2017 Q1



Denial of Surface Access Deemed Force Majeure by Ohio Court These materials reflect only the personal views of the author and are not individualized legal advice. It is understood that each case is fact- specific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the author and their respective law firm cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney- client relationship with the author or their respective law firm. While every attempt was made to insure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.

The Seventh District Court of Appeals, based in Youngstown, held that denial of surface access to the lessee of the underlying mineral estate constituted force majeure under the lease’s broadly worded clause. Force majeure, literally “superior force,” generally means an event or effect that can be neither anticipated nor controlled. When in this circumstance, denial of access resulted in non-production during the primary term, the court deemed the surface owner’s denial of access to be a force majeure which tolled the lease’s primary term. In Haverhill Glen, LLC vs. Eric Petroleum Corp., decided December 2, 2016, the Seventh District Court upheld the Harrison County, Ohio, trial court’s grant of summary judgment to mineral lessee Eric Petroleum in lessor Haverhill Glen’s suit for a declaration that the lease expired due to non-production. The lease covered 3,583 acres. Eric determined that the best potential development site was in the 363 surface acres owned by New Rocky Valley Farms. New Rocky repeatedly denied access to Eric; its representatives even threatened Eric’s representatives. Eric had previously attempted to gain surface access for potential development

on a 2,400 acre tract within the lease known as Faith Ranch and Farms, also to no avail.

Karen E. Kahle MEMBER Karen Kahle’s practice is devoted to litigation, with a focus on products liability, energy, class actions, and mass torts. Phone: (304) 231-0441 Email: karen.kahle@steptoe-johnson.com

J. Kevin West MEMBER

For over 25 years, Kevin West’s practice has been focused on the energy industry, both as an outside and in-house attorney. Mr. West is the Managing Member of the

Columbus, Ohio office. Phone: (614) 458-9889 Email: kevin.west@steptoe-johnson.com

Pennsylvania Supreme Court rules on Act 13

The Pennsylvania Supreme Court on September 28, 2016, struck down as unconstitutional several remaining provisions of the controversial Act 13 of Feb. 14, 2012, P.L. 87 (“Act 13”), thus ending the General Assembly’s 2012 attempt to provide uniform laws and regulations governing oil and gas development in the Commonwealth.  In 2013, the Supreme Court struck down the spacing and zoning portions of Act 13.  See Robinson Township v. Commonwealth of

Pennsylvania, 83 A.3d 901 (Pa. 2013).  Now, the Court brings those challenges to Act 13 to a close by finding several remaining provisions relating to enforcement, confidentiality, private water wells, and storage to be unconstitutional or not severable from those provisions previously struck down in 2013.  What largely remains of the statutory changes in Act 13 is the imposition of fees on unconventional gas wells, referred to as “impact fees,” a portion of which is distributed to local governments.


G r o w t h T h r o u g h E d u c a t i o n - J a n u a r y / F e b r u a r y / M a r c h 2 0 1 7

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