Energy

Co-author Marcus Fettinger Under the Fair Labor Standards Act, what is required for an employee to be exempt from overtime pay? Ordinarily, it’s a guaranteed minimum salary. As the Department of Labor has explained, being paid on a “salary basis” means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined salary cannot be reduced because of variations in the quality or quantity of the employee’s work. That seems straightforward, but it took the Fifth Circuit three rounds of deliberations to nail it down. The entire panel of the…
Most bills filed in each legislative session fail. For the most part we are thankful for that. But today we summarize a few that survived while you weren’t paying attention. As usual, there are winners, losers, and rainouts. HB 2730 beefs up the “Landowners’ Bill of Rights” in eminent domain negotiations and proceedings. It amends the Property Code, Water Code and Occupations Code. The effective date is January 1, 2022. Winner: Landowners. SB 885 gives teeth to quitclaim deeds. It used to be that an owner who takes title through a quitclam could not be a bona fide purchaser and…
Co-author David Leonard McFarland Land & Cattle, Inc. v. Caprock Solar I, LLC considered what is the required under New Mexico law to establish a public prescriptive easement, and brings to life the full meaning of “100 feet of bad road”. The facts A state road runs along section lines that divides property owned by McFarland from his neighbor. After a bridge washed out in 1954 the road was rerouted about 100 feet onto McFarland’s land, thereby presenting a problem for Caprock, the solar developer. McFarland sued Caprock to enjoin them from using the 100 feet of road to access…
In Lexington Land Development LLC v. Chevron Pipeline Company et al, a Louisiana landowner’s suit for damages to land alleged to have been caused by oil and gas operations failed to survive exceptions of prescription and the subsequent purchaser rule. The facts In 1959 the Hoffman heirs granted a mineral gas lease on 343 acres in East Baton Rouge Parish to Chevron’s predecessor. Shell Pipeline owns and operates a pipeline across the property. Hoffman also granted surface leases to Chevron. In 1962 the surface leases expired and in 1963 Chevron relinquished its rights in the mineral lease except for…
Lollygag: To fool around and waste time; dawdle.  As in, “I lollygagged for 15 years after filing my suit and obtained a less-than-optimal result.” Gramwich Oil and Gas Corporation et al v. Meng addressed claims for lease termination, repudiation, laches, cessation of production, and failure to produce in paying quantities. The facts are dense and the savings clause at issue is sui generis, so I won’t go into lots of detail. The takeaway: If you have a claim, prosecute it. The facts…
In Plaquemines Parish et al. v. Chevron et al., the U. S. Fifth Circuit has ruled on whether 42 suits brought by six parishes and the Louisiana Attorney General against a number of oil companies belongs in federal court or state ourt. The allegations are that the companies’ operations over the years  essentially destroyed the Louisiana coastal marshes. Billions of dollars are at stake. The immediate issue was whether the defendants’ removal was timely. They were, the result of which is that the cases are likely to remain in federal court. A short history…
From the “Not-my-circus-not-my-monkeys” department, after the 10th anniversary of the Fukishima disaster last March my curiosity ventured into the nuclear energy debate. See these observations from those who actually know something about the issue (read the articles themselves for the full story). Opinions vary widely: Aubrey Hilliard’s Texican reports weekly on commodity prices and commentary on the markets. He has ideas about nuclear as a dependable carbon-free baseload source. He says the old fission power model is out and a complete rework is on the way from, for example, TerraPower, a nuclear reactor design company developing a class of nuclear…
Co-author Brittany Blakey Yowell v. Granite Op. Co. and Apache Corp. v. Peyton Royalties, L.P. is another Rule Against Perpetuties case. Keep reading. The anti-washout protection for your reserved overriding royalty could be at risk. The court of appeals (on remand from the Supreme Court) determined that a reserved overriding royalty interest in an oil and gas lease may be reformed under section 5.043 of the Texas Property Code to comply with the Rule.…
Regency Field Services LLC v. Swift Energy Operating LLC, draws one’s attention to the difficult analyses that should be made before bringing a subsurface trespass claim. A mineral estate lessee (Swift) alleged that H2S (“brimstone” if you follow the Old Testament) injected into the Wilcox formation by an injection well (owned by Regency) migrated and injured its interests in the minerals underlying nearby properties. The issue for the court was when the lessee’s claims accrued. We will ignore parts of the decision discussing pleadings and summary judgment evidence (trial lawyers, pay attention!). The facts, condensed Regency’s well was permitted by…
Co-author Rees LeMay* In Apollo Exploration, LLC v. Apache Corp., Texas’ 11th Court of Appeals analyzed several provisions of purchase and sale agreements in a complex oil and gas transaction and demonstrated a measured, text-centered approach to the interpretation of contract language. Significant parts of the holding hinged on the Court’s reference to defined terms in the contracts, highlighting the importance that contracting parties clearly clarify contract terminology. The lesson for the scrivener is to know and understand two things: The effect of each word in the document, and the “big picture”: What, ultimately, are the parties trying to…