Energy Companies | Industrywide Issues | Lease & Royalty Payments | Litigation | Pennsylvania | Southwestern Energy | Statewide PA
“Rule of Capture” Briefs Filed w/PA Supreme Court in Briggs Case
In November the Pennsylvania Supreme Court agreed to hear a case, Briggs v. Southwestern Energy, that is hands-down the most important court case to ever happen regarding the Marcellus Shale in PA. And no, we’re not exaggerating. A blizzard of briefs by Southwestern and those supporting Southwestern were filed earlier this week.
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Here’s an interesting twist on the theme of drillers shorting leaseholders out of royalty money. Usually such cases involve drillers claiming post-production deductions from landowner royalty checks. This time the landowner/rightsholder is Columbia Gas Transmission (pipeline company owned by midstream giant TransCanada), and the claim is that Southwestern Energy (driller) is not paying royalties for gas produced but not actually sold.
There are companies that will purchase landowners’ (rights owners) royalty payments–giving them a lump sum payment up front in return for signing over all future royalty payments to the company buying the rights. Peregrine Energy Partners is one such company and has just purchased an unspecified amount of royalty payments in Greene County, PA.
The mystery is now solved. Last week we incorrectly (based on a Pittsburgh Tribune-Review article) reported that FirstEnergy wants to drill a well under (not on) Linbrook Park, located in the Borough of Franklin Park in Allegheny County (
Last week the Bureau of Land Management’s (BLM) Eastern States Office ran another oil and gas lease auction for federal land on the eastern side of the country. Up for auction was 2,456 acres in Ohio, Michigan and Mississippi. Only half of the property listed for auction actually brought bids and sold. Of the 2,456 acres offered, a piddly 75 acres, in two parcels, was located in Ohio’s Wayne National Forest (WNF)–in Monroe County. That is, 3% of all the acreage in the BLM sale was in the Ohio Utica–and yet that 3% brought in 69% of the revenue from the sale: $15,720 total. However, the amount paid per acre for the WNF parcels seems to be small–just $209 per acre. So who picked up the 75 acres for a song?
If a deed refers to a previously reserved royalty interest where the reference identifies the type of interest created and the person to whom the interest was granted (with no other details), is that sufficiently specific enough to preserve the royalty interest under the Ohio Marketable Title Act (OMTA)? According to a decision rendered last week by the Supreme Court of Ohio, the answer is, “Yes.” In a case with its roots dating back to 1915, landowners attempted to sever royalty interests under the Ohio Dormant Mineral Act, attempting to cancel the old interest because a 1969 deed that referred back to the original deal (of one-half royalty interest) was not “specific enough.” The 1969 reference didn’t include the volume and page number of the instrument that originally created the royalty interest. In other words, it wasn’t a “Simon Says” kind of thing–it didn’t follow the exact legal standard. The current landowner tried to cancel the original royalty sharing obligation via a legal loophole.
Two weeks ago MDN told you about a class action lawsuit that’s been brewing in West Virginia since 2013, brought by 10,000 WV landowners and royalty rights owners against EQT over the company’s practice of deducting post-production expenses from royalty payments (see 
Is the Marcellus/Utica industry giving itself a black eye with respect to post-production deductions? It’s always dangerous to paint with too broad of a brush. There are some drillers who don’t deduct post-production costs, and the landowners signed with them are happy as clams (we know some personally). But there are other drillers, perhaps under pressure by investors, perhaps from greed (as is said by those opposed to shale drilling) that are making profits on the backs of landowners. Regardless of motivation, it’s not right. The problem is, the media *does* paint with a broad brush and accuses the entire industry of behaving the same way. The following Charleston Gazette-Mail editorial is a perfect example.
EnCap Investments is a venture capital investor that funds independent companies in the U.S. oil and gas industry. EnCap has its fingers in a number of pies in the Marcellus/Utica. EnCap is the major investor behind Eclipse Resources and was instrumental in Eclipse selling itself to and merging with Blue Ridge Mountain Resources (see 
EQT certainly isn’t following Dale Carnegie’s advice on How to Win Friends and Influence People. Just the opposite, as the company continues to squeeze every last penny it can out of landowners’ pockets who hold old “flat rate” leases in West Virginia. We’ve reported on EQT’s efforts to overturn WV’s Senate Bill (SB) 360, passed earlier this year and signed into law by Gov. Jim Justice (see