District Court of Appeals recently interpreted a statutory exception to “marketable record title” under Ohio’s Marketable Title Act (R.C. 5301.47 et seq.) (OMTA). In Blackstone v. Moore, 2017-Ohio-5704, the court held that whether a reference to an interest inherent in the muniments of the chain of record title is “specific” – and thus… Continue Reading
Appellate Court Holds a Recorded Release of an Oil and Gas Lease is a “Savings Event” under the Ohio Dormant Mineral Act
Posted in EnergyIn Davis v. Consolidation Coal Company, 2017-Ohio-5703, Ohio’s Seventh District Court of Appeals held that a recorded release of an oil and gas lease qualifies as a “savings event” under the Ohio Dormant Mineral Act (R.C. 5301.56) (ODMA). One of the six savings events under the ODMA occurs whenever the mineral interest has been the subject… Continue Reading
BLM Postpones Waste Prevention Rule Compliance Date
Posted in Energy, EnvironmentOn June 15, 2017, the Bureau of Land Management (BLM) issued notice that it was postponing compliance date for certain sections of its Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule, 81 Fed. Reg. 83008 (“Waste Prevention Rule”). The Waste Prevention Rule regulates the loss of natural gas through venting, flaring, and leaks… Continue Reading
Bohlen v. Anadarko
Posted in EnergyOn June 1, 2017, the Supreme Court of Ohio issued its decision in Bohlen v. Anadarko. We summarized the facts of this case in our earlier post: The Bohlens entered into a lease with Alliance in 2006 for a one year primary term. Paragraph 3 of the lease contained a delay rental provision: This lease,… Continue Reading
West Virginia Supreme Court of Appeals Holds Certain Lessees May Deduct Post-Production Costs
Posted in EnergyOn Friday, May 26, 2017, the West Virginia Supreme Court of Appeals released its decision in Patrick D. Leggett, et al. v. EQT Production Company, et al. and held that lessees subject to West Virginia Code § 22-6-8 may deduct post-production costs actually incurred from the lessor’s royalty. The reasonableness of post-production expenses, however, is a question of fact.… Continue Reading
Lightning v. Anadarko
Posted in EnergyOn May 19, 2017, the Supreme Court of Texas issued its long-awaited decision in Lightning v. Anadarko (see here for our earlier coverage of this case)—holding that when minerals are severed from the surface, the mineral owner’s permission is not required for a producer to drill through the surface tract in order to produce minerals… Continue Reading
Sunoco’s Eminent Domain Rights for Mariner East 2
Posted in Energy, Environment
On May 15, 2017, the Commonwealth Court issued a 2 to 1 decision holding that Sunoco Pipeline has the statutory power of eminent domain in relation to the Mariner East 2 pipeline project. The court determined that Sunoco provides a public benefit and that its pipeline is a necessary accommodation within the public’s interest. Further,… Continue Reading