Thorny Issue of Who Owns O&G Rights Under PA Roads – Strip & Gore
For years we’ve railed against what we consider the theft of royalties and bonus payments by the state of Pennsylvania from landowners with creeks and rivers running through their leased (for shale drilling) property. The Pennsylvania Dept. of Conservation and Natural Resources (DCNR) claims that under a centuries-old law, the state of PA “owns” the property under “navigable” waterways–including rivers and streams (see PA DCNR Seizes $45M in Streambed Royalties & Bonuses Since 2015). Now comes another similar issue–the ownership of mineral rights under PA roadways.
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In 2021, U.S. District Judge Lee H. Rosenthal, Chief Judge for the Southern District of Texas, approved deals for Chesapeake Energy to pay $6.25 million to class members of the three royalty lawsuits brought by Pennsylvania landowners (roughly 15,000 class members) and another $2.9 million to the lawyers involved (see 
Yeah, you read the headline correctly. Encino Energy offered the State of Ohio $1.8 BILLION (estimated) to drill for natural gas and oil under Salt Fork State Park, located in Guernsey County, OH. The park includes 17,229 acres of land and 2,952 acres of water. In December, Encino made an offer to the state immediately after House Bill (HB) 507 passed. The offer includes a payment of $5,500 per acre as a signing bonus and 20% royalties. No drilling would be done inside the park. All drilling would be done on land surrounding (on the outside of) the park.
The Pennsylvania Game Commission (PGC) owns and manages more than 1.5 million acres of state game lands throughout the Commonwealth. The primary purpose of these lands is the management of habitat for wildlife and providing opportunities for lawful hunting and trapping. You might think PGC gets most of its revenue from hunting and trapping licenses and fees. You would be wrong. PGC allows shale drilling on some of its vast holdings, and leases and royalties generate about 7X the income for PGC than all other sources combined.
In a case initially filed last summer in Ohio, a Belmont County mineral rights owner alleges that Rice Drilling (now owned by EQT) drained natural gas from a rock layer it did not have the right to access according to the signed lease. Golden Eagle Resources says the lease allowed Rice to drill down only as far as the Utica Shale layer, which Rice did. However, Golden Eagle says fractures from Rice’s fracking of the Utica layer reached down into the adjacent Point Pleasant layer and drained some of the gas from the Point Pleasant too–and that’s a no-no according to the lease.
CNX has reached a settlement with the Municipal Authority of Westmoreland County (MAWC) in a lawsuit brought by MAWC in 2016 claiming that CNX (and partner Noble Energy) claimed post-production deductions from royalties that should have been paid to MAWC. The original lawsuit sought combined damages of $3.6 million. The final number to be paid by CNX, according to reports, is $600,000.
On February 15, 2023, the Supreme Court of Pennsylvania agreed to hear the case Dressler Family, LP v. PennEnergy Resources, LLC, a case addressing the question of whether Pennsylvania is an “at-the-well” jurisdiction, or a “first-marketable product” jurisdiction. The case may have profound implications for Pennsylvania landowners and drillers. The issue in this case revolves around whether or not a driller is allowed to deduct expenses from royalty payments for transporting and cleaning up natural gas between the well and the point of sale. Can a driller claim post-production deductions even if there are clauses that prohibit them?
We have a second article today dealing with post-production deductions in Pennsylvania oil and gas leases. Although this is an “in the weeds” legal article, it’s worth your time and attention (if you are a PA landowner or driller) to read it and understand it. The lawyers at Houston Harbaugh, P.C. have discovered an ingenious way of exposing “net back pricing” and claiming post-production deductions under market enhancement royalty clauses as being hypocritical–by using a clause found in some leases that allows “free gas.”
Have you ever heard of reviving an expired lease through retroactive pooling and unitization? We sure hadn’t. But apparently, it’s a thing in the Marcellus region. According to the legal beagles at Pittsburgh energy law firm Houston Harbaugh, in some cases, landowners with leases that were expired are being notified those leases are now part of an amended (back-dated) declaration of pooling, which shows a date prior to the lease expiring.
Last April, MDN introduced readers to the developing issue of landowners being approached to lease “pore space” rights (see 
Purely by happenstance, we stumbled across an interesting “working paper” published by the National Bureau of Economic Research. The paper (we’d call it a study) is titled “Negotiations of Oil and Gas Auxiliary Lease Clauses: Evidence from Pennsylvania’s Marcellus Shale” (full copy below), first published in December but subsequently updated in January. Researchers scanned and (using software) analyzed nearly 60,000 leases signed in the Marcellus Shale Play of Pennsylvania. They learned some interesting things about PA leases. One of the main conclusions (eye-opening for us) is that getting more money for your lease is not necessarily tied to whether or not nearby wells are good producers. At best, better lease terms have a “weak relationship” to the performance of other wells in a given geography. What is the secret to getting more favorable lease terms?
We have two related lawsuits to report on involving landowners in Susquehanna County, PA, and Callon Petroleum. As most lawsuits are, these two are complicated. But, at a very high level, the concept is simple. The landowners allege that Callon Marcellus (formerly Carrizo Marcellus) shorted them on royalty payments. The landowners sued, but Callon sold its assets in northeastern PA (to BKV) and engaged in a shell game to move the proceeds of that sale ($74 million) directly to the mothership, Callon Petroleum, as a way of avoiding liability to pay, just in case they lose the royalty lawsuit.
Headquartered in Philadelphia, PA, WhiteHawk Energy was founded in 2021 to acquire mineral rights and royalty interests in U.S. shale plays. The management team of WhiteHawk has deep roots in the Marcellus, having founded Atlas Energy (a Marcellus driller) that was later sold to Chevron for $4.3 billion. In March 2022, MDN told you that WhiteHawk had purchased mineral and royalty rights in southwestern Pennsylvania, primarily in Washington and Green counties, for $52.5 million, covering 475,000 gross acres (see 
A group of landowners in Harrison and Doddridge counties (in West Virginia) sued Antero Resources, claiming the company had deducted post-production costs from royalties not allowed under the leases they had signed. Last year, the U.S. District Court for the Northern District of West Virginia ruled mostly in favor of the landowners. Antero appealed the case to the U.S. Court of Appeals for the Fourth Circuit (4th Circuit). Yesterday, the judges of the 4th Circuit issued their ruling (full copy below). Nobody got everything they wanted–we’d call it a split decision. However, Antero did win the right to make deductions in certain circumstances.
It’s rare these days to come across information about the terms of a lease deal. Back in the day, when leasing was still going strong and there were a number of landowner coalitions, we would learn of lease terms and share them here on MDN. When we hear of lease terms nowadays, it’s almost always a deal between a municipality or governmental entity and a driller, forcing the information to be made public. We have one such deal to share today. Earlier this week, the East Guernsey Local School District Board of Education (in Lore City, Guernsey County, Ohio) voted to approve an oil/gas lease with Encino Energy.