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Leggett v. EQT Production Co.

Supreme Court of West Virginia

May 26, 2017

PATRICK D. LEGGETT, et al., Plaintiffs Below, Petitioners,
v.
EQT PRODUCTION COMPANY, et al., Defendants Below, Respondents.

          Rehearing Granted: January 25, 2017

          Submitted Upon Rehearing: May 2, 2017

         Certified Questions from the United States District Court for the Northern District of West Virginia The Honorable Fredrick P. Stamp, Jr., Judge Case No. 1:13-cv-00004-FPS

          Marvin W. Masters, Esq., Richard A. Monahan, Esq., April D. Ferrebee, Esq., The Masters Law Firm lc, Charleston, West Virginia, and Michael W. Carey, Esq. Carey, Scott, Douglas & Kessler, PLLC Charleston, West Virginia Attorneys for Petitioners.

          David K. Hendrickson, Esq., Carl L. Fletcher, Jr., Esq., Hendrickson & Long PLLC, Charleston, West Virginia, Attorneys for Respondents.

          Howard M. Persinger, III, Esq. Persinger & Persinger, L. C. Charleston, West Virginia Attorney for Amici Curiae West Virginia Land and Mineral Owners' Association, West Virginia Royalty Owners' Association, West Virginia Farm Bureau, National Association of Royalty Owners, Appalachia, and Lewis Maxwell Oil & Gas LLC Timothy M. Miller, Esq. Mychal S. Schulz, Esq. Katrina N. Bowers, Esq. Babst, Calland, Clements & Zomnir, P. C. Charleston, West Virginia Attorneys for Amici Curiae West Virginia Oil and Natural Gas Association and West Virginia Independent Oil and Gas Association Michael J. Hammond, Esq. Dodaro, Matta & Cambest, P. C. Canonsburg, Pennsylvania Attorney for Amicus Curiae Bounty Minerals, LLC

          JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

          JUSTICE DAVIS dissents and reserves the right to file a separate opinion.

         SYLLABUS

         1. "'A de novo standard is applied by this court in addressing the legal issues presented by certified question from a federal district or appellate court.' Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syl. Pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).

         2. "Where the issue on an appeal . . . is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         3. "The primary rule of statutory construction is to ascertain and give effect to the intention of the Legislature." Syl. Pt. 8, Vest v. Cobb, 138 W.Va. 660, 76 S.E.2d 885 (1953).

         4. "Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent." Syl. Pt. 1, Ohio County Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983).

         5. "Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation." Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).

         6. "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).

         7. "The basic and cardinal principle, governing the interpretation and application of a statute, is that the Court should ascertain the intent of the Legislature at the time the statute was enacted, and in the light of the circumstances prevailing at the time of the enactment." Syl. Pt. 1, Pond Creek Pocahontas Co. v. Alexander, 137 W.Va. 864, 74 S.E.2d 590 (1953).

         8. Royalty payments pursuant to an oil or gas lease governed by West Virginia Code § 22-6-8(e) (1994) may be subject to pro-rata deduction or allocation of all reasonable post-production expenses actually incurred by the lessee. Therefore, an oil or gas lessee may utilize the "net-back" or "work-back" method to calculate royalties owed to a lessor pursuant to a lease governed by West Virginia Code § 22-6-8(e). The reasonableness of the post-production expenses is a question for the fact-finder.

          OPINION

          LOUGHRY CHIEF JUSTICE.

         This case is before the Court upon certified questions presented by the United States District Court for the Northern District of West Virginia regarding whether this Court's decision in Tawney v. Columbia Natural Resources, L.L.C., 219 W.Va. 266, 633 S.E.2d 22 (2006), has "any effect" upon whether a lessee of an oil and/or gas lease subject to West Virginia Code § 22-6-8 (1994) may deduct post-production expenses from the lessor's royalty. Upon original hearing, a majority of this Court reformulated the certified question and held that royalties paid pursuant to leases which were subject to West Virginia Code § 22-6-8 could not be "diluted" by costs incurred downstream from the wellhead, nor could amounts attributable to loss or beneficial use of volume be deducted prior to calculation of royalties.

         However, upon careful review of the briefs on rehearing, the appendix record, the arguments of the parties and amici curiae, [1] and the applicable legal authority, we conclude that both the legislative intent and language utilized in West Virginia Code § 22-6-8 permits allocation or deduction of reasonable post-production expenses actually incurred by the lessee and more specifically permits use of the "net-back" or "work-back" method of royalty calculation.

         I. FACTS AND PROCEDURAL HISTORY

         The petitioners Patrick D. Leggett, et al (hereinafter "the petitioners") are owners of a 75% undivided interest in the gas estate of a 2, 000-acre tract in Doddridge County. Certain wells on the property are "flat-rate" wells, i.e. wells for which the lease provides for payment of a sum certain per well, per year. In 1982, the Legislature enacted the predecessor of West Virginia Code § 22-6-8, [2] which provides that permits for flat-rate wells will not be issued unless the lessee swears by affidavit that it will pay the lessor no less than one-eighth "of the total amount paid to or received by or allowed to [the lessee] at the wellhead for the oil or gas so extracted, produced or marketed[.]" (emphasis added).

         The petitioners filed suit against respondent EQT Production Company and affiliated companies (hereinafter "EQT")[3] for underpayment of royalties, resulting from EQT's deduction of certain costs incurred for the gathering and transporting of the gas to the interstate pipeline. In particular, EQT takes the full price it obtains by selling the gas at the interstate pipeline and deducts "some" of the costs ("midstream" costs or "post-production" costs) incurred after it is extracted, [4] but before it reaches the market at the pipeline. EQT maintains that the only way to capture the statutorily-required "wellhead" price is to utilize this so-called "net-back" or "work-back" method which deducts post-production expenses from the sales price to duplicate the "wellhead" price. The petitioners contend that neither West Virginia Code § 22-6-8(e) nor the common law of West Virginia permit deduction or allocation of costs in this manner for purposes of royalty calculation.

         Accordingly, the District Court certified the following questions to this Court pursuant to the Uniform Certification of Questions of Law Act, West Virginia Code § 51-1A-1 (1996) et seq.:

1. Does Tawney v. Columbia Natural Resources, L.L.C., 219 W.Va. 266, 633 S.E.2d 22 (2006), which was decided after the enactment of West Virginia Code § 22-6-8, have any effect upon the Court's decision as to whether a lessee of a flat-rate lease, converted pursuant to West Virginia Code § 22-6-8, may deduct post-production expenses from his lessor's royalty, particularly with respect to the language of "1/8 at the wellhead" found in West Virginia Code § 22-6-8(e)?
2. Does West Virginia Code § 22-6-8 prohibit flat-rate royalties only for wells drilled or reworked after the statute's enactment and modify only royalties paid on a per-well basis where permits for new wells or to modify existing wells are sought, or do the provisions of West Virginia Code § 22-6-8 abrogate flat-rate leases in their entirety?[5]

(footnote added).

         II. STANDARD OF REVIEW

         This Court has consistently held that "'[a] de novo standard is applied by this court in addressing the legal issues presented by certified question from a federal district or appellate court.' Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998)." Syl. Pt. 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000). Moreover, "[w]here the issue on an appeal . . . is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With this standard of review in mind, we proceed to the remaining certified question.

         III. DISCUSSION

         Upon review of EQT's petition for rehearing, this Court determined that substantial justice required us to revisit the prior opinion issued in this matter to ascertain whether the previous majority had misapprehended certain points of law. See W.Va. R. App. Proc. 25(b) ("A petition for rehearing is granted only in exceptional cases. The petition shall . . . state with particularity the point of law or fact which in the opinion of the petitioner the Court has overlooked or misapprehended[.]"). While an admittedly uncommon occurrence, rehearing exists expressly for the purpose of ensuring that opinions which are not well-founded due to misapprehension of the issues, the law, or the facts are rectified. Justice demands this procedural remedy, which this Court has judiciously utilized when the issues or outcome demand it. See Knotts v. Grafton City Hosp., 237 W.Va. 169, 786 S.E.2d 188 (2016) (reversing and remanding upon rehearing after original affirm); W.Va. Reg'l Jail & Corr. Facility Auth. v. A.B., 234 W.Va. 492, 498, 766 S.E.2d 751, 757 (2014) (stating that "public policy concerns raised by our initial opinion" compelled rehearing); Hosaflook v. Consolidation Coal Co., 201 W.Va. 325, 329, 497 S.E.2d 174, 178 (1997) (twice granting rehearing in Human Rights Act case); Haines v. Kimble, 221 W.Va. 266, 654 S.E.2d 588 (2007) (rehearing granted); Committee on Legal Ethics of West Virginia State Bar v. Farber, 191 W.Va. 667, 447 S.E.2d 602 (1994) (same); Jewell v. Maynard, 181 W.Va. 571, 383 S.E.2d 536 (1989) (same); Dadisman v. Moore, 181 W.Va. 779, 384 S.E.2d 816 (1988) (same); Turner v. State Compensation Comm'r, 147 W.Va. 145, 126 S.E.2d 379 (1962) (same); Garges v. State Compensation Comm'r, 147 W.Va. 188, 126 S.E.2d 193 (1962) (same); Ellis v. Henderson, 142 W.Va. 824, 98 S.E.2d 719 (1957) (same); Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955) (same); Bailey v. Baker, 137 W.Va. 85, 70 S.E.2d 645 (1952) (same); State v. Gilliland, 51 W.Va. 278, 41 S.E. 141 (1902) (same).

         As this Court has observed, reconsideration upon rehearing is often facilitated by a more focused and clearer presentation of the arguments by the parties, who commonly have a better understanding of the Court's characterization of the dispositive issues following an initial opinion. See Caperton v. A.T. Massey Coal Co., 223 W.Va. 624, 667, 679 S.E.2d 223, 266 (2008), rev'd and remanded, 556 U.S. 868 (2009) (Albright, J., dissenting) (noting that "[t]he more narrow and focused legal arguments and supporting facts of the rehearing process" aided in determination); A. B., 234 W.Va. at 498, 518-19, 766 S.E.2d at 757, 777-78 (stating that briefs submitted seeking rehearing compelled Court to grant rehearing and criticizing respondent for attempting to supplement inadequate record on rehearing to meet issues discussed in initial opinion); Haines, 221 W.Va. at 272-73, nn.3 and 5, 654 S.E.2d at 594-95, nn.3 and 5 (discussing additional arguments and attempts to supplement the appendix to meet issues raised in initial opinion). Oftentimes, briefs upon rehearing pierce through any insufficiency or imprecision of argument which may have affected the Court's initial offering. This is particularly the case where a matter is before the Court on the necessarily limited record often submitted upon certified question. When a petition for rehearing compels the Court to conclude that the law may have been misapprehended, neither hubris nor sanctimony should give the Court pause in granting rehearing to correct any such error of law or fact. As Justice Frankfurter stated, "[w]isdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters Nat'l Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).

         As pertains to the question presented in this case, upon initial hearing, the majority concluded that West Virginia Code § 22-6-8(e) contains an ambiguity which must be construed in a manner which effectuates the "overarching remedial intent" of the statute to "ensur[e] the future flow of adequate compensation to oil and gas landowners." Such construction, according to the previous majority, must not "curtail [] compensation" which was intended to "right past wrongs" and therefore prohibits dilution of royalty payments by post-production costs. Coupled with the common law implied covenant to market previously recognized with respect to oil and gas leases, the majority concluded that royalties must remain "supremely constant, " impervious to "facile downward manipulation" by the lessee and therefore post-production costs for "gathering, transporting, or treating" may not be deducted.[6]

         Upon rehearing, with all due regard to the previous majority's consideration of the admittedly complex and subversively entangled issues implicated in this case, we conclude that it did, in fact, misapprehend the applicability of certain common law principles and exceeded its charge in its interpretation of the subject statute.

         A. W.Va. Code § 22-6-8 and Valuation of Royalties Prior to Deregulation

         As initially outlined above, the petitioners contend that post-production costs incurred by an oil or gas lessee may not be allocated to the lessor in calculation of the lessor's royalty. The petitioners maintain that West Virginia Code § 22-6-8(e)'s provision that the lessor must be paid "one-eighth of the total amount paid to or received by or allowed to the owner of the working interest at the wellhead" is ambiguous with respect to payment of such costs; therefore, the statute should be construed in a manner which maximizes its remedial purpose. To maximize its remedial purpose, the petitioners contend that the phrase "at the wellhead" should be construed to prohibit allocation of post-production costs to lessors. The petitioners further urge that this construction is consistent with West Virginia's common law purportedly aligning itself with several "marketable product rule" states which require the lessee to bear all post-production costs incurred until the product is marketable.[7]

         EQT maintains that the statute is not ambiguous since "at the wellhead" is a very precise and definite location. However, acknowledging that federal deregulation of the industry has altered the point of sale away from the wellhead, EQT argues that the only way to mathematically calculate the "at the wellhead" price for which it is obligated by statute is to utilize the "net-back" or "work-back" method. This method, as employed by EQT, utilizes the interstate pipeline sales price and makes deductions for post-production costs;[8] the resulting figure is that upon which the royalty is paid and therefore purports to "duplicate" a wellhead price. Commensurately, EQT urges the Court to join those states which have formally adopted the "at the well" rule regarding cost allocation, which permits pro rata allocation and/or deduction of post-production expenses as between the lessee and lessor. With this understanding of the parties' positions, we proceed to examine the statute and applicable caselaw.

         To place the parties' arguments into proper context, it is first critical to understand the purpose and operation of West Virginia Code § 22-6-8 and the change in the marketplace for oil and gas sales resulting from what is commonly referred to within the industry simply as "deregulation." West Virginia Code § 22-6-8 was originally enacted in 1982 to prohibit lessees from continuing to capitalize on older, "flat-rate" leases. The statute explains that these leases were entered into

when the techniques by which oil and gas are currently extracted, produced or marketed, were not known or contemplated by the parties, nor was it contemplated by the parties that oil and gas would be recovered or extracted or produced or marketed from the depths and horizons currently being developed by the well operators.

W.Va. Code § 22-6-8(a)(3). The Legislature then declared that the statute was enacted because

continued exploitation of the natural resources of this state in exchange for such wholly inadequate compensation is unfair, oppressive, works an unjust hardship on the owners of the oil and gas in place, and unreasonably deprives the economy of the State of West Virginia of the just benefit of the natural wealth of this State[.]

W.Va. Code § 22-6-8(a)(2). Recognizing, apparently, that invalidating such leases altogether may run afoul of the Constitution, [9] the Legislature set out to lawfully "discourage . . . the production and marketing of oil and gas" under such leases. W.Va. Code § 22-6-8(a)(4). Accordingly, to avoid unconstitutionally impairing the contractual obligation, the statute simply prohibits the issuance of permits under such leases. Subsection (d) therefore provides:

[N]o such permit shall be hereafter issued for the drilling of a new oil or gas well, or for the redrilling . . . of an existing oil or gas production well, where or if the right to extract, produce or market the oil or gas is based upon a lease or leases or other continuing contract or contracts providing for flat well royalty[.]

W.Va. Code 22-6-8(d). To avoid this prohibition, a permit applicant must file an affidavit certifying that it will

tender to the owner of the oil or gas in place not less than one eighth of the total amount paid to or received by or allowed to the owner of the working interest at the wellhead for the oil or gas so extracted, produced or marketed before deducting the amount to be paid to or set aside for the owner of the oil or gas in place, on all such oil or gas to be extracted, produced or marketed from the well.

          W.Va. Code § 22-6-8(e) (emphasis added). In short, to get a permit to re-drill wells governed by a flat-rate lease, the lessee must agree to pay the lessor a one-eighth royalty instead of a flat rate.

         The parties are in agreement that when West Virginia Code § 22-6-8 was enacted, oil and gas sales occurred "at the wellhead, " i.e. at the point where the product first emerges from the ground or literally, the head of the well. Interstate pipeline operators purchased the product and undertook the expense of preparing the oil or gas for sale at market in a useable or "marketable" form. In 1978, Congress began to "deregulate" the natural gas market, which turned interstate pipeline operators into common carriers.[10] As a result, oil and gas are no longer sold "at the wellhead, " but rather are sold downstream of the wellhead, typically at the interstate pipeline. Importantly, one of the effects of this change is that the sales price is enhanced from the wellhead price because it is now a marketable, useable product when it is first sold at market, rather than the raw, "sour" gas which was sold from the wellhead.[11] However, as a result, expenses to "clean" or "sweeten" the gas, gather and/or compress the gas, and transport the gas are incurred after it is extracted but before it is sold, i.e. "post-production" costs. This case presents the issue of whether the lessee must bear all such post-production expenses or whether it may pro-rata allocate them to the lessor and deduct them from the royalty paid by operation of West Virginia Code § 22-6-8(e). The parties' briefing indicates that they believe that implicit within that query is whether this Court will apply its previously-articulated common-law version of the "marketable product rule" or adopt the "at the well" rule of cost allocation.

         B. Wellman v. Energy Resources, Inc. and Tawney v. Columbia Natural Resources

         To determine the applicability of either of these schools of thought to the statute at issue, it is necessary to examine West Virginia's common law as pertains to allocation of costs in an oil and gas lease. As noted above, the District Court phrased the certified question in terms of whether Tawney v. Columbia Natural Resources has "any effect" upon the determination of whether use of the phrase "at the wellhead" in West Virginia Code § 22-6-8 permits allocation and deduction of post-production costs before calculation of royalties. The petitioners urge that both Tawney and its predecessor, Wellman v. Energy Resources, Inc., 210 W.Va. 200, 557 S.E.2d 254 (2001), firmly establish West Virginia as a "marketable product" rule state, which rule provides that the implied duty to market requires the lessee to bear all costs until the product is rendered "marketable." EQT, however, maintains that both Wellman and Tawney are inapplicable to the statute at issue and urge an interpretation which mirrors the "at the well" rule, permitting use of the "net-back" method to calculate royalties "at the wellhead." We will examine each case in turn.

         Despite the District Court and parties' pre-emptive focus on Tawney, it is Wellman which forms the foundation of the current state of West Virginia's law on deduction of post-production costs. In Wellman, the Court addressed an action brought by the lessors seeking termination of certain oil and gas leases and damages for failure to pay proper royalties. Id. at 204, 557 S.E.2d at 258. The leases provided for natural gas royalties of "'one-eighth (1/8) of the market value of such gas at the mouth of the well[.]'" Id. The lessee deducted "certain expenses" before calculating royalties. Id. at 209, 557 S.E.2d at 263. In resolving the question of whether such expenses were properly deductible, the Court noted the widely adopted position that "costs of discovery and production" are not chargeable against a royalty. Id. at 210, 557 S.E.2d at 264. The Court then stated that "[i]n spite" of this position, oil and gas producers had begun deducting costs for transporting and "treating or altering" the oil and gas after it is "produced" to put it into marketable condition. Id.

         The Wellman Court briefly acknowledged the split of authority regarding deduction of such post-production costs and discussed the rationale of those states holding that such costs are not properly deductible from the lessor's royalty. Id. at 210, 557 S.E.2d at 264. The Court noted that pursuant to the implied covenant to market, [12] such "duty to market embraces the responsibility to get the oil or gas in marketable condition and actually transport it to market." Id. Noting simply that like other marketable product rule states, "West Virginia holds that a lessee impliedly covenants that he will market oil or gas produced[, ]" the Court quickly concluded that "unless the lease provides otherwise, the lessee must bear all costs incurred in exploring or, producing, marketing, and transporting the product to the point of sale." Id. at 211, 557 S.E.2d at 265, Syl. Pt. 4.[13] The Court then went a step further, holding that where the lease provides for apportionment of any such costs, they must be "actually incurred" and "reasonable." Syl. Pt. 5, Wellman, 210 W.Va. 200, 557 S.E.2d 254.

         With Wellman as background, we therefore turn to the Tawney decision to ascertain the scope and import of its holdings. Tawney answered a certified question tantalizingly similar to the instant certified question which inquired whether an oil and gas lessee must "bear all costs incurred in marketing and transporting" the product where the lease states that royalties are to be calculated "at the well, " or "at the wellhead[.]" 219 W.Va. at 268, 633 S.E.2d at 24. Respondent Columbia Natural Resources ("CNR") sought to take monetary deductions for post-production costs as well as volume deductions[14] before calculating the landowners' royalty on the involved leases. Id. at 269, 633 S.E.2d at 25. As in this case, CNR argued that since gas is not sold at the wellhead, "the only logical way to calculate royalties at the wellhead is to permit lessees to deduct the lessors' proportionate share of post-production expenses[.]" Id. at 270, 633 S.E.2d at 26. The Tawney Court accepted, without further analysis, Wellman's reliance on the implied duty to market and resultant holding that a lessee must "bear all costs incurred in exploring for producing, marketing, and transporting the product to the point of sale[.]" Id. at 272, 633 S.E.2d at 28 (quoting Syl. Pt. 4, Wellman, 210 W.Va. 200, 557 S.E.2d 254). The Court then narrowed the issue to whether the leases' "at the wellhead" language was sufficient to alter this "generally recognized rule." Tawney, 219 W.Va. at 272, 633 S.E.2d at 28.

         The Tawney Court found the "at the wellhead" language ambiguous because it was "imprecise" and did not "indicate how or by what method the royalty is to be calculated or the gas is to be valued." Id. at 272, 633 S.E.2d at 28 (emphasis in original). Having found such language ambiguous, the Court noted the absence of language evidencing "an intent by the parties to agree to a contrary rule" and stated that if CNR desired to pro-rate expenses with the landowners, it "could have written into the leases specific language which clearly informed the lessors exactly how their royalties were to be calculated and what deductions were to be taken from the royalty amounts for post-production expenses." Id. at 272, 274, 633 S.E.2d at 28, 30. Citing the "'general rule as to oil and gas leases . . . that such contracts will generally be liberally construed in favor of the lessor, and strictly as against the lessee, '" the Court then construed the lease against CNR and held that the "at the wellhead" language was insufficient to allow deduction of post-production expenses. Id. at 273, 633 S.E.2d at 29 (quoting Syl. Pt. 1, Martin v. Consolidated Coal & Oil Corp., 101 W.Va. 721, 133 S.E. 626 (1926)). Resting entirely on the premise that CNR could simply have negotiated for and/or included in their leases language regarding cost allocation, the Court issued the following syllabus point setting forth the criteria for expressing such an intention in an oil and gas lease:

Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor's royalty (usually 1/8), and ...

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