Leasing AFTER a well has already started drilling

What are a mineral owner's options AFTER a well has already started drilling on a spacing unit?

A landman has turned up mineral acres we MAY own south of Ray and is rushing us to sign immediately (assuming we own them). I understand an arbitrary deadline is usually their tactic to get the lease, but is there really any difference if we sign before the drilling is completed? Or at any other time?

Can anyone explain to me the pros and cons of LEASING or NOT leasing, "participating, etc.? I can't make heads or tails out of the actual implications of the Century Code.

If we decline to sign this lease, what would be the downside?

Thanks everyone.

Lily

Lilly, If you want to lease, you should do it before the well is completed, producing, because the operator will force pool you if by that time you aren't leased. Even if the operator force pools you, you could still lease to the operator, but you would be at a disadvantage then because you couldn't lease to anyone else. I've had quite a bit to say about being non-consent. I am non-consent in several wells. If you search my name, add ND and non-consent, you will probably find more than you want to read. If you give the township range and section I would give you my opinion if it would be a good area to even consider being non- consent and why, or why not.

My gut feeling is that if you go-non consent, you may gorego any lease bonus and after 150% of CWC, you will be a full working interest owner in the well. There may be positives to that, however, there is expense (LOE) when you reversionary interest vests and there is certainly liability. During the non-consent period you will receive 16% royalty.

Therefore, if you are desirous of maximizing royalty and bonus without being a working interest owner, an Oil and gas Lease at favorable terms may best suit you.

If you are a sophisticated investor in Oil and Gas and are comfortable with such investments and your unit/units particularly, then participating is a reasonable substitute to leasing.

If you chose to be a "participating owner", you would be responsible in sharing in costs of drilling and maintaining the well. Cost of a well is in neighborhood of $9 Million or more. You would also assume liabilities should there be any problems. On flip side, you have potential to make higher returns than if you simply lease. One should only choose this option if you are very knowledgeable about the process, willing to take on additional risks and have benefit of attorney to help. Given you had to ask the question, I'd say it's not for you. Sure wasn't for me.

When leasing, you do not share in the costs of production nor do you have any liabilities should there be problems. Upon leasing you will receive a "bonus" (should be somewhere around $2,000 per net mineral acre) plus a royalty from production. These figures will vary depending on company and expected productivity of particular property. Both the bonus and royalty percentage are negotiable. If you do not lease, you will be "force pooled" as mentioned by Mr. Kennedy. If you go this way, you won't receive any bonus money and will not be able to negotiate the royalty %. My opinion, it is best to negotiate best bonus and royalty terms you can and lease.

Mr. Brown, not all wells pay out in two years. I think you will be considerably more happy with your wells in 3 to 4 more years. The Omar 6-12H may help also when it starts producing. While your other wells aren't monsters they seem like they are going to be profitable. My wells from one operator that I went non-consent on have been producing about the same amount of time yours have and just last week the operator told me they would still lease me if I ever wanted to, I wonder why that is? Why would they want to give me all that free money? I'm thinking that like me, the operator is taking the long view. Sure the 16% royalty isn't making me instantly rich but it makes me comfortable until I can collect the 100% less cost of production for the decades to come and $5,000 an acre and another 4% royalty now isn't enough to make me give up the long term upside. I wouldn't be thrilled with your wells but I would be satisfied, but I take the long view. If you did not pay participation and went non-consent, perhaps your operator would lease you, as mine has repeatedly offered? I hope things go more to your liking in the future.

I concur with Mr. Kennedy. My operator is about to drill our 2nd well and they included a lease offer in the Invite to participate letter.

It really boils down to how many mineral acres and where the person is at financially. If you are in a nursing home and have no family, take the lease money. If you are young and think it might be cool to retire by the time your 40 something, then take that into consideration. But it is important to keep in mind that when you lease, it isn't "per well" $2,000 bonus acre might not sound bad, but when those acres have 4,6,8,14,or as we have heard possible, even up to 34 wells...then that $2,000 an acre is looking pretty sickly, in my opinion...

Would you lease oil producing minerals for $250 an acre? and give up 80% of your oil for that $250 an acre? That is what you are doing if your minerals have 8 producing wells. May be awhile before having 8 wells...or more...but it is happening and this calculus is a reality for those people.

The vast majority of mineral rights owners have little to no knowledge of the oil & gas industry and the ins and outs of leasing, oil production, etc. This forum certainly helps and I've learned a lot in the last year. But I'm nowhere the expert and I suspect very few people have either the time or inclination to become true experts. I'm suspecting Lily to be in this category. Mrrs. Kennedy and Babcock clearly have been at this awhile and developed quite a bit of knowledge...I think you are in the minority of mineral rights owners. Thus, my recommendation was aimed at the majority who don't have this level of knowledge. Following is a comment posted in 2011 on this subject from a gentleman named Ed, a prior landman, that I think best explains why I stand by my recommendation for Lily:

I am now retired, but I have spent 30 years as a Landman and Land Manager for a major oil company as well as an independent. I have negotiated operating agreements for that entire time and participated in hundreds of forced pooling negotiations. My sincere advice to you as an individual mineral owner is to avoid being a working interest owner in almost every case. The costs to drill the initial well, while very substantial, are not the only costs you will or can incur. Operating costs, additional wells, workovers, pipelines, surface equipment, insurance, remediation, etc all have to be paid once you sign the operating agreement and the other partners are not going to give you advice on what to do. In fact, it is in their best interests for you to remain in the dark about their plans. You can hire consultants, lawyers, geologists, engineers etc and attempt to be on equal footing with the other working interest owners, but in the end you will lack data and expertise that they have and it will cost you money. A non-consent election on a well can sometimes be the most expensive decision you ever make, but you might be forced to make that decision with little or no knowledge of what you should really do. You should not think of signing a lease with a 20% royalty as giving up 80% of your mineral rights, you should look at it as what it is, a cost free, risk free 20% of the production from the well. If the trend is very active and productive, you may even be able to increase that royalty percentage to 25-30%.

Unless you are an experienced person in oil and gas and have very substantial finances, my advice is to negotiate the highest royalty rate and cash bonus per acre possible, keep the lease term as short as possible, and let someone else spend the money to drill and operate the wells. Remember, dry holes are bad, but a well that is a poor producer that you keep putting money into hoping it will improve can be even worse.

Knowledge is the key to getting the best possible lease terms. Contact a reputable oil and gas attorney to draft and negotiate the lease document, hire a landman for a few days to find out what the maximum lease terms being paid are and what how wells in the area have been performing.

I wish you all the best

God bless

Ed

One last comment to add. In addition to production and operating costs, a working interest owner assumes liabilities should there be a problem. For example, what if an environmental clean-up is required, or a lawsuit brought against the owners...you will be required to pay for these clean-up and/or legal costs as well. Is it likely? Probably not. Just saying that you assume greater risks.

Who says you can't be held responsible if you lease, unless you have an indemnify defend and hold harmless clause? How many people out there have an indemnify defend and hold harmless clause in your lease? How many people out there would like to take a wild guess at who et all is?

If you don't have the experience you aren't going to negotiate a great lease anyway. I've heard of far more lawyers that just phoned in their part rather than exerting the effort to get their clients the best lease possible. If you don't have the experience you don't know if you are actually getting the help you are paying for.

I had an industry person tell me that when he signed the JOA that if he couldn't pay his part he had agreed to a 300% penalty. I asked him why in the world he would sign such a document? If you agree to a 300% penalty a 300% penalty you will have, you did it to yourself. If you spend every penny that comes from your part of production and not set any aside for future need, is that smart business? You can't get away with being unbusinesslike in any other business, why would anyone think oil is any different?

Mr. Brown, I'm starting to think you participated without gathering all the needed information and things didn't go well for you. I think you may be transfering your experience, that what happened to you must happen to other people.

I have people PM me all the time asking my opinion, some I tell no, that one acre will not make it worth their time to learn the ins and outs of an industry. Others I have to tell them that their acres do not look like they will be productive to pay out and recover a penalty within 10 years and may not have alot of productive life left afterwards, so probably isn't worth it at least near to mid term.

Most people who contact me are interested in non-consent, where they owe nothing out of pocket until the well is paid for and the risk penalty retired. If that time comes and you decide that being an owner is not for you, you can sell your part of the well, and retain your mineral rights. If the well is really bad or about to be capped, by law you can give your part of the well to the operator and he must pay you the salvage value of your part of the well and you are not responsible for any of the wells bills from then on, and of course you are no longer entitled to any of the future production of that well, should they rework it and get some life out of it. You can still be non-consent, lease or participate in the next well if there is one.

It's a business. If you expect great things, it stands to reason that you are going to have to put some time in understanding the business you are in. If you will not even spend the $50 per year for the basic subscription to the NDIC O&G division, any type of participation in a well is probably not for you. You might also ask yourself if just because you did not do your homework, does that mean that nobody else will?

I have been at this for about two years. I believe that most people can do whatever I do if they have a desire to do so. I'm always glad to give people a boost up also, it ought to cut the learning curve considerably. The other beautiful thing is I don't care which way people choose, I just want it to be an informed decision when they do.

I don't sign JOA's. Once you sign one of these, your remedies are limited to what the JOA says they are.

You need to be insured if you have a working interest and by signing the JOA you get to buy into their coverage. You can get your own but I have no idea how much more than the operators that would be. You can, and probably should isolate each well into a separate LLC. So if one well kills a flock of Whooping Cranes, you will only be financially exposed for the assets you have in that well.

None of this is to be construed as legal advice, it is only my opinion.

Hi, Thanks to everyone for all the input.

I'm just joining a family with ND minerals so this is all new to me. (Some of them apparently don't know much more about leasing their minerals than I do; they're just happy to be getting a little royalty check, and that's all they care about, which is a little scary to me!) So I'm trying to educate myself on this whole process.

The siblings that actually communicate negotiated better royalty and bonus rates and the family lawyer made a few typical changes to the lease terms (ie, deleted warranty of the deed, added a pugh clause, etc.) But since this involves a very limited number of mineral acres, it's not worth investing a lot of $ to alter other terms of the lease (which I believe are still unfavorable) or going non-consent. The minerals will still need to be probated, I assume.

A few other mineral acres have already been leased (with the lawyer's input) but nobody knew much about leasing then and things have obviously changed in the last 2-3 years! We may get one last chance to renegotiate a lease that expires this year on a slightly larger parcel, so I'd like to be better prepared to help get the best deal possible, which is why I'm here studying up.

Mr. Kennedy, I read through all your "non-consent" comments. Obviously many people have the same questions I did! Thanks for sharing your experience and educating all of us!

How many mineral owners actually pass up the chance to lease? I assume it's a very small percentage.

In your opinion (or anyone else's), what's the minimum number of mineral acres worth going non-consent? Assuming a typical 1280 spacing unit, an "average" well in Williams or Mountrail county, if someone owns only 1 parcel of minerals (all their eggs in one basket) do they need 10, 40, 160, 320, or more acres? How many years would it take to come out ahead, on average? How much $ would a well drilled today in, for example, Oliver or New Home, make PER ACRE, over it's lifetime (say 30 years at the current price of oil)?

Thanks for any info.

I don't think you should concern yourself with a minimum non-consent position. It is an economic decision that you make for a Well Proposal today and each Well Proposal thereafter. Assuming the Completed Well Cost at $11mm and lets say your unleased position is 5.0 net mineral acres, you would be looking at:

5.00/1280 = 0.390625% (Gross Working Interest). During the Risk Assessment period, you would receive 16% royalty = .0625% an when the well produced $16.5mm in product sales, you would be a working interest owner to the GWI/NRI of .390625%. There will be lease operating expenses along the way so the $16.5mm is an approximation.

Therefore, during your non-consent period while the risk assessment is applied, your 16% royalty over time on the approximate $16.5mm product sold would be $10,312.50 and at Risk Assessment payout, your revenue would increase to 0.390625% of all product sold less expenses.

$16.5mm in production (using Oil sales only and $80.00/BO) equates to 206,250 BO. Some areas have had production success of 100m+ BO/year but most average (over the first 180 days of production) 250 BOPD or less.

The decision is whether the lease bonus and a royalty interest higher than 16% makes more sense to you (foregoing all future potential to receive bonus, but locking in a good royalty) versus participating.

Your question of a minimal position is purely financial. A few hundred thousand dollars to you may be nothing for an investment or a few thousand dollars may be a years worth of savings?!?!? Your investment, should you go that way, should be based on all of the information available to you and should be based on ROI (not size of investment) whether it is $2,000.00 or $200,000.00. At the end of the day, those are just commas and decimal places.

Lilly, before I made any kind of decision I would look at production of offset wells [other wells nearby] which is not hard to do. Usually the intelligence gathering can't be done on an area or township level, best information comes from the next spacing over, above or below. In the Bakken, you also want to consider that wells with numbers from 16,000 to 17,000 (file #) are from when they were still figuring out how to get the best production and may not be typical of results of a new well with twice or three times the frack stages, the use of more and better sand and ceramic propants. I'm willing to help for the asking. I promise not to drive my toyota halfway across the country, dig a hole 10,000 feet deep and steal your minerals, I leave that sort of thing to land companies and lessees.

I am non-consent in a spacing where I have 1.93 acres, if that was all I had, I think I would have been better off leasing but I have other acres in parcels ranging from 3 to 11 acres scattered about. I think 5 to 10 acres, in a good area is enough to make it worth your while. If you get a good well, it pays out, you get 6 1/4 times the money you had been getting with your 16% royalty, less costs which are generallt very low. You need to sock some of that back for rainy days, that does not mean you can't use it. You could pay off your house and open a line of credit so you would have ready money to pay your well bills. If you are only getting after costs 4 times the amount that those who leased for 20% are receiving, it wouldn't take long to catch up and pass those who leased for a little more royalty and bonus.

I have a friend who has a well that has done 100k bbl oil in 8 months, the expenses for his ten acres in that time were $65. I have a well that costs me about $1.40 a month per acre.These are not low producing stripper wells as some have said.

Many people are comparing Bakken wells to verticle wells or horizontal gas wells in TX and OK but to call them apples and oranges is an injustice because they aren't even that close. The plan from the beginning of verticle wells is to rework them, in the same producing zone or when they plug them and change to a different zone. Major remedial work on a extended long lateral Bakken well is rare. The only XXL Bakken wells I have heard of that have been refracked only had 1 or 2 frack stages to begin with, they were wells from a decade ago. So rare that when I want to talk to someone at the NDIC about one they say they don't know anything about it because it's so rare.

Just throwing out some rough numbers, a pretty poor but still commercially profitable area may produce $25,000 per acre and after costs give you the equivalent of a lease at 33%. $25,000 per acre is only 312 bbl an acre over the life of the well at $80 a bbl. $50,000 per acre is about what they are talking about with a 750,000 bbl EUR, this would be a good area. A great area could be $100,000 per acre or more. In my example above in a poor well 67% of the value of produce from your acres could be eaten up by costs, I would still take it if I had enough acres to make it worth watching, 5 or more, and sell it when it declined enough that it wasn't worth the time anymore, because nobody is offering me a 33% royalty with or without bonus. If the well really is losing money, give it back to the operator so he has to pay you the salvage value and you are no longer responsible for the bills,you will retain your mineral rights in the next or any other wells.

Lets look at the $50,000 per acre, which is just ho hum, average to good. The well cost has not gone up much if any but the money has doubled. It is time to flip the script, you could well have the equivalent of 67% royalty after costs. 5 acre at 20% royalty and $2,000 bonus for $250,000 = $60,000 over 30 years but that is if the operator can't make deductions from your royalty for anything. $250,000 X .67 = $167,500 over 30 years, this is very close to what the operator would make after paying royalty, YOU PAY NOBODY A ROYALTY, you get 16.67% to 20% more from your acres than the operator does. If you can't pay your bills with 16.67 to 20% more than what the operator receives, then the operator is going broke. This is not counting deductions that you have as an owner that lessor mineral owners don't have. Do I even have to get into the $100,000 per acre minerals? That still wouldn't be monster production, just very good.

The point of all this is that non-consent, you still have options. The operator is still telling me I can lease if I want, because long term, the operator wants the money from my acres and not just a risk penalty. If I felt like cashing out I could sell my interest in the wells for more than I would receive in royalty right now and not have to wait 30 years. Do some research, look at some of the nearby wells production, crunch some numbers, read the law. It makes no difference to me what you decide, I just want your decision to be an awake and informed one. The industry people generally tell you to roll over and go back to sleep. Most industry people don't know a thing about going non-consent in ND, why should they? If you go non-consent the industry people have failed, they probably will not make the lions share of the money off your acres. Mineral owners who will not lease in ND are bad for profit in any area that is commercially profitable. That being the case they are going to drag out every verticle gas well horror story that they can find anywhere and use it to say this could happen to your Bakken XXL oil well.

There are risks, your well could be drilled, completed and immediately be plugged if it doesn't produce and the operator can place a lien against the PRODUCTION of your minerals, THE MINERALS HE FAILED TO FIND. Might as well place a lien against the air in my backyard. There will not likely be another attempt to produce minerals from your acres if the well was that bad. You could also go non-consent in any future well and collect the mandated 16% royalty from the first barrel, which is not chickenfeed.

If your well just barely manages to pay out and retire the penalty, you will be responsible for the bills from that point. You get to make the decision of keeping your part of the well or giving it back and letting the operator pay you the salvage value of your part of the well. You have not signed a suicide pact with the well draining your finances month after month, year after year as the industry people say it will. They frequently talk about plugging cost, that would be a good point to give your interest back and let the operator pay you the salvage cost, if you haven't already done so. You still own the minerals, you still have ownership in any other wells, it's not all or nothing.