American Oil and Gas Reporter - November 2016 - 33

to report on thousands of facilities in 30
days, and under the threat of a Section 114
enforcement action, is a horrendous task."
He said IPAA was gathering information on how much of the data being
sought was available to EPA from state
agencies and/or industry databases, which
it planned to present to the Office of Information and Regulatory Affairs within
the Office of Management and Budget,
which was tasked with determining
whether the ICR conformed with the intent of the Paperwork Reduction Act.
"If a lot of that information is available,
it gives us an argument that (EPA) isn't living up to its mandate under the Paperwork
Reduction Act," he remarked.
In the meantime, he said EPA had posted a list of all owners of wells at https://oilandgasicr.rti.org/, and he encouraged
companies to "go onto that website and
find out whether your wells are listed properly, both with respect to whether you still
are the owners and whether EPA has the
right addresses and information."
Legislative Pathway
Whether legislation presents another
avenue to fight the methane rule likely
wouldn't be known until after the November election, Fuller reasoned.
Before adjourning in late September,
Congress passed a continuing resolution
to fund government operations until Dec.
9. Fuller said lawmakers' intent was to return following the election and break the
appropriations process into a number of
smaller bills on the premise that if the
deadline arrived, they could pass some portions and avoid shutting down the entire
government.
HR 5538, the Department of Interior,
Environment and Related Agencies Appropriations Act, which was passed by the
House in July, contains language blocking
numerous Obama administration regulations (AOGR, August 2016, pg. 32), including Subpart OOOOa.
"All those will be in play at some time,"
Fuller surmised. "But, the threshold to get
that passed in a post-election world can be
pretty difficult, particularly if the Senate
flips, because then the Democrats will
know if they don't do anything, they will
get control in another couple months. If the
Senate stays Republican, it likely is going
to be tighter. You still don't have 60
votes, but you have a little more leverage
in setting the agenda."
Much of the pressure on clean air
regulations is being driven by President
Obama's desire for a climate legacy,
Fuller imparted. "If you talk to EPA
(staff), it is fairly clear they are being told
what to do," he revealed. "They aren't driving the train themselves."
r

DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FROM PAGE 28
7th District Court of Appeals was correct,"
he relates. "Other states, such as Indiana,
have interpreted their dormant mineral acts
to be self-executing, so the court's ruling
was a surprise."
In 2006, Ohio revised its DMA to establish a process before minerals could be
deemed abandoned and merge with the
surface estate, but that law includes a notice element and applies only to abandonments claimed after its effective date,
Vorys details. Thus, he acknowledges, the
new ruling may open the door to new litigation.
"Now that we know severed mineral
owners continue to hold their rights, some
of them may seek to remedy the fact that
the surface owner entered into a lease of
their minerals. There may be lawsuits involving deals that were signed with the assumption that the leasing rights were in order. Operators may seek to recover from
surface owners the money they paid to lease
properties that did not belong to them. Subsequent purchasers of the property may argue that the seller breached the warranty
that it owned the mineral rights, and so on.
I have not seen any such action yet, but this

decision was only issued in September."
But even in Southeast Ohio, where
Vorys estimates minerals have been severed from 30-40 percent of the properties,
one common industry practice may prevent
an explosion of lawsuits. "A number of operators decided to minimize the risk of taking a lease from the wrong party and decided to get leases from both the severed
mineral and surface owners," he describes.
"Although they had to pay more in the interim, it protected them however it came
out."
As for the likelihood that Ohio lawmakers will attempt to substantially change the
law, Vorys suggests the issue's blurry battle lines are likely to keep a prospective bill
from gaining traction. "Legislators have constituents on both sides," he observes. ❒

Coming In December
The Stimulation & Completion
special reports spotlight operator case
studies of completion optimization
and productivity improvement programs in the horizontal tight oil plays.

NOVEMBER 2016 33

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American Oil and Gas Reporter - November 2016

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