On July 15, a Judge for the U.S. District Court for the Middle District of Pennsylvania found that SWEPI LP (“SWEPI”) was obligated to pay bonuses under an oil and gas lease that it had surrendered prior to a 90 day title verification period. In Masciantonio , et al. v. SWEPI LP, the plaintiff-landowners executed oil and gas leases, with attached addenda, in favor of SWEPI for a primary term of five years. The leases stated “[i]n consideration of the bonus consideration paid, the receipt of which is hereby acknowledged,…Lessor does hereby grant…to Lessee,…the lands hereafter described for the purpose of exploring for, developing, producing and marketing oil, gas or their related substances.” The addenda included a payment provision stating that “[i]in consideration for the attached paid-up Oil and Gas Lease, Lessee hereby agrees to pay Lessor [$4,000.00] per net mineral acre. Payment shall be due within ninety (90) banking days of the Lessor presenting the Bank Draft to the financial institution of his/her/their choosing. All payment obligations are subject to title verification by Lessee.” SWEPI presented bank drafts to the plaintiffs, who presented them to their respective banks. Prior to 90 days thereafter, SWEPI decided to surrender the leases, due to a geohazard running through the leased premises and the presence of competitor leases covering neighboring lands. Upon surrender of the leases, SWEPI cancelled the bank drafts.
The plaintiffs brought suit for breach of contract, claiming that the obligation to pay the bonuses accrued immediately upon the parties executing the leases, and that the surrender did not extinguish SWEPI’s payment obligation. SWEPI countered with several arguments, all of which were rejected by the Court. First, SWEPI argued that the leases were ineffective, because the payment of the bonus was the sole consideration for the lease, without which the leases never went into effect. SWEPI also argued that the leases were subject to a condition precedent to formation and were ineffective unless and until SWEPI verified plaintiffs’ title to the property. The Court found that the language of the leases indicated that the actual consideration was the exchange of a bargained-for promise, not the immediate exchange of the value thereof. Similarly, the title verification condition operated as a condition precedent to the obligation to pay, not to the formation of the contracts. Therefore, the leases were valid and enforceable, despite the lack of bonus payment.
Next, the Court considered the two interpretations of the lease provisions presented by each party and determined that the plaintiffs’ interpretation was the more reasonable one. SWEPI argued that the contract terms allowed it to dishonor the bank drafts for any reason, or for no reason, until the expiration of the 90-day banking period. SWEPI presented language of industry standards, quoting Williams & Meyers’ Oil & Gas Law, which said that the use of a bank draft which will not become effective for a period of time subject to approval of title was often used by lessees to void a lease if they decided that conditions were no longer desirable. However, the Court found that the industry standards, including Williams & Meyers’, always provided that the precise language of the lease controlled and did not support an across-the-board provision that the use of a bank draft allows a lessee to void a lease for any reason until the expiration of a certain time period. The Court further stated that the language of the SWEPI leases consisted of an unequivocal agreement by SWEPI to pay the bonus and further provided a description of the time and manner in which it must do so. Therefore, the language did not provide SWEPI with the opportunity to avoid payment but instead bound SWEPI to pay, subject only to the condition of title verification. SWEPI was unable to present any meaningful evidence that it decided to surrender the leases due to a problem with plaintiffs’ title. On the contrary, plaintiffs presented sufficient evidence that they had good title to the leased premises. The Court further rejected the argument that the factors of geohazards and competitor activity on neighboring lands were part of the consideration of “title verification.” Those considerations were encompassed under the realm of a title “examination,” but not “title verification,” according to the plain meaning of such terms.
For those reasons, the Court held that SWEPI breached its obligation under the valid oil and gas leases and it was required to pay the bonus to the plaintiffs.
On May 13, 2016, West Virginia Governor Early Ray Tomblin signed into law Senate Bill No. 702 which amends §44-8-1 of the Code of West Virginia dealing with the real estate of decedents. Under this amended law, if a decedent devises the proceeds of the sale of real estate to certain individuals, but the real property is never sold, then those individuals entitled to the proceeds would automatically acquire title to the real estate upon the closing of decedent’s estate, absent contrary testamentary intent. If the decedent’s estate is not closed, then title would vest with such individuals five years after the death of the testator. Senate Bill No. 702 provides a title examiner with greater certainty in determining current ownership of decedents’ oil and gas property and will serve to reduce title risks to oil and gas companies in leasing or acquisition activities.
As reported by the Wheeling Intelligencer, for the fifth year out of the last six, pooling legislation has been introduced in the West Virginia House of Delegates (HB 4426). A similar measure failed to pass in 2015 after a 49-49 vote on the final day of the legislative session. HB 4426 allows drillers who own or have leased 80 percent of the acreage in a proposed unit to unitize the remaining acreage if mineral owners cannot be located or refuse to sign leases. However, unlike prior versions, the current bill would forbid companies from deducting post-production expenses from royalty checks payable to such mineral owners. Opponents of “lease integration,” as it has been called in West Virginia, maintain that drillers should not be allowed to incorporate unleased oil and gas interests into planned well units because such incorporation co-opts landowners’ rights to execute oil and gas leases affecting their separate property. HB 4426 is currently under consideration by the West Virginia House Energy Committee.
As reported by Law360, the Pennsylvania Supreme Court will allow argument after the January decision by the Commonwealth Court in Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 45 ELR 20006, in order to determine how judges should approach government actions challenged under the Environmental Rights Amendment (Article I, Section 27) of the Pennsylvania Constitution. The Court said that it would consider “the proper standards for judicial review of government actions and legislation challenged under the Environmental Rights Amendment” and, specifically, the constitutionality of a pair of fiscal code amendments that gave the Pennsylvania Legislature control over revenue streams generated from the leasing of state land for oil and gas drilling. In January, the Commonwealth Court ruled that the Environmental Rights Amendment did not place fundamental restrictions on what the Commonwealth can do with revenues generated from public lands.
The Pennsylvania Superior Court ruled on Friday that an oil and gas lease was not forfeited by the failure of the operators to pay delay rentals. In Dewing v. Abarta Oil & Gas Co., the landowners (the “Dewings”) executed an oil and gas lease that was owned by Abarta Oil & Gas Co. Inc., Talisman Energy USA, Inc. (“Talisman”) and Range Resources (“Range”, collectively, the “Operators”). The lease provided that delay rentals be paid for the primary term for the lease unless and until a well is drilled on the property or a well unit is drilled. The lease also stated that it “shall never be subject to a civil action or other proceeding to enforce a claim of forfeiture due to Lessee’s alleged failure to perform as specified herein, unless Lessee has received written notice of Lessor’s demand and thereafter fails or refuses to satisfy Lessor’s demand within 60 days from the receipt of the notice” (the “Forfeiture Clause”). The Dewings did not receive delay rentals for a period of time and sent notice of such failure to Talisman, which informed the Dewings that Range was handling the payment of delay rentals. The Dewings subsequently sent notice that the lease was forfeited to Range, and Range thereafter paid the delay rentals to the Dewings. The Dewings filed the underlying civil action, alleging that the lease had been forfeited and abandoned for failure to timely pay the delay rental. The Superior Court affirmed the trial court’s ruling in favor of the Operators, stating that although the Dewings had the right to seek forfeiture under the Forfeiture Clause, they did not prove that the Operators did not materially breach the lease. Citing a prior decision, Linder v. SWEPI, 549 Fed. Apx. 104 (3d. Cir. 2013), the Superior Court held that unless a contract contains a “time-is-of-the-essence” clause, the breach of the delay rental provision by making a late payment is not a material breach. Further, when a lease includes a 60-day cure period, it is evident that the parties intended to improve the chances of an out-of-court resolution to a breach caused by the late payment of delay rentals. Therefore, the Superior Court held that the Operators had not materially breached or abandoned the oil and gas lease under dispute.
In the case titled Mason v. Range Res.-Appalachia LLC (2015 U.S. Dist. LEXIS 97471), the United States District Court for the Western District of Pennsylvania recently held that a 1961 oil and gas lease remained in effect pursuant to the terms of the lease. The lease provided the lessee the right to enter the leased premises to explore, drill, produce and market oil and gas as well as inject, store and withdraw gas and protect gas stored therein. The habendum clause of the lease provided that the lease would extend into its secondary term so long as the lessee operated the property (i) in search for oil and gas; (ii) for production of oil and gas; (iii) for storage of oil and gas; or (iv) “for the protection of any gas stored in such storage field” (emphasis added). These types of oil and gas leases are commonly referred to as “Dual Purpose” Leases. The leased premises is situated within a protective area for a 11,000 acre storage field located in Washington County, Pennsylvania, and no well has been drilled on and no production occurred on the leased premises.
The landowners argued, among other things, that the 1961 lease has expired because (i) the lease provides the lessee the right to use the premises to produce gas, store gas and protect gas stored on the leased premises; (ii) the lessee may not use the leased premises for the protection of gas stored on adjoining lands until it first produced gas on the leased premises; and (iii) the annual payments were insufficient to extend the lease into its secondary term. The court applied the rationale set forth in Penneco Pipeline v. Dominion Transmission, Inc. and the rules of contract interpretation to conclude that the lease had entered into its secondary term and remained in effect. The court held that the only reasonable construction of the granting and habendum clauses is that the lessee may use the land for protecting gas stored immediately under the leased premises or gas stored under adjoining land or both. Because the lessee was using the leased premises to protect gas stored under adjoining land and tendered annual rental payments, it concluded that the 1961 lease is still in effect.
A bill, HB2688, designed to allow oil and gas operators to create oil and gas production units without the express authority of all oil and gas owners within the unit boundary, is currently pending before the West Virginia House Judiciary Committee. The bill would require the owners of 80% of the interests in any given unit boundary to agree to pooling and unitization for horizontal wells before an operator could apply to the West Virginia Conservation Commission for a “horizontal well unit order.” Proponents say that the bill could reduce the administrative burdens against operations in the West Virginia Marcellus Shale region by allowing oil and gas operators to commence operations without locating unknown, un-locatable or abandoning oil and gas owners. Opponents fear that the bill, if passed, would be used to infringe individual landowners’ rights. The bill has already passed the West Virginia House Energy Committee.
As reported by Marcellus Drilling News and the Daily Reporter, the WV Department of Commerce, which is tasked with overseeing the state’s leasing program, opened another round of bids on Friday to lease state-owned lands for oil and gas operations. Jay-Bee Production Company submitted a bid ranging from $5,000 to $16,300 per acre to drill underneath 303 acres in theJug Wildlife Management Area in Tyler County, and Antero Resources bid $8,100 per acrefor 283 acres in the Jug Wildlife Area. Noble Energy also submitted a bid to drill beneath Fish Creek and adjacent lands in Marshall County, and the state is currently negotiating with Noble, Statoil USA Onshore Properties Inc. and Gastar Exploration to lease different sections of the Ohio River.
Today, Pennsylvania Governor Tom Wolf fulfilled a campaign promise by signing an executive order banning new oil and gas leases on public land owned by the Commonwealth. This order ended the efforts of former Governor Tom Corbett to expand oil and gas drilling below Pennsylvania-owned parks and forests. While environmentalists applauded the new executive order as a sign of strong environmental regulation, critics labeled it an unnecessary political action that bans the safe development of natural gas beneath taxpayer land. Currently, Pennsylvania has leased about 700,000 acres of approximately 2.1 million acres of state forest. This new executive order does not effect leases already in effect.
American Energy Partners, LP (“AEP”) announced yesterday that its affiliates, American Energy-Utica, LLC (“AEU”) and American Energy – Marcellus, LLC (“AEM”) are combining in an all-stock transaction to form American Energy Appalachian Holdings, LLC (“AEA”). AEP hopes that the “attractive positions [of AEU and AEM] in each of these respective plays and their complementary nature will allow AEA to maximize returns by realizing administrative and operational efficiencies.” The transaction will result in AEA holding a position in over 300,000 net Utica and Marcellus shale acres in eastern Ohio and northern West Virginia. AEP entered the Marcellus shale play in June as part of a larger $4 billion effort to expand its holdings in West Virginia, Ohio and Texas. AEP affiliates also maintain positions in the Woodford Shale in central Oklahoma and the Permian Basin in western Texas.
As reported by The State Journal, Robert A. Fala has been appointed to serve as the director of the West Virginia Division of Natural Resources (“WVDNR”), effective January 1, 2015. Fala was appointed by WV Governor Earl Ray Tomblin and will replace Frank Jezioro, who served as director since 2005 and retired on December 31, 2014. Fala began his career with the Pennsylvania Game Commission and has recently held positions with the West Virginia Department of Environmental Protection, the U.S. Fish and Wildlife Service and the WVDNR Natural Resource Commission. The WVDNR controls bids for the leasing of state game lands, such as the Conaway Run Wildlife Management Area in Tyler County, WV, and administered the recent leasing of West Virginia’s oil and gas interests underlying the Ohio River.
As reported by the Pittsburgh Business Times on October 15, 2014, Wexford-based Marcellus driller Mountaineer Keystone LLC has finalized its acquisition of joint-venture partner PDC Mountaineer LLC for a reported sale price of $500 million. PDC Mountaineer was created in 2009 by PDC Energy and Lime Rock Partners as a joint venture for the purposes of exploring the Marcellus Shale. Mountaineer Keystone LLC currently operates in northern West Virginia and eastern Ohio and drilled its first Utica and Marcellus wells in 2012. As a part of the deal, Mountaineer Keystone acquired 131,000 acres for its West Virginia Marcellus Shale position while also agreeing to sell the joint-venture’s midstream assets, consisting of 24 miles of high pressure gathering lines, to MK Midstream Holdings LLC, a separate joint venture in which Mountaineer Keystone holds a fifty (50%) percent stake.
In a recent opinion, the Pennsylvania Superior Court addressed whether Pennsylvania’s Landlord and Tenant Act of 1951 (the “Act”), and the applicable statute of frauds contained therein, applies to oil and gas leases. In Nolt v. TS Calkins & Associates, LP, a landowner executed an oil and gas lease to lease the oil and gas rights in a 98-acre parcel of land. The landowner thereafter agreed to sell a portion of his property to the plaintiffs. The plaintiffs subsequently filed a quiet title action arguing that the oil and gas lease is invalid and created a cloud on the title on their property. More specifically, the plaintiffs argued that the oil and gas lease was subject to the Act, and that the statute of frauds contained in the Act requires a lease to be signed by both the lessor and the lessee to be valid. Because the lessee did not sign the lease, the plaintiffs argued that only a year-to-year lease was created and that it had expired. In response, the defendants argued that an oil and gas lease is not a lease governed by the Act, but instead is a transfer of realty subject to the more general statute of frauds, which requires only the signature of the grantor. The Pennsylvania Superior Court agreed with the defendants and held that the transaction did not create a lease, but rather a transfer of a property right in the oil and gas. Accordingly, the conveyance was subject to the general statute of frauds, not the statute of frauds contained in the Act, and the plaintiffs’ argument fails.
The State Journal reports that American Energy – Marcellus LLC, a subsidiary of Oklahoma City based American Energy Partners LP, has agreed to acquire 48,000 leasehold acres in Doddridge, Harrison, Marion, Tyler and Wetzel Counties in West Virginia from East Resources, Inc. and an unnamed third party. The deal to acquire West Virginia leasehold properties is part of a larger $4 billion effort by American Energy Partners to enter the Southern Marcellus and Permian Basin plays in West Virginia and West Texas and to expand its holdings in the Utica Shale in Ohio. The companies plan to operate four to six rigs on the newest West Virginia and Ohio acquisitions by the end of 2014. American Energy – Marcellus LLC expects the West Virginia property to produce 135 million cubic feet of natural gas equivalent per day by the time the deal closes.
As reported by the Pittsburgh Business Times, the Allegheny County Council voted to approve a non-surface lease and drilling plan with Range Resources under Deer Lakes Park. Allegheny County Executive Rich Fitzgerald said that the plan would provide for environmental protection of the park while bringing in much needed revenue to the county. Despite the County Executive’s endorsement, the vote was heavily opposed by some members of the public in attendance at the hearing.