CADDNAR


[CITE: Schwoeppe v. DNR and Jochum, 4 CADDNAR 5 (1986)]

 

[VOLUME 4, PAGE 5]

 

Cause #: 86-030G

Caption: Schwoeppe v. DNR and Jochum
Administrative Law Judge: Lucas
Attorneys: Hustace; Miller, Dag; Schneider, Jochum
Date: September 30, 1986

ORDER

 

The issuance on July 5, 1985 by the State of Indiana DNR, Div. Of Oil and Gas, of permit #46550 to drill or deepen an oil or gas well is affirmed, but is subject to the following condition: the permit is restricted to the utilization of gas at the residence of Floyd Schwoeppe and as provided under Findings of Fact 42. An exception is granted to the general distance and spacing requirements set forth in 310 IAC 7-1 so long as the well is utilized for non-commercial gas production.

FINDINGS OF FACT

 

1. The Department of Natural Resources ("Department") is an agency as the term is defined under IC 4-22-1. The Natural Resources Commission of the Department (the "Commission") is the ultimate authority for the Department with respect to the subject matter of this administrative action.

 

2. Permit #46550 was issued on July 5, 1985 to Floyd Schwoeppe by the state of Indiana, Department of Natural Resources, Division of Oil and Gas, granting authority to drill or deepen an oil or gas well in Section 27, Township 3 South, Range 5 West in Dubois County, Indiana (Permit #46550:.)

 

3. During the February 1986 monthly meeting of the Commission, an initial determination was made to revoke the permit and to order the well authorized by permit #46550 to be plugged and abandoned under IC 13-4-7.

 

4. This administrative action was initiated upon the timely filing of written objections by the claimant, Floyd Schwoeppe ("Schwoeppe"), to the initial determination of the Commission identified in Finding 3.

 

5. The Commission appointed Stephen L. Lucas as an Administrative Law Judge under IC 4-22-1 and 310 IAC 0.5-1 to conduct the proceedings appropriate to a final resolution of this administrative action.

 

6. On March 25, 1986, Raymond Jochum ("Jochum") filed a written "Motion to Intervene" claiming the status of an affected person because he "is the owner of unconsolidated property and mineral interest of a portion of the drilling unit for the well drilled pursuant to Permit number 46550 and that said well is situated within sixty (60) feet of Movant's [Jochum's] property line in violation of IC 13-4-7 et. seq., 310 IAC 7-1-30, and 310 IAC 7-1-31." On the same date, the motion was granted, and Jochum was added to this cause as an intervening respondent.

 

7. A pre-hearing conference was held as scheduled in this administrative action on April 24, 1986 and was attended by all the parties and their counsel. An opportunity was provided for the settlement or adjustment of all claims, controversies and issues, but settlement was not attained.

 

8. Schwoeppe is a private entrepreneur engaged in agribusiness in Dubois County, Indiana. His operations, and those of a family corporation for which he is the principal shareholder, include the ownership and production of about 470 acres of farmland and the rental and production of an additional 30 acres of farmland. He maintains roughly 50 to 75 head of cattle. Acting under a trade name, he maintains a shop and supplies about 40 customers with agricultural fertilizer, seed and pesticides. Schwoeppe is a certified pesticide applicator. The operations include eight trucks and an infrequently used railroad siding.

 

9. The Site for Permit #46550 is located on a parcel of farmland owned by Schwoeppe which contains 100 acres. The parcel consists of the south one half of the northeast quarter (containing 80 acres) and the north one-half of the north one-half of the north one-half of the southeast quarter (containing 20 acres) of Section 27, Township 3 South, Range 5 West. Also located on the parcel are his personal residence, three grain bins and related drying facilities.

 

10. The shop identified in Finding 8 is located on real estate which is about one-half mile from the 100-acre parcel described in Finding 9.

 

11. Located on a third parcel owned by Schwoeppe, and contiguous or nearly contiguous to the shop, is a second house. Schwoeppe rents the house to other persons. Other farmland owned and operated by Schwoeppe is noncontiguous to the 100-acre parcel described in Finding 9.

 

12. The well site chosen for placement of the well under Permit #46550 was the same location as a well drilled in about 1955 under a

 

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communization agreement between Schwoeppe and Jochum. The original well was drilled for the commercial production of oil, but was plugged and abandoned in 1955, without being successfully produced.

 

13. During or prior to 1955, a developer had leased the mineral rights from Schwoeppe and Jochum in an effort to develop the well for oil production. The communization agreement referenced in Finding 12 was intended to facilitate that production. Continuation of the mineral lease was dependent upon the payment to Schwoeppe and to Jochum of royalties on production of the well, Because the well was not commercially produced, no royalties were paid, and the lease expired. With the expiration of the mineral lease, the communization agreement lapsed.[FOOTNOTE i]

 

14. Jochum is the owner of a parcel contiguous too, and immediately south of, the 100-acre parcel described in Finding 9. The parcel owned by Jochum includes 60 acres and contains all of the north one-half of the southeast quarter of Section 27, except the 20 acres owned by Schwoeppe (within the north one-half of the north one-half of the north one-half of the southeast quarter as described in Finding 9.)

 

15. The site for the well drilled under Permit #46550 is within the north one-half of the northwest quarter of the south east quarter of Section 27. The northern ten acres of this 20-acre parcel are owned by Schwoeppe, approximately 70 feet from The Jochum property line.

 

16. The well under Permit #46550 was drilled to a depth of 997 feet.

 

17. The well is drilled into a gas reservoir consisting of dolomite, a type of limestone.

 

18. With respect to the placement of a gas well drilled not more than 1,000 feet deep into a limestone reservoir, the general requirements for minimum distances from an adjacent property line are set forth in 310 IAC 7-1-30-(a): "All wells . . . .shall be located not less than three hundred thirty (330) feet from a lease line, property line or subdivision line which
separates unconsolidated property interests."[FOOTNOTE ii]

 

19. The general spacing unit requirements for gas wells are set forth in 310 IAC 7-1-31:

 

"The following drilling units are established:. . . (b) For limestone reservoirs. . .half a quarter, quarter section, containing twenty (20) acres, more or less, as established by the official US Public Lands Survey by the rectangular, surveying system for the state of Indiana. The use of any portion of one quarter, quarter section with any portion of another quarter, quarter section is prohibited unless approved by the commission after notice and hearing."FOOTNOTE ii]

 

20. In the absence of an agreement between Schwoeppe and Jochum, an involuntary unitization of their interests or a spacing exception provided by the Commission, the well drilled under Permit #46550 violates both 310 IAC 7-1-30(a) and IAC 7-1-31. The well is located closer than 330 feet to an adjacent property line, in that the well is located on property owned by Schwoeppe approximately 70 feet from the Jochum property line. The well is located within half a quarter, quarter section, containing 20 acres, only 10 of which are owned by Schwoeppe.[FOOTNOTE iii]

 

21. Schwoeppe testified that Jochum verbally "okayed" in advance his application for Permit #46550 and the development of a gas well at that site which would exclusively benefit Schwoeppe.  Jochum testified that he never agreed to authorize Schwoeppe to secure Permit #46550 or to the development of a gas well at the site which would exclusively benefit Schwoeppe.

 

22. Schwoeppe provided no consideration to Jochum for the privilege of developing the gas well.

 

23. The oral communication between Schwoeppe and Jochum prior to drilling the well under Permit #46550 was insufficient to establish a binding agreement authorizing Schwoeppe to develop the well for his own benefit.

 

24. Jochum is an affected person entitled to notification under IC 4-22-1 of the issuance to Schwoeppe of Permit #46550.[FOOTNOTE iv]

 

25. Jochum was not made aware that the well was being reopened until he observed drilling equipment on the site.

 

26. Several days passed from the first observation by Jochum of the drilling equipment, but he did nothing to prevent drilling operations or to communicate to Schwoeppe his opposition to the project.

 

27. Schwoeppe has expended approximately $23, 700 in an effort to put the well into the production of gas. Most of that amount was expended in the actual drilling of the well, including materials and labor expenses.[FOOTNOTE v]

 

28. The well has produced a high quality of gas, suitable for usage in equipment and heating appliances available to Schwoeppe. An analysis of the available gas indicates it consists primarily of methane, with lesser

 

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amounts of ethane and propane. The heating value of the gas is satisfactory. The sulfur content is low.

 

29. The quantity of gas produced at a utilitarian level for no more than two or three hours in a 24-hour period. Even at that minimal level or production, gas pressure is reduced nearly to zero, allowing the intrusion of water into the well. Where that intrusion occurs, subsequent production is hampered by the need to siphon and remove the water.

 

30. Commerce means business. A commercial gas well means a well capable of producing gas having a quality and quantity which is suitable for business purpose. An element of commercial utilization may be whether the gas is transported from place to place.

 

31. The quantity of gas produced by the well is not currently sufficient for commercial production.

 

32. The zone of production is probably not capable of affording a quantity of gas which is sufficient for commercial purposes.

 

33.  Commercial production from the well is not reasonably foreseeable.

 

34. The Commission has frequently and consistently provided distance and spacing exceptions to an applicant seeking a permit for the noncommercial production of gas.

 

35. The policy identified in Findings 34 is founded upon the general statutory authority of the Commission to provide drilling units, particularly as set forth in IC 13-4-7-13. That section provides in pertinent part that the Commission shall, "having consideration for the regional geologic characteristics and all other pertinent facts conducive to the most efficient and economical ultimate recovery of oil and gas there from and shall make such orders, rules and regulations as will regulate the spacing of wells within such limits."

 

36. As issued on July 5, 1985, Permit #46550 makes no restriction to noncommercial usage and does not provide an exception to spacing based upon a noncommercial production of gas.

 

37. In its "Verified Petition Seeking Exception to Spacing Requirements and Drilling Unit Rules; to Consolidate with Administrative Cause Number 86-030G and for Other Relief", as filed in this action on July 15, 1986, Schwoeppe sought a distance and spacing exception based upon a limitation that the well be used "on Schwoeppe's premises solely for his personal use."

 

38. An exception to the spacing and distance requirements should be afforded to Schwoeppe and the issuance of Permit #46550 approved.[FOOTNOTE vi]

 

39. Utilization of the gas well should be limited to noncommercial purposes.

 

40. Schwoeppe proposes to utilize gas produced from the well to provide an energy source at his residence.

 

41. The purpose identified in Finding 40 is a noncommercial purpose.

 

42. Schwoeppe proposes to utilize gas produced from the well to operate drying facilities at the grain bins located near his residence. The dryers would service grain produced on the 100-acre contiguous acreage owned by him, as well as on noncontiguous acreage, whether that acreage is owned or rented by Schwoeppe.

 

43. Schwoeppe has demonstrated to the satisfaction of the Natural Resources Commission that the purpose identified in Findings 42 is noncommercial.

 

44. Schwoeppe has commenced a gas pipeline from the well which would service the shop and the residence which he rents to other persons. When completed, that pipeline would exceed one-half mile long. Most of the length of the pipeline would cross property owned by persons other than Schwoeppe. [The shop and other residence are described in Finding 10 and Finding 11.]

 

45. The purposes identified in Finding 44 are not noncommercial.

 

46. Permit #46550 should be conditioned upon, and restricted to, utilization of gas at the Schwoeppe residence and as provided under Finding of Fact 42.

FOOTNOTES


i. The evidence does not disclose the exact date upon which the communization agreement between Schwoeppe and Jochum lapsed. The clear inference is that the lapse occurred several years ago, and the communization agreement does not bear upon the relationship of Schwoeppe and Jochum with respect to Permit Number 46550.

ii. 310 IAC 7-1-30 and 310 IAC 7-1-31 were amended by action of the Commission effective June 22, 1986. The amendments were technical and did not modify the distance or spacing requirements for the placement of gas wells. These rule sections are quoted in their current form, but the substance of these provisions prior to June 22 was the same.

 

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iii.
A half quarter-quarter section is a rectangular (as opposed to a square) parcel containing 20 acres. Stated in the alternative, a half quarter-quarter section consists of two square quarter-quarter-quarter sections containing 10 acres each place adjacent to each other. For the parcel in question in this Administrative Action, if the half quarter-quarter section is formed so that the longer sides of the rectangle run east and west, 10 acres are located on the Schwoeppe property and 10 acres on the Jochum property. If the half quarter-quarter section if formed so that the longer sides of the rectangle run north and south, 5 acres are located on the Schwoeppe property and 15 acres on the Jochum property. Whether by convention or otherwise, the parties have not disputed that the correct orientation of the half quarter-quarter section is east and west, rather than north anD south.

iv. The testimony does not specifically disclose whether Jochum received notification under IC 4-22-1 of the issuance (as in initial determination) of Permit 46550, but the implication is that he did not. A permit was issued without notification by certified mail to an affected person is void ab initio (from the beginning.) See Indiana Environmental Management Bd. V. Town of Breman (1984), Ind. App., 458 N.E. 2d 672. Neither Schwoeppe nor the Department questions the standing of Jochum to participate in this administrative hearing. Technically speaking, the action arises as a permit revocation, and the objections by Schwoeppe to that revocation. Compliance with IC 4-22-1 in the initial permit process is not directly in issue. The requirements of IC 4-22-1 are significant to a resolution of this administrative action,, since Schwoeppe seemingly argues that the apparent issuance to him of Permit #46550 provides a favorable standing in terms of the relief which should be accorded. A special posture might arguably be afforded if the Department were the only adverse party, but not where a complaining party is one who did not receive statutory notification of the permit issuance. A permit issued without compliance with the notification requirements of IV 4-22-1 is no permit at all.

v. The evidence does not disclose how much of the $23,700 amount was expended by Schwoeppe after Jochum observed the drilling equipment at the well site. Because several days passed from Jochum's first observation of the equipment, however, without any protest of the project, a reasonable inference is that a substantial portion of the amount was expended after he had actual knowledge of the project.


vi. This conclusion is founded upon the totality of the evidence presented as demonstrated by these Findings of Fact. Two aspects of the evidence are particularly noteworthy. The testimony was undisputed that the Commission policy is to provide a distance and spacing exception like the one here applied with respect to a permit for the noncommercial production of gas. Also, Jochum demonstrated a lack of diligence after he had actual knowledge that Schwoeppe had placed drilling equipment upon the site. The result was a considerable financial expenditure by Schwoeppe--an expenditure which may never be recouped, even if he is allowed to produce the well.