Lease & Royalty Payments

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    PA Class Action Royalty Lawsuit Against XTO Settles for $11M

    A journey which began for Pennsylvania landowners in Butler County, PA in July 2015 is nearing an end. Two Butler County, PA landowners with a combined 245.7 acres of land leased to XTO Energy sued XTO in 2015 claiming that XTO is breaking the lease agreement by paying royalties below 1/8 of what XTO receives in revenue for the gas (see PA Landowners Sue XTO Energy for Shorting Them on Royalties). The case, known as Marburger et al V. XTO Energy Inc., asserted the lease signed with landowners did not include language that would allow XTO to deduct post-production charges (that they had been deducting). The two landowning families that launched the lawsuit, the Marburgers and the Thieles, sought to turn the lawsuit into a class action, involving potentially hundreds or thousands of others. It didn’t take long for XTO to oppose the lawsuit and its certification as a class action (see XTO Files Motion to Dismiss Royalty Lawsuit in Butler County, PA). Since that time we’ve not heard much of anything about the lawsuit. And then out the blue comes word that via arbitration, XTO has agreed to settle the lawsuit. The settlement includes turning it into a class action, and paying out a total of $11,010,000. As part of the settlement, XTO admits to nothing. That is, they do not concede the plantiffs have a valid case against them. It’s simply cheaper to settle it and move on rather than to keep fighting. Below we have the relevant court documents with the details of the settlement…
    Read More “PA Class Action Royalty Lawsuit Against XTO Settles for $11M”

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    PA Landowners “Furious” Over Royalties, Backdoor Lease Changes

    An off-hand comment by a Pennsylvania Gov. Wolf staffer has landowners in northeast PA hopping mad–and with good reason. Speaking on the topic of PA landowners getting screwed out of royalty payments by drillers deducting inflated post-production costs (sometimes sending royalty statements where landowners OWE the drillers money!), Wolf deputy policy director Sam Robinson said this: “I think there was a crescendo of that kind of claim in 2015 to 2016…There’s been real movement in a positive direction on that issue.” Really? Not according to Bradford County Commissioner Doug McLinko and National Association of Royalty Owners (NARO) PA president Jackie Root. Not only is the issue not resolved, but the industry, under the prompting of EQT, snuck through an “environmental rider” in the recently passed-and-signed-into-law Fiscal Code bill (called Section 1610) that gives drillers a back door to reactivate old, non-producing wells after they have not been producing (and the lease considered terminated) under certain conditions (see PA Republican Senate Changes Lease Terms for Landowners). Far from moving in a “positive direction” as Robinson stated, landowners in PA are “furious” according to McLinko, and feel as if they have been “thrown under the bus” according to Root…
    Read More “PA Landowners “Furious” Over Royalties, Backdoor Lease Changes”

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    DOJ Ends Probes into Chesapeake Royalty Practices, Land Deals

    In September 2016, Chesapeake Energy filed disclosure forms with the Securities and Exchange Commission which says the U.S. Dept. of Justice (DOJ), a number of states, and even the U.S. Postal Service have served the company with subpoenas for information (see Everybody Just Subpoenaed Chesapeake Energy for Everything). The filing indicated that Chesapeake had received DOJ, U.S. Postal Service and state subpoenas “seeking information on our royalty payment practices. In addition, we have received a DOJ subpoena seeking information on our accounting methodology for the acquisition and classification of oil and gas properties and related matters.” An enterprising investigative reporter with Reuters noticed Chesapeake recently filed another disclosure form with the SEC–to say that the DOJ has now ended what was a three-year probe into the company’s royalty payment and land purchase practices–ended without taking any action…
    Read More “DOJ Ends Probes into Chesapeake Royalty Practices, Land Deals”

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    Federal Court Says Chesapeake Royalty Deductions Allowed in Ohio

    The U.S. District Court in Akron, OH has just made a major ruling that affects all Utica landowners and drillers. In 2015, the Ohio Supreme Court accepted a case that will sound familiar to readers of MDN. The case, known as Lutz v. Chesapeake Appalachia, is about whether or not drillers (Chesapeake in this case) are allowed to deduct certain post-production costs from landowner royalty checks. The Ohio Supremes were asked to decide whether Ohio follows the “at the well” rule, which permits the deduction of post-production costs, or if the state follows the “marketable product” rule, which limits the deduction of post-production costs under certain circumstances. The Supremes came down off Mount Olympus in November 2016 to render their verdict (see OH Supreme Court: Royalty Deductions Decided Case-by-Case). The court said, in so many words, “We’re not deciding.” In other words, each royalty case should be litigated individually, case-by-case, in a trial court. There is no one-size-fits-all with respect to deducting expenses from royalty checks. Each case will depend on how the contract is written, and the success of lawyers litigating it. The Supremes refused to tackle the ultimate issue, which is: What does “at the well” really mean? How is it defined? The U.S. District Court in Akron did tackle that issue. The federal court took up the Lutz case and has now defined what is meant by “at the well.” The court’s decision means that Chesapeake Energy (and by extension other drillers) CAN deduct post-production expenses from landowner royalty checks…
    Read More “Federal Court Says Chesapeake Royalty Deductions Allowed in Ohio”

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    PA Republican Senate Changes Lease Terms for Landowners

    The Pennsylvania State budget is a complicated pile of…bills. At it’s core are three basic budget-related bills that implement the $31.9 billion state budget (unwisely) passed in June. It was unwisely passed because Republican lawmakers voted for a plan to spend money without having a way to pay for it. Stupid. PA Gov. Tom Wolf (liberal Democrat) demanded part of the new revenue required to pay for all that wild spending is to tax the Marcellus industry with a severance tax–on top of the existing impact tax (already the equivalent of a severance tax in other states). One of the three main bills to pay for the budget is the Fiscal Code bill–House Bill 674. HB 674 was adopted by the PA Senate on Monday (vote of 41-9). In the Senate version, which now goes to the House for final adoption, there are a number of “environmental riders”–or bits of legislation that have nothing to do with the budget or spending, but tacked on as a way of getting them passed without the mess of voting on them individually. Swamp politics. One of those provisions is “SECTION 1610-E” which gives drillers the right to reactivate old, non-producing wells after they have not been producing (and the lease considered terminated) under certain conditions…
    Read More “PA Republican Senate Changes Lease Terms for Landowners”

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    Va. Non-Profit Trades 53 Acres for 1,130 Acres in Pipeline Deal

    We’d call this a case of Atlantic Coast Pipeline (ACP) and Mountain Valley Pipeline (MVP) getting taken to the (pipe) cleaners. The anti-fossil fuel (and far-left) Virginia Outdoors Foundation (VOF) warned both Atlantic Coast and Mountain Valley, years ago, that land the non-profit previously tied up with non-development easements is off limits for their respective pipeline projects. So-called “open space” organizations like VOF get private landowners to sell them easements to their properties–the right to disallow any kind of development on the land, no matter who buys it in the future. But sometimes “no development” doesn’t actually mean “no development”–it’s just a bargaining position. The VOF has just cut a deal to allow ACP and MVP to cross a cumulative 53 acres of land, land with no-development easements, in exchange for adding 1,130 acres in other places to the their no-development easement stash. Oh, and $4,075,000 in cash for VOF’s coffers will be chipped in too. A true shake-down by shake-down artists, all to stick a couple of pipelines in the ground for a few hundred feet where nothing will get built over top of them anyway…
    Read More “Va. Non-Profit Trades 53 Acres for 1,130 Acres in Pipeline Deal”

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    OH Congressman Intros Impact Fee for Counties with WNF Drilling

    Congressman Bill Johnson

    Congressman Bill Johnson, Republican from Ohio’s 6th District, has introduced a bill to compensate counties that contain federal lands, if those lands are drilled for oil and gas. Johnson’s bill, titled Providing Opportunities With Energy Revenues (or POWER) Counties Act (copy below), would siphon off a portion of any royalties paid to the federal government for federal lands that are drilled, sending that money back to the counties where the drilling takes place. Although Johnson and those supporting the bill don’t call it an impact fee, that’s exactly what it is. In Pennsylvania instead of a severance tax, legislators passed Act 13 (in 2012) which contains and impact fee. With PA’s impact fee (roughly the same thing as a severance tax), 60% of the fee raised stays with local counties and municipalities, while 40% goes to the black hole of Harrisburg where it disappears into statewide spending (mainly Philadelphia). It has been a hugely successful model–better than a severance tax. Johnson’s proposed law is not a tax, but reallocates money from existing royalties paid to the federal government for drilling on federal lands. In Ohio, the only federal land where drilling takes place is Wayne National Forest–so those counties where there is WNF drilling would get some extra cash to help out with road repairs, first responders, etc. The brilliance of the plan is that it doesn’t impose any new taxes–it simply reallocates who gets what from the existing revenue stream. Johnson says, “it is a simple issue of fairness”…
    Read More “OH Congressman Intros Impact Fee for Counties with WNF Drilling”

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    Shell Pays $43/Foot in Recent Deal for Ethane Pipeline Easements

    Click for larger version

    In February 2016, MDN exclusively broke the news that Shell had begun to sign leases with landowners for a 97-mile ethane pipeline (two branches) to feed their mighty cracker plant (see Exclusive: Shell Leasing Land for 2 Pipelines to PA Cracker Plant). Since that time we’ve tracked any news we could find that reveals what Shell is paying landowners in Beaver County (and elsewhere) for the right to run the ethane pipeline (called the Falcon Ethane Pipeline) across their land. So far, we’ve seen rates as high as $75 per foot, and as low as $43 per foot. In the most recent round of easements–the first signed since August–Shell once again paid landowners $43/foot. Here’s the details of where the latest easements were signed, and for how much…
    Read More “Shell Pays $43/Foot in Recent Deal for Ethane Pipeline Easements”

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    PA Court Case May Create Loophole for Landowners to Bust Old Leases

    According to expert analysis by the legal beagles at the Blank Rome law firm, a recent decision by the Superior Court of Pennsylvania disregards established precedent law and has created a new law in PA, possibly “leaving lessees [drillers] in limbo, possibly giving unscrupulous lessors [landowners] a unilateral tool to terminate oil and gas leases, and ultimately harming both lessors and lessees in the process.” In Montgomery v. R. Oil & Gas Enterprises, two (out of three) judges ruled that oil and gas leases could be severed (terminated) both “vertically” and “horizontally” by unilateral actions of the landowner. In this case “vertical” means shale or other rock layers under the ground, and “horizontal” means surface ownership. As with most things legal, this is a complicated case with a lot of history we won’t attempt to recount it chapter and verse. If we can boil it all down, the judges found that a landowner who had purchased a piece of property with an old lease that contained terms for shallow rock layers and deeper rock layers, could, unilaterally, terminate one aspect of that lease (in this case the shallow layer portion of the lease) while keeping the other aspect of the lease intact (the deeper layers, already drilled and producing). The Blank Rome analysis below does a deep dive into the case, frankly ripping the decision to shreds, and postulates the theory that it may lead to cases in which a landowner with a decades-old lease in which the shallow layers are held by production can separate and convey the deeper layers to a family member or family trust, and then terminate the deeper layer lease, re-releasing it to a different driller…
    Read More “PA Court Case May Create Loophole for Landowners to Bust Old Leases”

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    Westmoreland Water Authority Expects $3M in Gas Royalties This Yr

    In an incredible story of how Marcellus Shale drilling benefits local communities, the Municipal Authority of Westmoreland County (i.e. the water authority) reports that it expects royalties received from 52 shale wells drilled on authority-owned land will jump another $1 million this year, to a total of over $3 million. The authority is still pushing forward with a three-year rate hike plan that began in 2016–so customers will get a 7% rate hike this year. Even though the authority has all of that extra cash. Why not suspend the rate hike because of the extra royalty money? Because, says an authority official, “The rate hikes were designed to help pay for a $140 million loan finalized last year for capital improvements to the water system that serves more than 120,000 customers in five counties as well as nearly 25,000 sewer customers.” What will the authority do with the extra $1 million they hadn’t planned on receiving? It’s “more money to be reinvested into the system.” Here’s the lowdown on Westmoreland’s windfall from gas royalties, and why royalties are jumping this year…
    Read More “Westmoreland Water Authority Expects $3M in Gas Royalties This Yr”

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    Lawyers ask US Supreme Court to Hear WV EQT Royalty Case

    WV Supreme Court Justice Beth Walker

    In a decision that thrilled drillers, but angered landowners, the West Virginia Supreme Court decided in May to overturn its own previous decision (from last December) and allow driller EQT to deduct post-production expenses from royalty payments (see WV Supreme Court Reverses Itself, Post-Production Deductions OK). Last December MDN reported on the huge WV Supreme Court decision against driller EQT that disallows EQT from deducting post-production expenses from royalty checks, even with signed contracts in place (see WV Supreme Court Rules EQT Can’t Deduct P-P Costs from Royalties). The justices, in their ruling, said that drillers can “not deduct from that (royalty) amount any expenses that have been incurred in gathering, transporting or treating the oil or gas after it has been initially extracted, any sums attributable to a loss or beneficial use of volume beyond that initially measured or any other costs that may be characterized as post-production.” A really big deal. Then in February, with a brand new justice on the bench, the WV Supreme Court agreed to rehear the case after an appeal filed by EQT–a rare and unusual step (see EQT Catches Big Break in WV Supreme Court re Royalty Deductions). Those who won the case say newly elected Supreme Court Justice Elizabeth Walker had conflicts of interest and should not have been allowed to vote to rehear the case in the first place (which she did). On that basis, they tried to avoid the rehearing altogether, but that failed. As it turns out, the lawyers mainly argued over the meaning of three short words: “at the wellhead” (see WV Supreme Court Post-Production Royalty Case Hinges on 3 Words). In the May decision, the justices reversed their earlier decision, voting 4-1 in favor of allowing EQT to deduct “reasonable” post-production expenses. Newly elected Justice Beth Walker, with (according to the other side) conflicts of interest, voted in favor of EQT. On the basis that Walker should not have been part of the process at all, lawyers for the losing landowners have appealed the case all the way to the United States Supreme Court…
    Read More “Lawyers ask US Supreme Court to Hear WV EQT Royalty Case”

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    PA Senate Slips Anti-Landowner Measure into State Budget Bill

    Not only did the Pennsylvania Senate pull a real boner by voting for a severance tax and gross receipts tax (see Traitorous PA Senate Republicans Pass Severance Tax Bill), they also slipped another provision in the PA budget bill that, until now, has gone unnoticed. This new provision has big implications for both landowners and drillers. The Senate slipped in Section 1610 (see the language below) which changes established lease law with respect to oil and gas wells that no longer produce anything. Under existing law, when an oil or gas well stops producing–and the landowner quits getting royalty checks–the lease is considered terminated. Done. Finished. Under Section 1610, drillers can resurrect those dead leases under a couple of conditions. If the landowner doesn’t officially state “your lease is now dead since you’re not producing anything” a driller quick-like-a-bunny restarts production at the well and sends the landowner a check, it would re-start (or continue) the existing lease with its existing terms. Or if the driller sends a notice to the landowner stating its intention to drill a new well on the property, and if the landowner doesn’t object (given a 3-month time limit), the driller is free to begin drilling a NEW well, under the OLD lease terms. Section 1610 really stinks, in our humble opinion. It means a driller can drill a new shale well after an old conventional/vertical well quits producing–without having to sign a new lease or pay a new bonus or negotiate a new royalty rate. Doesn’t seem right to us!…
    Read More “PA Senate Slips Anti-Landowner Measure into State Budget Bill”

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    Findlay Twp Signs Deal w/Range to Drill Under Town Park, $3K/Acre

    Findlay Township (Allegheny County, PA, west of Pittsburgh) has just signed a deal with Range Resources to allow drilling under (not on) the towns 61-acre Clinton Park. Terms of the deal: Findlay gets a $3,000 per acre signing bonus and when the gas begins to flow, an 18% royalty. That means Findlay will get a nice, fat check for $183,000 in the next 90 days. The lease has been a long time in coming. Town supervisors worked on a deal five years ago, but then drilling slowed down and the deal was “put on the shelf.” Range will actually drill under the property from the Seibel Farm, which sits just over the border in Beaver County. The board of supervisors voted unanimously to approve the deal…
    Read More “Findlay Twp Signs Deal w/Range to Drill Under Town Park, $3K/Acre”

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    Wheeling Park HS Signs Lease with Southwestern for $3500/Acre

    It’s not often these days we come across a story that mentions a new lease signed, and the amount of money paid as a signing bonus. Such is the case in Ohio County, WV. The Wheeling Park High School has just signed a lease with Southwestern Energy for $3,500 per acre for 66 acres–giving the school district $231,000 of newly found revenue, thanks to the Marcellus/Utica industry. No drilling equipment will be placed on or near school property. When the drilling eventually happens UNDER the school, and the wells begin to flow, Wheeling Park High School will then get more revenue–18% royalties on all gas produced…
    Read More “Wheeling Park HS Signs Lease with Southwestern for $3500/Acre”

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    PA Rep. Ortitay Intros Watered-Down Minimum Royalty Bill

    Pennsylvania Rep. Jason Ortitay, Republican from South Fayette (Washington & Allegheny Counties), PA who replaced Jesse White in January 2015 (see Pro-Driller Ortitay Replaces Anti-Driller White in PA House) has introduced a new bill in the PA House to bridge the gap between landowners who want a guaranteed minimum royalty of 12.5% regardless of post-production costs, and drillers who adamantly oppose a guaranteed minimum royalty. Rep. Garth Everett, Republican from Lycoming County, has been the champion of landowners and their quest to stop what they see as an abuse of the contracts they signed by implementing a state-mandated 12.5% minimum royalty–even if post-production costs eat into it (see PA Rep. Garth Everett Reintroduces Minimum Royalty Bill, 3rd Time). Landowners and groups representing them, like the National Association of Royalty Owners (NARO), point to abuses by companies like Chesapeake Energy and claim some drillers cook up deals with pipeline/processing companies to overcharge, deducting it from royalty checks, and then getting the money back from those pipeline companies via investments. Kind of a kick-back scheme. Drillers maintain you can’t upend legal contracts in response to one or two rotten apples in the barrel. Ortitay believes he can navigate the middle ground, proposing a bill that will require drillers to itemize the deductions made from royalty checks, and prevent drillers from sending landowners a bill, which is beyond-words offensive. Can you imagine any landowner signing a lease that requires the landowner to pay the driller when prices go low? It’s ludicrous, and Ortitay’s bill, House Bill (HB) 1708 aims to fix it…
    Read More “PA Rep. Ortitay Intros Watered-Down Minimum Royalty Bill”

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    Shell Pays Varying Amounts for Ethane Pipe Easements – Latest

    MDN has been tracking the prices paid by Shell to landowners to run an ethane pipeline under their land to feed the might cracker plant the company is just now beginning to build in Beaver County, PA. Why? So landowners in Beaver (and other locations) have a useful metric for judging the offers they receive. To be fair, a company that wants to run a local gathering pipeline across someone’s land will pay a lot less than Shell is willing to pay–given you can’t move the cracker plant. Interstate pipelines will likely pay something less too. But still, we find it interesting and useful to know what Shell is up to in Beaver. We don’t have a lot of data points, yet. In June, we learned that Shell paid roughly $75 per foot for 3,138 linear feet of pipeline space in Greene Township (see New Easement for Shell Ethane Cracker Pipeline Reveals Price Paid). In July, Shell paid ~$43/foot for 2,675 linear feet of pipeline space (see Latest Amount Shell Paid for Ethane Pipeline Easements Goes Down). We now have two more data price points to share with you…
    Read More “Shell Pays Varying Amounts for Ethane Pipe Easements – Latest”