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2023 UNT Dallas L. Rev. On the Cusp 1 (2023)

handle is hein.journals/ontcp2023 and id is 1 raw text is: by IJNT DALLAS., LAW0 EVIE PLEASE CITE THIS ARTICLE: CIMAREX ENERGY CO. V. ANADARKO PETROLEUM CORP. & THE QUESTION OF WHO HAS TO PRODUCE Christopher Stewart Kulander* TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................2 II. PRELIM INARY M ATTERS............................................................................................. 3 III. CIMAREX CASE BACKGROUND ................................................................................. 6 IV. OPINION OF THE COURT OF APPEALS.................................................................... 10 V. APPLICATION TO THE PRESENT CASE: CIMAREX ENERGY CO. v. ANADARKO PETRO LEU M C O RP.............................................................................................................14 VI. DISCUSSION................................................................................................................. 18 VII. CONCLUSION..............................................................................................................30 In Cimarex Energy Co. v. Anadarko Petroleum Corp.,1 a mineral lessee that produced no oil or gas during its lease's primary term claimed to have maintained the lease by paying apportioned royalties based on a co-tenant's production. Before the expiration of the disputed lease and the resulting litigation, the non-producing lessee had sued the producing lessee for an accounting because the non-producing lessee was not paid proceeds from the captioned land's production. In the Settlement Agreement that followed, the producing lessee paid the non-producing lessee's lessor apportioned royalty arising during the primary term of the disputed lease. When the primary term of the disputed lease ended, however, the lessor declared the disputed lease expired and recognized the ascendancy of a top lease covering the same lands. The producing lessee was also the top lessee. The non- * Director and Professor, Harry L. Reed Oil & Gas Law Institute, South Texas College of Law Houston, B.S. (Geology) and M.S. (Geophysics), Wright State University; Ph.D., Texas A&M University (Petroleum Seismology); J.D., University of Oklahoma. Licensed in Texas and New Mexico. The author thanks Owen Anderson, Richard Booth, William Burford, Terry Cross, John McFarland, David Pierce, and Randall Sadler for their opinions, thoughts, and assistance. This article is dedicated to the memory of Amelia Lee Kulander, Apr. 4, 1941-May 31, 2021. 1 574 S.W.3d 73 (Tex. App.-El Paso 2019, pet. denied).

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