A Louisiana lessee does not owe its lessor royalties based on hedging profits, said a federal district court in Cimarex Energy Co. v. Chastant. Cimarex, the lessee, hedged its gas contracts and didn’t pay its lessor, Chastant, earnings from the hedge.
As the court described it, hedging involves buying and selling financial positions as a strategy to avoid the risk of a price fluctuation. The hedging party uses financial transaction derivatives to minimize the risk if/when the price of the commodity drops below a certain level.
Cimarex Memorandum in Support of Motion for Summary Judgment is a good description of the hedging process and its value to oil and gas producers.
The question for the court was whether additional royalties must paid on amounts the lessee generated by a separate, purely financial, transaction from the sale of the oil and/or gas at the property. The answer is “no”.
Chastant’s royalty clause provided for payment by Cimarex, on gas, of 1/8 of the market value at the mouth of the well and on oil, 1/8 of the price received f.o.b. the leased property. In Louisiana, a royalty is the “landowner’s share of production, free of expenses of production.”
Chastant argued that since Cimarex calculated the hedge price in filings with the SEC, the hedge price constitutes “market value” under the lease. Chastant cited Frey v. Amoco Prodcution, a 1992 case where the Louisiana Supreme Court held that royalties were owed on a take-or-pay case settlement because the the take-or-pay payments were part of the “amount realized” under the terms of the lease. Therefore, said Chastant, any benefit derived by the lessee because of oil and gas production, even separate transactions, should be included in the calculation of the royalties due to the lessor.
Cimarex argued that the lease royalty provisions are in keeping with well-established Louisiana principles in which “market price” is based on the market price at the well or field for the oil and/or gas. Therefore, the market price cannot be tied to some future financial transaction because of the oil and gas produced.
The court rejected Chastant’s arguments. To agree with Chastant would overturn decades of Louisiana oil and gas law by holding that standard lease language allows royalties to be based on something other than the price or value of the oil and/or gas. According to the court, such a holding would allow royalties to be based on monies earned by any transaction remotely connected to the oil or gas. Therefore, Cimarex did not owe royalties based on its hedging profits.
Many thanks to Ann Weissman for her contribution to this post.