1 COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ETC TEXAS PIPELINE, LTD. and

LG PL, LLC,

Appellants,

v.

AGERON ENERGY, LLC,

Appellee. §

§

§

§

§

§ No. 08-23-00010- CV

Appeal from the

36th Judicial District Court

of McMullen County, Texas

(TC# M-22-0011- CV

- A)

DISSENTING OPINION

I disagree that Ageron lacked standing to bring a trespass claim for injuries it sustained

,

March 2022 , to its equipment, wellbore, and leasehold interest generally

. While the Supreme Court

of Texas has not expressly recognized a surface owner’s cause of action for trespass due to

subsurface migration, it has recognized an actionable trespass for injury occur ring when

unauthorized conduct interferes with development rights of a mineral lessee. Regency Field Servs.,

LLC v. Swift Energy Operating, LLC , 622 S.W.3d 807, 816 n.18 ( Tex. 2021) (citing Lightning Oil

Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 49 ( Tex. 2017)). Pleading facts

demonstrating the subject

- matter jurisdiction of the trial court, Ageron alleges it was actively

exploring and developing its mineral estate when the H 2 S plume injected by ETC interfered with2 its right to develop. Because I believe the majority wrongly denies standing to Ageron’s trespass

with injury claim, I respectfully dissent.

As underscor ed in Co astal Oil & Gas Corp. v. Garza Energy Trust

, 268 S.W.3d 1, 9

( Tex. 2008), common law trespass includes at least two types of trespass actions, each directed at

different kinds of wrongs. “T resp a ss quare clausum fregit ” is limited to an action for a physical

invasion of plaintiff ’s possessory interest in land

. Id . (recognizing in note 21 the gist of the trespass

action as an injury to the right of possession ; thus, the plaintiff must show actual or constructive

possession at the time of the trespass). This type of trespass could be maintained without proof of

actual damage s, as a plaintiff could recover nominal damages where no substantial damages w ere

otherwise shown. Id . at 11 n.28. Conversely, a “tr espass on the case” is not limited to such an

invasion of a possessory interest. Id

. at 9. Rather, t his additional type of trespass provides for an

action for injury to a non- possessory interest when more than trespass is shown. Id

. at 9–10. To

maintain this latter type of trespass, the holder of a property right must show an actual injury

caused by trespass

, and not rely on nominal damages alone in support of the claim

. Id

. at 10.

For example, in Lightning Oil

, the plaintiff alleged that certain “underground well

structures” would interfere with “both the surface and subsurface spaces necessary for it to exercise

its right to develop[.] ” Lightning Oil , 520 S.W.3d at 49. There, the Supreme Court recognized the

trespass cause of action as being applicable given that a mineral lessee had asserted a claim for

interference with its right to develop. Id

. Setting a limit, however, the Court noted that “ an

unauthorized interference with the place where the minerals are located constitutes a trespass as

to the mineral estate only if the interference infringes on the mineral lessee ’s ability to exercise its

rights[,] ” particularly, the right to develop. Id. (second emphasis added). Yet, the Court continued,

“[w]hether the small amount of minerals lost ... will support a trespass action must, in the end, be3 answered by balancing the interests involved[

. ]” Id

. at 50 (citing Humble Oil & Ref. Co. v. West

,

508 S.W.2d 812, 816 (Tex. 1974) ).

Following that decision, in Regency , t he Court again confirmed this actionable trespass to

a mineral lessee ’s right to develop. 622 S.W.3d at 816. Focusing on the required injury, it noted,

“a claim for trespass to non- possessory property rights under a mineral lease

. . . arises when the

defendant’s unauthorized conduct first invades or interferes with the claimant ’s legal rights ‘ to

explore, obtain, produce, and possess the minerals subject to the lease, ’ because that invasion or

interference constitutes the actionable legal injury.” 1 Id. (quoting Lightning Oil , 520 S.W.3d at

49). In my view, this latter type of actionable trespass applies to Ageron’s pleaded claims.

Here, Ageron brings claims as a mineral lessee

. In its pleading, it describes itself as “the

P-4 operator ” under the Dickinson Lease. It allege s that, in December 2021, it was granted

permission by the Railroad Commission to drill a new well, the DH Unit #2 Well (the DH Well).

It further alleges that ETC sent it a letter giving notice that any well it drilled deeper than 5,870

feet would necessarily drill through the portion of the Wilcox formation in which ETC had ongoing

acid gas injection operations. To this extent, Ageron recognize d that ETC ’s letter advised it to

“ plan for, and put in place, all necessary safety measures and operational procedures to ensure that

no injectate is released from ETC ’s permitted injection interval in [that] formation during the

drilling, completion and production of Ageron’s wells. ” It claims it not only heeded ETC ’s

warning but also sought its input. It claim s it provided ETC with copies of several items to include

its H 2 S contingency plan, proposed casing program, proposed drilling mud program, and its well

profile . Ageron alleges it provided this information expecting ETC would advise and warn of any

1 Distinguishing the differing types of trespass, Regency noted that a surface owner’s trespass claim for unauthorized

physical entry upon its land or other invasion of its possessory property interest generally accrue s when the

unauthorized entry occurs. 622 S.W.3d at 816 n.18.4 concerns with the proposed drilling plan

. Similarly, it also alleges it submitted a n H 2 S contingency

plan to the Railroad Commission, which it approved in January 2022.

Next, Ageron claims it spudded the DH Well on February 8, 2022, purportedly after due

consideration was given to the concentration level of the H 2 S that ETC had reported to the Railroad

Commission. After drilling reached a total depth of nearly 5,900 feet, it alleged it “ then set 9 5/8 ”

casing in preparation to drill through the remainder of the H 2 S injection zone. ” But, sometime

during the active drilling from March 5 through March 13, 2022, after the wellbore reached a total

depth of nearly 6,040 feet, Ageron claims it suffered a catastrophic drill

- pipe separation. It alleged

this interference and injury to its deve lopment efforts was caused by “embrittlement, corrosion,

and cracking from Defendant ETC’s trespassing [ H 2 S ] .” Ageron again claims i t reached out to

ETC asking for it to briefly shut in its i njection w ell while it continued to drill through the Wilcox

injection zone. But ETC refused to accommodate its efforts

. O n March 13, 2022, Ageron allege s

it had no choice but to plug and abandon the DH Well as a substantial length of broken drill pipe

remained in the drilling hole. Ageron pleaded that, a s a direct result of ETC ’ s alleged trespass and

negligent H 2 S injection, it suffered more than $5 million in well and equipment costs during the

failed drilling of the DH Well. And because the Dickinson Lease had by then expired, Ageron

further claims the value of the lease was forever lost to it

.

Based on Lighting Oil and Regency

, I would construe Ageron ’ s petition as intending a

trespass on the case for its claimed injury to its right to develop on the leasehold ; and

, as pleaded,

Ageron ’ s injury is concrete and particularized, not hypothetical. See DaimlerChrysler Corp. v.

Inman

, 252 S.W.3d 299, 304

– 05 ( Tex. 2008) ( “ For standing, a plaintiff must be personally

aggrieved; his alleged injury must be concrete and particularized, actual or imminent, not

hypothetical. A plaintiff does not lack standing simply because he cannot prevail on the merits of

his claim; he lacks standing because his claim of injury is too slight for a court to afford redress. ” ).5 To that extent, I disagree with the majority as I would conclude the trial court did not err in denying

ETC ’s motion to dismiss based on lack of standing.

As for the claim s filed by the Dickinson family in 2014 (which they brought after H 2 S

killed cows on their property ), I would hold th ose claims differ from th e claims brought by Ageron;

and, in any event

, if the Dickinson family had sought damages for an injury to their right to develop

their minerals, th eir claims were premature ly brought. Specifically, the Dickinson family alleged

“ trespass, for causing H 2 S to enter their surface and mineral interest without consent[;] ” as well as

alleging “ waste, for diminishing the value of their mineral interests or making them impossible to

exploit[.] ” D espite these broad assertions, neither the pleading itself , nor any further proof

otherwise brought forth by ETC ’s motion to dismiss

, allege s an injury or interference with the

actual development of the Dickinson family ’s mineral interest

. See Lightning Oil , 520 S.W.3d at

49. And as for the ripeness of a mineral -injury claim , in Lyle v. Midway Solar, LLC , 618 S.W.3d

857, 875 ( Tex. App.— El Paso 2020, pet. denied), this Court determined that any cause of action

for interference with the right to develop is premature until the claimholder “ actually seek[s] to

develop their mineral estate.” Further explaining, we noted, “ [w] ere it otherwise a mineral owner

who undertakes no efforts to develop the mineral estate could claim damages from any surface

activities that might hinder— at some point in the future —the exploration for oil and gas.” Id

. at

874. I would thus conclude that the Dickinson family ’s pleading failed to allege an y injury to the

exercise of the ir right to develop the ir mineral s, and no proof of this type of injury was otherwise

provided by ETC ’s motion. As a result, the record fails to establish what ETC has argued as the

basis of its dismissal motion, that Ageron brings the same claims for the same injury to the same

property.

Lastly, the majority ’s determination that Ageron’s cause of action accrued at either the time

when the H 2 S crossed the lease boundary, or when the Dickinson family brought its property-6 owner claim, leads to other significant problems. Relying on the single-injury rule, it ultimately

require s future operators to bring causes of action at a point when damages to their development

rights are impossibly speculative and premature . I worry that such requirement will undesirably

chill mineral development as operators will be hesitant to explore in subsurface areas where a

migration of H 2 S has been earlier noted either by geological data alone, or by ill effects suffered

by livestock on the property.



### C ONCLUSION

In s ummary , I disagree with the majority ’s determination that Ageron has no standing to

bring its trespass

- with

- injury cause of action on the basis that any harm to its mineral interests

accrued no later than 2014 when th e Dickinson family pursued a trespass claim after their cows

had died due to their H 2 S exposure. I believe this conclusion conflates a surface owner’s trespass

to

- possessory -rights cause of action to its possessory rights with a trespass cause of action

belonging to a mineral lessee who sustains an injury while developing its mineral interest s. Instead,

I would conclude that Ageron established its standing to bring a trespass cause of action for

interference with its development right as shown by the catastrophic drill pipe failure in March

2022. Because the majority concludes otherwise, I respectfully dissent. 2

GINA M. PALAFOX, Justice

December 29, 2023

2 Because the majority opinion i s limited to standing, I similarly limit the scope of my opinion and I express no view

on the correctness of the trial court’s denial of ETC’s TCPA motion.