drilling operations

How Do I Access the Lands Under a Federal Oil and Gas Lease?

At the end of Disney/Pixar’s “Finding Nemo,” a group of fish escape from their tank by jumping into plastic bags that are filled with water and then securely tied at the top. After hopping out of a window, they cross a busy street and land safely in the waters of Sydney Harbour. Still in a plastic bag and bobbing up and down on the water, one of the fish asks an important question: “Now what?” The whole point of escaping was to obtain freedom from captivity. Similarly, the whole point of obtaining a federal oil and gas lease is to produce the natural resources on which our nation relies. To do so, however, requires obtaining the necessary surface use authorizations, which can be complicated.

Lease Rights

The current form of federal oil and gas lease[1] grants to the lessee “the exclusive right to drill for, mine, extract, remove and dispose of all the oil and gas (except helium) [in the leased lands] together with the right to build and maintain necessary improvements . . . .”[2] Those rights, however, are “subject to applicable laws, the terms, conditions, and attached stipulations of [the] lease, the Secretary of the Interior’s regulations and formal orders in effect as of lease issuance, and to regulations and formal orders [promulgated after lease issuance] when not inconsistent with lease rights granted or specific provisions of [the] lease.”[3] That’s where things get complicated.

As mentioned, federal oil and gas leases are subject to “applicable laws.” Generally, this means federal laws, such as the National Environmental Policy Act (NEPA)[4] and Endangered Species Act,[5] which can significantly impact a lessee’s ability to access federal oil and gas. There are several other laws that may apply to the extraction of federal oil and gas, including state laws and local ordinances, and operators should consult with competent legal counsel when evaluating their compliance with all applicable laws.

Compliance must also be made with the terms and conditions of the lease. The current form of lease and current regulations, for example, require a bond for lease operations. This requirement can be satisfied by obtaining a lease bond (at least $10,000), a statewide bond (at least $25,000), or a nationwide bond (at least $150,000). An operator may apply for partial release of a lease bond as reclamation operations are completed. Partial release is not available for statewide or nationwide bonds.

Another example of lease terms and conditions is the “conduct of operations” section of the current lease form. This section requires the lessee to “conduct operations in a manner that minimizes adverse impacts to the land, air, and water, to cultural, biological, visual, and other resources, and to other land uses or users.” These requirements can express themselves in many ways. The BLM (and FS) have published generally applicable standards and guidelines for operators engaged in the production of federal oil and gas, commonly known as “The Gold Book,” which provides an indication of how the BLM may require operations to be conducted.[6]

As noted, a federal oil and gas lease is also subject to any attached stipulations. The specific stipulations will depend on the characteristics of the leased lands. By way of example, those stipulations may include, but are certainly not limited to, restrictions on operations due to (1) threatened, endangered, and special status species; (2) animal breeding or nesting sites; (3) protection of cultural resources; (4) congressionally designated historic trails; and (5) avoidance of conflicts due to multiple mineral development. The restrictions may sometimes be seasonal or only applicable during a certain time of day. It is important to carefully review all of the stipulations attached to your lease to ensure that your proposed operations can comply with them.

The Secretary of the Interior has also published regulations, formal orders, and “Notices to Lessees” that govern access to federal oil and gas. Many of the relevant regulations can be found in 43 CFR Part 3160, et seq. There are currently seven “Onshore Oil and Gas Orders” that govern federal oil and gas operations, including Onshore Order No. 1 (approval of operations); Onshore Order No. 2 (drilling); and Onshore Order No. 3 (site security). There are currently two National Notices to Lessees (NTLs) promulgated by the BLM, which govern the reporting of undesirable events and royalty or compensation for oil and gas lost, as well as one Utah-specific NTL regarding the standards for use of electronic flow computers in gas measurement.[7]

The surface access rights granted under a federal oil and gas lease only apply to operations on the leased lands or lands that are unitized therewith and are authorized as part of an Application for Permit to Drill (APD), as discussed below. For operations outside of the leased lands or unit, a right-of-way, permit, or other authorization will need to be obtained from the federal government, the state government, or private surface owner(s), as applicable.

Permitting and Approval of Lease Operations

The earlier you can start the process of gaining access to federal oil and gas, the better. Early coordination with the BLM during the planning stages can help bring to light site-specific issues and local requirements, which generally leads to a more efficient permit approval process. In addition to a BLM-approved APD, an operator will need to obtain any approvals required by other federal, Tribal, state, or local authorities, which can also take some time.

There are additional considerations that apply in split-estate situations (non-federal surface over federal oil and gas). When split-estate is involved, an operator must make a good faith effort to notify the surface owner before entering the land to conduct surveys or stake a well location. An operator is also required to make a good-faith effort to negotiate a surface use agreement (SUA) with the surface owner. If negotiations are not successful, then a separate bond will be required as part of APD approval. The bond must be at least $1,000 and is designed to compensate the surface owner for reasonable and foreseeable loss of crops and damage to improvements. If the surface owner objects to the amount of the bond, then the BLM will review and either confirm the previously established bond amount or set a new amount.

Geophysical operations involving federal oil and gas are considered lease operations that may be performed on a federal lease after filing a Sundry Notice[8] or Notice of Intent and Authorization to Conduct Oil and Gas Geophysical Exploration Operations (Notice of Intent)[9] with the BLM. The party filing the Notice of Intent will need to be bonded. The BLM may require cultural resource or threatened/endangered species surveys for geophysical operations that will involve surface disturbance. BLM approval is not necessary for geophysical operations involving federal oil and gas under fee or state surface. In that case, an operator must work with the fee surface owner or relevant state agency to obtain access to the lands.

Surveying and staking can take place before approval of an APD, but APD approval is required before drilling and any related surface-disturbing operations. To apply for a permit to drill, an operator has two options: (1) file a Notice of Staking (NOS), followed by an APD; or (2) file an APD only. An NOS is a formal request for an onsite inspection[10] prior to filing an APD and it initiates the 30-day posting period that the BLM is required to follow before approving an APD. Filing an NOS can be particularly useful if the operator anticipates concerns that will eventually need to be addressed in an APD. The BLM has published a sample form of NOS,[11] but no specific form is required.

A completed APD package includes (1) APD Form 3160-3;[12] (2) a well plat certified by a registered surveyor; (3) a Drilling Plan; (4) a Surface Use Plan of Operations (including a reclamation plan);[13] (5) evidence of bond coverage; (6) operator certification in accordance with the requirements of Onshore Order No. 1; and (7) any other information required by order, notice, or regulation. An operator may file a Master Development Plan for multiple wells within a single Drilling Plan and Surface Use Plan of Operations, but an APD and survey plat still have to be submitted for each individual well. Changes to plans reflected in an APD must be submitted for BLM approval by filing a Sundry Notice. After the well is completed, a Well Completion Report[14] must be filed. As of March 13, 2017, all of these filings must be done through the BLM’s electronic filing system.

The BLM is charged with the responsibility of ensuring compliance with NEPA. When evaluating an APD, the BLM will conduct an Environmental Assessment (EA), if one has not already been done, and issue a decision in that regard. Issues raised by an EA may prompt a more-comprehensive Environmental Impact Study, delay approval of an APD, or result in stipulations or conditions of approval in addition to those that are attached to the lease.

Before approving an APD, the BLM will also conduct an onsite inspection (whether initiated as part of an NOS or APD) to identify site-specific issues and requirements. The BLM will notify the operator if any cultural resource studies or threatened or endangered species studies will be required. The operator, any parties associated with the planning of a drilling project (such as the operator’s dirtwork contractor or drilling contractor), and the fee surface owner, if any, will be invited to attend the onsite inspection.

If an operator desires to request a variance from the requirements of an onshore order, or an exception, waiver, or modification of a stipulation attached to a lease, then a request may be filed with the BLM, explaining the basis for the variance and how the intent of the onshore order will be satisfied, or the reason(s) why the stipulation is no longer justified.


[1] For purposes of this article, “federal” refers to federal government lands administered exclusively by the Bureau of Land Management (the “BLM”), as opposed to the United States Department of Agriculture, Forest Service (the “FS”), other surface management agencies, or the Bureau of Indian Affairs (the “BIA”). While the BLM works with the BIA, FS, and other surface management agencies in administering the lands within their stewardship, the nuances relating to the lands of those other agencies are not addressed in this article.
[2] Form 3100-11, Offer to Lease and Lease for Oil and Gas, available at https://www.blm.gov/sites/blm.gov/files/uploads/Services_National-Operations-Center_Eforms_Fluid-and-Solid-Minerals_3100-011.pdf.
[3] Id.
[4] See 42 U.S.C. § 4321, et seq.
[5] See 16 U.S.C. § 1531, et seq.
[6] See, e.g., Surface Operating Standards and Guidelines for Oil and Gas Exploration and Development, United States Department of the Interior and United States Department of Agriculture, 2007, p. 41 (regarding painting of facilities), available at https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/operations-and-production/the-gold-book (The Gold Book).
[7] Links to the regulations, onshore orders, and NTLs are available at blm.gov.
[8] Form 3160-5, available at https://www.blm.gov/sites/blm.gov/files/uploads/Services_National-Operations-Center_Eforms_Fluid-and-Solid-Minerals_3160-005.pdf.
[9] Form 3150-4, available at https://www.blm.gov/sites/blm.gov/files/uploads/Services_National-Operations-Center_Eforms_Fluid-and-Solid-Minerals_3150-004.pdf.
[10] The BLM has 10 days to schedule an onsite inspection after receiving an NOS or APD, but there is no deadline for when the inspection itself must to take place.
[11] See The Gold Book, p. 61.
[12] Available at https://www.blm.gov/sites/blm.gov/files/uploads/Services_National-Operations-Center_Eforms_Fluid-and-Solid-Minerals_3160-003.pdf.
[13] In a split-estate situation, an operator must make a good-faith effort to provide the surface owner with copies of (1) the Surface Use Plan of Operations; (2) the approved APD with its conditions of approval; and (3) any proposals involving new surface disturbance.
[14] Form 3160-4, available at https://www.blm.gov/sites/blm.gov/files/3160-004.pdf.

Pugh(eee)…Get Those Lands Outta Here: A Look at the Pugh Clause

For the unwary, Pugh clauses (pronounced “Pew”) can sometimes stink.  Although it is a fairly common provision in many fee oil and gas leases today, there is no industry standard Pugh clause.[1] As a result, the many variations of the Pugh clause can provide unpleasant surprises to both lessors and lessees who assume that all Pugh clauses operate similarly.  From an industry perspective, it is essential for landmen negotiating oil and gas leases to understand how a Pugh clause will operate an­­­­d potentially affect other provisions in the lease.  Additionally, with the sharp decrease in oil prices, many oil and gas companies have pushed drilling schedules into the indefinite future.  The delay in drilling necessitates a careful review of the underlying lease portfolios to determine when certain leases will expire. A thorough understanding of the effect of a  Pugh clause’s on a lease is vital to this review.

So What Is It?

As a general rule, production, or other operations, on “any part of the land, included in an oil and gas lease will perpetuate the lease beyond the primary term as to all of the land covered by the lease.”[2] Moreover, if lands are pooled or unitized, production or operations on any of the lands within the unit can extend all leases committed in whole, or in part, to the drilling or spacing unit.[3] This means that an oil and gas lease can be held past its primary term by production on only a small portion of the leased lands or on lands outside of the leased lands that are located in a drilling or spacing unit. Understandably, lessors can be less than thrilled to discover that all of their lands are locked-up by a lease when only a small portion of their lands are included within a drilling or spacing unit—preventing them from re-leasing their non-producing lands so that they can receive additional bonus payments, rentals, or production royalties from these lands. Without an “express provision in the lease, the lessor only has recourse to the implied covenant of reasonable development (or further exploration in a state that recognizes such a covenant)” to force additional development on the lessor’s lands or allow them to re-lease the lands altogether.[4]

A Pugh clause can prevent this scenario. Named after a Louisiana lawyer named Lawrence Pugh,[5]  the Pugh clause operates to sever the non-producing lands or interval based on some defined criteria, such as acreage or depth.[6] The impact of a Pugh clause “increases the burdens on the lessee who must take additional steps to maintain the lease as to the [non-producing portion]; this may include a return to delay rentals,” (if the lease is not a paid-up lease), “or initiation of drilling operations within a specified period.”[7] In other words, by including a Pugh clause in a lease, any production located on or attributed to leased lands will no longer be sufficient to extend the primary term for the entire leasehold. If the lessee takes no actions to extend the lease excluded by operation of the Pugh clause, the lease will expire as to these excluded lands. This provides an obvious benefit to lessors, who can once again make the forfeited lands available for lease. Since Pugh clauses are decidedly pro-lessor, they are “virtually always inserted into or attached to a lease at the insistence of the lessor’s attorney.”[8]

Horizontal and Vertical Pugh Clauses

It is important to note that Pugh clauses can be horizontal, vertical, or both.  A horizontal Pugh clause “has the effect of severing a leasehold as to the pooled and non-pooled portions on the basis of horizontal planes,” while a vertical Pugh clause “has the effect of severing a leasehold on the basis of vertical planes only.”[9] This means a Pugh clause can be structured by depth (e.g., severing all lands below 100 feet of a drilled well or the bottom of the producing zone), or by acreage.

Give Me An Example

Because there is no industry standard Pugh clause, there can be as many different forms of the clause as there are people drafting the clause.  The following is an example of a generic Pugh clause:

A producing well, or well capable of producing, will perpetuate this lease beyond its Primary Term ONLY as to those lands as are located within, or committed to, a producing or spacing unit established by Government authority having jurisdiction.[10]

This provision in an oil and gas lease operates to segregate the lease at the end of the primary term according to whether the leased lands were within a drilling or spacing unit established by the appropriate government agency. Any lands not located within a drilling or spacing unit would not be extended by production (keeping in mind, of course, that these lands could be extended by other provisions in the lease, such as those pertaining to drilling operations). As a title examiner, it’s not uncommon to see other triggering criteria in a Pugh Clause—such as one or two years after the end of the primary term, or when drilling operations on any portion of the leased lands cease for a specified amount of time.

It’s crucial to clearly specify how and when the clause will come into play, as illustrated by the following real-life Pugh clause:

Notwithstanding anything to the contrary herein, this lease shall terminate after the primary term as to all the lands not included within a drill site spaced unit as provided by the proper Governmental Authority….

This Pugh clause is poorly drafted because it segregates the leased lands only on the basis of whether they are within a “drill site spaced unit,” without clearly specifying that the spaced units must also be producing in order for the lease to be extended beyond its primary term for those lands.  Read literally, the provision raises the question of whether a lease would be extended for lands that are merely subject to a spacing order (and thus presumably within a drill site spaced unit) when there is no production within the drilling or spacing unit, assuming that there is production elsewhere on the lease lands, as was the case in this instance.[11] Although it’s likely that the parties to the lease intended that the clause include a production requirement, it’s uncertain how a court would rule if this clause was litigated, particularly since Pugh clauses tend to be strictly construed.[12]

Problematic Pugh clauses, such as the example above, often arise when the Pugh clause is merely copied and pasted from another oil and gas lease, which can result in omitted words or phrases, or inconsistencies with other provisions of the lease. Problems can also arise when a Pugh clause is drafted by a person who does not fully understand the impact of words or phrases included in, or excluded from, the provision.

Be Careful

As illustrated by the poorly drafted Pugh clause above, not all Pugh clauses are created equal, and it’s important to review and understand the specifics of a Pugh clause when negotiating an oil and gas lease, or when later evaluating how a Pugh clause affects the extension of a lease.

 


[1] 1 Bruce M. Kramer and Patrick H. Martin, The Law of Pooling and Unitization, § 9.01 (LexisNexis Matthew Bender 2015), hereinafter referred to as “Pooling and Unitization,” citing Robin Forte, “Helpful Hints: The ‘Pugh’ Clause,” 42 Landman 9 (May/June 1997) (“Just as there is no standard oil and gas lease, today there is no standard ‘Pugh’ clause.”).
[2] Adams, James W., Jr., “Lease Issues for Opinion Purposes,” Nuts and Bolts of Mineral Title Examination, Paper 11, Page No. 517 (Rocky Mt. Min. L. Fdn. 2015), hereinafter referred to as “Lease Issues”.
[3] Id.
[4] Pooling and Unitization § 9.01.  For a discussion on the implied covenant to develop as it relates to Montana law, see Miller, Adrian, “The Implied Covenant to Drill and Develop in Montana,” available at:  https://www.hollandhart.com/implied-covenant-to-drill-and-develop-in-montana.
[5] Pooling and Unitization § 9.01, ft. 3.
[6] Patrick H. Martin and Bruce M. Kramer, Williams & Meyers, Oil and Gas Law § 669 (LexisNexis Matthew Bender 2015), hereinafter referred to as “Oil and Gas Law.”
[7] Pooling and Unitization § 9.01.
[8] Pooling and Unitization § 9.04.
[9] Oil and Gas Law § H Terms. According to one commentator, the terms “horizontal Pugh clause” and “vertical Pugh clause” are often mistaken with one another and, as a result, are used somewhat interchangeably within the industry.  Consequently, the commentator suggests that Pugh clause should clarify whether the provision affects depth or acreage. See http://landmaninsider.com/pugh-clauses/.
[10] This example is given in Lease Issues, p. 518.
[11] The question regarding this Pugh clause’s operation might be even more muddled in some states, such as New Mexico, which have standard spacing requirements.  See N.M. Admin. Code 19.15.15.
[12] Pooling and Unitization § 9.01. The treatise notes, however, that “strict construction is by no means uniform,” and “a few courts have seemed almost eager to interpret such provisions in favor of the lessor through readings that do not appear entirely reasonable.”  Id.

A Roadmap for Commencement of Drilling Operations: Are We There Yet?

For oil and gas lessees, the journey from signing a lease to having a producing well can be a long and arduous one. Countless turns, speedbumps and stops along the way can reasonably be expected. The habendum clause alone can quickly bring the lease to a screeching halt. Savings clauses have been inserted into modern fee oil and gas leases to prevent automatic termination of the lease while the lessee conducts certain operations. Discussed herein is the commencement of drilling operations savings clause which, in the majority of states, will permit a lease to be preserved after the expiration of the primary term without production if certain operations are being conducted.1 However, even with this savings clause, lessees should be particularly wary of the roadblock approaching at the end of the primary term when determining whether drilling operations were properly commenced before expiration of the primary term. Well-constructed language in a fee oil and gas lease can allow continued operations even if the primary term has expired and the drill bit has not yet broken ground.2

Which lease provision is the commencement of drilling operation clause?

The following is an example of a commencement of drilling operations savings clause:

Notwithstanding anything in this lease contained to the contrary, it is expressly agreed that if Lessee shall commence drilling operations at any time while this lease is in force, this lease shall remain in force ….

Such clauses may include variations such as “commence operations to drill a well,” “commence drilling or re-working operations,” “commence or cause to be commenced the drilling of a test well,” “commence the drilling of a well in search for oil or gas,” “commence to drill a well,” “if no well be commenced,” “lessee is then engaged in drilling for oil or gas,” “lessee is then engaged in drilling or reworking operations thereon,” or “start drilling for oil.” 3 The question to be answered is what operations must a lessee commence to preserve the lease?4

What does commence mean?

Generally, the majority of the states hold that, unless otherwise provided for in the lease, actual drilling is not necessary in order to reach the threshold for commencement of operations. Courts have proved willing to find commencement of operations even when only “modest” preparations for drilling have been made, such as erecting a part of an oil derrick and working on providing a water supply for drilling.5 Other preparatory activities such as obtaining drilling permit, staking and leveling the well location,6 building board roads to the drill site and a turn-around,7 moving tools and equipment onto the drill site, digging slush pits,8 and similar on-site activities have been held sufficient to be considered commencement of drilling operations.9 In order to reach the commencement of drilling operations threshold, a lessee should conduct as many on-site work activities as it can before the primary term expires. When determining adequate operations for commencement, courts favor active earthwork, clearing, construction, structure placement, etc., as opposed to gathering data, developing reports, obtaining permits, having meetings, and filing paperwork.

Courts have further required that such operations must be performed with the bona fide intention to proceed with good faith and diligence to the completion of the well.10 In a case where the preliminary commencement activities were performed by a company that had not yet acquired the rights to drill due to negotiations over the terms of a farmout agreement, the Wyoming Supreme Court held that the drilling operations were not done in good faith with the intent to complete insofar as the operator’s rights were qualified and contingent and may not ever be realized.11

When does the clause require actual drilling?

Some jurisdictions have differentiated between “commence operations” and “commence drilling operations.” California, Kansas, and Montana courts have made such distinctions and held that “commence drilling operations” or similar language required the drill bit to penetrate the ground prior to the end of the primary term.12 However, a Wyoming court held that there is no such distinction13 and “commence to drill a well” may be satisfied if preliminary commencement activities are not mere pretenses or a holding devise to retain the lease, if the acts are commenced and prosecuted with good faith and bona fide intention to drill and complete the well, and performed with diligence.14 Additionally, the Eighth Circuit Court of Appeals, applying North Dakota law, dismissed an argument that “engaged in drilling or reworking operations” meant “engaged in drilling” (meaning actual drilling was required) or “engaged in reworking operations;” rather, the court interpreted the clause as being engaged in “drilling operations” or “reworking operations.”15

What about off-lease operations?

With the advent of off-lease surface locations for horizontal wells, the question arises as to whether operations on or from off-lease surface locations will qualify as commencement of drilling operations on the leased lands. There is currently little guidance to answer this question. As suggested by other authors, we recommend that new oil and gas lease forms and existing oil and gas leases be amended to include a provision similar to one of the following:

(1) As used herein, the term Operations shall mean any activity conducted on or off the leased premises that is reasonably calculated to obtain or restore production, including without limitations, (i) drilling or any act preparatory to drilling (such as obtaining permits, surveying a drill site, staking a drill site, building roads, clearing a drill site, or hauling equipment or supplies); (ii) reworking, plugging back, deepening, treating, stimulating, refitting, installing any artificial lift or production-enhancement equipment or technique; (iii) constructing facilities related to the production, treatment, transportation and marketing of substances produced from the leased premises; (iv) contracting for marketing services and sale of Oil and Gas Substances; and (v) construction of water disposal facilities and physical movement of water produced from the leased premises;16 or

(2) All operations conducted off the leased premises that are intended to result in the completion of, or restoration of production from, a producing interval on the leased premises or lands pooled or unitized therewith shall be considered operations conducted on the leased premises for purposes of extending and/or maintaining this lease in effect under any other paragraph or provision hereof.17

The lease, of course, would need to be further reviewed to confirm that the use of either of the above suggestions does not create any inconsistencies or confusion and all capital terms (if applicable) are appropriately defined.

What should I do?

In determining whether a lease has been extended beyond its primary term by the commencement of certain operations less than spudding the well, it is critical the specific language of the lease, the specific facts, and case law for the state in which the leased lands are located are reviewed. Even then, it may be difficult to conclusively determine whether the lessee’s actions are sufficient absent actual penetration of the ground with a rig sufficient to reach a producing zone. Facing any uncertainty, if the lease and case law lack clear standards, the safest course of action, if possible, would be to get an extension of the lease.


1Williams & Meyers, Oil and Gas Law § 617 at 297 (2012).
2This article is limited to fee oil and gas leases. As to federal oil and gas leases, actual drilling operations must be commenced prior to the expiration of the primary term – the bit must be “turning to the right” prior to 11:59 p.m. on the last day of the primary term. 71 Interior Dec. 263 (July 10, 1964). Site preparation and even moving a rig onsite do not qualify as actual drilling operations. 43 C.F.R. § 3100.0-5(g).
3Williams & Meyers, supra note 1, § 618.1 at 311.
4Not addressed herein is whether the commencement of drilling operations clause in the habendum clause of the lease also has the effect of being a continuous drilling clause, i.e., if the well is drilled as a dry hole, does the lessee have the right to commence a second well?
5Williams & Meyers, supra note 1, § 618.1 at 320.
6Petersen v. Robinson Oil & Gas Co., 356 S.W.2d 217 (Tex. App. 1962).
7Breaux v. Apache Oil Co., 240 So.2d 589 (La. App. 1970).
8Walton v. Zatoff, 125 N.W.2d 365 (Mich. 1964).
9See Oelze v. Key Drilling, Inc., 135 Ill. App. 3d 6, 481 N.E.2d 801 (5th Dist. 1985) (a drilling rig was moved near the site, brush cleared and one of three pits were dug before the end of the primary term was found to be “commence operations for drilling”); Johnson v. Yates Petroleum Corp., 981 P.2d 288 (N.M. Ct. App. 1999) (any activities in preparation for, or incidental to, drilling a well).
10See Sword v. Rains, 575 F.2d 810 (10th Cir. 1978); Wold v. Zavanna, LLC , 2013 WL 6858827 (D.N.D. Dec. 31, 2013); Murphy v. Amoco Prod. Co., 590 F. Supp. 455 (D.N.D. 1984); Stoltz, Wagner & Brown v. Duncan, 417 F. Supp. 552 (W.D. Okla. 1976) (not required to cause the bit to pierce the earth before the end of the primary term, but must have the good faith intention to unqualifiedly drill the well, commence drilling the well on such date and pursued such drilling as a reasonably prudent operator); Haddock v. McClendon, 266 S.W.2d 74 (Ark. 1954); Oelze v. Key Drilling, Inc., 135 Ill. App. 3d 6, 481 N.E.2d 801 (5th Dist. 1985); Illinois Mid- Continent Co. V. Tennis, 122 Ind. App. 17, 102 N.E. 2d 390 (1951) (lessee lacked good faith); Flanigan v. Stern, 265 S.W. 324 (Ky. 1924) (requiring after spudding reasonably diligence and bona fide effort); Smirth v. Gypsy Oil Co., 265 P. 647 (Ok. 1928); Bell v. Mitchell Energy Corp., 553 S.W.2d 626, 632 (Tex. App. 1977); LeBar v. Haynie, 552 P.2d 1107, 1111 (Wyo. 1976).
11True Oil Co. v. Gibson, 392 P.2d 795 (Wyo. 1964).
12Lewis v. Nance, 20 Cal. App. 2d 71, 66 P.2d 708 (4th Dist. 1937); Hall v. JFW, Inc. 893 P.2d 837 (Kan. 1995); Soldberg v. Sunburst Oil & Gas Co., 235 P. 761 (Mont. 1925) (“commence drilling operations for oil”).
13Fast v. Whitney, 187 P. 192 (Wyo. 1920) (“commences drilling”).
14LeBar v. Haynie, 552 P.2d 1007 (Wyo. 1976) (“commence to drill a well”); True Oil Co. v. Gibson, 392 P.2d 795 (Wyo. 1964).
15Anderson v. Hess, 733 F. Supp. 2d 1100, 1106-07 (D.N.D. 2010) aff’d 649 F.3d 891, 898 (8th Cir. 2011) (insofar as the lessor conceded that the lessee was engaged in drilling operations before the primary term expired, the court did not address whether the lessee’s preparatory activities were satisfactory to constitute drilling operations.). See also Wold v. Zavanna, LLC , 2013 WL 6858827 (D.N.D. Dec. 31, 2013) (granting summary judgement in favor of the lessee based on Anderson v. Hess and finding “drilling or reworking operations” had been commenced when lessee obtained all drilling approvals, engaged in actual on-site construction, hauling of equipment and materials on site, installing culverts and cattle guards, and digging reserve pit prior to the expiration of the primary term and finding that the lessee had capability to drill the well and good faith intent to complete the well with reasonably diligence).
16Milam Randolph Pharo & Gregory R. Danielson, “The Perfect Oil and Gas Lease: Why Bother!,” 50 Rocky Mt. Min. L. Inst. 19-1, 19-18 (2004).
17John W. Broomes, “Spinning Straw Into Gold: Refining and Redefining Lease Provisions for the Realities of Resources Play Operations,” 57 Rocky Mt. Min L. Inst. 26-1, 26-12 (2011).