This presentation will provide an update on caselaw and legislation over the past year.

Rights of riparian landowners have been subject to debate and dispute since the earliest days of Louisiana’s legal history.  This presentation explains and analyzes not only the provisions of Louisiana’s Civil Code and statutory law on this topic but also delves into jurisprudential developments regarding the rights of riparian owners along rivers, lakes, and Gulf of Mexico. 

Among lawyers and judges, it is commonly said that the distinction between “ethics” on one hand, and “civility” and “professionalism” on the other, is that ethics is what you must do, while civility and professionalism is what you should do. But are these distinctions correct, and should lawyers be using the word “ethics” to describe compliance with the Rules of Professional Conduct when the words “ethics” and “ethical” do not appear in any of the numbered ABA Model Rules (M.R.)?

In the presentation, we will look at typical PSAs provisions and issues and other acquisition related issues for parties selling or acquiring mineral and royalty rights in the Louisiana Haynesville Shale.

This presentation was prompted by the recent revisions to the Risk Charge Statute  contained in Louisiana Revised Statutes 30:10, by Act 5 of the Regular Session of the Louisiana Legislature of 2022 (“Act 5”).  A copy of the pertinent provisions of La RS 30:10, as revised by Act 5, is attached to the paper with the Act 5 changes redlined. 

In order to understand the Risk Charge Statute, it is helpful to review the history of its evolution and the related jurisprudence.  It began as a limited “free-rider” statute to discourage block busting for individual units, and had limited and occasional use.  It was never intended to address comprehensively the relationship of all of the owners in a unit.  Rather it has been amended, tweaked, and expanded, as necessary and as issues have arisen.  

Given the nature of the development of the Haynesville Shale play, the rush to acquire and assemble large amounts of acreage as quickly as possible, the existence in some instances of acreage held by shallow production, the rush to drill wells and develop acreage and sales, acquisitions and other transfers of acreage positions, the Risk Charge Statute has become in large part the vehicle used to facilitate operations where there are different owners of leases in a unit and/or with unleased owners.  The volume of units and wells to be developed and drilled, the time and manpower constraints and the variety of bargaining positions, among other factors, by and large did not lend themselves to the orderly assembly of acreage and negotiation of operating agreements that had previously been the case with other plays.  With the evolution of the Risk Charge Statute and the development of the Haynesville Shale play, the use of the Risk Charge Statute has largely become, and not necessarily in a negative way, the story of “the tail wagging the dog.” 
The unleased and other owner reporting requirements of La. RS 30: 103.1 and 103.2 also play an important role and are discussed below as well.
 

A primer on the history of the Accommodation Doctrine, its current status, and potential challenges presented by emerging technologies.

The status of (i) federal offshore oil and gas leasing, (ii) federal offshore wind energy leasing, and (iii) federal offshore decommissioning and bonding. 

A discussion of the rules of professionalism and cases that have resulted from violation of those rules.

In 2022, the Supreme Court in State v. Louisiana Land & Expl. Co. (L.L.&E III), a case governed by the original version of Act 312 of 2006 (La. R.S. 30:29), held on rehearing that “the plain language of Act 312 only allows recovery of excess remediation damages when expressly provided by contract.”1 In doing so, the Supreme Court reversed its prior ruling in the same case (L.L.&E I), which held that the “clear and unambiguous” language of Act 312 of 2006 expressly preserved all of a legacy plaintiff’s pre-Act private law claims, including claims for excess damages based on the implied obligations of the mineral lessee as set forth in the Civil Code.2  In its rehearing opinion in L.L.&E III, the Supreme Court affirmed its original decree in L.L.&E II.3  The legislature amended La. R.S. 30:29 in 2014 (Acts 2014, No. 400, § 1). In an area of Louisiana law now thick with conflicting precedent, it should come as no surprise that there is intense disagreement concerning the extent to which  L.L.&E III impacts the 2014 version of La. R.S. 30:29. The opposing views of plaintiffs and defendants are separately addressed in the following discussion.
 

This presentation classifies the types of conflicts likely to occur between carbon dioxide sequestration and mineral extraction operations occurring simultaneously on the same tract of land. It then sets up framework for thinking through the legal disputes that may result.
 

Regulatory Developments in CCS

A discussion of the legal issues related to pipeline approval, location, relocation and practical application.

Implied covenants are obligations that are not expressly imposed by a contract, but which courts nevertheless find are binding on one or more parties to the contract.2 Courts in Louisiana, Texas, and other states routinely hold that oil and gas lessees are bound by several implied covenants. This paper begins by discussing the reason that implied covenants exist, then it reviews the various implied covenants that courts have recognized, as well as a number of issues that can arise in implied covenant disputes, such as the elements necessary to establish a breach of an implied covenant, defenses, and remedies that are available. The paper emphasizes Louisiana Texas law, but is not limited to it.