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Created by: Martha Mills at 3/6/2013 12:06:59 AM | 0 comments. | 1788 views.

Education Events

Landman 411 Series: ALL SESSIONS

Wednesday, January 23, 2013 - Monday, December 16, 2013

Field Landman Seminar - Corpus Christi, TX – ONSITE REGISTRATION ONLY

 Thursday, March 07, 2013
2 CE credits

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 Friday, March 08, 2013
5 CE credits

 
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 Monday, March 11, 2013
3 CE credits

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 Wednesday, March 13, 2013 - Saturday, March 16, 2013
18 General CE credits / includes 1 Ethics

  2013 Mining & Land Resources Institute- Reno, NV – ONLINE REGISTRATION CLOSES 3/5/13 AT 12:00 PM

 Thursday, March 14, 2013 - Friday, March 15, 2013
14 General CE credits / Includes 1 Ethics

JOA Workshop - Midland, TX

Wednesday, March 20, 2013 - Thursday, March 21, 2013
14 CE credits

 

Field Landman Seminar - Amarillo, TX

Thursday, March 21, 2013
2 CE credits

  Fundamentals of Land Practices & OPTIONAL RPL Exam - Wichita, KS

Monday, March 25, 2013 - Tuesday, March 26, 2013
7 CE credits / Includes 1 Ethics

  Landman 411 Series: Parties - Fort Worth, TX

 Wednesday, April 03, 2013
3 CE credits

  WI/NRI Workshop - Reno, NV

Thursday, April 04, 2013
6 CE credits

  Due Diligence Seminar- Grand Rapids, MI – NEW OFFERING!

 Thursday, April 04, 2013
5 CE credits

  Fredericksburg Land Seminar - Fredericksburg, TX – Various Topics and Speakers!

 Friday, April 05, 2013 - Saturday, April 06, 2013
9 General CE credits / Includes 1 Ethics

 

Field Landman Seminar - Oklahoma City, OK

 Thursday, April 11, 2013
2 CE credits

  Pooling Seminar- Oklahoma City, OK – Filling up fast!

 Monday, April 15, 2013
5 CE credits

  Oil and Gas Land Review, CPL/RPL Exam - Washington, PA

 Tuesday, April 16, 2013 - Friday, April 19, 2013
18 General CE credits / Includes 1 Ethics

  Applied Land Practices - Denver, CO

 Thursday, April 25, 2013
7 General CE credits / Includes 1 Ethics

  WI/NRI Workshop - Billings, MT

 Thursday, April 25, 2013
6 CE credits

  Fundamentals of Land Practices & OPTIONAL RPL Exam - Fort Worth, TX

 Thursday, April 25, 2013 - Friday, April 26, 2013
7 General CE credits / Includes 1 Ethics

 
Field Landman Seminar Jackson, MS

 Thursday, April 25, 2013
2 CE credits

 

WI/NRI Workshop - Denver, CO

 Friday, April 26, 2013
6 CE credits

  2013 Southwest Land Institute - Dallas, TX

 Tuesday, April 30, 2013
7 General CE credits / Includes 1 Ethics

 

WI/NRI Workshop - Oklahoma City

 Thursday, May 02, 2013
6 CE credits

  Applied Land Practices - Tyler, TX

 Thursday, May 02, 2013
7 General CE credits / Includes 1 Ethics

 

WI/NRI Workshop - Roswell, NM

 Friday, May 03, 2013
6 CE credits

  Intro To Field Land Practices - Evansville, IN

 Wednesday, May 08, 2013 - Thursday, May 09, 2013
13 General CE credits / Includes 2 Ethics

 
Landman 411 Series: Conveyances - Fort Worth, TX

 Monday, May 13, 2013
3 CE credits

 

Oil and Gas Land Review, CPL/RPL Exam - Houston, TX

 Tuesday, May 14, 2013 - Friday, May 17, 2013
18 General CE credits / Includes 1 Ethics

 

Pooling Seminar- Denver, CO

 Friday, May 17, 2013
5 CE credits

 

JOA Workshop - Washington, PA

 Tuesday, May 21, 2013 - Wednesday, May 22, 2013
14 CE credits

 

Basics of Geographic Information System - Houston, TX

 Wednesday, May 29, 2013
5 CE credits


 

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Created by: Martha Mills at 2/19/2013 11:19:55 PM | 0 comments. | 2747 views.

LOUISIANA LEGAL UPDATE

 

James H. Dupuis, Jr.

Dupuis & Polozola, LLC

 

Commissioner of Conservation Memorandum on Cross Unit Lateral Wells

 

On November 2, 2012, the Commissioner of Conservation issued a memorandum addressing cross unit lateral wells.  The memorandum sets forth the internal policy of the Office of Conservation governing the application for and docketing of administrative hearings to consider horizontal cross unit lateral wells, and also the manner in which production proceeds are allocated to owners within each unit penetrated by the cross unit lateral well.  The new policy makes it much more feasible for an operator to obtain permission to drill cross unit lateral wells.

 

A cross unit lateral well is a well drilled with a horizontal lateral that is completed in more than one unit.  The policy requires that an applicant seeking permission to drill a cross unit lateral well must obtain the consent of a majority of owners having the right to drill, including working interest owners and unleased mineral owners, if applicable, for each unit penetrated by the proposed well, and also including the current unit operators of all units penetrated by the proposed well.

 

Production from a cross unit lateral well will be allocated first to each unit based on the “perforated length of the lateral” located in each unit, specifically in the same proportion as the perforated length of the lateral in each unit bears to the total length of the perforated lateral as determined by an as drilled survey.  Then, within each unit, production will continue to be shared on a surface acreage basis.  “Perforated length of the lateral” is defined in the memorandum as the length of horizontal lateral wellbore wherein perforations have been made, regardless of the number of perforated stages or individual perforations, which is measured from the lesser measured depth perforation, or “top of perforations” to the grater measured depth perforation or “base of perforations”.

 

The new policy applies only to cross unit lateral wells proposed in “shales, tight gas sands, and unconventional reservoirs.”

 

Commissioner of Conservation Authorized to Approve Alternate Unit Wells

 

A lawsuit was filed by the owners of land subject to a mineral servitude against the Commissioner of Conservation alleging that he was not authorized to approve alternate unit wells.  The First Circuit Court of Appeal, in an opinion not yet released for publication, ruled against the plaintiffs and held that approving alternate unit wells was within the statutory authority of the Commissioner of Conservation.  Walker v. J-W Operating Company, 2012 WL 6677913, (La.App. 1 Cir. 12/21/12).

 

The power and authority of the Commissioner of Conservation stems from the Conservation Act, found in La. R.S. 30:1, et seq.  The Court framed the plaintiff’s argument as follows.  Because La. R.S. 30:9 defines a drilling unit as “the maximum area which may be efficiently and economically drained by one well”, the Commissioner is not authorized to approve more than one well in each unit.  Plaintiffs also stressed that the words “alternate wells” are not found anywhere in the Conservation Act until 1999, when La. R.S. 30:5.1(I), which pertains to deep well pools.

 

The Court analyzed the various provisions in the Conservation Act, stating that the Commissioner has the authority to make reasonable rules, regulations, and orders, and to take any action as reasonably appears to him to be necessary to enforce the Act.  When new technology and findings indicate that a unit cannot be drained by one well, these provisions allow the Commissioner to authorize alternate unit wells, after holding a hearing on the matter.

 

Several other justifications were offered by the Court in support of its holding.  It noted that that the Commissioner had been approving alternate wells since 1963, for almost 50 years, stating that because the Commissioner is charged with administering the Conservation Act, his construction of the statute is to be given substantial weight in its interpretation by the Courts.  The Court also viewed the 1999 amendment to La. R.S. 30:5.1(I) as simply recognizing the Commissioner’s longstanding authority to approve alternate unit wells.  Finally, the Court rejected the plaintiff’s notion that the Commissioner should have instead reconfigured the units to create smaller units once it was determined that one well could not efficiently and economically drain the units, stating that doing so would be inequitable and would not maintain the equity of the mineral owners.  Instead, “an alternate unit well provides a reasonable method of insuring the continuation of the just and equitable sharing of production within the unit.”

 

 Act 312 Does Not Cap Remediation Damages in Legacy Lawsuits

 

In State of Louisiana and the Vermilion Parish School Board v. The Louisiana Land and Exploration Company et al., 2013 WL 360329 (La. 1/30/2013), the Louisiana Supreme Court interprets Act 312 of 2006 (codified in La. R.S. 30:29) as permitting courts to award damages in a legacy lawsuit in excess of the amounts necessary to fund the court-approved remediation plan. 

 

The State of Louisiana and the Vermilion Parish School Board filed the suit seeking damages and remediation of property allegedly polluted by oil and gas exploration and production in East White Lake Field. The oil, gas, and mineral lease at issue was granted in 1935 and did not contain a contractual provision regarding restoration of the surface.  The defendants filed a motion for partial summary judgment asserting that the plaintiffs had no right to seek remediation damages in excess of those found necessary to fund the remediation plan approved by the trial court pursuant to Act 312.  The defendants contended that such “excess” damages could only be awarded under the terms of an express contractual provision regarding the lessee’s remediation obligation, which the 1935 lease did not contain.  The trial court agreed with the defendants. Review of the case by the Court of Appeal, and then by the Louisiana Supreme Court, followed.

 

The Louisiana Supreme Court begins by detailing the legal and historical development of Act 312, including a discussion of the Corbello case (Corbello v. Iowa Production, 850 So.2d 686 (La. 2003)).  In Corbello, the Court noted that the legislature had not implemented a procedure to ensure that landowners will use the money obtained in a remediation suit to clean the property and that, in response, the Legislature passed Act 312 in 2006. 

 

The Court then analyzes the procedure for a remediation suit under Act 312.  First, a suit seeking damages covered by the act is filed.  Notice is provided to the Commissioner of Conservation and the state attorney general, who may intervene in the case if they wish.  The case proceeds to trial in the same manner as any other proceeding, utilizing normal trial procedures.  If it is determined at trial that environmental damage exists and the defendants are legally responsible for them, the statute prescribes additional, mandated procedures to be used for the determination of a remediation plan after the trial.  In short, the trial court orders the responsible parties to develop a remediation plan to be submitted to the court and the Department of Natural Resources (“DNR”).  DNR holds a public hearing on the submission and determines the most feasible plan to accomplish the remediation of the environmental damage while protecting the health, safety, and welfare of the public.  DNR then sends its plan to the trial court, who then adopts the plan (unless a party proves that another plan is more feasible) and orders the responsible parties to fund the implementation of the plan.  In making this determination, the court decides how much of the damages are to be used for remediation of the property. 

 

Subsection D of La. R.S. 30:29 provides how the plan is to be implemented.  It states that “except as provided in Subsection H of this Section, all damages . . . for the evaluation or remediation of environmental damages shall be paid exclusively into the registry of the court . . . .”  The defendants in this case argued that this provision acts to cap remediation damages as the amount determined necessary to fund the court-approved plan. 

 

The Louisiana Supreme Court rejected the defendants’ argument.  The Court notes that the defendants failed to take into account the provisions of Subsection H, which the Court interprets as not precluding a landowner from pursuing a remedy or receiving an award for private claims other than those remediation damages necessary to fund the court-approved plan.

 

If a court awards remediation damages pursuant to an express contract provision that is a greater amount than that ordered to be placed into the court’s registry to fund the remediation plan, then the landowner is entitled to those “excess” remediation damages.  Likewise, “any award” for “additional remediation” may be kept by the landowner, as well. If the money judgment for remediation exceeds the amount necessary to fund the plan, the plaintiff is granted a personal judgment for the “excess” remediation damages; plaintiff is also granted a personal judgment on his other non-remediation private claims (if he prevailed on such claims at trial).   

   

In short, the Court has interpreted Act 312 as providing a procedural mechanism to ensure that the remediation plan approved by the trial court gets funded, but otherwise allows plaintiffs to collect “excess” remediation damages.

 

 

 

 James H. Dupuis, Jr. is a member of the law firm of Dupuis & Polozola, L.L.C.  His practice focuses on oil and gas law, including drill site and division order title examination, contract negotiation, and due diligence in connection with the acquisition and divestiture of oil and gas properties.  He is licensed to practice law in Louisiana, Texas, and Kansas.

 

Before co-founding Dupuis & Polozola, L.L.C., Mr. Dupuis was a shareholder in the Lafayette office of Liskow & Lewis, where he practiced in the energy and natural resources section.  He received a B.S. from the University of Louisiana at Lafayette in 1994, an M.S. from the University of Memphis in 1998, and a J.D. in 2001 from the Louisiana State University Paul M. Hebert School of Law, where he was a member of the Order of the Coif and the Louisiana Law Review.

 

Mr. Dupuis is a member of the Louisiana Mineral Law Institute Advisory Council, and has given numerous seminar presentations to various land and legal associations.  He also routinely provides training and gives seminars in-house at energy companies on a variety of topics related to oil and gas law.  Since 2005 he has been an adjunct professor at the University of Louisiana at Lafayette, where he teaches part of a course on petroleum land management.

 

 

 

 

 

 

 

Created by: Martha Mills at 1/15/2013 2:05:13 PM | 0 comments. | 1968 views.

Judicial Ascertainment Clause

 

B.A. Kelley Land Co., L.L.C. v. Questar Exploration and Prod. Co., 47,509 (La. App. 2 Cir.11/14/12); 2012 La. App. LEXIS 1460.

 

This case involves the applicability of a so-called “judicial ascertainment” clause in a mineral lease.  The lessors, B.A. Kelley Land Co. and Augton Land Co., filed suit in 2009 seeking a declaration that a 1971 mineral lease had terminated.  The 1971 lease covered a 40 acre tract, and was granted for a primary term of two (2) years with a customary habendum clause providing that the term of the lease would continue so long as minerals were produced thereafter from the leased premises or lands pooled therewith.  The lease also contained a shut-in rental provision allowing the lessee to pay shut-in rentals to maintain the lease in the event production was shut in by reason of force majeure, lack of market at the well, or lack of an available pipeline outlet in the field.  The lease further contained the following “judicial ascertainment” provision:

 

After production of oil, gas, sulphur, or other mineral has been secured from the land covered hereby or land pooled therewith, this lease shall not be subject to forfeiture or loss, either in whole or in part, for failure to conduct operations in compliance with this contract except after judicial ascertainment that Lessee has failed to conduct such operations and has been given a reasonable opportunity after such judicial ascertainment to prevent such loss or forfeiture by complying with and discharging its obligations as to which Lessee has been judicially determined to be default.

 

A well was drilled on acreage pooled with the leased premises in 1974, which remained a producing well at the time suit was filed; however, the lessors alleged that there was no production or operations sufficient to maintain the lease during an eleven month period in 1988 and 1989.  The lessors further alleged that the lease terminated automatically due to this lack of production in paying quantities, and that, if the lease terminated automatically in this manner, the judicial ascertainment clause was null and void.

 

In response to the plaintiffs’ petition, the defendants filed answers that separately raised the judicial ascertainment clause as a dilatory exception of prematurity and as an exception of no cause of action.  The defendants conceded that the lessee received no royalty checks for the time period at issue, but claimed that the gas purchaser halted purchases at the time due to the collapse of the gas market, causing the operator to go bankrupt, and that the lessee received a proportionate share of a settlement between the bankruptcy estate and the gas purchaser.  Thus, the defendants asserted, production did not simply cease such that the lease would automatically terminate.

 

At trial, the court ruled that the matter was premature as to both sets of defendants–those raising the exception of prematurity and those raising the exception of no cause of action–dismissing the plaintiffs’ claims without prejudice but barring the plaintiffs from amending their petition to assert a claim for judicial ascertainment because it would be inconsistent with a claim for lease termination.

 

On appeal, the plaintiffs asserted, among other assignments of error, that the exception of no cause of action cannot apply to a theory of prematurity based on a judicial ascertainment clause when a dilatory exception of prematurity was waived by certain defendants who did not raise the dilatory exception in a timely fashion.  Although the court recognized the Louisiana Supreme Court’s admonition against conflating the two exceptions, the plaintiffs’ assignment of error in this respect was held to be without merit because those defendants raising the no cause of action exception did so on their own, setting forth the bounds of the controversy and focusing the court’s attention on the true issue, rather than the trial court simply supplying the exception on its own.

 

Turning to the judicial ascertainment clause, the plaintiffs argued that the lease terminated automatically upon the occurrence of an express resolutory condition.  Namely, failure to produce in paying quantities.  They further argued that this occurrence terminated the lease without the necessity of a putting in default, a long line of Louisiana cases hold that a “notice and cure” provision such as the judicial ascertainment clause does not apply when the lease automatically terminates, and that the provision violated the public policy of Louisiana and similar states that limit the terms of mineral leases without operations.  Finally, plaintiffs cited a Louisiana Supreme Court decision, Melancon v. Texas Co., 89 So. 2d 135 (La. 1956), rejecting the lessee’s reliance on a similar provision as “anomalous, if not ridiculous.”

 

The defendants’ counterargument, in essence, was that the Louisiana Supreme Court in Melancon recognized the validity of the judicial ascertainment provision, even though it was inapplicable in that case, and that in cases where a bona fide dispute exists as to whether the lease terminated the provision should be applicable as an agreement between the parties that automatic termination cannot occur without first getting a judicial ascertainment.  In this case, the bona fide dispute was characterized by the defendants as whether the events during the eleven month period were a cessation of production or a pipeline curtailment.

 

In finding that the judicial ascertainment provision was valid and applicable, the court first compared the provision to a shut-in clause, which the court noted to be a contractual innovation to forestall the harsh consequence of automatic termination.  However, unlike Melancon, where the lessee was found to have been withholding rental payments in order to induce the lessor to agree to increase the size of a unit, a bona fide dispute actually existed in this case as to whether the lease would have been maintained under the shut-in clause due to the gas purchaser’s conduct.  Further, the court noted that Melancon superseded earlier cases that simply declared judicial ascertainment clauses inapplicable when a lease automatically terminates.   Finally, the court rejected the public policy arguments made by plaintiffs in light of the bona fide dispute as to whether the lease was maintained under the shut-in clause and prior judicial approval of shut-in provisions as valid mechanisms to preserve a lease against forfeiture.

 

Although the court upheld the trial court’s decision finding the suit premature insofar as it sought a declaration that the lease had terminated instead of a judicial determination that the lessee was in default, it allowed the plaintiffs to amend their petition to assert a claim for judicial determination as being consistent with a claim for termination, characterizing the claims as two steps of the same process.

 

Unilateral Error in a Lease Extension

 

Peironnet v. Matador Resources Co., 47,190 (La. App. 2 Cir.8/1/12); 2012 La. App. LEXIS 1014.

 

This case involves error on the part of one party to a lease extension agreement regarding the scope of the amendment.  The mineral lease at issue covered roughly 1800 acres.  Nearing the time of the expiration of the original three (3) year primary term, all but 168.95 acres covered by the lease were included in Cotton Valley units that were either being operated or producing.  The lease contained both a horizontal Pugh clause (concerning the deep rights) and vertical Pugh clause (concerning acreage outside of producing units).  The lessors alleged that Matador and its agents sought from them an eighteen (18) month extension of the lease “as to the 168.95 acres” using a bonus calculated on that acreage amount; however, the extension agreement ultimately executed by the lessors extended the primary term of the lease by substituting the primary term of “three (3) years” with “four (4) years and six (6) months” without modifying any of the remaining terms of the lease.  This resulted in an apparent extension of the lease as to all acreage and as to all depths, not merely the 168.95 acres outside of the active Cotton Valley units.

 

After the discovery of the Haynesville Shale, the lessors filed suit seeking reformation of the extension to make it applicable to only the 168.95 acres and not to the deep rights below unitized production for the remaining acreage, claiming that the extension was procured by fraud or that error required its reformation.  Petrohawk, a third party top-lessee of the deep rights, intervened in the suit as a plaintiff.  The defendants claimed that the extension agreement was clear and unambiguously extended the lease as to all acreage and as to all depths. 

 

At trial, a partial summary judgment determined that the extension was unambiguous and eliminated all claims other than fraud, mutual error, and a claim that the lease was not maintained after the expiration of the primary term.  The jury decided that mutual error was not proven, the parties stipulated that fraud was not proven, and the court held that production activity extended the lease in its entirety beyond the expiration of the primary term.

 

On Appeal, concerning the error-as-a-vice-of-consent issue, the plaintiffs alleged, among other assignments of error, that the trial court erred in finding the extension to be unambiguous and that the trial court erred in excluding the plaintiffs’ claim of unilateral error.

 

The court found the extension to be unambiguous.  But, the court noted that error as a vice of consent is an exception to the “four corners” rule prohibiting introduction of testimonial or other evidence outside of document itself as to the intent of the parties.  Error, as defined by Civil Code article 1949, vitiates consent where it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.  In this case, the court found that the plaintiffs’ cause or reason for granting the additional lease rights was limited to the 168.95 acres and that Matador should have known that the cause or reason for the extension was so limited.  As a result of this unilateral error, the court reformed the extension to include only those 168.95 acres.  However, for the one plaintiff who settled with the defendants prior to Petrohawk’s intervention, the extension was valid as to all of the leased premises notwithstanding her execution of the top lease.    

                      

Created by: Martha Mills at 12/14/2012 8:20:48 AM | 0 comments. | 1673 views.

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Created by: Martha Mills at 12/12/2012 2:29:47 PM | 0 comments. | 2970 views.

LOUISIANA LEGAL UPDATE

Does a Formal Dedication of a Public Road Convey a Servitude or Fee Title?

 

By Lauren Gardner

Dennis, Bates & Bullen

 

John Creighton Webb, Jr., et al v. Franks Investment Co., et al, 47, 321 (La. App. 2 Cir. 10/29/12), 2012 La. App. LEXIS 1340.

 

The Second Circuit Court of Appeal teed up this issue for the Louisiana Supreme Court to take up. In John Creighton Webb, Jr., et al v. Franks Investment Co., et al, two cases were consolidated concerning the issue of whether a servitude or fee title was given in the formal dedication of the roads. In both cases, in the early 1900s, a strip of land was dedicated for a public road. Both tracts were bisected by the roads. The ownership of the roadbeds is critical in determining who now owns the minerals underlying the roads and whether the mineral servitudes have prescribed through non-use.

 

The Webb Tract and Flournoy-Lucas Road

 

The Webb case involves a strip of land across a 1,750 acre tract in south Caddo Parish. On September 11, 1913, J. W. Railsback executed a standard form dedication with the preprinted language, “I...do hereby dedicate to the public use for a public road, the following described land,” ...“part of what is known as the Lucas-Forbing Road[,]”... “The said property to be used for public road purposes only.” On June 14, 1914, F. F. Webb executed an identical standard form dedication. On February 22, 1924, F. F. Webb executed yet another standard form dedication. The strip of land described in these dedications is now known as Flournoy-Lucas Road, which runs east-west across the middle of the tract. In May 1979, Webb’s successors partitioned the tract but retained the minerals; wells drilled north of the Flournoy-Lucas Road have been maintained without any 10 year lapse. By cash deeds in 1985 and 1997, Franks Investment acquired mineral rights and surface rights, in the tract, and leased them to Twin Cities Development, which subleased to Chesapeake. These entities maintained that the dedications conveyed to Caddo Parish full ownership of the roadbed of Flourney-Lucas Road, thus splitting the mineral servitude pursuant to La. R.S. 31:73, which provides that a single mineral servitude may not be created on two or more noncontiguous tracts of land. This article codified pre-code jurisprudence, particularly Lee v. Giauque, 154 La. 491, 97 So. 669 (1923). In accordance with this article, Franks Investment, et al, contended that operations conducted north of Flournoy-Lucas Road did not interrupt prescription as to the land south of the road and that the mineral servitude south of the road had prescribed for nonuse. Webb’s successors countered that Caddo Parish only had a right of passage or servitude that did not divide the tract and therefore the operations north of the road maintained the servitude to its south because the mineral servitude was contiguous. 

 

The Allen Tract and Blanchard-Furrh Road

 

On January 31, 1928, Jacobs Land Company executed the same standard form dedication as in the Webb case with the same preprinted language, “I...do hereby dedicate to the public use, for a public road, the following described land,”..., “known as the Blanchard-Furrh Road[,]” creating a northwest and southwest portion. The form provided, “The said property to be used for public road purposes only.” In 1991, Jacobs Land Co. sold the tract but retained the minerals; Allen and 42 others are the current surface owners. In 2003, Jacobs Land Co. sold the mineral rights to Huddleston Energy Reserves, which later leased the minerals to Chesapeake. Allen and the other surface owners maintained that the 1928 dedication conveyed to Caddo Parish full ownership of the roadbed of Blanchard-Furrh Road, thus splitting the mineral servitude.

 

The Majority Opinion

 

The trial court found that Caddo Parish owned both roadbeds, thus the mineral servitudes on both tracts were divided. The Second Circuit disagreed with the trial court and found that these dedications only conveyed servitudes, not fee title. The instruments in question have no language either conveying or reserving title to the property. The proponents of public fee ownership relied on St. Charles Parish School Bd. v. P&L Inv. Corp., 95-2571 (La. 05/21/96), 674 So. 2d, claiming that “all formal dedications are, as a matter of law, conveyance of full ownership unless some contrary expression of grantor’s intent is provided.” The Second Circuit did not agree and found that the St. Charles Parish School Board case involved a tacit dedication, rather than a formal one and therefore was not controlling in the cases sub judice. The court also noted that the parties had historically treated the land underlying the roads as servitudes. Also, in 1957, the Caddo Parish Police Jury passed a resolution stating that “in order to clear the title to the ownership of the mineral rights under a public road the Caddo Parish Police Jury hereby declares that it makes no claim to the ownership of the mineral rights by virtue of the deed.” In 1983, the Police Jury passed another resolution stating:

 

[A]ll dedications of public road rights-of-way...where the dedication instruments contained statements that the property was to be used for public road purposes only and where the instruments cited no financial consideration in favor of the grantors, shall be henceforth considered by Caddo Parish only to constitute grants of public servitudes and rights-of-way,...and Caddo Lease ... will cover and affect the lands and depths described in the Prior Lease only Parish does hereby waive all present and future claims to fee title and to mineral rights relating to the property described in such instruments.

 

This Resolution was immediately recorded in the Conveyance Records of Caddo Parish on April 25, 1983. The court noted that obviously for the past thirty years this Resolution has influenced title work in Caddo Parish. The Second Circuit held that the dedications in the cases sub judice clearly support the conclusion that only a servitude was given because (1) there was no language dedicating fee title to Caddo Parish; (2) there was no compensation given; (3) there were specific limitations on the purpose for which the property could be used; and (4) the dedications have been historically treated as servitudes. The court further found that the intent of the dedications can be known from the deeds, but if ambiguous, the extrinsic evidence make clear the intent to give only a servitude, because the 1983 resolution was a formal act sufficient to relinquish the Parish’s alleged and contested fee ownership and mineral rights to the strips of land in favor of a servitude.

 

The Concurring Opinion

 

Judge Caraway opined that he would have held that the formal dedications, on the face of the instruments alone, would place complete ownership in Caddo Parish. However, he concurred with the majority’s opinion that only servitude was conveyed in these dedications because of the 1983 resolution by Caddo Parish. He further noted that his opinion was also persuaded by the significant effect upon land and mineral transactions subsequent to 1983 which the recorded resolution certainly caused.

 

The Dissenting Opinion

 

Judge Moore dissented because in his opinion, the St. Charles Parish School Bd. case decided by the Louisiana supreme court was controlling and therefore these formal dedications would transfer ownership of the property to Caddo Parish because they did not contain any express or implied retention of ownership. Likewise, he was unpersuaded by the extrinsic evidence in these cases because he found it to be hearsay without any probative value.

 

Conclusion

 

Throughout this Opinion, the Second Circuit notes that this issue needs to be taken up by the Louisiana Supreme Court. The majority and concurrence feel that this is a res nova issue, while the dissent believes the court needs to either affirm, clarify or reverse its ruling in St. Charles Parish School Bd. v. P&L Inv. Corp., 95-2571 (La. 05/21/96), 674 So. 2d. Either way, we should all follow this case as it moves forward because this decision may have a significant impact on mineral ownership throughout our state.

 

A copy of the case discussed above may be obtained upon request from Lauren L. Gardner by facsimile (337-233-9095) or e-mail (gardner@dbblaw.net).

 

Lauren L. Gardner is an associate in the Lafayette office of Dennis, Bates & Bullen, L.L.P.  She was born March 25, 1981, in Cut Off. She graduated from Louisiana State University in 2003 with a B.A. in History and graduated from Louisiana State University School of Law in 2006 with a J.D. and a B.C.L. During law school, Ms. Gardner was a law clerk for Chief Judge Henry N. Brown, Jr. at the Second Circuit Court of Appeals.  Ms. Gardner is admitted to the bar in Louisiana, the United States District Courts for the Western, Middle and Eastern Districts of Louisiana, and the United States Fifth Circuit Court of Appeals. She is also on the board of the Lafayette Young Lawyers’ Association and the Editorial Committee of The Promulgator.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Created by: Martha Mills at 11/14/2012 7:39:38 AM | 0 comments. | 3813 views.

The Transfer of Lands Fronting Waterways, Highways, Etc.

 

By Ashley Green

Gordon Arata Law Firm

 

Last year, for the LAPL November 2011 Legal Update, a former colleague and I wrote an article entitled To Fee Or Not Fee, That Is The Question; Distinguishing Between Acts Of Sale And Rights Of Way. Within that article, we illustrated the importance of being able to distinguish a right of way deed from an act of sale, as the ownership of minerals in and to roads, canals and railbeds may not necessary lie with the adjacent landowner. Our note that the tiniest pieces of land often cause the biggest complications still rings true. The acquisition by Lamson Petroleum in the mid-1990’s, for example, of certain leases covering various roadbeds spawned multiple lawsuits that lasted years. As a brief background to the Lamson cases, various companies, including Hallwood Petroleum, began exploring for oil and gas in the Scott area. Aware of this, Lamson researched the public records and found that certain roadbeds in the area covered by Hallwood’s mineral leases may not have been owned by Hallwood’s lessors. Lamson then secured mineral leases from the people it believed to be the proper owners of the roadbeds, filed petitory actions against those Hallwood claimed owned and/or received oil, gas and mineral royalties from the Scott Field production, and asserted its ownership claim and/or right to share in the production proceeds. Lamson was successful in many instances.

 

Prior to 1956, a sale of land by fixed boundaries was known as a sale per aversionem, principled upon the theory that in a sale, the purchaser acquires only the land included within the designated boundaries. The principle applied with equal force when a sale designated a right of way as a boundary. For instance, if a sale described the property being sold as bounded to the north “by a right of way” or “by a public road,” the sale did not include the roadbed. Ignoring the lack of any practical benefit to the grantor of title retention to small pieces of land, courts found this rule to have a sound basis:  It effectuated the intent of the parties, who had definitely fixed the perimeter of the property by contract. State Through Dept. of Highways v. Tucker, 247 La. 188, 170 So.2d 371 (La. 1965). The sale per aversionem principle also applied in interpretation of property conveyed through will and acts of partition. Lamson Petroleum Co. v. Hallwood Petroleum, Inc., 770 So.2d 786 (La. App. 3 Cir. 2000).

 

While courts may have thought the theory to be “sound,” the unfortunate effect was the creation of small fractional strips of land and confusing land titles. In 1956, the Louisiana legislature attempted to correct this problem by enacting La. R.S. 9:2971, et seq. La. R.S. 2971 provided that any transfer, conveyance, surface lease, mineral lease, mortgage or any other contract, or grant affecting land described as fronting on or bounded by a waterway, canal, highway, road, street, alley, railroad, or other right-of-way, shall be held, deemed and construed to include all of grantor's interest in and under such waterway, canal, highway, road, street, alley, railroad, or other right-of-way, whatever that interest may be, in the absence of any express provision therein particularly excluding the same therefrom.

 

The Legislature further required that persons affected by the statute had set certain period of time within which to preserve their rights:

 

Any person who has made a transfer or other grant affecting land so described, their heirs or assigns, whose rights may be affected hereby, shall have a period of one year from August 1, 1956, within which to preserve and protect such rights, by: (a) filing suit in each parish where such land is situated, asserting such rights, or (b) by recording a notarized declaration asserting such rights in the conveyance records of each parish where such land is situated within such one year period; and in case neither said method of preserving such rights is followed within one year from August 1, 1956, said rights shall be forever barred. (La. R.S. 9:2973)

 

However, in State Through Dept. of Highways v. Tucker, 247 La. 188, 170 So.2d 371 (La. 1965), the Louisiana Supreme Court rejected the preservation requirement and found that the statute could not be applied retroactively. The Court reasoned that to do so would unconstitutionally impair the obligation of contracts and divest owners of vested rights in property.

 

La. R.S. 9:2971 had other problems as well. Under the version of La. R.S. 9:2971 before its 2003 amendment, a property description that simply referred to a right of way but did not state that it is bounded by or fronting on a right of way was not subject to the conclusive presumption. In Crown Zellerbach Corp. v. Heck, 407 So.2d 770, 773–74 (La.App. 1 Cir.1981), a case involving mineral rights, the First Circuit interpreted the phrase “described as fronting on or bounded by” in R.S. 9:2971 and found that the presumption did not apply. In Crown, the property description in the deeds did not describe the property as “fronting on or bounded by” the highway or right-of-way. The court found that the omission evidenced the intent to convey only the property included within the exact and precise limits of the surveyed description. In 2003, the legislature amended the statute to provide for other means of describing the property. The legislature added: “or as described pursuant to a survey or using a metes and bounds description that shows that it actually fronts on or is bounded by” before the phrase “a waterway, canal, highway, road, street, alley, railroad, or other right-of-way[.]”  Again, this conclusive presumption does not have retroactive effect for surveys prior to 2003.

 

Created by: Martha Mills at 11/12/2012 4:46:51 PM | 0 comments. | 2150 views.

November 14-17, 2012 – ONSITE REGISTRATION ONLY
Oil & Gas Land Review, CPL/RPL Exam
Fort Worth, TX

18 RL/RPL/CPL CE Credits (including 1 ethics credit)
*FLYER WITH REGISTRATION FORM*

November 15, 2012- ONSITE REGISTRATION ONLY
Field Landman Seminar
Lafayette, LA
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November 30, 2012 -
REGISTER ONLINE HERE
Oil & Gas Titles Workshop
Pittsburgh, PA

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December 6, 2013 - REGISTER ONLINE HERE
Field Landman Seminar
Mars, PA
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December 6-7, 2012-
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Fundamentals of Land Practices & Optional RPL Exam
Williamsport, PA
7 RL/RPL/CPL CE Credits (including 1 ethics credit)
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December 12-13, 2012-
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JOA Seminar- Comprehensive Review of Operating Agreements and Well Trades
Denver, CO
14 RL/RPL/CPL CE Credits
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December 14, 2012 - REGISTER ONLINE HERE
Working Interest/ Net Revenue Interest Calculations Workshop
Fort Worth, TX  
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2013 CLASSES

January 10-11, 2013- REGISTER ONLINE HERE
Principles of Land Practices and Optional RPL Exam
Houston, TX
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January 15-16, 2013-
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January 23-26, 2013 -
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Oil & Gas Land Review, CPL/RPL Exam
Tulsa, OK

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January 24, 201
3- REGISTER ONLINE HERE
Field Landman Seminar
Roswell, NM
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January 28, 2013 - REGISTER ONLINE HERE
Oil & Gas Titles Workshop
Fort Worth, TX

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February 1 – 2, 2013- REGISTER ONLINE HERE
Fundamentals of Land Practices & Optional RPL Exam
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February 12-13, 2013-
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Introduction to Field Land Practices
Evansville, IN
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February 21, 2013 - REGISTER ONLINE HERE
Field Landman Seminar
Greeley, CO
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February 26 – March 1, 2013 - REGISTER ONLINE HERE
Oil & Gas Land Review, CPL/RPL Exam
Midland, TX

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February 26-27, 2013-
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Introduction to Field Land Practices
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ATTENTION: If you are paying by check, please note that AAPL cannot process your registration until the check has cleared: this delays your registration process by at least two days. AAPL recommends that you pay by credit card whenever possible to ensure quick reservation and confirmation.

PLEASE CONTACT DONDRIA ROOZEE AT DROOZEE @LANDMAN.ORG WITH ANY QUESTIONS.

Created by: Martha Mills at 7/30/2012 10:50:30 AM | 0 comments. | 2407 views.

October 18, 2012- REGISTER ONLINE HERE (REGISTRATION CLOSES AT 10 A.M., MONDAY, OCT. 15)
Field Landman Seminar
Oklahoma City, OK
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October 18-19, 2012 – REGISTER ONLINE HERE (REGISTRATION CLOSES AT 10 A.M., MONDAY, OCT. 15)
Gulf Coast Land Institute
Lafayette, LA
11 RL/RPL/CPL CE Credits
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October 25, 2012- REGISTER ONLINE HERE
Field Landman Seminar
Williston, ND
2 RL/RPL/CPL CE Credits
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October 27, 2012- REGISTER ONLINE HERE
Division Order Process
San Antonio, TX
7 RL/RPL/CPL CE Credits (including 1 ethics credit)
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November 5-6, 2012- REGISTER ONLINE HERE
JOA Seminar- Comprehensive Review of Operating Agreements and Well Trades
Houston, TX
14 RL/RPL/CPL CE Credits
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November 12, 2012 -
REGISTER ONLINE HERE
Working Interest/ Net Revenue Interest Calculations Workshop
Midland, TX
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November 14, 2012 - REGISTER ONLINE HERE
Working Interest/ Net Revenue Interest Calculations Workshop
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FILLING UP FAST!
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November 14-17, 2012 - REGISTER ONLINE HERE
Oil & Gas Land Review, CPL/RPL Exam
Fort Worth, TX

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November 30, 2012 - REGISTER ONLINE HERE
Oil & Gas Titles Workshop
Pittsburgh, PA

7 RL/RPL/CPL CE Credits
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December 6-7, 2012- REGISTER ONLINE HERE
Fundamentals of Land Practices & Optional RPL Exam
Williamsport, PA
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December 12-13, 2012- REGISTER ONLINE HERE
JOA Seminar- Comprehensive Review of Operating Agreements and Well Trades
Denver, CO
14 RL/RPL/CPL CE Credits
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December 14, 2012 - REGISTER ONLINE HERE
Working Interest/ Net Revenue Interest Calculations Workshop
Fort Worth, TX
6 RL/RPL/CPL CE Credits
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ATTENTION: If you are paying by check, please note that AAPL cannot process your registration until the check has cleared: this delays your registration process by at least two days. AAPL recommends that you pay by credit card whenever possible to ensure quick reservation and confirmation.

PLEASE CONTACT DONDRIA ROOZEE AT DROOZEE@LANDMAN.ORG WITH ANY QUESTIONS.

 

Created by: Bill Justice at 7/26/2012 9:42:57 AM | 0 comments. | 2389 views.

Dear Lafayette-based friends of UL Lafayette’s Moody College of Business Professional Landman Program:

 I have been in my capacity as Dean of the College of Business here at UL for five years now and have had the pleasure of meeting a number of you either at the annual LAPL golf outing or at one of its local chapter meetings. During this period, we have faced significant challenges and yet I am happy to report that we have had many significant achievements as well. The program coordinator, Mr. Buster LeBlanc, whom many of you know, has done a yeoman’s job in achieving these successes for our students and for the industry.

 I would like to invite you to a meeting on the program and its future, this week on Thursday July 26th, 2012 at 3:30pm on the UL Campus in Abdalla Hall on Devalcourt Street in Lafayette. Abdalla Hall is across the street from the LITE Center. I am sorry for the short notice and hope many of you can make the meeting.

 Sincerely,

 Joby John, PhD

Dean

B.I. Moody III College of Business Administration

The University of Louisiana at Lafayette

Created by: Martha Mills at 7/18/2012 11:20:38 PM | 0 comments. | 2534 views.

LOUISIANA LEGAL UPDATE

 

By Andrea Knouse

Mayhall & Blaise

 

The Louisiana Court of Appeal for the Second Circuit recently decided Cason v Chesapeake Operating, Inc.,  47,084, 2012 WL 1192404 (La. App. 2 Cir. 4/11/12), In said case, the Court discussed what constitutes “engaged in operations for drilling” on a lease premises so as to continue the lease beyond its primary term as well as interpreted the “adjacent land clause” found in numerous oil, gas and mineral leases.

 

Plaintiffs, Edgar and Flora Cason, appealed a Judgment from the District Court granting Defendants, Empress Louisiana Properties, et al, a preliminary injunction prohibiting Plaintiffs from interfering with the construction of a pipeline on Plaintiffs’ leased property.

 

Plaintiffs executed an oil, gas and mineral lease on about 7,200 acres of land in favor of Pride Oil & Gas which, with exercised extensions, would terminate on May 31, 2010. Also included in said lease was a clause which stated that the lease would remain in existence as long as the lessee is “engaged in operations for drilling”, another allowing ingress and egress to the lease tract on “adjacent lands” to construct necessary roads and pipelines, and the right to assign the lease in whole or in part. Through various assignments, Chesapeake, parent company of Empress, acquired said lease.  Plaintiffs argue that Defendants failed to engage in activities that would maintain the lease beyond May 31, 2010, as no drilling permit was obtained from the Office of Conservation and, thus, executed an oil, gas and mineral lease in favor of Goodrich.  However, on May 28, 2010, Defendants entered the lease tract, on May 29 and 30, Defendants entered onto the tract to cut trees and stack lumber. The well was not spud until July 22, 2010. Plaintiffs alleged to the District Court that the minor work performed between May 29-30 did not constitute “operations for drilling” which would maintain the lease beyond its primary term and refused to allow Defendants to lay pipeline on an adjacent tract  owned by Plaintiffs.

During the trial at the District Court level, Defendants offered testimony from various witnesses relative to its operations and activities on the leased premises. A senior landman testified that while Defendants did not obtain a drilling permit during the primary term of the lease, they did complete surveys that were vital to drilling within the primary term. A corporate representative for Defendants testified that Defendants hired a surveying company on April 26, 2010, surveyors were on the ground May 4-7 tying off corners, and were staking the pad May 26-28. A manager of gas sales for Defendants testified that he started researching production issues on May 10, and the only feasible option was to run the gas through a tract of Plaintiffs’ land adjacent to the leased premises. The District Court gave the most weight to the testimony of an expert oil and gas attorney, Philip N. Asprodites. Mr. Asprodites reviewed all of the Defendants’ activities prior to May 31, 2010, and concluded while it was not “standard practice” to engage so many activities-putting surveyors on the ground, staking the well and cutting trees to lay the road-and not obtain a drilling permit until 45 days after the end of the primary term, Defendants nonetheless “commenced drilling operations.” He further testified that it did not matter that the drilling permit was not obtained during the primary term, stressing that the lease tract posed special difficulties requiring extensive preparatory work. We note that the Judgment of the Second Circuit does not elaborate as to what may be the “special difficulties” relating the leased premises.

The District Court determined that Defendants were engaged in good faith drilling operations prior to the end of the primary term and granted a preliminary injunction against Plaintiffs. Plaintiffs appealed alleging, among other claims, Defendants failed to make a prima facia case for maintaining the lease beyond the primary term.

 

Engaging in Operations

 

Plaintiffs allege that Defendants failed to apply for a drilling permit during the primary term, surveryors failed to complete drilling surveys, no equipment was moved onsite, and no pits were dug in connection with the drilling of a well. Moreover, Plaintiffs contend that no Louisiana case has ever maintained a lease on such minimal conduct of the lessee. Defendants counter that courts have held preliminary acts began in good faith constitute commencement of drilling operations under the “engaged in operations” clause.

 

The Court states that the crucial question is whether Defendants’ activities on the leased premises amount to “engaged in operations for drilling” and cite Allen v Continental Oil Co.

 

The general rule seems to be that actual drilling is unnecessary, but that the location of wells, hauling lumber on the premises, erection of derricks, providing a water supply, moving machinery on the premises and similar acts preliminary to the beginning of the actual work of drilling, when performed with the bona fide intention to proceed thereafter with diligence toward the completion of the well, constitute a commencement or beginning of a well or drilling operations within the meaning of this clause of the lease.

 

If the lessee has performed such preliminary acts within the time limit, and has thereafter actually proceeded with the drilling to completion of a well, the intent with which he did the preliminary acts [is] unquestionable, and the court may rule as a matter of law that the well was commenced within the time specified by the lease.

 

255 So.2d at 845, quoting 2 Summers Oil & Gas, § 349, pp. 459–465.

 

The Court further held that where the lease provides for commencement of operations, the courts will hold that operations preliminary to the actual drilling of the well are sufficient compliance with the terms of the lease, provided, however, that such preliminary operations are continued in good faith, without undue delay, and with due diligence and dispatch, and thereafter the well is begun and completed.

 

Applying the above principals, the Court determined that although Defendants failed to obtain a drilling permit within the primary term, they performed sufficient preliminary acts by surveyors tying off section corners and gathering topographic data, finishing the survey and staking the site and access road, and logging the site. The Court placed much weight on Mr. Asprodites’ testimony that because of the “special difficulties” of the tract, extensive prep work was necessary, and the acts of the Defendants constitute “commenced operations.” Additionally, the Court states that Defendants spent $8.5 million to bring the well into operation, which shows that the preliminary actions were done for the purpose of completing the well. Thus, the lease was maintained.

 

Adjacent Land Clause

 

Plaintiffs also alleged that the preliminary injunction preventing Plaintiffs from interfering with pipeline installation was improper, as Defendants, assignees of the original lease, had no right to the land adjacent to the lease tract in Section 13. Plaintiffs contended that Defendants’ assignment was limited to the leased tract which covered lands located in Section 24.

 

The Court maintains that the original lease in favor of Pride Oil & Gas Properties expressly granted the lessee the right to conduct operations on adjacent or adjoining lands deemed necessary by the lessee to produce and transport oil, gas and other substances. While the partial assignment of the original lease to the Defendants may have been limited to Section 24 lands, the Court held that partial assignments do not divide a mineral lease under R.S. 31:310; therefore, the partial assignment did not sever the adjacent land clause contained in the original lease from the assignment.  The Court held that Defendants had to right to lay pipeline through the adjacent land in Section 13.

ANDREA M. KNOUSE is an attorney with Mayhall & Blaize, LLC. Her practice consists of title examination, division order work, and litigation. Ms. Knouse joined Mayhall & Blaize in 2009 after graduating cum laude from the Paul M. Hebert Law Center at Louisiana State University. While in law school, Ms. Knouse was named to the Chancellor’s List five times and received the CALI Award twice for earning the highest grade in Tax Policy and Taxation of Capital Gains. Ms. Knouse graduated magna cum laude from Texas Christian University with a Bachelor of Science degree in Psychology.

 

 

 

 

 

 

 

 


 

 

 

Created by: Martha Mills at 7/6/2012 12:45:21 PM | 0 comments. | 2039 views.

INVITATION

APACHE CORPORATION

IN COLLABORATION WITH

FRANK’S

COMPRESSED NATURAL GAS FILLING STATION

RIBBON CUTTING

THURSDAY, JULY 12, 2012

10:30 AM

515 E. VEROT SCHOOL ROAD

Please join Apache Corporation and Frank’s, along with the Lafayette Consolidated

Government and the Greater Lafayette Chamber of Commerce at the formal opening of the

compressed natural gas filling station. This initiative is a sterling example of public

private

partnerships that results in a progressive milestone for the community.

Created by: Martha Mills at 6/11/2012 1:33:10 PM | 0 comments. | 2199 views.

A Bayou Legal Brawl
Jindal says he'll sign bills limiting legacy drilling lawsuits.
WSJ Review & Outlook, June 7, 2012, 7:25 p.m. ET

Louisiana has had its fair share of oil troubles, from the Deepwater Horizon spill to federal foot-dragging on offshore permits. So congratulations to the state's political class for belatedly moving to plug the other drain on its oil resources: trial lawyers.

The Louisiana legislature last week sent Governor Bobby Jindal a pair of bills to end the legal racket known as "legacy lawsuits." For a decade, this booming litigation has cost the state thousands of jobs and billions in foregone investment.

In a legacy suit, trial lawyers scour property records and then sue on behalf of landowners, claiming billions in environmental damage from prior drilling. Any piece of land may have been leased over decades to many different drilling operators, so the suits seek to hold all predecessor companies liable. Over half the oil produced in Louisiana is now pumped by companies that have been hit with a legacy suit.

This legal boom began in 2003 when the Louisiana Supreme Court validated these suits and held that damage awards needn't be tethered to the land's value. Suits surged, and a study for the state legislature this year counted 271 current legacy lawsuits-more than half filed by one Louisiana law firm, Talbot, Carmouche & Marcello.

Louisiana didn't pass comprehensive drilling regulations until 1986, so some sites could use cleaning up. Yet the majority of these suits are frivolous, with the legislature study noting that more than three-fourths provided no evidence of environmental damage. This hasn't stopped the plaintiffs bar from alleging hundreds of millions worth of damage per suit to induce quick settlements. The lawyers take their cut, while landowners who get the rest are not obliged to use the payouts for environmental remediation.

Louisiana State University's Center for Energy Studies reported in February that Louisiana's onshore drilling industry has been stagnating, even as other oil-producing states grow briskly. The study estimated legacy lawsuits over the past eight years have discouraged the industry from drilling 1,200 new wells, losing $6.7 billion in drilling investment, $10.5 billion in economic output, and more than 30,000 job opportunities.

A 2006 reform contained too many loopholes and didn't stem the litigation. Governor Jindal has championed reform in many areas but was largely AWOL this spring as the state legislature debated reform. Only after Mr. Jindal was criticized by Louisiana Senator David Vitter did he emerge to broker legislation.

The resulting laws put the focus on clean-up over litigation. The bills require landowners to engage first with the state's Department of Natural Resources, which will evaluate environmental damage-if any. Plaintiffs firms can still sue, though the incentive to do so will be greatly diminished, given that the agency is unlikely to find evidence justifying big payouts. The new procedure will also cover existing suits, save the few that already have a trial date.

A spokesman for the Governor told us on Thursday that Mr. Jindal will sign the bills, which is great news for the Pelican State. There are few happy endings when fighting the trial bar, but this one will help Louisiana and U.S. energy production.

Created by: Martha Mills at 5/16/2012 6:31:24 PM | 0 comments. | 2390 views.

AAPL HEADER

From: The AAPL Public Lands Committee

 

The Federal Register notice for the proposed Bureau of Land Management (BLM) hydraulic fracturing rule was formally published May 10, 2012. There is a 60 day comment period and comments are due by July 10, 2012.

 

The BLM is proposing a rule to regulate hydraulic fracturing on public land and Indian land. The rule would require disclosure to the public of chemicals used in hydraulic fracturing on public land and Indian land, strengthen regulations related to well-bore integrity, and address issues related to flowback water. The BLM believes that this rule is necessary to provide useful information to the public and to assure that hydraulic fracturing is conducted in a way that adequately protects the environment.

 

If you disagree with the attached BLM proposed rules, you have until July 10, 2012 to make comment. Please review the attached and send your comments to:

 

U.S. Department of the Interior

Director (630)

Bureau of Land Management

Mail Stop 2134 LM

1849 C St. NW.

Washington, DC 20240

 

This is the time to make your voice heard!

 

Richard A. Champion, CPL

Chair, Public Lands Committee

 

 Please click on the attached link below to view the Federal Register notice

Links:

051612FRWellStimulatonBLMHF
Created by: Martha Mills at 5/16/2012 11:33:47 AM | 0 comments. | 3328 views.

LOUISIANA LEGAL UPDATE

 

By Kate Bailey Labue

Randazzo Giglio & Bailey LLC

 Kay Bailey Labue

There are two pending litigation proceedings examining severance of mineral rights from the sovereign. Specifically, courts are being asked to determine whether mineral rights were reserved to the State of Louisiana (the "State") under La. Const. 1921, Article IV, §2, on lands patented after 1921, pursuant to lieu warrants granted by the State prior to 1921.

 

This article will explain the (a) the policies of the State after the adoption of the 1921 constitution with regard to claims of mineral rights; (b) recent precedent challenging that policy with regard to patents granted post-1921 pursuant to pre-1921 lieu warrants; and (c) research that should be conducted to determine ownership of mineral rights.

 

The Louisiana State Land Office (“SLO”) was created in 1844 to sell State-owned lands and maintain the records of said sales. The records provide the evidence of State ownership that is used to develop revenues from surface leasing and permitting for the SLO and the Department of Natural Resources.

 

In 1921, Louisiana adopted a new constitution, which contained a mandate that all sales of property by the State contain a reservation of minerals in favor of the State; specifically, LSA-Const.1921. Art. 4, §2 (Now LSA-Const. Art. 9, §4(1974)), provides:

 

In all cases the mineral rights on any and all property sold by the State shall be reserved, except where the owner or other person having the right to redeem may buy or redeem property sold or adjudicated to the State for taxes.

 

The State’s policy is thus to claim mineral rights under all patents granted after 1921, even in the absence of an express reservation, except as to lands adjudicated to the state for non-payment of taxes (see Louisiana Attorney Opinion 08-0212 (1/23/09), citing Lewis v. State of Louisiana, 156 So.2d 431, 244 La. 1039 (1963)(holding “Article IV, Section 2 of the Constitution of 1921 is clearly applicable to . . . all sales of land whereby the state divests itself of title, with one exception; the redemption of property adjudicated to the state for taxes.”)

 

Recent precedent is challenging that policy with regard to instances whereby a patent was granted post- 1921 pursuant to an “in lieu” warrant granted pre- 1921. By way of background, there were instances where the State had sold and patented the same land twice or attempted to patent land previously conveyed by the United States or claimed under a foreign land grant. To resolve the conflicting claims, the State authorized the SLO to cancel the erroneous patents and issue “lieu warrants”, which were assignable; specifically, Act 104 of 1888, Section 3 (“Act 104”) sanctioned the following:

 

To authorize the register of the State land office, where it is made to appear that dual or double entries have been made, to cancel the invalid and erroneous entry and to issue a warrant therefor, locatable on other State lands of the same class as was originally entered.

Lieu warrants granted under Act 104 were issued without reference to specific property; rather, the warrant holder had to locate property comparable to that originally patented and then file an application for a second patent from the SLO.

Currently, there are two pending litigation matters that concern a landowner’s claim to mineral rights arising from patents granted post- 1921, pursuant to pre-1921 land warrants. The State filed a declaratory judgment action titled State of Louisiana vs. ASA Properties, L.P., et al in the 42nd Judicial District Court, DeSoto Parish, Suit No. 72779 (the “Declaratory Action”). The State is seeking a ruling pursuant to La. C.C.P. Art. 1871 declaring that the state is the owner of the mineral rights underlying three Patents (Patent Nos. 12605, 12614, and 13132) under the legal holding set forth in Justiss Oil Company vs. Louisiana State Mineral Board of Louisiana, 45, 212 (La. App. 2 Cir. 4/14/10) 34 So. 3d 507, writ denied sub nom.

Justiss was a concursus action initiated to determine entitlement to proceeds from a producing gas well in DeSoto Parish. The issue presented was whether the mineral rights were reserved to the State under La. Const. 1921, Article IV, § 2, when a patent conveying Lot 5 (i.e. the fractional SW/4 of NE/4, Section 16, Township 14 North, Range 12 West) was issued in 1935, upon presentation of a lieu warrant that had been issued in 1919.

Justiss Oil Company (“Justiss Oil”) was both the operator of the producing well, and a claimant to the mineral rights in the disputed acreage. Justiss Oil argued that because the post-1921 patent was issued pursuant to a 1919 lieu warrant, Article IV, Section 2 of the constitution did not apply. Conversely, the State argued that the mineral rights were not conveyed by the warrant, but instead were reserved in favor of the State, in perpetuity when the patent was granted after 1921.

The trial court held for Justiss Oil. The Second Circuit, on appeal, reversed, holding that the two actions that took place prior to 1921, the passage of Act 104, and the issuance of a lieu warrant to Justiss Oil’s predecessor, did not grant the warrant holder rights in a specific parcel, and consequently, property rights vested  after the application and issuance of the patent post-1921, subject to LSA-Const.1921. Art. 4, §2.

The State, is now contending in the Declaratory Action, based on Justiss, that issuance of three patents after 1921, regardless of whether same were granted pursuant to pre-1921 lieu warrants, did not entitle the warrant holder, their heirs and assigns, to any rights in minerals, and the mineral rights remain the public property of the State; specifically, the State contends the following:

 

The issuance of a lieu warrant did not convey rights to any specific land, it simply authorized the holder, his heirs, or assignees to find at some indeterminate time in the future other state owned lands of the same class for which a patent could be granted.  To acquire vested property rights, the holder of a lieu warrant had to locate available land and obtain the issuance of a patent.  Until land was specifically identified and a patent sought, the State had full authority to sell its land to grant mineral leases and to take any action permitted a landowner.

 

On April 2, 2012, the State filed an Amended Petition to the Declaratory Action, adding parties to the suit, and correcting errors in the pleadings. Also pending in the 39th Judicial District Court of Red River Parish, Louisiana, is an action titled Stroud Petroleum, Inc. vs. Pintail Properties, LLC, et al, Suit No. 34865 (the “Concursus Action”), involving the same property in dispute in the Declaratory Action. 

 

The Concursus Action was initiated by Stroud Petroleum, Inc. (“Stroud”), the operator of a well on the disputed acreage, and lessee of State Lease 18820 (the “State Lease”).  Stroud drilled and completed a well on the State Lease that began producing October 25, 2008.  Thereafter, alleged servitude owners notified Stroud that they claimed rights in the minerals underlying the State Lease by virtue of a January 26, 1966, mineral  reservation.  Upon receipt of the notice, Stroud suspended payments to the State and acquired a mineral lease from the alleged servitude owners.  The Concursus Action is still in the discovery phase; however, since the acreage in dispute in the Concursus Action is the same at issue in the Declaratory Action, one can surmise that the State will argue identical claims to the mineral rights.

 

A federal declaratory judgment action titled Chesapeake Louisiana, LP vs State of Louisiana Division of Administration, et al, Civil Action No. 3:11-CV-00772-BAJ-SCR, was initiated in the Middle District of Louisiana, concerning the same in dispute in the latter actions. In Chesapeake, Plaintiff, a mineral lessee, argued that by virtue of the filing of the Declaratory Action, the State was attempting a taking of their vested property interest granted in their mineral leases, without due process or just compensation in violation of the 5th and 14th Amendments to the U.S. Constitution and 42 USC Section 1983. Secondly, Plaintiff contended that the retroactive application of La. Const. Art. IV, Section 2 to the pre-1921 land warrants upon which Patent nos. 12605, 12614 and 13132 were based lessened the contractual duties and obligations due from the State as obligor to the warrant holder as obligee, in violation of U.S. Constitution Art. I, Section 10. This matter was recently dismissed on Motion from the State of Louisiana.

 

If title to property emanates from a patent granted after 1921, however, it does not mean that a private claim to minerals is fatally deficient. Further research must be conducted at the SLO to ascertain the steps undertaken by an applicant to obtain their patent. The research should include:

 

~ The grant and/or warrant underlying the Patent application;

 

A copy of the warrant should be reviewed to determine the legislation under which the warrant was granted.  The three patents at issue in the Declaratory and Concursus Actions were not all granted pursuant to Act 104; rather, two of the patents were granted pursuant to Act 55 of 1896, which authorized donations of land to injured Confederate soldiers and/or their indigent widows for their service. Arguably, Justiss is limited to warrants under Act 104, and may be persuasive at best, as to warrants and/or grants made by the State under different legislation. Moreover, one must determine whether the warrant granted a right to a specific parcel of property or a non-specific right to locate property. Warrants for specific property appear distinguishable from those granted in lieu, because they are contracts of sale in specific property rather than contracts to convey an unspecified property at an indefinite time. The warrants should be available at SLO for review. 

 

~ Correspondence regarding the actions taken by the warrant holder prior to 1921.

 

 If the warrant holder properly presented their patent and completed the requirements for application for property prior to 1921, and achieved a patent on same, Louisiana courts have held that the warrant holder acquired vested property rights in same as of the date of the application, because the issuance of a patent is but a ministerial act after 1921. See Douglas v. State, 23 So.2d 279 (La. 1945)(stating that when the plaintiff presented her lieu warrant and applied for the patent in 1919 and renewed the same in 1939, the applicants right in property became perfect and complete and applicant thereby acquired a vested right to the property the same as if the patent had issued).

 

One must research the application requirements necessary to achieve patent, and determine whether the applicant fulfilled such requirements prior to 1921. Such information should be located at the SLO or the State Archives.

 

~ Correspondence regarding actions taken by the State on applications filed for patent prior to 1921.

 

The court in Justiss provides an exception for patents granted post-1921 due to an error of the State of Louisiana:

 

Where the state failed to act on the patent application as in Hyams II (State ex rel. Hyams' Heirs v. Grace, 197 La. 428, 1 So.2d 683 (La.1941)), supra, or wrongfully denied the patent application as in Douglas (Douglas v. State 23 So.2d 279 (La. 1945)), supra, property rights vested when the application was made the same as though the patent had been issued.

 

One must research and determine whether the applicant fulfilled such requirements prior to 1921, but patent issuance was delayed by an error of the State. Such information should be located at the SLO or the Louisiana State Archives.

 

In closing, severance of the property from the sovereign is the first hurdle for determination as to rights in property. If your severance materials include a patent issued after 1921, it is essential that a thorough review of all documents supporting the patent be undertaken to determine the origin of the patentee’s rights to the property, and the application process undertaken to achieve those rights. 

 

 

Created by: Martha Mills at 5/9/2012 3:29:11 PM | 0 comments. | 3301 views.

042012warmingup042012they'reoff042012PLRM042012idk042012winners042012ddb

LAPL 2012 Golf Tournament

by Oliver "Buster" Leblanc

 

                April 20, 2012 at the Farm d’Allie Golf Club witnessed 148 golfers taking to the links on an absolutely beautiful day.  The breakfast, provided by TotaLand Technologies / Bill Justice was well received with the offering of sausage biscuits, boudin balls, coffee, milk and orange juice.  The lunch, provided for by Dennis, Bates & Bullen, LLP, consisting of cheeseburgers, chicken breast sandwiches and all the fixings, was as always extremely pleasing to the hungry golfers.  Once again, the sausage poorboys provided by the Opelousas Women’s Club was a mid-morning and mid-afternoon treat enjoyed by all.

 

                First place in the AM round went to the foursome of Heath Suire, Morgan Landry, E J Louviere, and Danielle Brocato.  Second place were Matt Chiasson, Bruce Chiasson, Jeff Darbonne, and Pam Risher.  Third place were Matt Goulas, David Swacker, Gerald Knight, and Clark Guidry.  Fourth place were Tommy Ducharme, Greg Geoffroy, O”Neil Sullivan, and Shane Daly.

 

                First place in the PM round went to the foursome of Chuck Reed, Jim Maloney, Chad Bellard, and Chris Bailey.  Second place were Glenn White, Tommy Hovis, Jean Pitre, and Andre LeBlanc.  Third place were Cade Hebert, David Bergeron, Jason Holley, and Jim Enloe.

 

                Congratulations to all participants and, although did not necessarily place, did walk away with a door prize.  Special thanks should go to our sponsors for their generous support of this event.  Hospitality sponsors were Dennis, Bates & Bullen, LLP, Beta Land Services, LLC, Magnolia Energy Services, LLC / William J Daigle, Exploration Land Services, LLC, Arthur C LeBlanc, Jr, CPL & Associates, and Sterling Automotive Group.  Gold sponsors were Stone Energy Corporation, Acadian Land Services, Liskow & Lewis, Orbit Energy Partners, LLC, and Mark A. Mitchell, Sr, CPL & Associates.  Bronze sponsors were Ottinger Hebert, LLC, and Ellerbe and Harrison.  Red, White & Blue sponsors were iLandman.com, Diehl Land Services / Jim Diehl, Joseph “Mike” Benoit, CPL & Associates, TotaLand Technologies, Broken Oaks, LLC / Bruce Brannon, Reagan Energy Services, LLC, C H Fenstermaker & Associates, Inc, Randazzo, Giglio & Bailey, LLC, and Michael J Broussard Land Services, Inc.  Contributing sponsors were Mark Cunningham, Sr, Petrolic Services, Inc, and the ULL PLRM Program.

 

                A very special thank you is in order for the volunteers, without the help of these people the event would not have been possible.  Should you encounter any of the following individuals, please take a moment of your time to thank them for their assistance in making this day enjoyable – ULL PLRM students Joe Louque, Addie Langlois, Conrad Anderson, Kirk Bodenheimer, Patrick Fitzpatrick, and Jacob Bernadas, along with ULL Development Officer Rae Robinson-Brodnax; OWC members Cindy Noel, Sherrie Landry, Wanda Juneau, Diane Gallagher, Eugenia Hagood, Susie Peck, Ginger LeCompte, Charmaine Pollingue, and Marie LeBlanc;  Ditty Bag organizers Betty Wolfe, Millie Boudreaux and Marie LeBlanc; along with LAPL members Patrick Reagan, Keith Hebert, Gerald Knight, David Swacker, Christopher Roy, Keith Dronet and Buster LeBlanc.

Created by: DAVID P. ORGERON at 5/2/2012 10:23:02 AM | 0 comments. | 2111 views.

041912castille041912bustersal041912crawfishcorn041912crawfishtime041912eatalone041912eatingupclose041912johnfthomas041912loadingup041912madonna041912opencan041912pavilion041912pickett041912prettyladies041912richard041912richardthonas041912tableI would like to personally thank all of you who sponsored, helped and/or attended the 2012 LAPL Charity Crawfish Boil. This year’s event was another great success story for the event and for LAPL. We had a total of 38 very generous sponsors donating over $20,000.00 to the cause, both totals exceeding all previous events. We had a total 364 in actual attendance, also exceeding all previous events.

 

After deducting all expenses we show a profit of $15,540.89 for donations to LARC ($7,770.45), MDA-Lafayette District Rainbow Camp ($3,885.22) and The LAPL Scholarship Fund ($3,885.22).

 

Once again thanks for all the help in making this event a continued success.

 

David P. Orgeron

LAPL Crawfish Boil Co-Chair

Created by: Martha Mills at 4/9/2012 2:06:20 PM | 0 comments. | 2202 views.

LOUISIANA LEGAL UPDATE

By William H. Mouton

Wm. H. Mouton Law Offices

 

So You Want to Be an Abstracter

 

For a meaningful and valid title opinion to be rendered as to the ownership of immovable property, and the minerals that may be produced from said lands, and the effects of, and limitations on use shown by acts by the present or former owners of the property, the public records doctrine is invoked:

 

“An instrument involving immovable property shall have effect against third persons, only from the time it is filed for registry in the parish where the property is located.” Louisiana Civil Code Article 1839.

 

“A mineral right is an incorporeal immovable”.

                                                                                                                                                                                                               

The situs of a mineral right is the parish of parishes in which the land burdened is located.

 

All sales, contracts, and judgments affecting mineral rights are subject to the laws of registry”.  Mineral Code Article 18.

 

“The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership”.  Mineral Code Art. 6.

 

“A landowner may reduce to possession and ownership all of the minerals occurring naturally in a liquid or gaseous state, that can be obtained by operations on or beneath his land, even though his operations may cause their migration from beneath the land of another”.  Mineral Code Article 8. 

 

We all know, and a major part of our industry is involved in, the process, for a non-owner of land or minerals, to go on the property and explore for and produce, save, and sell minerals. It becomes a search for the person or entity which owns and may lease or otherwise transfer the necessary rights, or “the search for the Lessor”.

 

This paper is limited in scope to relatively recent concerns, and issues, as to reliance on the electronic public records index which is the source for our search.  And the inputting process by the clerk of court of a parish, as ex-officio recorder of conveyances and mortgages, and custodian of succession and suit records, that have an impact on the search for the Lessor for your purposes. Also of concern is the erroneous preparation of documents to be recorded as to name identity of the parties.

 

SEARCH RULES TO APPLY:

 

RULE:  An act filed with the clerk of court is a part of the public records of that parish regardless of whether the clerk correctly makes note of the act in the indices or incorrectly inputs the name or names of the parties to an act. 

 

Results of the electronic search:

 

Records displayed electronically, may only be, and probably are, in the name or names inputted, which may not correspond to:

 

                The names of the parties affected in each act due to:

 


a. Error in document preparation (Notary or Attorney staff)

b. Lack of information available to document preparer

c. Error in the system to input parties names into the index (Clerk’s staff)

 

Acts are accessed by an index system by the names contained in the act.

 

Unless you are 100 percent sure how the clerk’s system reacts to a name, or have experience with that system, you have no other means to determine if the result covers all applicable acts. This is the difference between electronic search, and paper indices where the clerk often, if not always, created a different section of the indices for variations in the spelling of the name, and available in the index information shown.

 

If an act that involves an interest in immovable property (Sale, Lease, Servitude, Mortgage, Usufruct) is delivered to the clerk and “filed”---date stamped, and assigned a sequential number--that act “affects” third persons, including the mineral lessee to be.  Civil Code Article 1839.

 

THE PROBLEM:

 

The legal notice to the intended mineral lessee, of the existence of record of an act, as a third party to the act, is accomplished, regardless as to whether the act is entered in the clerk’s index and regardless if entered,  is properly entered.

 

Special rules to be considered: (As a result of my having been a Paper Index Abstracter and an Electronic Index Abstracter:

 

A.                   Name Variations: Arising from error, abbreviation, hyphens

 

REMEMBER: A rule that can be applied to your search and work product is: If the terms of the Act of Record can reasonably require a person to examine the entire act, notice has been given. This applies the content of the Act, not the content of the Indices.

 

To “try” to figure out the system may not be sufficient to negate liability. Can you ask the Deputy Clerk?  Better still, ask the inputting clerk or clerks, and write down the response.

 

Be aware of the potential for errors from numerous sources and proceed accordingly.

 

B.            Years of coverage

 

Some systems do not input acts into the electronic records, before a starting date.

 

Find out the years of electronic coverage, and document the information.

 

For example in Lafayette Parish, looking electronically for a property tax redemption in the 1940's will result in no response.  The paper indices are the only source. Vendees have not been inputted before a date in the 40's.  You can only imagine and speculate what the starting dates are elsewhere.

 


B.                   Legal change, alteration, amendment to the index information

 

The index is not part of the records under the public records doctrine and is subject to alteration at the whim of the custodian of the index. If you make your “Search for the Lessor” (the person or persons who own the fee interest in the subject property), without minerals outstanding, and not subject to a current mineral lease disclosed by the records (the index in that name), as of Monday, but on Tuesday an error in indexing is discovered, and the lease filed the week before, but indexed in error is on Wednesday, “properly indexed”, your search result is now in error but based on a valid search prior to the correction and subject property is not open, but the real problem is without you retaining a copy of your run sheets--a print out of the indices as of Monday’s search day--you have no support for your results.

 

This situation gives rise to necessary actions:

 

1.             Make and retain a print out of the indices as of the date of the run.

 

2.             After you acquire your mineral lease, based on “Monday’s” search, supplement the search. However, be aware that the correction to the index for that transaction is effective on the date of actual filing (pre-Monday), and not on the date of correction (Wednesday).

 

Do you then have to re-run the Lessor from acquisition? Drillsite? Large tracts? That decision may well separate the men from the boys.

 

C.                    Do not place any reliance on the description in the index as to type of act or the description set out. 

 

This rule has not changed from the day of paper records.

 

The entirety of the act is pertinent and affects the rights of record, of all parties to the act, leases, options, rights to reacquire, mineral reservations, terms, additional properties, consideration paid and type of the act, references to other acts of record and not of record, all affect the title and may create residual rights that need to be addressed by the examination, and are not shown in the index. Therefore, please do not exclude from review, an act based solely on the information contained in the index. Look at all acts listed under or involved with the name under consideration.

 

While the search process, to locate an act, seems quick, the process to call up and review is not, do not get into that trap.

 

E. 1.  The “Chiasson” Rule. Joe Chiasson owns, Joe Chiasson leases, Joe Chaisson is entered in the index or is the name used in a pertinent act of record. Solution with names like this, having more than one legitimate spelling run both/all variations.

 

2The U-Haul Rule: “U-Haul” Company buys, “U-Haul” Company sells, “Uhaul” or “U Haul” Company is indexed for both transactions. The index will not show your search under U-Haul, so you will not find the acquisition or the sale, or the prior mineral lease. Record owner remains as the vendor to U-Haul.  Solution: run all variations.

 

 3.  “Company”, “Co.”, “Incorporated”, “Inc.”, “LLC” or “L.L.C.” Solution: Try the name of the


 company with no appendage or run both or all possible variations.

 

I find a generic search, using only a last name, with all variables (try the variations of “Delahoussaye” or “Schexnayder”) may be the best method, but it will most certainly increase your time of search and the number of acts to be reviewed. But that is your job and your responsibility.

 

For your further consideration I close with a quote from a 1926 Louisiana Supreme Court decision on duties and liabilities of abstracters:

 

The Claim: “The defendant company performed the work, but the abstract it furnished to the plaintiff of the Aycock deed was erroneous, defective, and misleading, and this breach of the alleged contract resulted in the loss and damage to plaintiff which gave rise to this suit.”

 

The Rule: “One who engages in the business of making abstracts of title impliedly undertakes that he/she possesses the requisite skill and knowledge, and that he/she will exercise due care and skill in the performance of his/her duties, and for a failure to do so he/she will be liable in damages…. Plaintiff was lulled into fancied security by the erroneous and misleading information contained in the abstract of the Aycock deed which defendant had prepared and furnished to the plaintiff.”

 

Good luck, you’ll need it!

 

 

 

Created by: Martha Mills at 4/9/2012 2:02:44 PM | 4 comments. | 2521 views.

Louisiana Legislative Review: 2012 Regular Session

By Richard Hines

 This year’s legislative session runs March 12-June 4. It is also the beginning of Gov. Jindal’s last term in office. Several items top the agenda, 1) Budget shortfall, 2) Education, 3) Government retirement reform. Since this is an even-numbered year, there is no restriction as to the type of matter to be discussed; and since the budget is the most critical, citizens must understand that, without the financial resources, the State cannot operate. There is a proposal for selling one State prison and possibly closing others. Also, doctors and private hospitals caring for Medicaid patients will get fewer dollars for those services, which means cuts are on the way. With more than 1,600 pre-filed bills to consider, it will be a fast and furious fight in Baton Rouge. With fewer dollars available, legislators will be looking to other industries—as well as its citizens—for the funds available to stem rising state debt. These bills contain everything from helping law enforcement with identifying criminals from fingerprints to providing exemplary damages for environmental damages and everything in between. Colleges and universities are struggling to hold down costs while their funding is eroded. Community colleges are attempting to help educate the students falling in the cracks, but with fewer funding options, they are swimming with only their nose above the water line.

 The Oil and gas industry needs to keep its eyes and ears open as bills are lobbied to resolve the decades-old cases known as “Legacy Lawsuits”. There are 13 or so bills in the House of Representatives and five in the Senate. Looks like oil and gas companies along with landowners will need to compromise to settle this one! Those interested should watch for: HB235, HB388, HB460, HB500, HB618, HB642, HB649, HB654, HB655, HB678, HB853, HB863, HB897 and SB240, SB443, SB480, SB528, SB555.

 Another big issue is hydraulic fracturing. Many have asked the La. DNR to rule with an iron fist as the non-conventional resource plays begin to pop up across the country—and Louisiana is no exception. With the Haynesville and Brown Dense in North Louisiana, the Austin Chalk and Tuscaloosa Marine Shale in Central Louisiana and now Wilcox and other plays developing in South Louisiana, the hydraulic fracturing guidelines are being examined. Those interested should begin by watching HB957, which provides for disclosure of composition of fracturing fluids. I am sure others will be introduced or tacked on as the session progresses.

 Legislation of specific concern to Landmen, their clients and/or partners are as follows: 

HB 454;  HB504; HB683; HB853; SB259; SB454; SB469; SB505; SB525,  especially SB530.

*** SB530 provides that an unsolicited offer, by mail or electronic communication, for lease
or purchase of a mineral right or interest shall include and accurately disclose what the lease covers, description of the interest or right, how much is to be paid, term of contract and 30 days right of refusal.

Bills of interest:

HB235 provides that any agreement between parties to a mineral lease, servitude, or royalty interest which provides for indemnity from liability for the obligation to restore the environment on the property to its original condition on any portion of the property on which the indemnitor did not conduct mineral development activities is declared to be null and void.

HB388 provides that any provision in an agreement pertaining to an "oilfield site" or an "exploration and production (E & P) site" is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability for damages arising out of environmental damage resulting from the sole or concurrent negligence or fault of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indemnitee.

HB458 Provides that if a mineral lessee has failed to develop, operate, or restore the property leased as a prudent administrator, the lessor shall give the lessee written notice of the asserted breach.

HB460 Provides procedures for civil actions for the remediation of oilfield sites, for the joinder and intervention of parties, for the development of remediation plans, and for the admissibility of evidence.

HB500 Requires written notice by land owner to lessee prior to judicial demand for restoration or damages from mineral activity.

HB504 and SB469 authorizes the commissioner of conservation to unitize wells for an ultra deep structure (where true vertical depth is more than 22,000 feet) and to adopt a development plan for such ultra deep structure unit.

HB532 authorizes entering into cooperative agreements for the withdrawal of surface water. Requires approval by the secretary of the Dept. of Natural Resources for any such agreement. Limits the terms of such agreement to two years provided that such two-year periods may be renewed until Dec. 31, 2020. Authorizes any such agreement to be terminated effective Dec. 31, 2012.

HB561 and SB344 Provides that a reportable release for a natural gas distribution line is 1,000 pounds or more.

HB642 Provides for procedures in actions claiming environmental damage from certain oil and gas activity.

HB649 Provides that landowners may pursue private claims.

HB654 Requires timely remediation of oilfield sites.

HB655 and HB897 provides for the powers of the secretary of the Dept. of Natural Resources and the commissioner of conservation the authority to require a responsible owner to investigation, test, and remediate an oilfield site found to be a danger to the environment or a potential orphan site.

HB678 Provides for restoration of certain oilfield sites.

HB683 Authorizes the Dept. of Wildlife and Fisheries to issue an alternative oyster culture permit. The alternative oyster culture activities can be conducted on the leased water bottom, or in the water column or on the surface of the water above the lease. The permit is for five years or until the end of the water bottom lease, whichever occurs first, and is transferrable only with and to the extent that a lease is transferrable.

HB819 Requires the Office of Coastal Protection and Restoration to ensure that all projects funded wholly or in part with federal monies comply with any federal guidelines and criteria associated with the use of the federal monies.

HB853 provides that in absence of an agreement between the operator and the surface owner and where the surface owner is not paid at least a 1/8 royalty from a mineral lease, the operator shall fully compensate the surface owner for damages and reclaim the affected surface within 9 months of cessation of operations.

HCR42 Memorializes the U.S. Congress to take such actions as are necessary to encourage and enable the U.S. Army Corps of Engineers to expedite their wetlands permitting process.

SB240 provides that any agreement between sublessors, sublessees, assignors, or assignees affecting a mineral lease, servitude or royalty interest which provides for a defense or indemnity to an indemnitee against liability associated with the obligation to restore the leased property to its original condition, where indemnitor did not conduct mineral activities or operations or cause damage, is unenforceable and against the state's public policy.

SB257 provides that the State Mineral and Energy Board shall have the authority to lease public lands for alternative energy sources, and provides rules and regulations for those governed by ports, harbors and terminal districts and provides that ports or districts shall receive compensation for any actual cost incurred for any studies or reports conducted in order for their approval.

SB259 removes the authority of non-attorney notaries public to draft and prepare last wills and testaments or donations mortis causa, draft and prepare trusts, acts of sale, donations or any other document that transfers title to immovable property.

SB439 provides for the creation of conservation district in any parish with a population of not less than 45,000 nor more than 49,000 persons and any parish with a population of not less than 230,000 nor more than 240,000 persons.

SB454 adds an exception for a school board within a parish with a population between 42,000 and 45,000 persons is authorized to negotiate for the surface lease of any of its lands. It also provides provides that all contracts of leases of school lands or sixteenth section lands by a school board within a parish with a population of not less than 42,000 nor more than 45,000 persons that were entered into prior to January 4, 2012, for a term of not more than 5 years, are hereby ratified and confirmed and shall have the same force and effect as if the contracts of lease had been made and executed pursuant to the provisions of Part I of Chapter 10 of Title 41 of the Louisiana Revised Statues of 1950, provided that the school board receives fair market value for the leases.


SB480 provides that in an action for restoration of the surface or subsurface damages alleged to have occurred from surface mineral activity, the lessor or surface owner of the land is required to give mineral lessees written notice of the asserted breach to perform alleged damage to the property and allow a reasonable time for performance by the lessees as a prerequisite to a judicial demand for damages or dissolution of the lease.

SB505 provides if a notified overriding royalty owner elects not to participate, then the royalty owner of that notified overriding royalty owner shall receive that portion of production due to them under the terms of the contract creating the royalty between the royalty owner and the overriding royalty owner from the owner or operator drilling or intending to drill a unit well, including a substitute unit well. Present law provides that a notified owner who elects not to participate will be responsible for the his tract's allocated share of the actual reasonable expenditures incurred in drilling and operating of the well, as well as a charge for supervision, together with a risk charge of 200% of his tract's allocated share of the costs.

SB525 provides that any permit issued to drill an oil, gas, or test well must require the operator to notify any landowner affected by the well 30 days before the drilling operations commence, and must provide proof of such notification to the commissioner of conservation.

*** SB530 provides that an unsolicited offer, by mail or electronic communication, for lease or purchase of a mineral right or interest shall include and accurately disclose the following information prominently displayed in boldfaced lettering of equal or greater size:


1. Whether the offer is for a lease of a mineral right or interest, or for a purchase of a mineral right or interest, or both.
2. A description of the specific mineral right or interest for which the offer is made.
3. The total monetary amount or other compensation offered for the lease or purchase.
4. If a lease, the term of the lease.
5. That at least 30 days must lapse between the date the offer is received and the date of confection of the act of lease or purchase. The Proposed law also provides that an unsolicited offer by mail for the lease or purchase of a mineral right or interest shall not include advance payment, in whole or part, for the lease or purchase. If such payment is included, it shall be deemed an unconditional gift or donation to the recipient, who may accept and use such funds without liability or any obligation to the sender. Also provides that the recipient may use the funds for any purpose, including legal or other consultation concerning the unsolicited offer.

SB555 Provides for the remediation of oilfield sites and exploration and production sites.

SCR26 Requests the La. State Law Institute to study the issue of heirship property provisions in current law; to develop recommendations for facilitating the ability of Louisiana family members to receive title to immovable property when successive generations of their family have failed to file succession proceedings; and to develop recommendations to facilitate more equitable and economically efficient distribution of immovable property by merchantable titles.

 Richard Hines is a 1984 graduate of University of Louisiana at Lafayette with a degree in Petroleum Land Management and has more than 28 years experience as a landman. He and his wife Andrea have been married for 30 years and have four children.

Created by: Martha Mills at 3/12/2012 11:43:16 AM | 0 comments. | 2103 views.
Click on the links below for information about the Annual Charity Crawfish Boil and the Annual Golf Tournament, both scheduled for mid-April.

Links:

2012 golf tournament flyer
2012 LAPL Crawfish Boil Flyer 02 28 12
Created by: Martha Mills at 3/9/2012 2:12:10 PM | 0 comments. | 3855 views.
LOUISIANA LEGAL
UPDATE

By Megan Donohue

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.

 

Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, et al., 2010-2267, (La. 10/25/2011) - - - So.3d - - -, 2011 WL 5665523, rehearing denied Jan. 13, 2012.

 

The Louisiana Supreme Court recently issued a decision in Eagle Pipe, which highlighted the importance of the subsequent purchaser doctrine and explained that, in the absence of an assignment or subrogation of the personal right, a subsequent purchaser of property cannot recover from a third party for property damage inflicted prior to the sale.

 

Plaintiff, Eagle Pipe, purchased the property at issue on April 22, 1988. From 1981 to 1988, before the sale, the Former Property Owner Defendants allegedly leased the property to Union Pipe, which operated a pipe yard or pipe cleaning facility on the property.  In conducting its business, Union Pipe allegedly bought, cleaned, stored and sold used oilfield tubing from the Oil Company Defendants. The Trucking Company/Transporter Defendants allegedly transported the tubing from the Oil Company Defendants to Union Pipe’s facilities.

 

Eagle Pipe later discovered that the land was allegedly contaminated with radioactive material. It asserted that TENORM was removed from the tubing or pipes during Union Pipe’s cleaning process and was deposited onto the surface of the pipe yard, contaminating the soil where Eagle Pipe now conducts its business. As a result, Eagle Pipe filed suit against the former landowners and the oil and trucking companies allegedly responsible for the contamination. Eagle Pipe alleged a specific cause of action against the Former Property Owner Defendants for redhibition; the other causes of actions (breach of contract, negligence, strict liability, fraud, and conspiracy) were generally asserted against all of the defendants.  

 

All of the defendants filed, or joined in, the peremptory exception of no right of action, arguing Eagle Pipe had no right to assert a claim for damage to the property which occurred before Eagle Pipe was its owner.  After hearing, the trial court sustained the exceptions of no cause of action and dismissed Eagle Pipe’s claims with prejudice.  On original appeal hearing at the Fourth Circuit Court of Appeal, a three-judge panel affirmed the trial court’s ruling. On rehearing before a five-judge panel, the majority reversed the judgment of the district court with respect to its ruling on the exception of no right of action. Writs were then filed with the Louisiana Supreme Court, which granted writs to determine whether a subsequent purchaser of property has the right to sue a third party for non-apparent property damages inflicted before the sale in the absence of the assignment of or subrogation to that right. The Court found that the fundamental principles of Louisiana property law compel the conclusion that such a right of action is not permitted under the law. Instead, the subsequent purchaser has the right to seek rescission of the sale, reduction of the purchase price, or other legal remedies.

 

Subsequent Purchaser Rule. The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. This was the basis for the exceptions of no right of action filed by the Oil Company Defendants and the Trucking Company/Transporter Defendants. They asserted that any alleged damage to the property at issue occurred before Eagle Pipe became owner, and that Eagle Pipe cannot show it was the recipient of an assignment or a subrogation of any rights the Former Property Owner Defendants may have against them as alleged tortfeasors.

 

Louisiana law provides that when property is damaged through the actions of another, the owner of the property (obligee) obtains a personal right to demand that the tortfeasors (obligors) repair the damage to the property. This personal right of the property owner arises because his real rights in the ownership of the property have been disturbed – his use, enjoyment or disposal of the property.

 

Although Plaintiff in Eagle Pipe asserted that the subsequent purchaser rule applies only when there is apparent damage to property, the Court held that the rationale also extends to the situation where the damage to property is not apparent. Where damage to the property is not apparent, and the property has been sold, the law does provide the purchaser with the right to seek rescission of the sale or a reduction in the purchase price. In that instance, the former owner’s right to dispose of the property without disturbance has been affected, as the owner must now defend against an action in redhibition or take some other action to repair, remedy or correct the defect.

 

The law does not, however, provide the subsequent purchaser with both the right to sue for rescission of the sale, or a reduction in the purchase price, and the right to sue for damages against the tortfeasors. Instead, whether damage to the property is apparent or not, the personal nature of the right of the landowner at that time does not change, and remains with the landowner unless the right is explicitly assigned or subrogated to another.

 

The Court explained that the legislature, if it chose, could have created a right of action to seek damages against tortfeasors for damage to property which affects current property owners no matter when the damage occurred, or could have made an exception to prescription rules for long-term contamination of property. But such legislation has not been enacted. Instead, the legislature has decided the only addition to current legal remedies is a mechanism for remediating the property.

 

 

Tort Claims. Eagle Pipe raised tort causes of action, claiming defendants were strictly liable and liable for their negligence in damaging the property. Injury to property must be understood as damage to real rights in the property. A tortfeasor who causes injury or damage to a real right in property owes an obligation to the owner of the real right. This relationship arises as a matter of law and provides to the owner of the real right a personal right to sue the tortfeasors for damages.  In the absence of an assignment or subrogation of this personal right, a subsequent purchaser of the property cannot recover from a third party for property damage inflicted prior to the sale. The Court held that insofar as Eagle Pipe claimed a right to sue based on damage to the property which occurred before its ownership, it has no right of action to assert as a matter of law.

 

To the extent that Eagle Pipe claimed the damage to the property is continuing, such that it asserts its own right of action to sue for damages, the Court found that the law is clear that the allegations of the petition cannot constitute a continuing tort. The continued presence of the alleged contamination, the injury claimed, is simply the continuing ill effect from the original tortious acts. The fact that a subsequent purchaser “discovers” the continuing ill effects of the original tortious acts does not give rise to a new, discrete right of action in tort.

 

Similarly, to the extent that the allegations in the petition could be construed to assert a cause of action under trespass, the Court found that the law does not extend a right of action to Eagle Pipe under the facts alleged.  A civil trespass is a tort.  Even if the facts alleged in the petition could be considered tortious acts which constituted a trespass which caused damage to the property, the principles of Louisiana property law would still provide the owner of the property at the time the injury occurred with a personal right to sue the trespasser for damages, and not the subsequent owner. Moreover, not all trespasses are continuous acts giving rise to successive damages.  Quoting Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, the Court explained, “When a trespass which permanently changes the physical condition of the land is concluded, no additional causes of action accrue merely because the damage continues to exist or even progressively worsens.” To determine whether a trespass is continuous, a court must use the same inquiry used to determine the existence of a continuing tort. The injury alleged in the petition was not perpetuated through overt, persistent, ongoing acts.  Even if the allegations in the petition could be considered as asserting a trespass claim, Eagle Pipe would not have a right of action to assert that claim because of the subsequent purchaser doctrine.

 

Contract Claims. To determine whether the Former Property Owner Defendants explicitly assigned their personal right to sue for damage to Eagle Pipe, the act of sale had to be examined. The act of sale provides:

 

… [the sellers] do by these presents sell, transfer and deliver, with full guarantee of title and free from all encumbrances, and with full subrogation to all their rights and action of warranty against previous owners …

 

The Court held that this subrogation clause was directed to the rights and actions of warranty against previous owners, and not an express assignment or subrogation of personal rights to the new owner. Thus, there was no express assignment or subrogation of the former property owners’ personal right to sue for damage in the act of sale at issue in Eagle Pipe.  Eagle Pipe therefore had no right of action based on an assignment of personal rights from its vendor.

 

Conclusion. Under the facts alleged in the petition, the law has provided to Eagle Pipe a cause of action in redhibition and the right to sue for rescission of the sale or the reduction of the purchase price. In addition, the legislature has provided a mechanism for Eagle Pipe to obtain remediation of the property. While the law provides Eagle Pipe a contractual remedy, and the legal remedy of remediation, the law is not required to provide Eagle Pipe with every possible remedy.  Because of the subsequent purchaser doctrine, Eagle Pipe does not belong to the class of persons to whom the law grants the causes of action asserted in the suit.

 

A copy of the case discussed above may be obtained upon request from Megan E. Donohue by fax (337-593-7601) or e-mail (mdonohue@joneswalker.com).

 

Megan E. Donohue is an associate in Jones Walker’s Business & Commercial Litigation Practice Group and practices from the firm’s Lafayette office.  Ms. Donohue’s practice includes a wide range of business and commercial litigation cases as well as environmental/legacy litigation.  She has represented clients in the oil, insurance, and telecommunications industries. Ms. Donohue has been involved in many aspects of litigation, including traditional discovery and complex e-discovery, drafting substantive pleadings, taking and defending depositions, oral argument, and trial. Her experience also extends to various types of complex litigation, including multi-district litigation.

 

Ms. Donohue joined Jones Walker in September 2009, following graduation from the Paul M. Hebert Law Center, Louisiana State University, where she received her juris doctor degree and Diploma in Civil Law. A Faculty Merit Scholar at LSU, Ms. Donohue was involved with LSU's Trial Advocacy Board, the National Environmental Law Moot Court Competition, the LSU National Trial Advocacy Team, and won the LSU Ira S. Flory Trials as well as the defense portion of the LSU Opening Statement Competition. She also served as the 1L Vice President of the Student Bar Association. Ms. Donohue received her Bachelor of Science in Accounting, cum laude, from Louisiana State University in 2006.