The Ohio Supreme Court accepted the appeal of the owners of a severed royalty interest in West v. Bode, Case No. No. 18 MO 0017, 2019-Ohio-4092. The sole issue before the Court is whether the Ohio Dormant Mineral Act supersedes and controls over the Ohio Marketable Title Act for disputes involving severed oil and gas interests. The Seventh District had ruled that both the Ohio Marketable Title Act (MTA) and the Ohio Dormant Mineral Act (DMA) are available to surface owners seeking to reclaim previously severed oil and gas interests; rejecting the royalty owners’ argument that the DMA is the sole remedy for these disputes. The Ohio Supreme Court’s decision should bring clarity to ownership of oil and gas rights in Ohio.
Ohio recently passed HB 166, effective October 17, 2019, amending Section §1509.28 of Ohio’s statutory unitization statute. The prior version of Section §1509.28 did not specify whether all mineral owners in a tract must be leased to be included in the accounting for the minimum 65% operator ownership interest, which is the threshold required in order to apply for statutory unitization. The Section also did not address whether an operator could count partial net-acreage interests in a tract. For example, under the prior version of Section §1509.28, if a 10 acre tract was owned jointly by five owners, two of which had leased their oil and gas interests, it was unclear whether the operator was required to represent the leased interest as only four net acres or whether the operator was required to represent the tract as wholly unleased until all owners in the tract had entered into oil and gas leases. The new amendment added the following clarification to the Code: “In calculating the sixty-five per cent, an owner’s entire interest in each tract in the proposed unit area, including any divided, undivided, partial, fee, or other interest in the tract, shall be included to the fullest extent of that interest.” The amendment makes clear that for tracts with multiple owners, any type of interest held by the applicant-operator in a unitized tract counts towards the minimum 65% threshold required to apply for an order permitting forced unitization from the chief of the division of oil and gas resources management.
Since the Ohio Supreme Court’s decision in Corban v. Chesapeake Exploration, L.L.C., et al, 149 Ohio St.3d 512, 2016-Ohio-5796, many have questioned the interplay and availability of the Ohio Marketable Title Act (“MTA”) and the Ohio Dormant Mineral Act (“DMA”) for surface owners claiming previously severed oil and gas interests. The Ohio Seventh District Court of Appeals recently answered many of those questions and illustrated the power of the MTA for surface owners. In Senterra Ltd. v. Winland, Case No. 18 BE 0051 (Ct. App. Oct. 11, 2019), the Seventh District again confirmed that both the MTA and the DMA are available to surface owners claiming ownership of severed oil and gas interests. That court held that the MTA remains available for surface owners even after availing themselves to the DMA process. The court also determined that the reference, “excepting all the oil and gas rights underlying said described premises” is considered a general reference under the Blackstone inquiry due to the reference failing to identify the party reserving the interest.
In addition to expanding on whether a reference is specific or general, the Seventh District’s analysis rendered the date determining marketability under the MTA as irrelevant. That date controls what instrument operates as the root of title, being the most recent instrument of record at least 40 years prior. Because the MTA statute (O.R.C. 5301.47, et. seq.) fails to define which date should be used to determine marketability, courts have previously used the following dates to begin its MTA analysis: (1) trial/summary judgment; (2) summons; or (3) a severed mineral holder filing a notice of preservation. In Senterra, the Seventh District determined that regardless of using the date of summons or the date of the trial court’s determination, a 1971 deed in the chain of title operated as the root of title for a portion of the land at issue. However, in looking at the time period between 1971 and 2011 (the 40-year period required by the MTA), the record indicated an unspecified event occurred on July 14, 2000, which may have preserved the interest for its holder. Therefore, the court looked to the previous deed in the chain of title, being a 1954 deed, and conducted its analysis using this deed as the root of title. In determining that the surface owner had an unbroken chain of title from 1954 through 1994 with the mineral owner failing to preserve their interest during that time, the court held that the 1954 deed qualified as the root of title purporting to create the interest claimed by the surface owner and extinguished the interest of the mineral owner. Therefore, regardless of what initial date is used in determining marketability, a proper analysis will step through each deed in order to determine if a 40-year unbroken chain of title has occurred.
The Senterra decision continues a series of victories for surface owners and establishes the MTA as an invaluable tool to claim severed oil and gas interests. However, it remains to be seen if the case will be reviewed by the Ohio Supreme Court.
Ohio’s Seventh District Court of Appeals recently ruled that Ohio’s Marketable Title Act (the “MTA”) does not conflict with the Dormant Mineral Act (“DMA”), and that both statutes can be utilized by a surface owner to claim ownership of severed minerals. W. v. Bode, 2019-Ohio-4092 (Ct. App.). The Monroe County trial court found that the DMA irreconcilably conflicted with the MTA and that the surface owners were limited to the process set forth in the DMA to claim ownership of a severed royalty interest. However, the Seventh District reversed and determined that, although the DMA provides a separate procedure, both the MTA and the DMA are available to surface owners attempting to claim ownership of a severed mineral interest.
In addition to Bode, the Seventh District issued two opinions clarifying earlier 2019 decisions pertaining to the MTA. Hickman v. Consolidation Coal Co., 2019-Ohio-4077 (Ct. App.) and Miller v. Mellot, 2019-Ohio-4084 (Ct. App.). In its previous decisions, the Seventh District held that if the surface owner’s root of title contained any reference to an oil and gas exception/reservation, the surface owner was precluded from claiming the mineral interest had been extinguished under the MTA. In Hickman and Miller, the Seventh District clarified that it reached that conclusion solely due to the void in the post-severance/pre-root deed history contained in the record in these cases. Because the records were silent as to the interest owned by the grantors in the root of title deeds, the court could not ascertain that the exception/reservation contained therein operated as a reference instead of an original severance. The Seventh District confirmed that the Blackstone analysis1 applies where the root of title contains a reference to a prior reference.
Enacted in 1961, the MTA operates to extinguish interests after 40 years unless a statutory exception applies. While originally excluding minerals from its application, a 1973 amendment caused the MTA to apply to all minerals except coal. In 1989, the Ohio legislature amended the MTA to include the DMA, which provides a method to have severed minerals “deemed abandoned” after 20 years absent a savings event. Therefore, the DMA provides a method, including service of notice on the holders, of declaring a mineral interest abandoned after only 20 years and the MTA results in an automatic extinguishment of an interest after 40 years. The availability of these coextensive alternatives depends on the time passed and the nature of the chain of title for both the surface and minerals. In holding that both the DMA and MTA apply to minerals, the Seventh District provided greater flexibility to surface owners and operators seeking to develop oil and gas in Ohio.
1 (1) Is there an interest described within the chain of title? (2) If so, is the reference to that interest a “general reference”? (3) If the answers to the first two questions are “yes,” does the general reference contain a specific identification of a recorded title transaction?
Ohio’s Seventh District Court of Appeals recently issued three separate opinions involving Ohio’s Marketable Title Act (the “MTA”) and Dormant Mineral Act (the “DMA”): Miller v. Mellott, 2019-Ohio-504 (Ct. App.); Soucik v. Gulfport Energy Corp., 2019—Ohio-491 (Ct. App.); and Hickman v. Consolidation Coal Co., 2019-Ohio-492 (Ct. App.). Despite ruling that the severed royalty and/or fee interests were subject to both the MTA and the DMA, the Seventh District held that the mineral/royalty interests had not been abandoned and/or extinguished by either.
In its MTA analysis, the court scrutinized the language of the root of title deed used by the surface owners to establish title to the severed interest. If the surface owner’s root of title contained a reference to an oil and gas reservation, the court found that the surface owner was precluded from claiming the mineral interest had been extinguished under the MTA. The court determined that even a perfunctory exception to oil and gas “as heretofore reserved” barred the surface owner from claiming title to the mineral interest under the MTA. Finding that the severed minerals survived extinguishment under the MTA, the court addressed underlying defects in the surface owner’s DMA procedure.
In denying the surface owners’ claims under the DMA in Miller and Soucik, the court determined that the surface owners failed to satisfy the diligence required by Ohio law in identifying the mineral holders before permitting notice by publication. Even though the margins of the deeds severing the mineral interests contained notations of abandonment, the court permitted examination of the underlying procedure to determine whether abandonment was proper. Surface owners carry the burden to establish that they attempted service by certified mail prior to proceeding to notice by publication. Because the surface owners in Miller and Soucik failed to provide evidence through affidavits or otherwise that they even attempted to serve notice by certified mail, the court found that the surface owners failed to comply with the notice provisions of the DMA. Therefore, the court ruled that the severed mineral interests had not been abandoned under the DMA.
On November 26, 2018, Ohio’s Seventh District Court of Appeals in Sharp v. Miller, 7th Dist. Jefferson No. 17 JE 0022, 2018-Ohio-4740, affirmed the abandonment of oil and gas interests pursuant to the Dormant Mineral Act (O.R.C. §5301.56) (the “DMA”). The issues before the court were: (i) whether the surface owners’ (the Millers) service of notice by publication to the mineral owners (the Sharps) properly complied with Section (E)(1) of the DMA; and (ii) whether the oil and gas leases executed by the Millers, prior to claiming the minerals under the DMA, constituted savings events for the Sharps. The court held in favor of the Millers on both issues confirming the abandonment of the Sharps’ oil and gas interests.
The Sharps alleged that they received insufficient notice of the surface owners’ intent to abandon the minerals, claiming that a reasonable search by the Millers would have revealed the identities and addresses of the Sharps, and thus required notice to be served by certified mail instead of by publication. In rejecting the Sharps’ argument that the Millers failed to exercise reasonable due diligence, the court used the failed results of the Sharps’ own search to establish that the Millers’ search was sufficient. In line with its recent decision Shilts v. Beardmore, 7th Dist. Monroe No. 16 MO 0003, 2018-Ohio-863, the Seventh District again declined to establish an objective bright-line rule for when notice by publication is permitted or to define “reasonable due diligence.” Instead, the court will continue to apply a subjective test and look to the facts and circumstances in each individual case to determine if the surface owners conducted a reasonable search in attempting to identify the mineral interest holders. Additionally, whether a surface owner’s search was reasonable may depend on the outcome of the mineral owner’s search using alternative resources, such as searching the records of adjacent counties, search engine inquires, and searching for heirs on subscription websites like ancestry.com.
In a matter of first impression, the court rejected the argument that oil and gas leases executed by the Millers, prior to claiming the minerals under the DMA, constituted savings events for the Sharps. While the Ohio Supreme Court has held that a recorded oil and gas lease is a title transaction (Chesapeake Exploration, L.L.C. v. Buell, 144 Ohio St.3d 490, 2015-Ohio-4551, 45 N.E.3d 185, ¶66), the Seventh District noted that the Millers did not own the minerals at the time of the lease. Therefore, the mineral interest was not the “subject of” the title transaction. As such, the leases did not constitute savings events under the DMA for the Sharps and did not preclude abandonment of the Sharps’ interest under the DMA.
The Sharps have until January 10, 2019 to appeal the Seventh District’s decision to the Ohio Supreme Court.
On May 20, 2016, the Middle District of Pennsylvania granted summary judgment in favor of Babst Calland’s client in Montrose Hillbillies II, LLP v. WPX Energy Keystone, LLP and Stern Marcellus Holdings, LLC , a case involving the extension of the primary term of an oil and gas lease. The plaintiff, a successor lessor, filed a quiet title action to strike the extension of an oil and gas lease where the extension payment was tendered to the prior owner of the property, rather than to the plaintiff. The plaintiff asserted that the payment was insufficient to extend the lease. The defendant lessee maintained that the primary term of the lease was properly extended pursuant to the lease terms because neither the plaintiff nor the prior lessor provided the lessee notice of the ownership change, and it was the lessor’s duty to do so under the lease. The District Court held that the defendants’ payment to the prior owner fulfilled any extension obligation under the lease, as the plaintiff admitted that the defendants were not notified of the ownership change.
The District Court rejected the plaintiff’s argument that it was not bound by the extension provision and notice of ownership change provision because such terms were not disclosed in the memorandum of oil and gas lease filed of record in place of the actual lease. The memorandum contained the basic terms of the lease but did not provide all the provisions of the agreement between the lessor and lessee. The plaintiff asserted that it was a bona fide purchaser without constructive notice of the unrecorded provisions, including the extension provision and notification requirement for ownership change, and was entitled to rely solely on the recorded memorandum of lease. The District Court held that there is a duty under Pennsylvania law for a purchaser to undertake a reasonable inquiry into the title of the property being purchased before being considered a bona fide purchaser. The Court held that due diligence by the purchaser includes both an examination of recorded documents and an inquiry of the possessor or other parties where there is reason to believe such persons may know facts related to the title of the property. Under the circumstances of the case, the Court found that the plaintiff had notice of the lease and it was reasonable for it to have requested a copy of the full lease to become aware of each of its provisions.
On August 14, 2015, the Ohio Fifth District Court of Appeals issued a decision in Armstrong v. Chesapeake Exploration, L.L.C., deciding that the plaintiffs may not pursue an action seeking lease forfeiture based on the nonpayment of oil and natural gas royalties absent an explicit lease provision allowing them to do so. The plaintiffs alleged that Chesapeake failed to pay royalties owed on oil and natural gas production after the plaintiffs notified the company of their acquisition of the property from the former lessors. The court found, however, that absent a clause in the lease allowing the lessor to declare a forfeiture for the nonpayment of royalties, nonpayment merely gives rise to an action for damages and not cancellation.
On August 14th, the United States District Court for the Middle District of Pennsylvania adopted a magistrate judge’s report and recommendation that recommended granting SWEPI, LP’s (“SWEPI”) motion to dismiss a lawsuit regarding the extension of a lease by tendering shut-in royalties. In a case titled Mesner v. Swepi, LP, a landowner filed a lawsuit in the Court of Common Pleas against SWEPI in order to terminate the oil and gas lease. SWEPI then removed the suit to the federal district court based on diversity jurisdiction, and filed a motion to dismiss arguing that it had extended the term of the lease by tendering the shut-in royalty pursuant to the terms of the oil and gas lease.
The shut-in provision of the lease provided that “[i]f during or after the primary term of this lease, all wells on the leased premises or within a unit that includes all or a part of the leased premises, are . . . otherwise not producing for any reason whatsoever for a period of twelve (12) consecutive months, . . . Lessee may maintain this lease in effect by tendering to Lessor a shut-in royalty equal to the delay rental as found elsewhere in this lease . . . Upon payment of the shut-in royalty as provided herein, this lease will continue in force during all of the time or times while such wells are shut in.” The plaintiff argued that SWEPI did not extend the lease by tendering the shut-in royalty payments because shut-in royalty provision may only be applied to “wells capable of producing gas in paying quantities” and the two wells shut-in on the leased property were not capable of producing gas in paying quantities. The plaintiff further argued that automatic termination rule should be found applicable to the lease and result in the denial of SWEPI’s motion to dismiss.
Based on the language of the shut-in provision, the court first concluded that SWEPI complied with the provision and extended the term of the lease. The court began its analysis by summarizing the rules of contract interpretation and how they apply to oil and gas leases. In doing so, the court said it must ascertain and give effect to the intent of the parties and that the lease should be given its accepted and plain meaning. Accordingly, the court concluded that the shut-in provision permits SWEPI to tender the shut-in royalty payment to the lessor when all of the wells on the property or in the unit are (1) shut-in, (2) suspended, or (3) otherwise not producing for any reason whatsoever. The court stated it was irrelevant whether the wells shut-in on the leased premises were or were not capable of production. Therefore, it held that SWEPI extended the lease pursuant to the shut-in provision when it tendered the shut-in royalty payment to the lessor. In making his argument, the plaintiff relied on case law from other jurisdictions. The court found these cases to be inapplicable to this case.
The court then held that the automatic termination rule has no affect in this case. Under the automatic termination rule, a lease will terminate if no hydrocarbons are produced in paying quantities, unless the lease contains a savings clause. Since the lease permits SWEPI to extend the term of the lease by tendering a shut-in royalty, regardless of whether the wells are capable of producing gas in paying quantities, the court held that the automatic termination rule was not applicable. Therefore, the court held that SWEPI extended the term of the lease by tendering the shut-in royalty payment.
Senate Bill Number 259, which amends the Guaranteed Minimum Royalty Act by allowing drillers to pool land into gas-drilling units, was signed by Governor Corbett today after fast-track approval by the Senate on June 30th. The bill allows joint development on adjacent land unless expressly prohibited by the applicable leases. Absent any agreement by all affected royalty owners, the production shall be allocated to each royalty owner in a proportion deemed reasonable by the operator. The bill does not permit the forced pooling of unleased oil and gas estates. Additionally, any lease that does not provide for at least one-eighth royalty shall be subject to an escalation equal to one-eighth royalty when the original state of the subject land is altered by any new drilling or any other procedure for increasing production.
The West Virginia Supreme Court of Appeals, West Virginia’s highest court, recently overruled a point in the 1923 case of Ramage v. South Penn Oil Co. (W. Va.), which established that the term “surface” was presumptively ambiguous and always subject to interpretation. On June 13, 2013 in the case of Faith United Methodist Church & Cemetery of Terra Alta v. Morgan, the Court determined that the term “surface,” when used in an instrument of conveyance, has a “definite and certain meaning,” and “generally means the exposed area of land, improvements on the land, and any part of the underground actually used by a surface owner as an adjunct to surface use (for example, medium for the roots of growing plants, groundwater, water wells, roads, basements, basements, or footings).”
On April 24, 2013, the Supreme Court of Pennsylvania issued an opinion in the case of Butler v. Powers, addressing the distinction between the words “gas” and “minerals” in private conveyances of land in Pennsylvania. The case began as a quiet title action in Susquehanna County, and the issue was whether an 1881 reservation of “One-half the minerals and Petroleum Oils” in a parcel of land would also include a right to the natural gas. The appellees argued that gas from shale formations should be classified under the term “minerals” in land conveyances, similar to the manner in which coalbed methane gas is considered a part of the coal estate in Pennsylvania. The appellees’ argument was contrary to the long-standing rule stated in an 1882 decision of the Supreme Court of Pennsylvania, Dunham & Shortt v. Kirkpatrick, which created a rebuttable presumption that a reservation of “minerals” did not include “oil” or “gas” unless the term was specifically recited in the reservation.
On appeal of the Butler trial court decision, the Superior Court of Pennsylvania remanded the case in order for the parties to obtain expert testimony explaining whether gas from the Marcellus Shale is “conventional gas” and could be considered a “mineral.” The Supreme Court of Pennsylvania ultimately rejected the Superior Court’s analysis and appellees’ arguments, and held that the rebuttable presumption in Dunham applies the same to shale gas as it would to gas recovered from shallow formations. Thus, the Supreme Court of Pennsylvania upheld the “Dunham Rule” in its April 24, 2013 opinion. According to the Supreme Court, the Dunham Rule (and subsequent case law) remains “viable,” “controlling,” and “unwavering in clarity.” The majority opinion can be found here and concurring opinion here.
Updating a previous post, The Intelligencer reports that the West Virginia Senate declined to consider legislation that would have allowed un-leased land to be included in drilling units. Senator Brooks McCabe (D-Kanawha), who introduced Senate Bill No. 616, stated that “I don’t want to speculate whether it was for a lack of support, or if it was just introduced too late in the session. It just never got any traction.”
The West Virginia Senate is reportedly considering legislation, Senate Bill No. 616, that would allow un-leased land to be included in drilling units. This bill would not force an unwilling landowner into a unit, but rather would provide a mechanism for land with unknown owners to be included in a pool. Any royalties resulting from drilling on those lands would be paid into an escrow account until the owner could be found.