Low price for drillers' gas can lead to 'reinterpretation' of royalty contracts
By Bloomberg News
Published: Saturday, Sept. 1, 2012, 12:01 a.m.
Donna Thornton made sure to include a no-cost provision in her contract with Chesapeake Energy Corp. that let the driller harvest natural gas beneath 2.5 acres of her property in Louisiana.
Thinking she had excluded production and marketing expenses and would therefore secure higher royalty payments, the Texas accountant said she was shocked when she confirmed in July that the second-biggest U.S. gas producer was passing costs on to her. For Thornton and thousands more owners of mineral rights in the United States, “no-costs” in drilling leases has taken on new meaning.
As gas prices were heading toward a 10-year low in April, Chesapeake began reinterpreting in its favor thousands of contracts with landowners from Pennsylvania to Texas who own the 1 trillion cubic feet of gas the company produced last year, according to interviews and documents reviewed by Bloomberg. Chesapeake, arguing that other contract language allows for cost deductions, is fighting more than a dozen lawsuits.
“I don't want to sound like I'm a bitter, disgruntled royalty owner, but this isn't fair,” Thornton said. “Don't do sneaky tricks. If it belongs to the royalty owners, it belongs to the royalty owners.”
While Thornton hasn't sued, saying she is dissuaded by the potential hassle and cost, other property owners have taken Oklahoma City-based Chesapeake to court in states including Texas, Arkansas, Oklahoma, Louisiana and Kansas alleging underpayment of royalties. The lawsuits include at least eight cases brought so far this year, two of which were filed as class actions seeking to represent multiple royalty owners.
Legal battles over royalty payments on oil and gas production are as old as the industry itself, said Anthony Sabino, a law professor at St. John's University in New York who specializes in complex litigation and oil-and-gas law. Producers such as Chesapeake have been motivated to minimize royalty payments as profits have been pinched by falling gas prices that remain 30 percent lower than two years ago.
Litigation may increase as lower gas prices — and royalty checks — lead landowners to scrutinize their contract terms and any deductions to cover the cost to bring gas to market, said Dana Kirk, a Houston-based attorney who has represented royalty owners.
“The tide goes in and out, depending on the overall economy and the specific economic prospects of the parties,” Sabino said. “Companies that are under heavy financial stress are more likely to push the envelope. Even the most honest companies, when prices and profits are dropping, will look to save money.”
Chesapeake lost about $9 billion in market value in the past year. Chief Executive Officer Aubrey McClendon was stripped of his chairman's title in June amid investigations into conflicts of interest between his personal financial dealings and his management duties. Michael Kehs, a company spokesman, declined to comment on the investigations.
Chesapeake follows all state laws and contractual lease terms in compensating leaseholders, and the company has paid more in lease bonuses and royalties than any other exploration and production company, Kehs said in an e-mail message. The company, which reported $12.4 billion in revenue last year, has paid $25 billion in royalties and lease bonuses to landowners in the past 12 years, Kehs said. It has contracts to drill on more than 15 million acres.
“The current price environment for natural gas is challenging for producers and royalty owners alike,” Kehs said. “When natural gas prices move higher, royalty owners should receive higher royalties.”
Gas producers have taken different approaches to expense deductions, at times abiding by no-cost provisions, and in other cases contending the provisions are nullified by other language in the contract, or by state law.
Chesapeake argued successfully this year to a Louisiana federal court that a provision to pay royalties on “market value” of the gas allowed it to deduct costs. The U.S. Court of Appeals in Cincinnati in February 2011 found that Kentucky state law stipulating royalties to be paid on an “at the well” price also includes costs, upholding the dismissal of claims by Kentucky royalty owners who had argued otherwise.
Marathon Oil Corp. last year agreed to pay $40 million to settle a lawsuit brought by Oklahoma royalty owners who claimed the company underpaid royalties, in part by making improper deductions. Marathon denied any liability or wrongdoing, according to the settlement agreement.
London-based BP Plc's American unit won an appeals court decision last month reversing a $13 million jury verdict on underpayment claims awarded to New Mexico royalty owners in 2011.
The disputes usually come down to the sophistication of the contracts, which varies widely, said Sabino.
“You'll see 75-page royalty agreements and other royalty deals that are written on the back of an envelope,” he said.
Royalties are a share of proceeds from the sale of oil and gas, paid to owners of mineral rights. Payments are based on state laws and the terms outlined in contracts, which vary from lease to lease. As hundreds of thousands of U.S. landowners were approached about leasing their mineral rights during the past decade's boom in U.S. shale field production, how expenses were handled became a key point of negotiation.
Deducting costs for processing, transporting and marketing gas before royalties are calculated can reduce the amount producers owe by 25 percent to 50 percent. About one in five landowners in Texas have signed contracts specifying that producers pay them based on a price before those costs are deducted, said Tom Hazlewood, an appraiser of royalty leases whose business reviews hundreds of properties annually for tax purposes.
For the same gas from the same well under the same contract terms, Thornton, the Texas accountant, says she has been paid about 25 percent more for her gas by Plains Exploration & Production Co., which in 2008 bought a 20 percent stake in Chesapeake's acreage in the Louisiana Haynesville shale formation.
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