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Supreme Court of Ohio Rejects Constitutional Challenge to Unitization Order

By Ilya Batikov on Posted in Energy
On 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

By Ryan Elliott on Posted in Energy, Environment
On 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

PA DEP Halts Mariner East II Pipeline

By Ilya Batikov on Posted in Energy
Yesterday, 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

By Jay Carr on Posted in Energy
In 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

By Ilya Batikov on Posted in Energy
Over 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

By Ilya Batikov on Posted in Energy
Last 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

By Ilya Batikov on Posted in Energy
In 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

By Ilya Batikov on Posted in Energy
In 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

By Jay Carr on Posted in Energy
In 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

By Ilya Batikov on Posted in Energy
Last 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

By Ilya Batikov on Posted in Energy
On 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

By Ilya Batikov on Posted in Energy
On 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

By Ilya Batikov on Posted in Energy
On 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

By Ryan Elliott on Posted in Energy, Environment
This 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

By Jay Carr on Posted in Energy
Ohio’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

By Jay Carr on Posted in Energy
In 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

By Ryan Elliott on Posted in Energy, Environment
On 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

By Ilya Batikov on Posted in Energy
On 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

By Jay Carr on Posted in Energy
On 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

By Ilya Batikov on Posted in Energy
On 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

Ohio: Updated Statutory Unitization Guidelines

By Ilya Batikov on Posted in Energy
On May 3, 2017, the Ohio Department of Natural Resources, Division of Oil and Gas Resources Management (the Division) issued revised guidelines for statutory unitization applications. The guidance document–largely rewritten from the previous version (issued in May 2014)—contains a number of notable changes, including the following (among others): Unitization applications will now be processed on… Continue Reading