WEST virginia legislature
2022 regular session
Committee Substitute
for
Senate Bill 650
By Senator Nelson
[Originating in the Committee on Energy, Industry, and Mining; reported on February 18, 2022]
A BILL to amend and reenact §37B-1-4 of the Code of West Virginia, 1931, as amended, relating to amending the number of royalty owners required for utilization by an operator for the lawful use and development by cotenants; and correcting the format of some phrases.
Be it enacted by the Legislature of West Virginia:
ARTICLE 1. MINERAL development by A majority of cotenants.
§37B-1-4. Lawful use and development by cotenants; election of interests; reporting and remitting of interests of unknown or unlocatable cotenants; establishment of terms and provisions for development; and merging of surface and oil and gas.
(a) In cases where there
are seven or more royalty owners, if If an operator or owner makes
or has made reasonable efforts to negotiate with all royalty owners in an oil
or natural gas mineral property and royalty owners vested with at least three fourths
of the right to develop, operate, and produce oil, natural gas, or their
constituents consent to the lawful use or development of the oil or natural gas
mineral property, the operator’s or owner’s use or development of the oil or
natural gas mineral property is permissible, is not waste, and is not trespass.
In that case, the consenting cotenants and their lessees, operators, agents,
contractors, or assigns are not liable for damages for waste or trespass due to
the lawful use or development and shall pay the nonconsenting cotenants in
accordance with subsections (b), and (c), and (e) of this
section, reserve the amounts specified in subsection (d) and (e) of this
section for the benefit of unknown or unlocatable interest owners, and report
and remit the reserved interests as provided in subsection (d) of this section.
(b) A nonconsenting cotenant is entitled to receive, based on his or her election, either:
(1) A pro rata share of production royalty, paid on the gross proceeds received at the first point of sale to an unaffiliated third-party purchaser and free of post-production expenses, equal to the highest royalty percentage paid to his or her consenting cotenants in the same mineral property, under a bona fide, arms-length lease transaction and lease bonus and delay rental payments or other non-royalty mineral payments, calculated on a weighted-average net mineral acre basis; or
(2) To participate in the development and receive his or her pro rata share of the revenue and cost equal to his or her share of production attributable to the tract or tracts being developed according to the interest of such nonconsenting cotenant, exclusive of any royalty or overriding royalty reserved in any lease, assignments thereof, or agreements relating thereto, after the market value of such nonconsenting cotenant’s share of production, exclusive of such royalty and overriding royalty, equals double the share of such costs payable or charged to the interest of such nonconsenting cotenant.
(c) A nonconsenting
cotenant shall have 45 days following the operator’s written delivery of its
best and final lease offer in which to make his or her election for either a
production royalty or a revenue share as specified in subsection (b) of this
section. If the nonconsenting cotenant fails to deliver a written election to
the operator prior to the expiration of such the 45-day period,
he or she shall be deemed to have made the election set forth in subdivision
(1), subsection (b) of this section. Within 30 days after a nonconsenting
cotenant has chosen or is deemed to have chosen the production royalty option,
the nonconsenting cotenant shall have the right to appeal to the Commission
commission regarding the issue of whether there has been compliance with
subdivision (1) of subsection (b) of this section, to verify the highest
royalty paid in the same mineral property and the value for the lease bonus and
delay rental payments: Provided, however, That the operations
upon the parcel may continue during the proceedings.
(d) Unknown or unlocatable
interest owners are deemed to have made the election provided by subdivision
(1), subsection (b) of this section and are only entitled to receive the amount
provided by that subdivision. Within 120 days from the date upon which an
amount is reserved for an unknown or unlocatable interest owner pursuant to
subsection (a) of this section, the consenting cotenants and their lessees,
operators, agents, contractors, or assigns shall make a report to the
State Treasurer as the Unclaimed Property unclaimed property administrator
and each calendar quarter, thereafter, concerning each reserved interest for
each unknown or unlocatable interest owner and shall concurrently remit the
amount reserved, in accordance with the provisions of §37B-2-1 et seq.
and §36-8-1 et seq. of this code and as determined by the State
Treasurer. The quarterly report and remittances shall be submitted by the first
day of the month following each calendar quarter.
(e) Unless otherwise agreed
to in writing or defined by this section, any nonconsenting cotenant and any
unknown or unlocatable interest owner who elects or is deemed to elect a
production royalty under subdivision (1), subsection (b) of this section is
subject to and shall benefit from the other terms and provisions defined by the
lease executed by a consenting cotenant which contains terms and provisions
most favorable to the nonconsenting cotenant or the unknown or unlocatable interest
owner: Provided, That nonconsenting cotenants and unknown or unlocatable
interest owners shall not be subject to or liable under any warranty of title,
jurisdictional or choice of law provisions, arbitration provisions, injection
well provisions, disposal well provisions, and storage provisions: Provided,
further however, That consenting cotenants and their lessees,
operators, agents, contractors, or assigns shall only develop the
specifically targeted stratigraphic formation and 100 feet above and below said
formation; nonconsenting cotenants and unknown or unlocatable interest owners
will retain all rights to all other formations unless or until reasonable
efforts are made to renegotiate under this section for each additional
formation. If a consenting cotenant has made a lease only for the targeted
formation, in that case the nonconsenting cotenants and unknown and unlocatable
cotenants shall receive the highest royalty, bonus and delay rental in the
lease which was executed for the targeted formation.
(f) Unless otherwise agreed to in writing or defined by this section, a nonconsenting cotenant who elects to participate under subdivision (2), subsection (b), of this section, shall be subject to and shall benefit from other terms and provisions determined to be just and reasonable by the Oil and Gas Conservation Commission in a manner similar to the provisions of §22C-9-7(b)(5)(B) of this code governing deep wells. The commission may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code, to implement and make effective the provisions of this section and the powers and authority conferred and the duties imposed upon the commission under the provisions of this section. Notwithstanding the determination of participation terms by the commission, an operator may proceed with the development of oil, natural gas, or their constituents pursuant to this section.
(g) After seven years from
the date of the first report to the Treasurer treasurer, a bona
fide surface owner may file an action to quiet title to the interests of all
unknown and unlocatable interest owners of the oil and natural gas estate
underlying the surface tract. To the extent relevant and practical, such action
shall follow the provisions of §55-12A-1 et seq. of this code. Upon
presentation of sufficient proof, a bona fide surface owner shall be entitled
to receive a special commissioner’s deed transferring title to the interest of
any or all unknown or unlocatable interest owners in an oil and natural gas
estate which underlies the surface tract. The surface owner shall only be
entitled to their proportionate share of all future proceeds and is not
entitled to any of the accrued funds which have been remitted to the Treasurer
treasurer prior to the execution of the special commissioner’s deed. The
unknown or unlocatable interest owners are not entitled to any amounts paid to
the grantees of the special commissioner’s deed after delivery of said deed.