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EPA Publishes Proposed Renewables Enhancement and Growth Support Rule

On November 11, 2016, the EPA published a proposed rule designed to update its Renewable Fuel Standards Program and support the growth of renewable fuel use. With the stated goal of removing barriers to production and distribution of renewable fuels, the proposed rule has three main components: (1) Updated Regulatory Structure to Address Biofuel Processing at … Continue Reading

Servitudes: Didn’t They Get the Memo?

The question often arises whether, in Louisiana, a party can file in the public record a “memorandum of servitude” rather than the full servitude.  If the parties do that, any unrecorded provisions may not be binding on third parties. Other states’ laws may provide that recordation of such a memorandum of easement, the common law … Continue Reading

Texas Supreme Court Agrees to Review Three Oil and Gas Cases in 2016

On September 2, 2016, the Texas Supreme Court agreed to review three oil and gas cases involving issues pertinent to the industry and land and mineral owners. BP America Production Company v. Red Deer Resources, LLC In BP America Production Company v. Red Deer Resources, LLC, the lessee of a top lease, Red Deer, sued … Continue Reading

Offshore Companies Face Surge in BSEE Enforcement Actions and Penalties

In recent years, offshore companies have witnessed a marked uptick in the number of enforcement actions undertaken by the Bureau of Safety and Environmental Enforcement (BSEE).[1]  Operators face more BSEE inspections, Incidents of Non-Compliance (INCs), and civil penalties than ever before.  Meanwhile, the average penalty amount has grown.  For example, in 2014 the agency imposed … Continue Reading

Louisiana Flooding – Legal Update

The Liskow & Lewis family stands by our friends and neighbors throughout the unprecedented flooding in our community. As we begin the long process of recovery, here is a brief legal update on the response of various courts and state agencies: State courts: Governor John Bel Edwards has issued an executive order which purports to suspend … Continue Reading

All or Nothing: Regulators Strictly Define Pipeline Abandonment

On August 16th, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued an advisory bulletin to clarify the regulatory requirements that may vary depending on the operational status of a pipeline under 49 C.F.R. Parts 192 and 195 (2016).… Continue Reading

The Dusky Gopher Frog Causes Big Problems for Industrial and Commercial Development in Parts of St. Tammany Parish

In 2010, under the Endangered Species Act (“ESA”), the United States Fish and Wildlife Service (“the FWS”) designated 6,477 acres in Mississippi and Louisiana as “critical habitat” for the Rana sevosa or the dusky gopher frog.  This frog has historically lived in nine counties or parishes across Louisiana, Mississippi, and Alabama.  Since its 2001 designation … Continue Reading

BOEM Releases Long Awaited New Financial Assurance Notice to Lessees and Operators

The Bureau of Ocean Energy Management (BOEM) released its long awaited new Notice to Lessees and Operators (NTL) updating the procedures and criteria used to determine when and if additional supplemental financial assurance is required for an Outer Continental Shelf (OCS) lease, pipeline right-of-way, or right-of-use and easement.  New BOEM NTL No. 2016-N01, dated July … Continue Reading

Amendment to Louisiana’s Risk Fee Statute That Allows For Notices After Spudding Is Awaiting Governor’s Signature

Effective upon signature of the Governor, the Louisiana Legislature will have amended the Risk Fee Statute, La. Rev. Stat. Ann. § 30:10, which governs unit operations in the absence of a joint operating agreement.  The amendment is contained in Senate Bill No. 388, and would make the changes summarized below. Notices Allowed After Spudding Under … Continue Reading

New Judge, Same Result – $81 Million CWA Civil Penalty Appealed

U.S. District Court Judge Dee Drell (Western District, LA) recently denied a motion to alter or amend the Court’s judgment against CITGO Petroleum Corp.– allowing an $81 million judgment against the oil company to stand. The judgment is the latest in a suit the EPA filed against CITGO under the Clean Water Act for a … Continue Reading

Processor Required to Account For Diverted Volumes Used for Gas Lift

Generally, oil and gas production facilities have accounted for volume losses under the concept of “Fuel, Flare & Losses.” In a recent case, the Louisiana Fourth Circuit Court of Appeal held that processors must also account for gas volume diverted to gas lift operations. In Red Willow Offshore, LLC v. Palm Energy Offshore, LLC, the … Continue Reading

“Production in Paying Quantities”: Louisiana Appellate Court Decides When and What Should be Considered in Determination

The Louisiana Second Circuit Court of Appeal, in Middleton, et al. v. EP Energy E&P Company, L.P., et al., concluded that, in considering whether mineral leases terminated for failure to produce in paying quantities, a fact finder may consider periods of production years prior to filing suit, but must consider all factors which would influence … Continue Reading

Appellate Review of Downhole Cases: The Supreme Court Repairs the Third Circuit’s Broken Manifest Error Standard in Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 149 So. 3d 280 (La. App. 3 Cir. 10/01/14)

The Louisiana Supreme Court recently issued a decision in a downhole damages case, reversing the Third Circuit’s misguided application of the manifest error standard of review. Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, No. 2014-C-2592, 2015 La. LEXIS 2530 (La. 2015). The dispute arose out of … Continue Reading

Texas Appeals Court Rules Assignee Retains All Acreage Covered by Assignment Under Retained-Acreage Clause

In yet another “retained-acreage” dispute, the Amarillo Court of Appeals recently ruled that an assignee was entitled to retain all acreage covered by the assignment of four leases, where the assignment’s retained-acreage clause invoked the maximum acreage prescribed by the applicable field rules governing proration units, and, in the absence of any such field rules, … Continue Reading

Texas Court Rules Lease’s Retained Acreage Clause Incorporates Drilling Unit Size of Statewide Density Rule 38, ConocoPhillips Must Release 15,351 Acres to Lessor

A Texas appeals court recently ruled in ConocoPhillips Company v. Vaquillas Unproven Minerals, Ltd. that a lease’s retained acreage clause invoked the Texas Railroad Commission’s field spacing rule as well as the statewide drilling unit rule, Rule 38, which operated to reduce the acreage the lessee was permitted to retain under the lease from 640 … Continue Reading

Texas Supreme Court Holds Producer Not Required to Share in Natural Gas Pipeline Compression Costs

In Kachina Pipeline Company, Inc. v. Lillis, No. 13-0596, the Supreme Court of Texas interpreted a natural gas-purchase contract and held that a producer was not required to share in the costs of compression, even though that compression helped yield a higher re-sale price. Whether this decision narrowly reflects the language of one specific contract … Continue Reading

Texas Supreme Court Says You Can’t Disclaim Your Heritage, But Maybe You Can Ignore It

Like the final season of ABC’s hit series Lost, the Texas Supreme Court’s opinion in Chesapeake Exploration, L.L.C. v. Hyder, No. 14-0302, was highly anticipated, but left many of us scratching our heads.  The 5-4 decision, authored by Justice Hecht, is the latest in a series of cases from high courts across the country addressing … Continue Reading

Louisiana Supreme Court Denies Plaintiff’s Writ Application in a Move That Will Impact Oil & Gas Legacy Cases

By: Joe Norman, Kelly Becker, James Lapeze, and Kathryn Gonski Recently the Louisiana Supreme Court handed down a ruling that has significant implications on the oil and gas industry in the state. The Court denied the Plaintiff-landowner’s writ application which sought review of a Louisiana First Circuit Court of Appeal opinion that affirmed dismissal of the landowner’s claims … Continue Reading

Supreme Court of Texas Clarifies How to Prove Lost Value

By Andrew Wooley On May 8, 2015, the Supreme Court of Texas held in Phillips v. Carlton Energy Group, LLC[1]/ that an expert witness’s pre-suit evaluations of a coal bed methane concession in Bulgaria and his and another expert’s opinion testimony at trial were too speculative to support a jury’s damage finding for tortious interference related … Continue Reading

Texas Supreme Court Holds JOA Exculpatory Clause Applicable to All Activities of Operator

By Jana Grauberger The Texas Supreme Court distinguished several Texas appellate court decisions and held the exculpatory clause in a joint operating agreement (“JOA”) applicable not just to operational activities undertaken by the operator, but to all activities of the operator under the JOA. Reeder v. Wood County Energy, LLC, No. 10-0887, slip op. (Tex. Aug. … Continue Reading

Fifth Circuit holds purchase and sales agreement complies with Statute of Frauds

By Joanna Nelson:  Preston Exploration Co., L.P. v. GSF, L.L.C., Cause No. 10-20599, 2012 U.S. App. LEXIS 1873 (5th Cir. Tex. Feb. 1, 2012)   The Fifth Circuit recently vacated a judgment in the U.S. District Court for the Southern District of Texas, holding that the lower court had improperly conflated “two distinct principles – … Continue Reading

Texas Court Upholds Lease Cancellation for Failure to Pay Shut-In Payments To Proper Party

By Kevin Connolly: In Nitschke v. Circle Ridge Production, Inc., No. 12-09-00150CV, _____ S.W.3d ____ (Tex. App.—Tyler 5/5/2010), the Tyler Court of Appeals upheld a trial court’s findings of fact and conclusions of law with respect to the termination of an oil and gas lease for failure to pay shut-in royalty payments to the proper party.   … Continue Reading

U.S. Fifth Circuit Finds Contractual Claim Under JOA Not Impermissible “Collateral Attack”

By Robert L. Theriot In EOG Resources Inc. v. Chesapeake Energy Corp., No. 09-30362, __ F.3d __ (5th Cir. 4/29/10), the Fifth Circuit reinstated EOG’s contractual claim against Chesapeake under the parties’ joint operating agreement (JOA).  EOG claimed that Chesapeake had unilaterally drilled three wells in the parties’ pooled mineral leases in Bossier Parish, Louisiana, without first … Continue Reading
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