Mealey's Fracking-Report-sample-issue-may-2014

MEALEY’STMTM
Fracking Report May 2014 Volume 1, Issue #1
5th Circuit Panel Vacates Summary Judgment, Remands To Decide Intervenor’s Status
NEW ORLEANS — A unanimous Fifth Circuit U.S. Court of Appeals panel ruled May 7 that an Eastern District
of Texas judge lacked jurisdiction over an assignment of rights dispute among natural gas well operating companies
because a nondiverse intervenor destroyed subject-matter jurisdiction; the panel vacated a summary judgment order
and remanded the lawsuit with instructions to determine if the intervenor is an indispensable party. SEE PAGE 4.
Wyoming Supreme Court Defines Trade Secrets, Remands Fracking Fluid Disclosure Case
CHEYENNE, Wyo. — The Wyoming Supreme Court issued a unanimous opinion March 12 vacating a lower ruling
that the components of hydraulic fracturing fluid are exempt from disclosure as trade secrets and instructing the lower
court to apply the federal definition of trade secrets to review a Wyoming Oil & Gas Conservation Commission order
denying requests for disclosure of the chemicals in the fluid; the mandate issued March 28. SEE PAGE 5.
Order To Produce Seismic Data Affirmed; Water Well Suit Fact Discovery Ends May 23
SCRANTON, Pa. — Phase 1 fact discovery in a lawsuit in the U.S. District Court for the Middle District of
Pennsylvania alleging contamination of residential water wells with hydraulic fracturing chemicals closes May 23; a
motion by the natural gas extraction company defendants for reconsideration of an October 2013 order to produce
seismic data and open hole logs was denied in January. SEE PAGE 7.
Louisiana Appeals Panel Rules Plaintiffs Lack Standing To Seek Restoration Damages
LAKE CHARLES, La. — A unanimous Third Circuit Louisiana Court of Appeal panel on May 7 affirmed summary
judgment against surface estate owners seeking damages from oil and natural gas operators for allegedly failing to restore
the surface estate; the panel applied the subsequent purchaser doctrine and concluded that the plaintiffs lack standing
to seek damages for alleged injuries before they purchased the subject land. SEE PAGE 10.
Legacy Oil Pollution Claims Dismissed Without Prejudice In Louisiana Federal Court
NEW ORLEANS — Defense motions to dismiss were granted in part on April 22 with leave to amend in a well
field legacy contamination lawsuit pursued by landowners in the U.S. District Court for the Eastern District
of Louisiana. SEE PAGE 12.
Oklahoma Class Plaintiffs Appeal Dismissal Of Claims For Waste Hauling Pollution
DENVER — Class action representatives of an Oklahoma action alleging fly ash and produced water contamination
filed an appellant brief April 21 in the 10th Circuit U.S. Court of Appeals seeking reversal of an order denying remand
under the local controversy exception to the Class Action Fairness Act of 2005 or, alternatively, vacating summary
judgment for defendants for failing to state a claim. SEE PAGE 15.
Texas Supreme Court Remands Attorney Fee Award Dispute Arising From Royalty Suit
AUSTIN, Texas — The Supreme Court of Texas issued a per curiam opinion on April 25 remanding an attorney fee
dispute with instructions for the trial court to develop a record sufficient to calculate attorney fees with the lodestar
method; the disputed attorney fees are from a lawsuit to enforce an assignment of working interests in oil and natural gas
producing wells. SEE PAGE 18.
Natural Gas Operator Held Liable To Indemnify Driller For Contamination Litigation
COLUMBUS, Ohio — A natural gas operating company sued by a drilling company with which it contracted to
spud wells in West Virginia is liable under the drilling contract to reimburse settlement and litigation costs for a related
well-water contamination lawsuit naming both companies as defendants, the presiding U.S. District Court for the
Southern District of Ohio judge ruled April 16. SEE PAGE 19.

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MEALEY’STMTM
Fracking ReportMay 2014 Volume 1, Issue #1
Cases in this Issue Page
Chesapeake Louisiana v. Buffco Production Inc., et al., No. 13-40458,
5th Cir. ........................................................................................................... 4
Powder River Basin Resource Council, et al. v. Wyoming Oil & Gas
Conservation Commission, et al., No. 13-120, Wyo. Sup. ........................... 5
Susan Berish, et al. v. Southwestern Energy Production Co., et al.,
No. 10-1981, M.D. Pa........................................................................................ 7
Lisa Parr, et al. v. Aruba Petroleum Inc., No. 11-1650, County Court
at Law No. 5 of Dallas County, Texas ........................................................... 9
Carlos Boone, et uxor v. ConocoPhillips Co., et al., No. 13-1106, La. App.,
3rd Cir. ........................................................................................................... 10
Catherine P. Alford, et al. v. Chevron USA Inc., et al., No. 13-5457
(consolidated), E.D. La........................................................................................ 12
William Reece, et al. v. AES Corp., et al., No. 14-7010, 10th Cir. .......................... 15
Larry T. Long, et al. v. Robert M. Grifﬁn, et al., No. 11-1021, Texas Sup.............. 18
Warren Drilling Inc. v. Equitable Production Co., No. 12-425, S.D. Ohio............. 19
Thomas A. Neuhard, et uxor v. Range Resources-Appalachia, No. 11-1989,
M.D. Pa. ......................................................................................................... 21
Rugh A. Mason, et uxor v. Range Resources-Appalachia, et al., No. 12-369,
W.D. Pa............................................................................................................... 22
Edward E. Kamuck v. Shell Energy Holdings, et al., No. 11-1425, M.D. Pa........... 24
Joe Rath, et al. v. BHP Billiton Petroleum (Arkansas) Inc., et al., No. 13-602,
E.D. Ark.............................................................................................................. 25
Daniel W. Nicholson v. XTO / Exxon Energy Inc., No. 13-899, N.D. Texas ........ 26
Sheila Russell, et al. v. Chesapeake Appalachia, et al., No. 14-148, M.D. Pa............ 28
Bobbie Hill, et al. v. Southwestern Energy Co., No. 12-500, E.D. Ark.................... 30
Mary L. Vermillion, et al. v. Mora County, N.M., et al., No. 13-1095, D. N.M.... 31
Columbia Gas Transmission v. Gary Galloway, No. 14-77, E.D. Ky. ...................... 33
Thomas Chaffee, et al. v. Talisman Energy USA Inc, et al., No. 14-690,
M.D. Pa............................................................................................................... 33
Tennessee Gas Pipeline Co. v. Permanent Easements, et al., No. 14-1821,
3rd Cir................................................................................................................. 35
Dr. Alfonso Rodriguez, M.D., v. Michael L. Krancer, et al., No. 12-1458,
M.D. Pa............................................................................................................... 36
Published document is available at the end of the report. For other available
documents from cases reported on in this issue, visit www.mealeysonline.com or call
1-800-MEALEYS.

In this Issue
Assignment Of Rights
5th Circuit Panel Vacates Summary
Judgment, Remands To Decide
Intervenor’s Status.......................................... page 4
Trade Secrets
Wyoming Supreme Court Defines Trade
Secrets, Remands Fracking Fluid
Disclosure Case.............................................. page 5
Order To Produce Seismic Data Affirmed;
Water Well Suit Fact Discovery Ends
May 23...............................................................page 7
Verdict
Texas Jury Awards $2.9 Million To Family
Alleging Harm From Natural Gas
Fracturing........................................................... page 9
Legacy Damages
Louisiana Appeals Panel Rules Plaintiffs
Lack Standing To Seek Restoration
Damages....................................................... page 10
Legacy Oil Pollution Claims Dismissed
Without Prejudice In Louisiana
Federal Court............................................... page 12
Appeal
Oklahoma Class Plaintiffs Appeal
Dismissal Of Claims For
Waste Hauling Pollution.............................. page 15
Texas Supreme Court Remands Attorney
Fee Award Dispute Arising From
Royalty Suit ................................................. page 18
Duty To Defend
Natural Gas Operator Held Liable To
Indemnify Driller For Contamination
Litigation...................................................... page 19
Lease Dispute
Pennsylvania Federal Judge Rules Gas
Well Activity Did Not Extend Term
Of Lease....................................................... page 21
Pennsylvania Federal Judge Denies
Summary Judgment In Natural
Gas Lease Dispute........................................ page 22
April Trial Stayed Pending Dispositive
Motion Ruling In Pennsylvania
Federal Court............................................... page 24
Royalties
March 2015 Royalty Trial Set In
Arkansas; Some Claims Dismissed
In January Order.......................................... page 25
Wrongful Death
Gas Well Operator Objects To Order
Denying Dismissal In Texas Federal
Court ........................................................... page 26
Personal Injury
Gas Well Operators Seek Order To
Support Claims Before Summary
Judgment Discovery..................................... page 28
Waste Disposal
Discovery Dispute Reported By Oilfield
Well Operators In Arkansas Injection
Suit .............................................................. page 30
Ordinance Challenge
New Mexico Property Owners Amend
Complaint In Suit Challenging
Fracking Ban................................................ page 31
Pipeline
Gas Pipeline Operator Seeks Declaratory
Judgment, Removal Of Bull From
Easement...................................................... page 33
Property Damage
Pennsylvania Plaintiffs Sue Well, Pipeline
Operators For Loss Of Property Value............page 33
Natural Gas Pipeline Operator Appeals
$78,000 Award In Pennsylvania
Easement Suit .............................................. page 35
MEALEY’S Fracking Report Vol. 1, #1 May 2014
Cite as Mealey’s Fracking Report, Vol. 1, Iss. 1 (5/14) at p.___, sec.___. 3

News
5th Circuit Panel Vacates
Summary Judgment, Remands
To Decide Intervenor’s Status
NEW ORLEANS — A unanimous Fifth Circuit U.S.
Court of Appeals panel ruled May 7 that an Eastern
District of Texas judge lacked jurisdiction over an
assignment of rights dispute among natural gas well
operating companies because a nondiverse intervenor
destroyed subject-matter jurisdiction; the panel vacated
a summary judgment order and remanded the lawsuit
with instructions to determine if the intervenor is an
indispensable party (Chesapeake Louisiana v. Buffco
Production Inc., et al., No. 13-40458, 5th Cir.).
(Opinion in Section D. Document #94-140513-
013Z.)
Chesapeake Louisiana ﬁled state law claims against Free-
man Capital, Buffco Production Inc., Twin Resources,
Wayne Freeman and Freeman Resources to recover
for alleged overpayment of an assignment of deep rights
in the Geisler Unit property in Harrison County, Texas
(No. 10-359, E.D. Texas). Chesapeake Louisiana
claimed federal jurisdiction because the defendants are
citizens of Texas and it is a citizen of Oklahoma.
2008 Agreement
The alleged overpayment involved a transaction arising
from a July 2008 agreement between Chesapeake Loui-
siana and Buffco. Chesapeake Louisiana agreed to pay
approximately $232 million to acquire Buffco’s working
interestsinthedeeprightsintheGeisler,Bowen,Hemby
and Yow units for three years. The letter contains a
non-operator clause through which Chesapeake Louisi-
anaagreestomakethesameoffertonon-operatingwork-
ing interests in the same properties. Freeman, Freeman
Capital and Harleton Oil & Gas Inc. are the owners of
the non-operating working interests.
Based on faulty information from a third party, Chesa-
peake Louisiana believed Buffco and Freeman each
owned 50 percent interests in the Geisler unit deep
rights, for which it paid each of them $6.8 million.
The parties agree the proper allocation of the working
interests in the Geisler unit is Buffco, 25 percent; Free-
man, 22 percent, Freeman Capital, 3 percent; and
Harleton Oil 50 percent. Therefore, by its payment
to Buffco and Freeman, Chesapeake Louisiana ac-
quired only 47 percent of the working interests in the
Geisler Unit.
Buffco, Freeman and Freeman Capital alleged in coun-
terclaimsthatChesapeakeLouisianawasrequiredtopur-
chase their interests in the Bowen, Hemby and Yow
production units.
Harleton Oil intervened and alleged claims against
Chesapeake Louisiana, Freeman and Buffco. Harleton
Oil sought 50 percent of the $13.6 million paid to
Buffco and Freeman. In exchange, Harleton Oil
would transfer its interest in the Geisler Unit to Che-
sapeake Louisiana. Harleton alleged fraud claims
against Buffco for misrepresenting its Geisler Unit
interests to Chesapeake Louisiana.
Chesapeake Louisiana and Buffco settled their dispute.
Subsequently, Judge Rodney Gilstrap granted sum-
mary judgment in favor of Chesapeake Louisiana and
Harleton Oil with respect to the Geisler Unit and in
favor of Chesapeake Louisiana with respect to the
Bowen, Hemby and Yow units.
Summary Judgment
Following the entry of summary judgment, Freeman
and Freeman Capital ﬁled a joint motion to dismiss
for lack of subject matter jurisdiction on the grounds
that Harleton Oil’s intervention destroyed diversity
and its status as an indispensable party.
Judge Gilstrap concluded that Harleton Oil is a
defendant-intervenor and denied the motion. In addi-
tion, he ruled that an analysis of whether supplemental
jurisdiction attached was unnecessary.
Vol. 1, #1 May 2014 MEALEY’S Fracking Report
4

Freeman, Freeman Capital, Buffco and Harleton Oil
appealed.
Judges Patrick E. Higginbotham, W. Eugene Davis
and Catharina Haynes heard the appeal and filed a
per curiam opinion overturning the judgment in part.
‘‘As a court of limited jurisdiction, we must first satisfy
ourselves, independent of the district court’s determi-
nation, that subject-matter jurisdiction exists over the
parties’ claims related to the Geisler Unit,’’ according to
the panel.
‘‘As the parties correctly acknowledge, diversity jurisdic-
tion existed over the suit prior to Harleton’s interven-
tion; however, we must consider whether Harleton’s
intervention destroyed diversity such that the district
court lacked jurisdiction over this matter.’’
First, the panel considered whether Harleton Oil is
properly recognized as a defendant-intervenor or a
plaintiff-intervenor. ‘‘Here, the principal purpose of
the suit and the primary and controlling matter in dis-
pute suggest that Harleton is a plaintiff,’’ according to
the panel.
‘Plaintiff-Intervenor’
‘‘Harleton’s proper alignment as a plaintiff-intervenor
is further illustrated by the fact that the summary
judgment order awarded relief to both Harleton and
Chesapeake, and both Harleton and Chesapeake are
essentially aligned on appeal in seeking affirmance of
the order. Further, Harleton affirmatively seeks to be
aligned with Chesapeake in certain circumstances, such
as when it argues that its unjust enrichment claim is
timely because its claim can relate back to the unjust
enrichment claim filed by Chesapeake. Finally, while
Harleton brought a claim against Chesapeake, Buffco,
and Freeman, no party has brought a claim against
Harleton, and Harleton has no potential for liability.
Such a lack of potential for liability against a party
suggests that the party should be aligned as a plaintiff,’’
according to the panel.
‘‘Having determined that Harleton should have been
aligned as a plaintiff-intervenor, we are bound to con-
clude that the district court lacked diversity jurisdiction
over the Geisler Unit claims.
‘‘Therefore, because there was no subject-matter juris-
diction over the parties’ Geisler Unit claims following
Harleton’s intervention, we must vacate the grant of
summary judgment with respect to the Geisler Unit
claims,’’ according to the panel. The panel remanded
the claims to permit the District Court to consider if
Harleton is an indispensable party and if the Geisler
Unit-related claims should be dismissed.
With respect to Freeman and Freeman Capital’s coun-
terclaims for interests in the Bowen, Hemby and Yow
units, the appellants aver that the counterclaims must
be dismissed because subject matter jurisdiction is
lacking over the Geisler Unit claims, according to the
panel. Contrary to Freeman and Freeman Capital, an
independent basis for jurisdiction exists, according to
the panel.
‘We Affirm’
‘‘Harleton did not destroy diversity with respect to these
claims because its claims were limited to the Geisler
Unit,’’ according to the panel. ‘‘Further, the amount
in controversy with respect to these claims exceeded
$75,000. Therefore, because Freeman and Freeman
Capital’s only challenge on appeal rests on their juris-
dictional argument, we affirm the district court’s deci-
sion concerning the Bowen, Hemby, and Yow Units.’’
Jesse R. Pierce and Brian Kevin Tully of Pierce &
O’Neill in Houston represent Chesapeake Louisiana.
Ben Taylor of Fulbright & Jaworski in Dallas and Eric
M. Albritton of Albritton Law in Longview, Texas,
represent Freeman and Freeman Capital. Gene Francis
Creely II of Creely Law Firm in Houston represents
Buffco. Gregory Dunne Smith of Ramey & Flock in
Tyler, Texas, represents Harleton Oil. I
Wyoming Supreme Court Defines
Trade Secrets, Remands
Fracking Fluid Disclosure Case
CHEYENNE, Wyo. — The Wyoming Supreme Court
issued a unanimous opinion March 12 vacating a lower
ruling that the components of hydraulic fracturing
fluid are exempt from disclosure as trade secrets and
instructing the lower court to apply the federal defini-
tion of trade secrets to review a Wyoming Oil & Gas
Conservation Commission order denying requests for
disclosure of the chemicals in the fluid; the mandate
5

issuedMarch28(Powder River Basin Resource Council,
et al. v. Wyoming Oil & Gas Conservation Commis-
sion, et al., No. 13-120, Wyo. Sup.).
(Opinion in Section E. Document #94-140513-
033Z. Mandate available. Document #94-140513-
034R.)
Powder River Basin Resource Council, Wyoming Out-
door Council, Earthworks and Center for Effective
Government fka OMB Watch appealed the denial of
disclosure of public records documenting the identity
of chemicals used in hydraulic fracturing operations
in Wyoming from the Wyoming Oil & Gas Conserva-
tion Commission (WOGCC) pursuant to the Wyom-
ing Public Records Act (WPRA; Wyoming Statute
Subsection 16-4-204) and the Wyoming hydraulic
fracturing disclosure rule.
7th Judicial District
After WOGCC denied the request for information, the
environmental groups filed a petition for review under
the Wyoming Administrative Procedure Act (APA;
Wyo. Statute Annotated section 16-3-114[c]) March
23, 2012, in the Wyoming Seventh Judicial District
Court, Natrona Co. The groups argue the supervisor
arbitrarily refused to disclose information, and the deci-
sions was an abuse of discretion and contrary to the law.
Halliburton Energy Services intervened, and the parties
stipulated to a record including 65 requests for trade
secret status approved by the WOGCC supervisor and
posted on the commission website. The stipulated
record also included correspondence with respect to
the amendments by the commission to rules for exemp-
ting certain information about hydraulic fracturing pro-
ducts from disclosure as trade secrets.
The environmental groups and Halliburton filed cross-
motions for summary judgment based on the stipulated
record. Judge Catherine E. Wilking conducted a hear-
ing on the motions and granted summary judgment
March 21, 2013, rejecting the claims of the environ-
mental groups.
The environmental groups appealed.
The Wyoming Supreme Court heard oral arguments
Nov. 20 and issued the opinion March 12.
‘‘Proceedings to challenge denial of access to documents
claimed to be public must follow procedures established
by the WPRA, and those are not subject to review
under the Administrative Procedures Act [Sheaffer v.
University of Wyoming, 2006 Wy 99, N˜ 4, 139 P.3d
468, 470 (Wyo. 2006)],’’ Justice Michael K. Davis
wrote for the court.
‘Reverse And Remand’
‘‘We will therefore reverse and remand to the district
court. That court will have to decide whether to permit
Appellants to amend their pleadings and file appro-
priate documents to seek an order to show cause, or
whether to dismiss the case instead. In the latter event,
Appellants may file new action with the appropriate
request for an order to show cause as contemplated
by the WPRA. The district court is vested with broad
discretion to determine whether to allow amendment
of pleadings, and we will not interfere with that dis-
cretion. Voss v. Goodman, 2009 WY 40, N˜ 14, 203
P.3d 415, 420 (Wyo. 2009). Regardless of which
choice the district court makes, on presentation of an
adequate application for an order to show cause, the
district court should conduct appropriate proceedings
and determine whether the information Appellants
seek constitutes trade secrets or not, with the burden
of showing that they do upon the custodian (here the
Supervisor) and any intervenors.’’
‘‘We understand the difficulty attendant upon holding
these proceedings — they must be conducted in such
a manner that the information sought to be protected
is not disclosed until the court can determine whether
it is in fact subject to disclosure,’’ according to the court.
‘‘This may require the use of in camera hearings, sealed
files, or even closed hearings, tools that courts custo-
marily use in cases involving trade secrets.’’
The court then turned to the standard to be applied
on remand to trade secret cases under the WPRA. ‘‘This
is a general question of law which can be answered
without regard to the limited record we have, and it
is in the interest of judicial economy to do so,’’ accord-
ing to the court.
E M A I L T H E E D I T O R
email editor bill lowe at
bill.lowe@lexisnexis.com
6

‘‘In order to maintain an open and accountable govern-
ment, the Wyoming legislature enacted WPRA in
1969. The Act provides a public right of access to
records of the state, its agencies, and local government
entities. Wyo. Stat. Ann. § 16-4-202(a) (LexisNexis
2013),’’ according to the court.
‘Disclosure Generally’
‘‘The WPRA, like the FOIA [federal Freedom of In-
formation Act], requires that disclosure generally pre-
vail over secrecy.’’
‘‘Striking a delicate balance between the public’s right
of access to government records and the protection
of proprietary information, the WPRA contains several
exemptions from disclosure, which are set forth in
§ § 16-4-203(b) & (d),’’ according to the court.
The exemption pertinent to the current case addressing
trade secrets, privileged information and confidential
commercial, financial, geological or geological data is
found in 16-4-203(d)(v), according to the court. This
exemption has never been subject to interpretation.
‘‘Having carefully contemplated the purpose of the
WPRA, studied relevant case law, and considered com-
peting arguments, we adopt the definition of trade
secrets articulated by federal courts under the FOIA.
A trade secret in the public records context is ‘a secret,
commercially viable plan, formula, process or device
that is used for the making, preparing, compounding,
or processing of trade commodities and that can be
said to be the end product of either innovation or sub-
stantial effort [Anderson v. Department of Health &
Human Services, 907 F.2d 936, 943-44 (10th Cir.)],’ ’’
according to the court. ‘‘This ‘definition requires that
there be a direct relationship between the trade secret
and the productive process.’ Id.’’
‘‘We are left with the question of whether individual
ingredients of hydraulic fracturing formulae can consti-
tute trade secrets under the definition we adopt. We
cannot resolve that issue in this appeal, unfortunately.’’
‘Independently Resolve’
‘‘The district court must independently resolve this dis-
pute based on the credibility of the witnesses and per-
suasiveness of the evidence presented by each party,’’
according to the court.
Justices Marilyn S. Kite, William U. Hill, Barton Voigt
and E. James Burke joined in the opinion.
ShannonRoseAndersonofPowderRiverBasinResource
Council in Sheridan, Wyo., and Timothy J. Preso, Laura
D. Beaton and Katherine Kirklin O’Brien of Earth-
justice in Bozeman, Mont., represent the appellants.
Eric A. Easton and Peter K. Michael of the Wyoming
Attorney General’s Office in Casper, Wyo., represents
WOGCC. Steven L. Leifer of Baker Botts in Wash-
ington, D.C., and John A. Masterson and Alaina M.
Stedillie of Lewis Roca Rothgerber in Casper represent
Halliburton. I
Order To Produce Seismic Data
Affirmed; Water Well Suit
Fact Discovery Ends May 23
SCRANTON, Pa. — Phase 1 fact discovery in a law-
suit in the U.S. District Court for the Middle District
of Pennsylvania alleging contamination of residential
water wells with hydraulic fracturing chemicals closes
May 23; a motion by the natural gas extraction com-
pany defendants for reconsideration of an October
2013 order to produce seismic data and open hole
logs was denied in January (Susan Berish, et al. v.
Southwestern Energy Production Co., et al., No. 10-
1981, M.D. Pa.).
(Order extending discovery deadline available. Docu-
ment #94-140513-026R. Order denying motion to
reconsider available. Document #94-140513-027R.)
Suzanne Berish is the lead plaintiff among a group of
more than two dozen residents of Lenox Township,
Susquehanna County. The lawsuit was filed in the Sus-
quehanna County Court of Common Pleas (Suzanne
Berish, et al. v. Southwestern Energy Production Co., et
al., No. 10-1882, Pa. Comm. Pls., Susquehanna Co.).
The plaintiffs include adults and children who live
within a quarter mile of the so-called Price Well No. 1.
Removal
Southwestern Energy Production filed notice of
removal Sept. 23, 2010, to the Middle District of
Pennsylvania.
A motion filed by the plaintiffs for leave to join de-
fendants Halliburton Energy Services Inc., BJ Services
7

Co., Shlumberger Limited and Union Drilling Inc. was
granted May 3, 2012, by Judge A. Richard Caputo.
The plaintiffs allege in the third amended complaint
filed May 17, 2012, that Halliburton Energy Services,
Union Drilling, Schlumberger Limited and BJ Services
provided services, equipment and support to South-
western Energy Production, the owner and operator
of Price Well No. 1.
The plaintiffs allege that they have been exposed to
hazardous chemicals, including barium, manganese
and strontium, by the hydraulic fracturing of the defen-
dants. As a result of the fracking, their real properties
have been damaged, and the value of their real proper-
ties has been diminished, according to the plaintiffs.
Plaintiff Connor Seamon avers that as a result of drink-
ing contaminated water, he has become physically ill
and manifests neurological symptoms of exposure to
toxicants, including heavy metals. The plaintiffs allege
negligence, private nuisance, strict liability and trespass
causes of action.
The plaintiffs seek an injunction ordering the defen-
dants to stop releasing contaminants, which they allege
is a violation of the Pennsylvania Hazardous Sites
Cleanup Act (35 Pa. Statutes subsection 6020.1.1).
They also seek compensatory and punitive damages
in addition to creation of a medical monitoring fund.
The plaintiffs voluntarily dismissed Schlumberger
Limited in November 2012.
Seismic Data
Judge Caputo entered an order Aug. 27, 2013, instruct-
ing Southwestern Energy Production and Schlumberger
Technology Corp., a nonparty contractor, to file briefs
regarding the discovery of seismic data and open hole
logs. The defendants opposed the release on the grounds
that the data are trade secrets.
Judge Caputoissuedan order Oct.11 granting the plain-
tiffs access to seismic data and open hole logs. The order
was stayed Oct. 28 pending disposition of the motion
to reconsider filed Oct 24.
Judge Caputo denied the motion Jan. 16. ‘‘There are six
elements used to determine whether information must
be kept secret so it confers a competitive advantage to
the owner of the information [Pestco Inc. Associated
Products Inc., 800 A2d. 700, 706 (Pa. Super. 2005)],’’
according to Judge Caputo. ‘‘The burden is on SEPCO
[Southwestern Energy Production Co.] to demonstrate
that the open hole logs and the seismic data are trade
secrets.’’
First, the information claimed by Southwestern Energy
Production to be a trade secret is known by Schlum-
berger and an unknown number of employees, accord-
ing to Judge Caputo. ‘‘Moreover, there is no evidence
of any protection SEPCO required of Schlumberger to
require its employees of the information learned both
while working at Schlumberger and after leaving
Schlumberger’s employ.’’
Second, some 25 to 50 Southwestern Energy Produc-
tion employees are aware of the information, according
to Judge Caputo. ‘‘There is no evidence of any require-
ments on SEPCO’s employees regarding the prohibi-
tion of dissemination of this information while in the
employ of SEPCO or thereafter.’’
Third, Southwestern Energy Production shared the
information with Schumberger, a contractor, according
to Judge Caputo. The distribution of the information
is unknown, and there is no evidence of restrictions on
the distribution of the evidence.
Value Of Information
Fourth, there is a lack of evidence of the value of the
information about the information, according to Judge
Caputo.Fifth,itisundisputedthatSouthwesternEnergy
Production spent considerable money to develop the
data, which mitigates in favor of classifying the infor-
mation as a trade secret.
Finally, the sixth issue concerns the value of the data
about Price No. 1 Well to other potential well sites. The
authority cited by the defendants for trade-secret classi-
fication under this test, the Texas Supreme Court opi-
nion in In re Bass (113 S.W.3d 735 [Texas 2003]), is
distinguishable, according to Judge Caputo.
‘‘In Bass, the non-participating royalty interest owners
of land sued the mineral estate owner claiming that
implied duty to develop the land was breached. The
mineral estate owner contracted with Exxon to run a
geological survey of seismic activity on the entire land.
The mineral estate owner never opted to develop the
8

land. In seeking to support their claim of breach of
implied duty to develop the land, the royalty interest
owners sought the seismic data because it would ‘reveal
whether development would be profitable.’ In re Bass,
113 S.W.3d at 738.’’
The seismic data at issue in Bass was not confined to a
single well, according to Judge Caputo. ‘‘In Bass, it is
apparent that it relates to the entire 22,000 acres.’’
For these reasons, the motion to reconsider is denied,
according to Judge Caputo.
The parties stipulated Feb. 28 to an extension of the
case management deadlines. Judge Caputo endorsed
the stipulation March 3. Fact discovery, including
fact depositions, will be completed by May 23, accord-
ing to Judge Caputo. ‘‘All other deadlines in the Second
Amended Case Management Order dated September
30, 2013 shall be extended accordingly.’’
Counsel
Patrick Walsh of Kelly, Polishan, Walsh & Solfanelli
of Old Forge, Pa., represents Price. Michael Gleeson,
M.D., of the Law Office of Michael Gleeson in Arch-
bald, Pa., Peter J. Cambs and William J. Dubanevich
of Parker Waichman in Port Washington, N.Y., and
Christopher P. Caputo of Caputo & Mariotti in Moo-
sic, Pa., represent the plaintiffs.
Joel Robin Burcat and Matthew M. Haar of Saul
Ewing in Harrisburg, Pa., and John H. Barr, Michael
C. Connelly and Robert D. Ayers of Bracewell & Giu-
liani in Houston represent BJ Services. David R. Fine
and George A. Bibikos of K&L Gates in Harrisburg
represent Southwestern Energy Production and Halli-
burton Energy Services. Patricia Fecile-Moreland of
Marks, O’Neill, O’Brien & Courtney in Philadelphia
and David P. Helwig of Marks, O’Neill, O’Brien &
Courtney in Pittsburgh represent Union Drilling. I
Texas Jury Awards $2.9 Million
To Family Alleging Harm
From Natural Gas Fracturing
Case name: Lisa Parr, et al. v. Aruba Petroleum Inc.
Case number: 11-1650
Court: County Court at Law No. 5 of Dallas County,
Texas
Judge: Mark Greenberg
Verdict / Settlement (breakdown): $2.9 million
($275,000 diminution of real property value, $750,000
each for past physical pain and suffering to Bob and
Lisa Parr, $500,000 past physical pain and suffering to
Emma Duval, $100,000 each for future physical pain
and suffering to Bob and Lisa Parr, $50,000 for past
physical pain and suffering to Emma Duval, $100,000
each to Bob and Lisa Parr for past mental anguish,
$100,000 for past mental anguish to Emma Duval)
Plaintiff(s): Lisa Parr, minor daughter Emma Duval,
Robert Parr
Defendant(s): Aruba Petroleum Inc.
Date: April 22, 2014
Background: Lisa and Robert Parr own 40 acres over
the Barnett Shale in Wise County, Texas. Hydraulic
fracturing for natural gas extraction began in 2008 in
the Barnett Shale. Twenty-two wells eventually were
drilled within two miles of the Parrs’ residence; no
wells or natural gas extraction activities occur on the
Parrs’ tract. The Parrs attribute their personal injuries
and property damage to benzene, toluene, ethylben-
zene, xylene and other volatile organic compounds
used to complete the wells by hydraulic fracturing.
The Parrs named 11 defendants in the lawsuit filed
in 2011. Aruba Petroleum Inc. and Encana Oil &
Gas (USA) Inc. remained as defendants in the 11th
amended petition filed Sept. 17, 2013. Halliburton
Co. was granted a no-evidence summary judgment
in 2013 on the grounds that its actions were not the
proximate cause of the Parrs’ alleged injuries. Settle-
ments were reached with the remaining defendants
prior to trial. Aruba Petroleum was granted summary
judgment on negligence, gross negligence and trespass
causes of action. The trial proceeded on the claim of
private nuisance against Aruba Petroleum. The jury was
instructed to determine if Aruba Petroleum intention-
ally created a private nuisance and if the company’s
conduct was abnormal and out of place; five of the
six the jurors answered the first question in the affirma-
tive and the second question in the negative. The jury
declined to award punitive damages.
9

Claim: Personal injury, property damage
Injury: Chronic nose bleeding, irregular heartbeat,
muscle spasms, open sores, emotional distress, harm to
livestock, damage to the environment, loss of property
value
Defense: The Parrs cannot prove Aruba Petroleum
caused their injuries because of the number of wells
drilled near their property by other oil and gas com-
panies. Aruba Petroleum complied with applicable
federal and state laws and air quality and drilling safety
guidelines established by the Texas Railroad Commis-
sion and the Texas Commission on Environmental
Quality.
Other:
Plaintiff attorneys: Brad J. Glide, Glide Law Firm,
Houston; David Matthews, Mathews & Associates,
Dallas; Richard A. Capshaw, Capshaw & Associates,
Dallas
Defense attorneys: Ben Barron, Ben K. Barron PC,
Dallas; Michael J. Mazzone, Haynes & Boone, Houston
Key related documents: 11th amended complaint
available. Document #15-140506-058C. Verdict in
Section B. Document #15-140506-057V. I
Louisiana Appeals Panel Rules
Plaintiffs Lack Standing
To Seek Restoration Damages
LAKE CHARLES, La. — A unanimous Third Circuit
Louisiana Court of Appeal panel on May 7 affirmed
summary judgment against surface estate owners seek-
ing damages from oil and natural gas operators for
allegedly failing to restore the surface estate; the panel
applied the subsequent purchaser doctrine and con-
cluded that the plaintiffs lack standing to seek dam-
ages for alleged injuries before they purchased the
subject land (Carlos Boone, et uxor v. ConocoPhillips
Co., et al., No. 13-1106, La. App., 3rd Cir.; 2014 La.
App. LEXIS 1204).
(Opinion in Section A. Document #94-140513-
012Z.)
Carlos and Lori Boone appealed a motion for sum-
mary judgment and exception of prescription decided
against them in the Louisiana 15th Judicial District
Court of Vermillion Parish (No. 92292). Judge John
Damian Trahan granted the motion filed by EnerQuest
Oil & Gas, a former lessee of the property.
Rights Reserved
The Boones purchased 18.66 acres of land encumbered
by mineral reservations and oil and natural gas leases for
$120,000 in August 2005 from Primeaux Properties
Inc. Primeaux Properties purchased the tract in 2003
from Aaron Lagneaux and Eric Lagneaux, who inher-
ited the property. Oil and natural gas operations on the
property date back to 1972. The Lagneauxs reserved
the minerals and mineral rights of the property in the
2003 sale.
EnerQuest acquired the wells and operating rights
on the tract in 2000 from Phillips Petroleum Co. Ener-
Quest sold its operating rights and interest in the prop-
erty to Petro ‘‘E’’ in 2004. The sale and assignment to
Petro ‘‘E’’ included EnerQuest’s use of the surface of the
subject property and the obligation to clean and restore
the surface.
The Boones asserted contamination and property
damage in the lawsuit filed in May 2010. The Boones
alleged claims against six oil and natural gas operators.
They allege claims against ConocoPhillips Co. as suc-
cessor to Phillips Petroleum, EnerQuest and Petro ‘‘E’’
and three other operators.
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10

In support of their claims, the Boones alleged the dis-
covery of abandoned debris and equipment on the land
and asserted a failure to properly clean and restore the
property. The Boones identified three of five wells on
the property in a first amended petition filed in July
2012 that they allege were operated by EnerQuest
before its sale to Petro ‘‘E.’’
EnerQuest moved for summary judgment on the
grounds that the Boones as a matter of law are pre-
cluded from asserting a tort or contract claim for prop-
erty damage before its 2005 acquisition of the property
without a specific assignment of that right from Phillips
Petroleum.
Leave To Amend
The Boones offered assignments of rights from Pri-
meaux and the Lagneauxs in response to the summary
judgment motion. Judge Trahan granted the Boones
leave to file a supplemental and amending petition
asserting their right as assignees to the rights of the
previous owners, claims for fraud and conspiracy and
solidary liability of all defendants.
Judge Trahan then granted EnerQuest summary judg-
mentandexceptionofprescription.TheBoonesappealed.
‘‘We begin with a review of the subsequent purchaser
rule or doctrine [Eagle Pipe and Supply Inc. v. Amerado
Hess Corp., 79 So.3d 246, 256-57 (La. 10/25/11)],’’
Judge Ulysses Gene Thibodeaux wrote for the panel.
‘‘Relevant to our inquiries here, a real right is not
defined by the Civil Code but has long been held to
be a proprietary interest and a species of ownership,
which ‘defines the relation of man to things and may,
therefore, be declared against the world.’ Eagle Pipe and
Supply, Inc., 79 So.3d at 259,’’ according to the panel.
‘‘A real thing and a real obligation both attach to a
thing. Id. at 261; La. Civ. Code art. 1764, Revision
Comments—1984, (b).’’
‘‘As illustrated by Eagle Pipe and Supply, Inc. through its
analysis of Clark v. J.L. Warner Co. et al., La. Ann. 408
(1851) and subsequent jurisprudence, the former
owner retains the right to recover damages caused by
the former owner’s lessee during the former owner’s
ownership of the property,’’ according to the panel.
The August 2005 sale and conveyance of the property
from Primeaux to the Boones does not assign the seller’s
personal right to sue the lessee for damage done to the
land before the date of the sale, according to the panel.
‘Subsequent Purchaser’
‘‘Lagneaux reserved the rights to himself in 2003, and
in 2005 Primeaux, who never obtained them from
Lagneaux, referenced the mineral and lease reservations
in its sale to the Boones and pointed the Boones to the
recorded prior act of sale from Lagneaux. Accordingly,
the Boones knew that the land was encumbered by
reserved mineral rights and leases. Under the subse-
quent purchaser doctrine, they do not have a right of
action to sue for damages occurring prior to their ac-
quisition of the property.’’
In an attempt to sue EnerQuest, the Boones obtained
assignments from Lagneaux and Primeaux in September
2012, according to the panel. ‘‘We find that the assign-
ments also fail to provide the plaintiffs with a right of
action for pre-acquisition damages against EnerQuest.’’
Lagneaux had no right of action in tort against Pri-
meaux to assign in 2012 as a matter of law, according
to the panel. Louisiana Civil Code Article 3493, which
governs damage to immovable property, has a one-year
statute of limitations. The statute of limitations expired
in March 2004, according to the panel.
Primeaux could not assign contractual rights to the
Boones in September 2012 because it did not acquire
contractual rights from Lagneaux in 2003, according
to the panel. ‘‘Accordingly, the Boones did not obtain
any tort or contract rights from the previous owners
via the assignments to sue for damages prior to the
act of sale in 2005.’’
Alternatively, the Boones aver that they have a right of
recovery as third-party beneficiaries of the surface lease
granted in 2002 by Lagneaux to EnerQuest, according
to the panel. In Andrepont v. Acadia Drilling Co. (231
So.2d 347 [1969]), the Louisiana Supreme Court iden-
tified three criteria for determining if contracting parties
provided a benefit for a third party. The Boones have
not met their burden of proving they are third-party
beneficiaries under the contracts, according to the
panel.
‘Withheld Its Lease’
Finally, the Boones aver that the 2002 surface lease
had a 10-year term and was effective until 2012, which
11

included their ownership of the surface, according to the
panel. ‘‘We disagree. As previously discussed, Lagneaux
withheld its leases and contractual rights from assign-
ment to the Boones, and in any event the surface lease
did not provide fordamages. It only provided for restora-
tion which was not due until six months after the lease
expired.’’
‘‘Based upon the foregoing, we affirm the trial court’s
judgment granting the motion for summary judgment
and exception of prescription in favor of EnerQuest Oil
& Gas, LLC. Costs of this appeal are assessed to the
plaintiffs, Carlos and Lori Boone.’’
Judges Sylvia R. Cooks and John E. Conery joined in
the opinion.
Warren A. Perrin of Perrin, Landrey, deLaunary, Dar-
tez & Ouellet in Lafayette, La., and Michael Gregory
Stag of Smith Stag in New Orleans represent the plain-
tiffs. Morgan J. Wells Jr. of Larzelere Picou Wells Simp-
son Lonero in Metairie, La., represents EnerQuest.
Rebecca H. Dietz of King, Krebs & Jurgens in New
Orleans represents ConocoPhillips. I
Legacy Oil Pollution Claims
Dismissed Without Prejudice
In Louisiana Federal Court
NEW ORLEANS — Defense motions to dismiss were
granted in part on April 22 with leave to amend in a
well field legacy contamination lawsuit pursued by
landowners in the U.S. District Court for the Eastern
District of Louisiana (Catherine P. Alford, et al. v.
Chevron USA Inc., et al., No. 13-5457 [consolidated],
E.D. La.; 2014 U.S. Dist. LEXIS 55724; See 4/15/14,
Page 27).
(Order available. Document #15-140506-037R. Third
amendedcomplaint available. Document #15-140506-
038C. Brief in support of motion to reconsider
available. Document #15-140506-039B. Response
to motion to reconsider available. Document #15-
140506-041B.)
Plaintiffs led by Catherine Alford filed suit in the 25th
Judicial District Court in Plaquemines Parish, La., (No.
60-4883) to recover damages for contamination of their
property in the so-called Potash Field by oil and gas
operators Chevron USA Inc., Goodyear Petroleum
Co., Hilcorp Energy I, Laurent Oil & Gas, Malloy
Energy Co., Noble Energy Inc., Shell Oil Co., Exxon
Mobil Corp., Gulf Oil Corp., Anadarko E&P
Onshore, BP America Production Co., Chevron USA
Holdings Inc., Four Star Oil and Gas, French Gulf
Coast Partners and Pan American Petroleum Corp.
Removing Defendant
The lawsuit was removed in August 2013 by Chev-
ron USA.
This so-called legacy litigation, as described in Marin v.
Exxon Mobil Corp. (48 So.3d 234, 238 [La. 2010]),
arises from operations conducted decades ago that left
an unwanted legacy in the form of actual or alleged
contamination, according to Judge Sarah S. Vance.
Facilities constructed by the defendants during extrac-
tion operations allegedly released hazardous substances
onto the plaintiffs’ property, according to Judge Vance.
Exxon Mobil moved to dismiss or for a more definite
statement in September 2013, which Judge Vance
granted in part on April 1 with leave to amend (2014
U.S. Dist. LEXIS 44621). Judge Vance denied the
motion for a more definite statement. Pursuant to the
April 1 order, the plaintiffs filed a third amended sup-
plemental complaint on April 21.
Exxon Mobil on April 11 moved for reconsideration
with respect to the classification of servitude and
implied obligations of mineral servitude holders.
Exxon Mobil challenges the application of the obliga-
tions as successor to Humble Oil & Refining.
‘‘The Court’s Order and Reasons states that the
February 17, 1960 Servitude Agreement attached to
Plaintiffs’ petition grants a mineral servitude to Hum-
ble Oil on Plaintiffs’ property. Exxon respectfully sub-
mits that this legal conclusion is manifestly erroneous,
as the Servitude Agreement does not convey any rights
to Exxon with respect to exploring for, producing, or
reducing minerals to possession or ownership.’’
The agreement grants only rights with respect to con-
struction and maintenance of pipelines and equipment
for treating, transporting and storing oil, gas, sulfur,
saltwater brine and other minerals on the subject
land, according to Exxon Mobil. ‘‘Absolutely no rights
12

to explore for, produce, or reduce to possession and
ownership any minerals are transferred through the
document. Thus, by its very terms, the 1960 Servitude
Agreement cannot be classified as a Mineral Servitude.’’
Reconsider
Because the agreement does not convey mineral servi-
tude or mineral rights, the plaintiffs cannot state a cause
of action under Louisiana Mineral Code articles 11 and
22, according to Exxon Mobil. ‘‘As such, Exxon
respectfully requests this Court reconsider its finding
that Exxon is a mineral servitude owner, and therefore,
its conclusion that ‘the complaint plausibly alleges that
Exxon breached the duties it owes to plaintiffs as a
mineral servitude holder to ‘keep[] the property subject
to the [servitude] in good order’ and to ‘exercise [its[
rights with reasonable regard’ for those of plaintiffs.’’’
The plaintiffs cite Louisiana Civil Code 639 in an April
28 response to the motion to reconsider. ‘‘Civil Code
Article 639 declares that a limited personal servitude is
a real right that confers ‘in favor of a person a specified
use of an estate less than full enjoyment,’’’ according to
the plaintiffs.
‘‘Because limited personal servitudes such as a mineral
lease ‘constitute an intermediary category between usu-
fruct and predial servitudes,’ they are ‘regulated by
application of the rules governing usufruct and predial
servitudes to the extent that their application is com-
patible with the rules governing a right of use of servi-
tude.’ [La. Civil Code article 645],’’ according to the
plaintiffs. ‘‘Both the rules governing usufruct and the
rules governing predial servitudes require restoration of
the thing subject to the usufruct or predial servitude.’’
‘‘Exxon clearly has the obligation of ‘preserving the
substance’ of the plaintiffs’ property under both the
1950 Lease and the 1960 Servitude [Eagle Pipe and
Supply Inc. v. Amerada Hess Corp., 79 So.3d 246,
258-259],’’ according to the plaintiffs.
The plaintiffs also aver that they have the right to enforce
mineral lessee obligations arising from the end of
mineral lease. ‘‘Exxon ignores the fact that a miner
lease is ‘a hybrid institution’ [Mineral Code Article
16] that may be classified as a limited personal servi-
tude,’’ according to the plaintiffs.
Eagle Pipe
‘‘When the mineral lease terminates, the lessee’s obliga-
tion to the surface owner does not disappear, as the lessee
is ‘always with the obligation of preserving the sub-
stance.’ [Eagle Pipe, 79 So.3d at 258-259] (emphasis
added),’’ according to the plaintiffs.
‘‘Exxon is responsible for its obligations both under
the 1950 Lease and the 1960 Servitude,’’ according to
the plaintiffs.
The order issued April 22 grants in part with leave to
amend motions filed in September 2013 by Chevron
USA, Four Star Oil and Gulf Oil (collectively, Chev-
ron); Anadarko E&P Onshore, BP America and Pan
American Petroleum (collectively, BP); Hilcorp Energy
I; and French Gulf Coast Partners to dismiss certain of
the plaintiffs’ claims and for a more definite statement.
Judge Vance denied the motions for a more definite
statement.
Judge Vance dismissed all the claims without prejudice,
except the claims under Civil Code articles 2683(2),
2686 and 2692 and Mineral Code articles 11 and 122.
Theplaintiffshave21daystofileanamendedcomplaint.
Judge Vance dismissed claims for restoration damages
under Civil Code article 2683(3) as premature because
the plaintiffs do not allege that the 1950 lease has
expired. The plaintiffs are correct that obligations
imposed on lessees under Civil Code articles 2683,
2686, 2688 and 2692 and articles 11 and 122 of the
Mineral Code continue (Marin, 48 So.3d at 256),
according to Judge Vance.
Civil Code article 2683(2) and Mineral Code articles
11 and 122 collectively require mineral lessees to use
leased property as a so-called prudent administrator,
according to Judge Vance. The plaintiffs allege in the
article 2686 claim that the defendants used the leased
property in a way that may cause damage to the prop-
erty, according to Judge Vance. The Article 2692 claim
alleges that the subject property was damaged by the
improper storage of waste, which triggers a duty to
repair the property, according to Judge Vance.
Without Prejudice
Judge Vance dismissed without prejudice claims for frau-
dulent concealment, restoration, breach of express con-
tract,violationoftheprudentoperatordoctrine,landloss,
punitive damages, continuing trespass, civil fruits, conti-
nuing nuisance, strict liability and unjust enrichment.
13

Donald T. Carmouche, Diane Adele Owen, John
Hogarth Carmouche, Ross Joseph Donnes, Victor
Lynn Marcello and William Robert Coenen III of Tal-
bot, Carmouche & Marcello in Baton Rouge, La., and
William Peter Connick of Connick & Connick in
Metairie, La., represent the plaintiffs.
Michael Raudon Phillips, Brittany Buckley Salup,
David Philip Curtis, Michelle Purchner Cumberland
and Shannon A. Shelton of Kean Miller in New Orleans
and Alan James Berteau, Charles Simon McCowan III
and Louis Victor Gregoire Jr. of Kean Miller in Baton
Rouge represent Chevron USA, Gulf Oil, Chevron
USA Holdings and Four Star Oil and Gas.
Loulan Joseph Pitre Jr., Demarcus J. Gordon, Jane
Jackson and Terrence Kent Knister of Gordon, Arata,
McCollam, Duplantis & Egan in New Orleans repre-
sent Goodrich Petroleum and Malloy Energy. Craig
Isenberg, Andrea Mahady Price, Michelle M. Ruther-
ford, Richard Edward Sarver and Zachary I. Rosenberg
of Barrasso, Usdin, Kupperman, Freeman & Sarver in
New Orleans represent Hilcorp Energy I. Paul J.
Hebert and David K. McCory of Ottinger Hebert in
Lafayette, La., represent Laurent Oil & Gas.
Joseph P. Farnsworth and Daria Burgess Diaz of Stone
Pigman Walther Wittman in New Orleans represent
Noble Energy. Patrick Wise Gray, Amy Allums Lee
and Jack Brandon Stanley of Johnson Gray McNamara
in Lafayette represent Shell Oil. Phillip E. Foco of Tay-
lor, Porter, Brooks & Phillips in Baton Rouge and
Anthony Joseph Lascaro and John Allain Viator of
Bienvenu, Bonnecaze, Foco, Viator & Holinga in
Baton Rouge represent Exxon Mobil.
James E. Lapeze and Jonathan J. Fox of Liskow &
Lewis in New Orleans represent Anadarko E&P.
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14

James P. Dore of Kean Miller, Amy DeGeneres Berret,
Benn Vincent and Shelly J. Harrison in Baton Rouge
represent BP America Production. Patrick S. Ottinger
and Hebert of Ottinger Hebert in Lafayette represent
French Gulf Coast Partners. Dore and Vincent repre-
sent Pan American Petroleum. I
Oklahoma Class Plaintiffs
Appeal Dismissal Of Claims
For Waste Hauling Pollution
DENVER — Class action representatives of an Okla-
homa action alleging fly ash and produced water con-
tamination filed an appellant brief April 21 in the 10th
Circuit U.S. Court of Appeals seeking reversal of an
order denying remand under the local controversy
exception to the Class Action Fairness Act of 2005
or, alternatively, vacating summary judgment for defen-
dants for failing to state a claim (William Reece, et al. v.
AES Corp., et al., No. 14-7010, 10th Cir.).
(Appellant brief available. Document #94-140513-
030B.)
Bill Reece is the lead plaintiff in a putative class action
removed in November 2012 to the U.S. District Court
for the Eastern District of Oklahoma (Bill Reece, et al. v.
AES Corp., et al., No. 12-457, E.D. Okla.; 2013 U.S.
Dist. LEXIS 2236) pursuant to the Class Action Fair-
ness Act (CAFA; U.S. Code 28:1332[d]) by XTO
Energy Inc. from the LeFlore County, Okla., County
Court (No. 11-256).
Amended Complaint
The plaintiffs filed a first amended complaint on Aug.
20, 2013, alleging claims against AES Corp., AES
Shady Point Inc., AES Shady Point, MMHF aka Mak-
ing Money Having Fun, Thumbs Up Ranch, Daryl
Jackson dba Daryl Jackson Trucking, Kevin J. Jackson,
Kenneth Jackson, Chad Jackson, GCI Mining aka
George Colliers Inc., Mountain Minerals, Brazil
Creek Minerals Inc., Farrell-Cooper Mining Co., Ash
Grove Resources, Marine Coal Sales Co., Hunter Ridge
Coal Co., International Coal Group, Coal Creek
Minerals, McCorkle Truck Line Inc., Star Bulk aka
PX Transportation Inc., R&J Trucking Inc., SEECO
Inc., XTO Energy Inc., Stephens Production Co.,
Chesapeake Operating Inc., Petrohawk Operating
Co., Hanna Oil & Gas Co., Highland Oil & Gas,
Cholla Petroleum Inc., BP America Production Co.,
Ross Production Co., Shields Operating Inc., Sedna
Energy Inc., Hogback Exploration Inc., Bishop Truck-
ing, Bear Productions Inc., Graco Fishing & Rental
Tools Inc., TXD Transport, Mike Krebbs Construc-
tion Inc., Big Mac Tank Trucks, Oklahoma Big Mac
Tank Truck, B&B Gas Well Services Inc. and Bear
Transports.
The plaintiffs allege that chemicals in oil and natural gas
well waste and in coal combustion waste and fly ash
hauled to and deposited at a dump site one mile south
of Bokoshe, Okla., in LeFlore County have contami-
nated the environment where they live and work. The
haul routes to the dump site are also contaminated
with fugitive chemicals from the hazardous wastes, ac-
cording to the plaintiffs.
Defendants AES, AES Shady Point Inc. and AES Shady
Point own a coal-fired electricity generation plant in
LeFlore County, according to the plaintiffs. Defendants
GCI Mining, Mountain Minerals, Brazil Creek Miner-
als, Farrell-Cooper Mining, Ash Grove Resources, Mar-
ine Coal, Hunter Ridge, International Coal and Coal
Creek deliver coal and limestone to the AES Shady
Point plant, according to the plaintiffs.
Well Defendants
Defendants SEECO, a wholly owned subsidiary of
Southwestern Energy; XTO Energy; Stephens Produc-
tion; Chesapeake Operating; Petrohawk Operating;
Hanna Oil & Gas; Highland Oil & Gas; Cholla Pet-
roleum; BP America Production; Ross Production;
Shields Operating; Sedna Energy; Hogback Explora-
tion own oil and natural gas wells in Arkansas and
Oklahoma, according to the plaintiffs.
Defendants Bishop Trucking, Bear Productions, Graco
Fishing & Rental Tools, TXD Transport, Mike Krebbs
Construction, Big Mac Tank Trucks, B&B Gas Well
Services and Bear Transports hauled produced fluid
wastes (PFW) from the oil and natural gas wells to
the MMHF dump site, according to the plaintiffs.
Making Money Having Fun operates the MMHF dis-
posal site, according to the plaintiffs. Thumps Up Ranch
owns the land where the disposal site is located. Daryl,
Kevin, Kenneth and Chad Jackson own Thumbs Up
Ranch, according to the plaintiffs.
15

By disposing of the waste and fly ash at the dump, the
AES defendants have caused the release of arsenic, bar-
ium, chromium, copper, lead, manganese, mercury,
nickel, vanadium and zinc from the dump site, accord-
ing to the plaintiffs.
The PFW from oil and gas wells includes saltwater,
sand, acid, oil- and water-based drilling fluids, comple-
tion flowback fluid, frack flowback fluid, workover
flowback fluid, rainwater gathered at the well sites, dril-
ling cuttings and pit water generated in the extraction
of oil and natural gas, according to the plaintiffs.
The plaintiffs allege that they are exposed to hydrochlo-
ric acid, hydraulic fracturing sand, diesel fuel, surfac-
tants, potassium chloride, benzene and isopropanol
from the PFW.
Class Area
The plaintiffs allege that the class area is within three
miles of the MMHF dump.
Class claims alleged by the plaintiffs in the first
amended complaint are abnormally dangerous activity
strict liability, public and private nuisance, trespass,
negligence, negligence per se, trespass, diminution of
property values, personal injury, unjust enrichment
and violations of Oklahoma law.
The damages alleged by the plaintiffs are diminution
of property value; loss of use of property; contamination
of soil, surface and groundwater and the air; and perso-
nal injuries such as respiratory conditions, skin and eye
irritations, cancer and death.
The plaintiffs in December 2012 moved to remand
under the local controversy and home state exceptions
to CAFA. Judge Heaton denied the motion in April
2013 after concluding that the plaintiffs had not met
their burden of establishing class citizenship.
The plaintiffs filed a renewed motion to remand in
May 2013 with a proffer of class membership and addi-
tional evidence of class citizenship. Judge Heaton
denied the motion and declined to consider the proffer
of citizenship evidence as untimely.
The defendants in September 2013 moved to dismiss
the first amend complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Judge Heaton granted the motion on Jan. 8, 2014, and
entered final judgment on Jan. 28 for the defendants.
The plaintiffs appealed.
The plaintiffs assign errors with respect to the denial
of remand under the local controversy exception to
CAFA and to dismissal for failing to state a claim.
‘Local Controversy’
‘‘The allegations set forth in the FAP [first amended
petition] and the reasonable inferences and interpre-
tation of those allegations demonstrate that this case
is a local controversy,’’ according to the plaintiffs.
‘‘The district court’s failure to remand this case to state
court as a local controversy pursuant to 29 U.S.C.A
§ 1332(d)(4)(A) was [in] error and undermines CAFA’s
statutory purpose,’’ according to the plaintiffs.
The plaintiffs aver that they met their burden of
showing that at least one defendant is ‘‘significant’’
and a citizen of Oklahoma and that the principal inju-
ries occurred in Oklahoma.
With respect to the failure to state a claim error, the
plaintiffs aver that they satisfied Federal Rule of Civil
Procedure 8(a)(2). ‘‘The FAC [first amended com-
plaint] alleges facts which if taken as true, for the pur-
poses of Fed.R.Civ.P. 12(b)(6), provide the district
court and Defendants with exactly the kind of notice
and evidence of Appellants’ claims and demands for
relief to which Defendants are entitled,’’ according to
the plaintiffs.
‘‘Together with the prodigious body of probative evi-
dence pled with specificity by Appellants, and the im-
portant inferences which reasonably can and must be
drawn in Appellants’ favor, the FAC satisfies in every
respect the ‘short and plain statement’ requirement of
Fed.R.Civ.P. (8(a), as well as the ‘plausible’ reference
expressed in Bell Atl. Corp., [Bell Atlantic Corp. v.
Twombly, 550U.S. 544(2007)] 550U.S. 544,’’accord-
ing to the plaintiffs.
‘‘For the foregoing reasons, Appellants respectfully
request that this Court reverse the district court’s
order denying remand as to this action in its entirety.
Alternatively, Appellants further request this Court
vacate the district court’s order dismissing Appellants’
claims, both with prejudice and without on the basis
16

that Appellants have met the pleading standards set
forth under Fed.R.C.P. 8(a).’’
Counsel
Clark O. Brewster, Montgomery L. Lair and J. Randall
Miller of Brewster & De Angelis in Tulsa, Okla., repre-
sent the plaintiffs.
David W. Wulfers, Todd Maxwell Henshaw, Kara E.
Moore and Shannon Davis of James, Potts & Wulfers
Inc. of Tulsa and Mary B. Scott and William McAlister
of Abowitz, Timberlake, Dahnke & Gisinger in Okla-
homa City represent Bear Productions and Bear
Transports.
Jeff Belote of Jeff Belote Law in McAlester, Okla.,
represents Integrity Energy. Linda C. Martin and N.
Lance Bryan of Doerner, Saunders, Daniel & Anderson
in Tulsa and Dru Warren of Dru Warren Law in
Poteau represent MMHF, Thumbs Up Ranch and
the Jacksons. Matthew S. Panach, Bradley A. Gungoll
and Jordan K. Russell of Gungoll, Jackson, Collins, Box
& Devoll in Enid, Okla., represent Quick Transport.
James M. Reed, Michael E. Smith and Sharon T. Tho-
mas of Hall, Estill, Hardwick, Gable, Golden & Nelson
in Tulsa represent AES Corp., AES Shady Point, Mon-
tana Minerals and Coal Creek Mineral. Brian R.
McLaughlin of McLaughlin & Sanders in Stigler,
Okla., represents Bishop Trucking and B&B Gas
Well Services. Matthew T. Warren Gotcher and Mat-
thew Thomas Sheets of Gotcher & Beaver in McAles-
ter, Okla., represent Mike Krebbs Construction.
Floyd James III of Law Ofﬁces of Green, Johnson &
Mumina in Oklahoma City represents GCI Mining.
Mark K. Stonecipher and Lance E. Effel of Fellers,
Snider, Blankenship, Bailey & Tippens in Oklahoma
City represent TXD Transport. Harold E. Heath of
Harold Heath Law Ofﬁces in Holdenville, Okla., repre-
sents C&C Tank Service. Robert M. Honea of Hardin,
Jesson & Terry in Fort Smith, Ark., represents XTO
Energy, Cholla Petroleum and Hogback Exploration.
Defense Counsel
C. Michael Daily of Daily & Woods in Fort Smith
represents Hanna Oil & Gas and Shields Operating.
Pine Drewyor of Kendall Drewyor Law Firm in Rogers,
Ark., and Sherry P. Bartley of Mitchell Williams Law in
Little Rock represent Farrell-Cooper Mining and Brazil
Creek Minerals. Charles D. Neal, Gary C. Crapster and
Rachel D. Parrilli of Steidley & Neal in Tulsa, Jeff A.
Woods, Justin W. Ross and Courtney Ross Samford
of Wyatt, Tarrant & Combs in Louisville, Ky., and
George P. Sibley III, Robert M. Rolfe, D. Alan Rudlin
and Joshua P. Hanbury of Hunton & Williams in
Richmond, Va., represent Marine Coal Sales, Interna-
tional Coal Group and Hunter Ridge Coal.
Steven E. Holden and Ryan C. Harper of Holden &
Carr in Tulsa and Jason T. Seay of Tulsa represent
Eastern Tank Service. L. Mark Walker and C. Miles
Tolbert of Crowe & Dunlevy in Oklahoma City repre-
sent A&A Tank Truck. Timothy J. Bomhoff and
Jodi W. Disman of McAfee & Taft in Oklahoma
City in represent Chesapeake Operating, Petrohawk
Operating, SEECO and Ross Explorations. William
S. Leach and Jessica L. Dickerson of McAfee & Taft
in Oklahoma City represent Ross Explorations.
Michael J. McDaniel, Robert P. Coffey Jr., Philard L.
Rounds Jr. and David C. Senger of Brennan, Smith &
Cherbini in Muskogee represent C&C Tank Truck
Services. Philip O. Watts of Oklahoma City, Allison
J. Maynard of Wilson, Elser, Moskowitz, Edelman &
Dicker in Dallas and Sean M. Higgins of Wilson Elser
in Houston represent Ash Grove Resources.
Daniel K. Zorn and Stephen R. Palmer of Collins,
Zorn & Wagner in Oklahoma City represent Big
Mack Tank Trucks. Shannon H. Ratliff and Lisa A.
Paulson of Ratliff Law Firm in Austin, Texas, and
Andrew D. Sims, Russel R. Barton and Michael V.
Fitzpatrick of Harris, Finley & Bogle in Fort Worth,
Texas, represent XTO Energy.
Additional Defense Counsel
R. Stratton Taylor, Clint Russell and Sean Burrage
of Taylor, Burrage, Foster, Mallett, Downs, Ramsey
& Russell in Claremore, Okla., represent Stephens Pro-
duction. Neal Tomlins of Tomlins Law in Tulsa rep-
resents Sinclair Trucking. Jared D. Giddens and J.
Dillon Curran of Conners & Winters in Oklahoma
City represent Graco Fishing & Rental Tools. William
D. Perrine, Reagan L. Madison and James N. Crews of
Pittman, MacIsaac & Roy in Calgary, Alberta, Canada,
represent PX Transportation.
Thomas M. Ladner of Ladner, Little & Eldredge in
Tulsa and Stephen M. Ryan of DLA Piper in Houston
17

represent Highland Oil & Gas. Truman B. Ruckler Jr.
of Tulsa in represents Sedna Energy. Rick D. Wescott
of Wescott Law Office in Tulsa represents Hogback
Exploration. Ian P. Faria of Coats Rose in Houston
represents Big Mac Tank. I
Texas Supreme Court Remands
Attorney Fee Award Dispute
Arising From Royalty Suit
AUSTIN, Texas — The Supreme Court of Texas
issued a per curiam opinion on April 25 remanding
an attorney fee dispute with instructions for the trial
court to develop a record sufficient to calculate attorney
fees with the lodestar method; the disputed attorney
fees are from a lawsuit to enforce an assignment of
working interests in oil and natural gas producing wells
(Larry T. Long, et al. v. Robert M. Griffin, et al., No. 11-
1021, Texas Sup.).
(Opinion available. Document #15-140506-061Z.)
Robert M. Griffin, Robert M. Griffin Jr., Marvin and
Marie Ogilvie and Charles Conrad sued Larry T. Long,
L. Allan Long and B. Virginia Long in their capacities
as the trustees of the Lawrence Allan Long Trust, the
Charles Edward Long Trust, the Larry Thomas Long
Trust and the John Stephen Long Trust in the 124th
District Court in Gregg County (No. 97-1009) in con-
nection with oil and natural gas ventures.
Working Interest
The plaintiffs allege that the trusts failed to assign the
working interest due them under assignment agree-
ments in which the plaintiffs agreed to pay a portion
of drilling and operating costs in exchange for partial
working interests in producing wells.
The plaintiffs filed an affidavit in 2001 supporting a
request for attorney fees of $100,000 for 644.5 hours
worked by two attorneys on their behalf. The plaintiffs
averred that 30 percent of the time was spent on the
assignment claim but argued that the assignment issue
was ‘‘inextricably intertwined’’ with other claims against
the trusts on which the attorneys spent 95 percent of
the time.
Following a 2003 bench trial, Judge Nathan E. White
ruled for the plaintiffs and awarded them $35,000
in fees.
On appeal, the 12th District Court of Appeals affirmed
the judgment with modifications (144 S.W.3d 99).
The Texas Supreme Court reversed the appeals court
(222 S.W. 3d 412 [Texas 2006]) after concluding that
the assignment agreements did not comply with the
statute of fraud and could not be enforced on future
wells and that the plaintiffs are not entitled to prevail on
a separate claim involving a litigation agreement with
the trusts. The case was remanded to the trial court to
determine the attorney fee award.
On remand, the trial court awarded the plaintiffs
$30,000 in fees and post-judgment interest accruing
from the date of final judgment in 2009. The court
of appeal affirmed the trial court judgment with respect
to the attorney fee award in May 2011 but modified
the judgment to accrue interest from the 2003 judg-
ment of the trial court (No. 09-260, Texas App., 12th
Dist.; 2011 Tex. App. LEXIS 10143).
Lodestar Calculation
In the instant appeal, the trusts aver that the evidence
does not support the amount of the attorney fee and
that post-judgment interest should accrue from the
2009 final judgment. ‘‘Because the Griffins offered no
evidence of the time expended on particular tasks, as
we have required when a claimant elects to prove at-
torney’s fees via the lodestar method, we agree with the
Long Trusts that the Griffins did not provide the trial
court with legally sufficient evidence to calculate a rea-
sonable fee,’’ according to the court.
‘‘We explained in El Apple I, Ltd. v. Olivas that general-
ities about the tasks performed provide insufficient
information for the fact finder to meaningfully review
whether the tasks and hours were reasonable and neces-
sary under the lodestar method. 370 S.W.3d 757, 763
(Tex. 2012),’’ according to the court. ‘‘Sufficient evi-
dence includes, at a minimum, evidence ‘of services
performed, who performed them and at what hourly
rate, when they were performed, and how much time
the work required.’ Id. at 764.’’
‘‘Likewise, in City of Laredo v. Montano, we reversed
and remanded to redetermine attorney’s fees when the
attorney testified to the time expended and the hourly
rate but failed to provide evidence of the time devoted
tospecifictasks. 414S.W.3d731, 736-37(Tex.2013).’’
‘‘Here, as in El Apple and Montano, the affidavit sup-
porting the request for attorney’s fees only offers gen-
eralities,’’ according to the court.
18

‘‘We note that here, as in El Apple, contemporaneous
evidence may not exist. But the attorneys may recon-
struct their work to provide the trial court with suffi-
cient information to allow the court to perform a
meaningful review of the fee application. El Apple,
370 S.W.3d at 764.’’
Alternatively, the plaintiffs argue that the 35 percent
contingency fee agreement is sufficient to establish that
the claim for attorney fees is reasonable and customary,
according to the court. The argument is without merit,
according to the court.
Contingency Fee
‘‘Even if supporting evidence is not required for the
contingency fee method of proof (as it is for the lodestar
method), the contingency fee method cannot support
the trial court’s fee award because the final judgment
awarded no monetary relief except for attorney’s fees.
Because the contingency method cannot support the
trial court’s fee award, and no legally sufficient evidence
supports the award under the lodestar method, we
remand to redetermine attorney’s fees.’’
The court did not reach the assignment of error related
to the accrual of interest. ‘‘We are confident that, on
remand, the lower courts will apply the principles we
clarified in Long v. Castle Texas Production Limited Part-
nership, __ S.W.3d __ (Tex. 2014) [2014 Tex. LEXIS
252], to properly assess the date from which postjudg-
ment accrues,’’ according to the court.
F. Franklin Honea of Law Offices of F. Frank Honea
in Dallas, Ronny Lee Adkison of The Adkison Law
Firm in Henderson, Texas, and Mike A. Hatchell
and Thomas F. Loose of Locke Lord in Dallas represent
the trusts. Rex A. Nichols Sr. of Nichols & Nichols
in Longview, Texas, and Andrew George Khoury of
Longview represent the plaintiffs. I
Natural Gas Operator Held
Liable To Indemnify Driller
For Contamination Litigation
COLUMBUS, Ohio — A natural gas operating com-
pany sued by a drilling company with which it con-
tracted to spud wells in West Virginia is liable under the
drilling contract to reimburse settlement and litigation
costs for a related well-water contamination lawsuit
naming both companies as defendants, the presiding
U.S. District Court for the Southern District of Ohio
judge ruled April 16 (Warren Drilling Inc. v. Equitable
Production Co., No. 12-425, S.D. Ohio; 2014 U.S.
Dist. LEXIS 52064).
(Order available. Document #15-140506-006R.)
Warren Drilling Co. Inc. sued Equitable Production
Co. and Ace American Insurance Co. in April 2012
in the Nobel County, Ohio, Court of Common Pleas
(No. 12-85) for breach of contract and indemnification
for contamination of the land surface or water pursuant
to a March 2006 drilling contract with respect to Jack-
son County, W.Va., natural gas wells. Equitable Pro-
duction removed the action in May 2012 to the
Southern District of Ohio and filed cross-claims against
Warren Drilling.
Underlying Lawsuit
Warren Drilling performed drilling operations on three
natural gas wells from November 2007 to February
2008 in Jackson County on property owned by Dennis
and Tamera Hagy. The Hagys sued Equitable Pro-
duction and Warren Drilling, BJ Services Corp. USA
and Halliburton Energy Services, which were hired
by Equitable Production to conduct natural gas well
drilling operations, in the U.S. District Court for the
Southern District of West Virginia for contaminating
a water well on which they depend for domestic water
(Dennis Hagy et al. v. Equitable Production Co., et al.,
No. 10-1372, S.D. W.Va.; 2012 U.S. Dist. LEXIS
91773; See 7/17/12, Page 6). They allege that Equita-
ble Production owned and operated the natural gas
wells.
The claims against Halliburton and Warren Drilling
were resolved by settlement. The claims against Halli-
burton were dismissed May 17, 2012. The claims
against Warren Drilling were dismissed April 24,
2012, in accord with a $40,000 settlement. Equitable
Production was granted summary judgment May 17,
2012.
A unanimous Fourth Circuit U.S. Court of Appeals
panel affirmed summary judgment Oct. 8 for Equitable
Production (Dennis Hagy, et al. v. Equitable Pro-
duction Co., et al., No. 12-1926, 4th Cir.; 2013 U.S.
App. LEXIS 20478; See 10/15/13, Page 24).
19

Warren Drilling filed a claim in November 2010 against
Ace American Insurance Co. for coverage and a defense
in the Hagy litigation under a commercial general liabi-
lity policy it obtained pursuant to the drilling contract
with Equitable Production. Ace American Insurance
denied coverage April 15, 2011. Warren Drilling noti-
fied Equitable Production in May 2011 of the denial
and asserted an obligation under the March 2006 dril-
ling contract to indemnify for all costs of defending
the Hagy litigation. Equitable Production did not in-
demnify Warren Drilling.
In addition to $40,000 for the settlement, Warren Dril-
ling seeks to recover $155,000 it alleges it spent defend-
ing the Hagy litigation. Warren Drilling settled with Ace
American Insurance in April 2013. Warren Drilling and
Equitable Production filed cross-motions for summary
judgment in November and October 2013.
3 Issues In Dispute
Pennsylvania law applies under a choice-of-law provi-
sion in the March 2006 drilling contract, according to
Judge James L. Graham. ‘‘Three distinct issues are in
dispute here: (1) which party has a right to indemni-
fication under the Drilling Contract; (2) whether that
party must prove that the claim made against it by the
Hagys was legally valid; and (3) whether its expenses in
the Hagy litigation were reasonable,’’ according to
Judge Graham.
Warren Drilling and Equitable Production argue that
the other party bears the duty to indemnify under the
contract. Equitable Production cites Section 11.5 of the
drilling contract; Warren Drilling cites Section 11.6 of
the drilling contract.
For Section 11.5 to apply, the contamination must
originate on or above the surface or from a liquid or
solid in the control of Warren Drilling, according to
Judge Graham. ‘‘The record before the court demon-
strates that neither requirement is satisfied.’’
‘‘The court does find as a matter of law that § 11.6
applies here,’’ according to Judge Graham. ‘‘Under
this section EQT [Equitable Production] must indem-
nify Warren for claims of pollution or contamination
to the extent that they are: (1) ‘not assumed by Cont-
ractor [Warren] in Subparagraph 11.5,’ (2) not covered
by Warren’s insurance, and (3) not caused by the neg-
ligence or misconduct of Warren or its employees.’’
‘‘None of these limitations come into play here.’’
‘‘EQT argues that even if § 11.6 does apply, Warren is
not entitled to indemnification because Warren has not
demonstrated the validity of the Hagys’ underlying
claim against Warren,’’ according to Judge Graham.
‘‘Warren contends that the Drilling Contract required
EQT to defend and indemnify Warren against all
claims, not just claims for which Warren was actually
liable,’’ according to Judge Graham.
‘Plain Language’
‘‘The court finds that the Drilling Contract contains
plain language by which EQT’s duty to indemnify
was triggered by the making of a claim for contami-
nation against Warren.’’
‘‘To hold otherwise would render § 11.6 meaningless,’’
according to Judge Graham.
With respect to the reasonableness of the settlement
amount and Warren Drilling’s litigation expenses,
Warren Drilling has not met its burden, according to
Judge Graham. ‘‘Though it has submitted evidence
that it reached a $40,000 settlement with the Hagys,
it has not provided any analysis as why that amount
was reasonable, other than to vaguely assert that a
trial would have been expensive. Further, Warren has
merely alleged that it expended $155,000 in attorneys’
fees and costs in connection with the Hagy litigation,
without submitting any evidence to substantiate that
amount.’’
‘‘Accordingly, the court will instruct the parties to
submit additional evidence and briefing on the issues
of the reasonableness of the settlement amount and
the litigation expenses.’’
With respect to the reasonableness of Warren Dril-
ling’s request for fees and costs under section 11.6 of
the drilling contract for the instant litigation, Judge
Graham noted that Equitable Production offered no
argument in opposition. ‘‘Accordingly, the court will
also instruct the parties to submit additional evidence
and briefing on the issue of the reasonableness [of]
those fees and costs,’’ according to Judge Graham.
Colleen Elizabeth Cook, Daniel Patrick Corcoran and
James Scott Huggins of Theisen, Brock, Frye, Erb &
20

Leeper in Marietta, Ohio, represent Warren Drilling.
Lyle B. Brown and J. Kevin West of Steptoe & John-
son in Columbus represent Equitable Production. Dar-
ius N. Kandawalla and Sabrina Christine Haurin of
Bailey Cavalieri in Columbus represent Ace American
Insurance. I
Pennsylvania Federal Judge
Rules Gas Well Activity
Did Not Extend Term Of Lease
WILLIAMSPORT, Pa. — Lycoming County, Pa.,
property owners seeking a declaratory judgment against
a natural gas extraction company in the U.S. District
Court for the Middle District of Pennsylvania were
granted summary judgment April 30; the judge con-
cluded that the oil and natural gas lease expired under
its own terms because the extraction activity occurred on
an adjacent property in violation of the unambiguous
lease (Thomas A. Neuhard, et uxor v. Range Resources-
Appalachia, No. 11-1989, M.D. Pa.; 2014 U.S. Dist.
LEXIS 59602).
(Order in Section C. Document #15-140506-053R.)
Range Resources-Appalachia and Thomas and Barbara
Neuhard are litigating whether a five-year oil and nat-
ural gas lease executed in June 2006 expired because
a natural gas well was not developed on the surface of
the Neuhards’ 47-acre property in Lycoming County
during the term of the lease.
Notice Of Removal
TheNeuhardsfiledsuitinSeptember2011intheLycom-
ing County Court of Common Pleas (No. 11-1738).
Range Resources-Appalachia filed notice in October
2011 to remove the lawsuit to the Middle District of
Pennsylvania.
Summary judgment discovery commenced in February
2012 on cross-motions filed by the plaintiffs and Range
Resources-Appalachia.
‘‘The Court held oral argument on the motions on
March 26, 2014,’’ according to Judge Matthew W.
Brann. ‘‘There are no material facts in dispute, and
the issues before the Court involve interpretation of
contract provisions as a matter of law.’’
The disputed oil and natural gas was executed June 21,
2006, according to Judge Brann. ‘‘The Lease provided
Range the rights to procure oil and gas from forty-seven
(47) acres owned by the Neuhards situate[d] in Lewis
Township, Lycoming County, Pennsylvania. The
Lease contains a primary term of five years calculated
from June 21, 2006. Unless extended by the com-
mencement of drilling operations or as otherwise pro-
vided, the Lease would expire by its own terms on June
21, 2011.’’
Range Resources-Appalachia executed a designation
of unit document June 13, 2011, creating the Null
Eugene A Unit, which includes the Neuhards’ tract,
according to Judge Brann.
‘‘The language of the Lease, Range’s activities, and the
positions of the parties raise three legal issues,’’ accord-
ing to Judge Brann. The issues are whether Range
Resources-Appalachia began activities before the lease
expired, whether the unit created for extraction
exceeded the lease and whether drilling a well on the
adjacent Null property satisfied the lease, according to
Judge Brann.
‘Commencement’
‘‘First, did Range’s activities prior to June 21, 2011, the
expiration date of the Lease’s primary term, constitute
the ‘commencement of a well’ as a matter of law?’’
‘‘This Court recently decided this particular issue in
Roe v. Chief Exploration & Development LLC [No.
11-816, M.D. Pa., Aug. 13, 2013; 2013 U.S. Dist.
LEXIS 113914] finding that activity undertaken in
good faith in preparation to drill satisfied a lease’s com-
mencement clause,’’ according to Judge Brann.
‘‘Pennsylvania cases adopt this posture as well,’’ accord-
ing to Judge Brann.
Range Resources-Appalachia’s activities before June 21,
2011, included obtaining permits from government
agencies, staking a location for a well site, negotiating
well-drilling operation agreements with the plaintiffs
and neighboring land owners, obtaining easements,
removing timber and constructing an access road and
pad site, according to Judge Brann. ‘‘These activities are
sufficient to constitute the commencement as a matter
of law. [Pemco Gas Inc. v Bernardi, 1977 Pa. Dist. &
Cnty. Dec. LEXIS122, Dec. 30, 1977].’’
21

‘‘Even though Range’s activities in beginning the well
on the neighboring Null property satisfied the com-
mencement clause as a matter of law, by the terms of
the Lease those drilling activities must have been per-
formed wither ‘on the Leased Properties or on a spacing
unit containing a portion of the Leased Properties’ in
order to extend the Lease. Lease § 8.1,’’ according to
Judge Brann.
‘‘The concrete issue before the Court is whether Range’s
designation of a unit of approximately three hundred
ninety-five (395) acres exceeded its unitization author-
ity under the Lease.’’
Unit Size
‘‘The Neuhards submit that, by the plain language of
the lease, the acreage amounts articulated in Section 9.2
operate so as to limit the maximum extent of a unit’s
size to the 350 acres surrounding each well, based on
the allusion to section 9.2 in section 12.1,’’ according to
Judge Brann.
‘‘The Court holds that Range’s unit designation violates
its unitization authority under the plain and unambig-
uous terms of the Lease, because the Lease is clear that a
unit cannot be larger than 350 acres surrounding each
well in the unit, and a unit cannot contain more than
one well without the permission of the Lessor, which
Range did not obtain.’’
‘‘Although Range undoubtedly commenced a well prior
to the expiration of the primary term, it did not do so on
the Leased premises, but on a premises adjacent to the
Leased Premises that was not unitized according to the
Lease,’’ according to Judge Brann. ‘‘Under a plain read-
ing of the Lease, Range’s activities on the Null Property
adjacent to the Leased Premises did not constitute dril-
ling activities ‘on the Leased Premises.’ Nor was there a
sufficient modicum of activity in preparation for dril-
ling on the Leased Premises during the primary period
to extend the Lease — the operative activity was per-
formed on the Null Property.’’
‘‘In sum, Range commenced a well before the expira-
tion of the Lease’s primary term,’’ according to Judge
Brann. ‘‘That well, however, was neither ‘on the Leased
Premises’ nor ‘on a unit containing a portion of the
Leased Premises.’ Range exceeded its unitization
authority under the plain and unambiguous language
of the Lease and did not commence a well on the
Neuhard’s property. Consequently, the Lease expired
by its own terms on June 21, 2011.’’
Michael A. Dinges of Elion, Wayne, Grieco, Carlucci,
Shipman & Irwin in Williamsport represents the plain-
tiffs. Andrew D. Sims and Troy Okruhlik of Harris,
Finley & Bogle in Fort Worth, Texas, and J. David
Smith of McCormick Law Firm in Williamsport repre-
sent Range Resources-Appalachia. I
Pennsylvania Federal Judge
Denies Summary Judgment
In Natural Gas Lease Dispute
PITTSBURGH — A magistrate judge’s recommen-
dation in the U.S. District Court for the Western Dis-
trict of Pennsylvania to deny summary judgment in a
natural gas lease dispute was adopted April 16 by the
presiding judge over the objection of the defendants,
who are accused of allowing the disputed lease to
expire (Rugh A. Mason, et uxor v. Range Resources-
Appalachia, et al., No. 12-369, W.D. Pa.; 2-14 U.S.
Dist. LEXIS 53195).
(Order available. Document #15-140506-031R.)
Rugh and Sherry Mason sued Range Resources-Appa-
lachia and NiSource Energy Ventures in February 2012
in the Washington County, Pa., Court of Common
Pleas (No. 12-1159) to stop the companies from ob-
taining production rights for natural gas under their
land. The defendants removed the declaratory judg-
ment lawsuit March 26, 2012, to the Western District
of Pennsylvania.
Declaratory Judgment
The plaintiffs seek a declaration that they rather than
the defendants own all drilling and production rights to
the natural gas associated with the land. The plaintiffs
further allege that Range Resources-Appalachia inter-
fered with Rugh Mason’s relationship with his em-
ployer after he refused to amend and ratify a March
1961 lease or to enter into a new lease for gas produc-
tion rights with the company.
The Masons own 151 acres of a 165-acre tract in
Washington County that is the subject of a March
22, 1961, lease executed by John Burig, Flora Burig
22

and Anna C. Burig with The Manufacturers Light and
Heat Co. John and Anna Burig are deceased; it is pre-
sumed Flora Burig is also deceased because John, her
husband, was born in 1889. The Masons succeeded to
ownership of the subject land though Sherry Mason,
who has been the owner of the land since at least the
execution of a lease in October 1984 but did not object
to the lease for more than 25 years.
Columbia Gas Transmission and NiSource Energy
Ventures have succeeded to the Manufacturers Light’s
rights under the lease.
The primary term of the lease was 10 years. A provision
of the lease extended the lease as long as the lessee
operates any portion of the subject land in search of
or by production of natural gas and oil or if the land is
part of a production unit or a natural gas storage field.
The lessee is granted in the lease sole authority to deter-
mine if the operation satisfies the conditions and if the
royalties paid are adequate compensation.
There is no evidence that the Burigs ever considered the
lease forfeited or terminated. Nor is there evidence that
the Masons have demanded Columbia Gas Transmis-
sion or its assignees drill a well on the subject property,
according to Jeffrey Kramer, the Range Resources-
Appalachia landman responsible for land and lease
acquisitions in Washington County.
Columbia Gas Transmission operates the Donegal Sto-
rage Field created by Manufacturers Light and Heat
Co., which includes the subject property.
2005 Sublease
Columbia Gas Transmission entered into a sublease
in December 2005 with Range Resources-Appalachia
predecessor Great Lakes Energy Partners for gas devel-
opment and production rights in the Donegal Storage
Field except for the sandstone gas storage formation.
The sublease includes any rights remaining under the
1961 lease.
Columbia Gas Transmission assigned to NiSource
Energy Ventures in December 2009 all of its rights
and interests as sublessor under the 2005 sublease
with Great Lakes Energy Partners. NiSource Energy
Ventures sublet to Range Resources-Appalachia the
production rights for all formations below the top of
the Rhinestreet formation in the Donegal Storage Field
pursuant to the gas storage leases, including the 1961
lease.
The Masons allege since 1961, no entity has paid any
consideration for oil and natural gas productions
rights that may still exist under the 1961 lease. They
also allege neither Great Lakes nor Range Resources-
Appalachia has paid royalties or other consideration
except for delay rental paid in 2007.
Meanwhile, Range Resources-Appalachia has begun
operations within the Donegal Storage Field and as of
Jan. 7, 2014, placed approximately 53 natural gas wells
into production.
Magistrate Judge Robert C. Mitchell issued a report
and recommendation Feb. 26 to deny the plaintiffs’
Dec. 23, 2013, motion for summary judgment in
part. The plaintiffs argue the payment of delay rental
cannot, as a matter of Pennsylvania law, extend the
lease beyond its primary term, according to Magistrate
Judge Mitchell. ‘‘Plaintiffs have presented no evidence
of abandonment, and the equitable defenses of laches,
waiver and estoppel raise fact issues for trial,’’ according
to Magistrate Judge Mitchell.
Joint Objection
The defendants filed a joint objection March 12.
Judge Joy Flowers Conti adopted the report and re-
commendations on April 16. ‘‘In their objections,
Defendants contend that the magistrate judge in the
R&R [report and recommendations] erroneously con-
cluded that there are genuine issues of material fact
on the issue of severability of the gas production rights
and storage rights by reason of: (i) the lease’s assign-
ment clause; (ii) production rights under the lease
being subleased to Range Resources, and the sublease
being subsequently assigned to NEVCO [NiSource
Energy Ventures]; and (iii) Range Resources’ consum-
mation of a ‘top lease’ with Plaintiffs in 2007,’’ accord-
ing to Judge Conti.
Contrary to the defendants, ‘‘[t]he R&R did not reach
any conclusion with respect to the issue of severability,’’
according to Judge Conti. ‘‘The R&R merely noted
that, although Defendants had argued that dual pur-
pose leases in general appear compatible with the
notion of severability of storage and production rights,
23

Defendants had not discussed the assignment clause
in the lease, the history of the separate assignments
of the production rights or the lease consummated
with Plaintiffs in 2007.’’
‘‘It is noted that, had Defendants’ wished to file a
motion for summary judgment arguing that they
were entitled to judgment as a matter of law on the
question of who owns the product rights to the natural
gas reserves on Plaintiffs’ land, they could have done
so,’’ according to Judge Conti. ‘‘Because they chose not
to file a motion, the magistrate judge in the R&R
merely pointed out an issue that remains to be resolved
at trial.’’
The plaintiffs of Claysville, Pa., are pro se. Laura A. Lange
and Paul K. Stockman of McGuireWoods in Pittsburgh
and James W. Pfeifer of Pepper Hamilton in Pittsburgh
represent Nisource Energy Ventures. Donald T. Dulac
Jr. and Kenneth J. Witzel of Barnes Dulac Watkins in
Pittsburgh represent Range Resources-Appalachia. I
April Trial Stayed Pending
Dispositive Motion Ruling
In Pennsylvania Federal Court
WILLIAMSPORT, Pa. — Natural gas operators
sued in the U.S. District Court for the Middle District
of Pennsylvania filed a supplemental authority on April
28 in support of dismissing a strict liability claim as a
matter of law; the trial anticipated to start April 21 was
stayed in March pending a ruling on dispositive defense
motions (Edward E. Kamuck v. Shell Energy Holdings,
et al., No. 11-1425, M.D. Pa.).
(Motion for stay available. Document #94-140513-
028M. Supplemental authority available. Document
#94-140513-029B.)
Edward Kamuck owns 93 acres that were once part
of the Copp property in Tioga County, Pa. The entire
tract was subject to an oil and gas lease, according to the
record. The original Copp lease did not address the
extraction of natural gas from Marcellus Shale forma-
tions, however, according to the record.
Lease Holders
Shell Holdings GP, Shell Holdings LP and Shell Wes-
tern Exploration & Production were lessees under the
Copp lease and in 2010 sought to expand their mineral
rights to include Marcellus Shale natural gas extraction,
according to the record.
Kamuck declined to amend the Copp lease, but the
other owners agreed, according to the record. The ori-
ginal 10-year lease on Kamuck’s property expired June
12, 2011, according to the record.
After the defendants commenced natural gas extraction
on the adjoining land, Kamuck sued. In the complaint
filed in August 2011, Kamuck sued for breach of con-
tract, a declaratory judgment against the companies for
hydraulic fracturing and for damages in torts.
The defendants moved to dismiss under Federal Rule
of Civil procedure 12(b)(6) for failing to state a claim
and to strike the claims under Rule 12(f). The motion
was granted in part in April 2012, leaving only private
nuisance, negligence and strict liability causes of action.
The defendants on Jan. 17, 2014, moved to dismiss
the remaining claims pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute or, alterna-
tively, for summary judgment. In support of this
motion, the defendants filed a supplemental authority
on April 28 from Ely v. Cabot Oil & Gas (No.
0902284, M.D. Pa.). ‘‘On April 23, 2014, Judge
John E. Jones, III issued an Order adopting this Court’s
Report and Recommendation in its entirety, granting
summary judgment in favor of the defendants in that
case on the issue of strict liability,’’ according to the
defendants.
‘‘The issue of whether Defendants natural gas drilling
operations are subject to strict liability was briefed
by the parties in the instant case, and the Defendants
relied specifically upon the analysis contained in this
Court’s Report and Recommendation in the Ely mat-
ter,’’ according to the defendants.
Strict Liability
Magistrate Judge Martin C. Carlson issued the report
and recommendation on April 21, according to the
defendants. Magistrate Judge Carlson ruled as a matter
of law, natural gas drilling activities are not subject to
strict liability, according to the defendants.
Meanwhile, the defendants filed an unopposed motion
on March 19 to stay the trial set to begin April 21.
24

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