Since our last report, natural gas spot prices held around $3/MMBtu and the rig count is essentially flat while fluctuating oil prices flirted with $70/bbl. In Appalachia, a pipeline project gets a victory while Pennsylvania courts grapple with tax washes and the so-called “Dunham Rule” for oil and gas reservations. In other news, a Texas court denies a landman’s claim for compensation under the statute of frauds, a Kansas court denies a lease-busting attempt by landowners, and a Wisconsin bankruptcy court held that mineral rights are part of the debtor’s estate. Here’s the week in review:
Rig Counts, Oil Prices & Spot Prices
- Rigs: National (↑946); Marcellus (↑55); Utica (24)
- Oil Prices: Brent Crude: ↓$69.58/bbl; West Texas Intermediate: ↑$65.34/bbl
- Spot Prices: Henry Hub (↓$3.21/MMBtu); Dominion South (↑$2.95/MMBtu); Tenn. Zone 4 (↓$2.81/MMBtu)
Developments in Appalachia
- Mountain Valley Pipeline Gets Condemnation Win. A federal court in West Virginia concluded that Mountain Valley Pipeline had the right by virtue of its certificate of public convenience from FERC to condemn certain temporary and permanent easements necessary for the construction and operation of its pipeline and issued an injunction that authorizes the company to access and possess property of the plaintiffs before paying just compensation. Mountain Valley Pipeline, LLC, v. Simmons, — F. Supp. 3d —, No. 1:17CV211, 2018 WL 701297 (N.D.W. Va., Feb. 2, 2018).
- PA Court Says Tax Sale Resulted in Title Wash. The Superior Court of Pennsylvania recently concluded that the Herder Spring decision applied to a 1902 tax sale of property at issue in the case, which effectuated a title wash and reunited the severed surface and subsurface rights to the detriment of the party who attempted to claim the gas rights. Woodhouse Hunting Club v. Hoyt Royalty LLC, — A.3d —, No. 327 MDA 2017 (Feb. 2, 2018).
- PA Court Invokes “Dunham Rule” to Deny Coal Owner’s Claim that it Reserved Oil and Natural Gas Rights. The Superior Court of Pennsylvania recently held that a deed reserving coal rights did not reserve oil and gas rights without a specific reference to oil and gas in the reservation based on Pennsylvania’s longstanding “Dunham Rule,” which requires that grants or reservations must use those words to transfer oil and gas rights specifically. Carter v. Fanning, — A.3d —, No. 584 WDA 2017, 2018 WL 626261 (Pa. Super. Ct., Jan. 30, 2018).
- Commonwealth Court Denies Intervention in Longstanding Dispute over Local Permits for Compressor Station. Commonwealth Court denied intervention requests filed by a group of residents of Cecil Township in a longstanding fight over zoning approvals for a natural gas compressor station proposed by a midstream company because the residents waited five years to intervene. MarkWest Liberty Midstream & Resources v. Cecil Township, No. 904 C.D. 2016 (Pa. Cmwlth., Jan. 11, 2108).
- Commonwealth Court Denies Effort to Expand PEDF Remand Review. Following the Supreme Court’s decision in PEDF on Pennsylvania’s so-called “Environmental Rights Amendment,” the environmental group asked Commonwealth Court to decide whether the DCNR’s use of revenue from oil and gas leases to fund the agency’s staff and operations was unconstitutional. The Commonwealth Court declined and denied the application, stating that its obligation on remand after PEDF is to decide “whether certain revenue generated by oil and gas leases, in the form of an up-front bid bonus or a rental payment, is part of the corpus of the trust” and did not include the new question posed by PEDF. Pennsylvania Environmental Defense Fund v. Commonwealth, No. 228 M.D. 2012 (Pa. Cmwlth., Jan. 8, 2018).
Developments beyond Appalachia
- TX Appellate Court Applies Statute of Frauds to Oil/Gas Compensation Agreement. A court of appeals in Texas concluded that an unsigned compensation agreement with a landman for his share of proceeds from mineral acquisitions and resales violated the statute of frauds and that the landman did not demonstrate any exceptions to the statute. Moore v. Bearkat Energy Partners, LLC, — S.W.3d —, No. 10-17-00001-CV, 2018 WL 683754 (Tex. App. Ct., Jan. 31, 2018).
- Kansas Appellate Court Denies Bid to Bust Oil and Gas Leases for Cessation of Production. A court of appeals in Kansas recently concluded that landowners did not meet their burden of proving nonproduction in the secondary term of an oil and gas lease, noting that the lessee’s burden of proving a temporary cessation does not arise until after the landowners meet their burden, and held that a co-tenant’s ratification of the lease was sufficient to ratify the whole even over the objection of other co-tenants. Adamson v. Drill Baby Drill, LLC, — P.3d —, No. 114,762, 2018 WL 560890 (Kan. Ct. App., Jan. 26, 2018).
- Wisconsin Bankruptcy Court Concludes that Mineral Rights are Part of the Bankruptcy Estate. In Wisconsin, a bankruptcy court concluded that Section 541(b)(4) of the Bankruptcy Code, which excepts certain interests in “liquid or gaseous hydrocarbons” from the bankruptcy estate, does not apply to mineral rights inherited by the debtor and therefore the mineral rights become property of the debtor’s estate. In re: Michael J. Poivey & Denise P. Poivey, Debtors., — B.R. —, No. 17-26408-BHL, 2018 WL 550580 (Bankr. E.D. Wis., Jan. 24, 2018).