Co-author Gunner West Itching to sue the government for taking your property? Treme v. St. John the Baptist Parish Council is a reminder that you must have a property interest subject to being taken in order to have standing to sue for a regulatory taking. Louisiana law recognizes that leases are property interests, and any “substantial interference” with such rights may constitute a taking within the meaning of the state and federal constitutions. But there is the pesky question of standing to sue. The facts Treme and his partners (or joint venturers, or not; that was an unanswered ques ..read more

Recent Texas royalty cases seem to feature litigants on the fixed royalty side trying, more often than not in vain, to escape the clutches of Van Dyke v. Navigator and Hysaw v. Dawkins. See those decisions for the history of how the Supreme Court got to where it is. (Regardless of which side you’re on, recall the admonition that each instrument must be examined according to its own language; arbitrary rules of construction are history.) Which brings us to Powder River Mineral Partners v. Cimarex Energy et al.  A 1947 Royalty Deed from Chapman to May contained these operative provisions ..read more

Coauthor Gunner West * “Every unnecessary law helps fashion the noose we will ultimately be hung by.” ― A.E. Samaan If you deny the administrative state’s insatiable lust for dominion over the most mundane aspects of your everyday life, consider Louisiana, et al  v. U.S. Department of Energy. Its more gradual than the noose but just as inevitable. They’ve come for the washers and dryers. Are the gas stoves next? The Repeal Rule The DOE in 2020 released Final Rules creating classes of clothes washers and dryers and dishwashers with short cycle times. This was in response to a petitio ..read more

This post is a summary of a more detailed Client Alert prepared by Gray Reed’s labor and employment practice group. Recall our recent post on the Department of Labor’s new “Economic Realities Test” for classifying specialized contractors and consultants as either employees or independent contractors. The new rules make the compliance minefield much riskier. The DOL has now provided guidance on how it will apply the Test. The prior post discussed the six factors to assess if a worker is economically dependent on the company (an employee) or truly in business for themselves (a contractor). The ..read more

Frontier Drilling, LLC v. XTO Energy, Inc. has the indicia of an inequitable result, but as I remind my wife every time she objects to what she deems to be an outrageous jury verdict, we don’t know all the facts and the court’s gotta follow the law, so let’s not judge. The facts Drilling contractor Frontier and operator XTO were parties to a drilling contract that was amended several times by negotiations via oral and/or email communications and then written agreements memorializing the discussions.  Frontier’s Rig 27 was moved to a site where a certain blowout preventer was required. Fr ..read more

Landowner and mineral owner (that includes you, lessee): Under ETC Texas Pipeline, Ltd. v. Ageron Energy, LLC, your right to sue for damages for tort or trespass could pass into history before you even know you have a claim. Here’s why: Under the legal-injury rule (more on that later), a property claim based on trespass or tort accrues even if the claimant: Does not yet know a legal injury occurred, Has not yet experienced or gained knowledge of the full extent of the injury, Does not yet know the specific cause of the injury or the party responsible, Later suffers additional injuries. or Ha ..read more

According to Darkhorse Water LP v. Birch Operations Inc. et al., the form of an instrument affecting real property in Texas does not affect the interest conveyed by the instrument. It’s what the document says about the transaction, not what the document calls itself. And you are reminded (because you know should this) that, other than for good reasons in limited occasions, nothing good comes from failing to promptly record an agreement affecting real property in the public records. The dueling agreements When Billie Pat McCaskle signed a Saltwater Reclamation, Treatment, Water Purchase and Sa ..read more

Antero Resources Corp. v. C & R Downhole Drilling, Inc. et al, proves again the extreme risk when one bites the hand that feeds him (shoutout to Greek poet Sappho, 600 BCE. He probably had a Dalmation). Antero sued former employee Kawsak and his accomplices Robertson and his companies for breach of fiduciary duty, fraud, and unjust enrichment. The jury award Antero $11.1 million against Kawsak in actual damages, $775,000 as recoupment for the value Kawcak received as a result of the breach, and forfeiture of 130,000 shares of stock in Antero Midstream. It could have been worse. The distri ..read more

A lot, it turns out. The Biden Administration, bending the knee to the progressive wing of the Democratic Party, has paused approval of new LNG export facilities. (In terms of influence on the President, this “wing” is looking more like the breasts, the thighs and drumsticks, the other wing, and the piece that went over the fence last. No news from the giblets).   What would a permanent ban, which could result after the government conducts its “robust” examination of LNG exports, look like? In NR Capital Matters, Andrew Follett refers to it as a “strategic crippling that would cost alrea ..read more

The Department of Labor recently made key changes to its rules in a way that will affect the oil and gas sector. The new rule rescinds a Trump Administration rule that had simplified the process of classifying workers as independent contractors. In its place, the DOL returned to the previous, complex and flexible “Economic Realities Test” which requires an employer to analyze the totality of the circumstances of an individual’s engagement under the following factors: The worker’s opportunity for profit or loss depending on managerial skill; The investments by the worker and the employer ..read more