J & L Family L L C v. B H P Billiton Petroleum Properties (N a) L P et al

MOTION for Summary Judgment

W.D. La.June 29, 2017

1 4631252_1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION J & L FAMILY, L.L.C. * CIVIL ACTION NO. 5:16-cv-01193 * * VS. * HONORABLE JUDGE FOOTE * BHP BILLITON PETROLEUM * PROPERTIES (N.A.), LP, ET AL * MAGISTRATE JUDGE HORNSBY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * BHP’S MOTION FOR PARTIAL SUMMARY JUDGMENT NOW INTO COURT, through undersigned counsel, come Defendants, BHP BILLITON PETROLEUM PROPERTIES (N.A.), L.P, PETROHAWK ENERGY CORPORATION, BHP BILLITON PETROLEUM (KCS RESOURCES), L.L.C., and BHP BILLITON PETROLEUM (TXLA OPERATING) COMPANY (collectively referred to herein as “BHP”), who, pursuant to Rule 56 of the Federal Rules of Civil Procedure, hereby move for partial summary judgment as to several claims made by Plaintiff, J&L Family (“Plaintiff”). WHEREFORE, for the reasons detailed in the attached memorandum, BHP prays that after due proceedings had, this Court grant BHP’s Motion for Partial Summary Judgment finding that: a. Plaintiff has no claim pursuant to La. R.S. 31:212.21 et seq.; b. Plaintiff has no claim for contract fraud pursuant to La. C.C. art. 1953 et seq.; c. Plaintiff has no right to recover attorney’s fees pursuant to La. R.S. 31:212.31; d. Plaintiff has no right to recover attorney’s fees pursuant to a claim for tort fraud. BHP further prays for all other general and equitable relief. Case 5:16-cv-01193-EEF-MLH Document 48 Filed 06/29/17 Page 1 of 2 PageID #: 1144 2 4631252_1 Respectfully submitted, LISKOW & LEWIS s/ April L. Rolen-Ogden April L. Rolen-Ogden (Bar # 30698) Brittan J. Bush (Bar # 34472) Michael H. Ishee (Bar # 36507) LISKOW & LEWIS 822 Harding Street Lafayette, Louisiana 70503 P. O. Box 52008 Lafayette, Louisiana 70505-2008 Telephone: (337) 232-7424 Facsimile: (337) 267-2399 arolen-ogden@liskow.com bjbush@liskow.com mhishee@liskow.com Attorneys for BHP Billiton Petroleum Properties (N.A.), LP, Petrohawk Energy Corporation, BHP Billiton Petroleum (KCS Resources), L.L.C., and BHP Billiton Petroleum (TXLA Operating) Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of BHP’s Motion for Partial Summary Judgment is being served upon all counsel of record by electronic mail by the Clerk of the Court via the CM/ECF system this 29th day of June, 2017. s/ April L. Rolen-Ogden April L. Rolen-Ogden Case 5:16-cv-01193-EEF-MLH Document 48 Filed 06/29/17 Page 2 of 2 PageID #: 1145 1 4635081_2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION J & L FAMILY, L.L.C. * CIVIL ACTION NO. 5:16-cv-01193 * * VS. * HONORABLE JUDGE FOOTE * BHP BILLITON PETROLEUM * PROPERTIES (N.A.), LP, ET AL * MAGISTRATE JUDGE HORNSBY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * BHP’S STATEMENT OF UNCONTESTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT In accordance with Local Rule 56.1, Defendants submit the following Statement of Uncontested Material Facts which Defendants contend there is no genuine issue to be tried: 1. J&L Family, LLC (“J&L”) currently owns land (the “Subject Tracts”) situated within HA RA SUZZ Unit (the “Powers Unit”) and the HA RA SU55 Unit (“Jestma Unit”).1 2. J&L’s ownership interest in the Subject Tracts is not subject to an oil and gas lease.2 3. On February 11, 2009, the Commissioner of Conservation issued Order No. 361-L-20, effective on and after January 27, 2009, which created the Powers Unit.3 1 Declaration Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746 of Chris Griffin, attached to BHP’s Motion for Partial Summary Judgment as Exhibit “1,” ¶ 9. 2 Id. at ¶ 10; Plaintiff’s Petition for Damages & Declaratory Relief (Entry No. 1, Attachment No. 2), ¶ 3. 3 Declaration Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746 of Chris Griffin, attached to BHP’s Motion for Partial Summary Judgment as Exhibit “1,” ¶ 4. Case 5:16-cv-01193-EEF-MLH Document 48-1 Filed 06/29/17 Page 1 of 4 PageID #: 1146 2 4635081_2 4. In addition, on April 17, 2013, the Commissioner of Conservation issued Order No. 361-L-116, effective on and after April 2, 2013, which authorized BHP4 to drill alternate unit wells associated with the Powers Unit.5 5. The Powers 21H-1 Well, Powers 21H-3 Alt. Well, and Powers 21H-4 Well were drilled in the Powers Unit.6 6. BHP is the operator of record for the Powers 21H-1 Well, Powers 21H-3 Alt Well, and Powers 21H-4 Alt Well.7 7. On May 28, 2009, the Commissioner of Conservation issued Order No. 361-L-30, effective on and after April 28, 2009, which created the Jestma Unit.8 8. Subsequently, on May 31, 2012, the Commissioner of Conservation issued Order No. 361-L-115, effective on and after May 30, 2012, which authorized BHP to drill a substitute well associated with the Jestma Unit.9 9. The Jestma 22H-1 and Jestma 22H-2 Alt Wells were drilled in the Jestma Unit.10 10. BHP is the operator of record for the Jestma 22H-1 and the Jestma 22H-2 Alt Wells.11 4 BHP Billiton collectively refers to all of the defendants in this matter. 5 Declaration Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746 of Chris Griffin, attached to BHP’s Motion for Partial Summary Judgment as Exhibit “1,” ¶ 5. 6 Id. ¶ 8. 7 Id. 8 Id. at ¶ 6. 9 Id. at ¶ 7. 10 Id. at ¶ 8. 11 Id. Case 5:16-cv-01193-EEF-MLH Document 48-1 Filed 06/29/17 Page 2 of 4 PageID #: 1147 3 4635081_2 11. BHP and J&L have not executed a contract regarding any of the aforementioned wells (collectively referred to as the “Subject Wells”) located within the Powers Unit or the Jestma Unit.12 12. More specifically, BHP and J&L have not executed any division orders, joint operating agreements, marketing election letters or other contracts that govern the rights and obligations of the parties as to the costs associated with the joint development of the Subject Wells, marketing of production from the Subject Wells, and/or the terms of payment of revenue attributable to production from the Subject Wells.13 Respectfully submitted, LISKOW & LEWIS s/ April L. Rolen-Ogden______________________ April L. Rolen-Ogden (Bar # 30698) Brittan J. Bush (Bar # 34472) Michael H. Ishee (Bar # 36507) LISKOW & LEWIS 822 Harding Street Lafayette, Louisiana 70503 P. O. Box 52008 Lafayette, Louisiana 70505-2008 Telephone: (337) 232-7424 Facsimile: (337) 267-2399 arolen-ogden@liskow.com bjbush@liskow.com mhishee@liskow.com Attorneys for BHP Billiton Petroleum Properties (N.A.), LP, Petrohawk Energy Corporation, BHP Billiton Petroleum (KCS Resources), L.L.C., and BHP Billiton Petroleum (TXLA Operating) Company 12 Id. at ¶ 11. 13 Id. at ¶ 12. Case 5:16-cv-01193-EEF-MLH Document 48-1 Filed 06/29/17 Page 3 of 4 PageID #: 1148 4 4635081_2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of BHP’s Statement of Uncontested Material Facts in Support of its Motion for Partial Summary Judgment is being served upon all counsel of record by electronic mail by the Clerk of the Court via the CM/ECF system this 29th day of June, 2017. s/ April L. Rolen-Ogden______________________ April L. Rolen-Ogden Case 5:16-cv-01193-EEF-MLH Document 48-1 Filed 06/29/17 Page 4 of 4 PageID #: 1149 1 4631806_1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA SHREVEPORT DIVISION J & L FAMILY, L.L.C. * CIVIL ACTION NO. 5:16-cv-01193 * * VS. * HONORABLE JUDGE FOOTE * BHP BILLITON PETROLEUM * PROPERTIES (N.A.), LP, ET AL * MAGISTRATE JUDGE HORNSBY * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF BHP’S MOTION FOR PARTIAL SUMMARY JUDGMENT MAY IT PLEASE THE COURT: This is a suit by an unleased owner, Plaintiff, against its unit operator, BHP Billiton (“BHP”)1 for various claims, including claims under La. R.S. 31:212.21 et seq., La. R.S. 31:212.31, La. C.C. art. 2315 for tort fraud, and La. C.C. art. 1953 for contract fraud and attorney’s fees. However, as a matter of law based upon the undisputed material facts, Plaintiff has no claim under La. R.S. 31:212.21 et seq. or La. C.C. art. 1953. Moreover, as a matter of law, Plaintiff has no right to recover attorney’s fees pursuant to either La. R.S. 31:212.31 or tort fraud. Accordingly, BHP is entitled to judgment as a matter of law on these claims. INTRODUCTION This Motion turns on two primary factors: (1) Plaintiff’s status as an unleased mineral owner in drilling and production units established by the Commissioner of Conservation, and (2) 1 BHP collectively refers to the defendants in this matter, BHP Billiton Petroleum Properties (N.A.), LP, Petrohawk Energy Corporation, BHP Billiton Petroleum (KCS Resources), L.L.C., and BHP Billiton Petroleum (TXLA Operating) Company. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 1 of 9 PageID #: 1150 2 4631806_1 the scope of damages and penalties Plaintiff, as an unleased owner, has a right to recover under the law. BHP operates a number of wells in drilling and production units created by the Commissioner of Conservation. In the HA RA SUZZ Unit (the “Powers Unit”), BHP drilled the Powers 21H-1 Well, the Powers 21H-3 Alt. Well, and the Powers 21H-4 Alt. Well.2 In addition, in the HA RA SU55 (the “Jestma Unit”), BHP drilled the Jestma 22H-1 Well and the Jestma 22H-2 Alt. Well (all five wells at issue are collectively referred to herein as the “Subject Wells”).3 Plaintiff owns property included within the Powers Unit and the Jestma Unit (the “Subject Property”),4 and the Subject Property is not subject to any oil and gas lease.5 In Plaintiff’s suit against BHP, Plaintiff has alleged claims of fraud against BHP, presumably arising under both contract and tort. Furthermore, Plaintiff has alleged that BHP is liable for attorney’s fees pursuant to La. R.S. 31:212.21 et seq. and La. R.S. 31:212.31. As set forth more fully below, because Plaintiff is an unleased mineral owner in the Powers Unit and the Jestma Unit, Plaintiff has no claim under La. R.S. 31:212.21 et seq. or La. C.C. art. 1953 et seq. Moreover, Plaintiff has no legal right to recover attorney’s fees pursuant to either La. R.S. 31:212.31 or a tort fraud claim. 2 Declaration Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746 of Chris Griffin, attached hereto as Exhibit “1,” ¶ 8. 3 Id. at ¶ 8. 4 Id. at ¶ 9. 5 Id. at ¶ 10; Plaintiff’s Petition for Damages & Declaratory Relief (Entry No. 1, Attachment No. 2), ¶ 3. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 2 of 9 PageID #: 1151 3 4631806_1 ARGUMENT I. PLAINTIFF HAS NO CLAIM UNDER LA. R.S. 31:212.21 Plaintiff has alleged that Defendant is liable for penalties and attorney’s fees pursuant to La. R.S. 31:212.21 et seq. This statutory framework is as follows: § 212.21 Nonpayment of production payment or royalties; notice prerequisite to judicial demand If the owner of a mineral production payment or a royalty owner other than a mineral lessor seeks relief for the failure of a mineral lessee to make timely or proper payment of royalties or the production payment, he must give his obligor written notice of such failure as a prerequisite to a judicial demand for damages. § 212.22 Required response of obligor to notice The obligor shall have thirty days after receipt of the required notice within which to pay the royalties or production payments due or to respond by stating in writing a reasonable cause for nonpayment. The payment or nonpayment of the sums due or stating or failing to state a reasonable cause for nonpayment within this period has the following effect. § 212.23 Effects of payment or nonpayment with or without stating reasonable cause therefor; division order A. If the obligor pays the royalties or production payments due plus the legal interest applicable from the date payment was due, the owner shall have no further claim with respect to those payments. B. If the obligor fails to pay within the thirty days from notice but states a reasonable cause for nonpayment, then damages shall be limited to legal interest on the amounts due from the date due. C. If the obligor fails to pay and fails to state a reasonable cause for failure to pay in response to the notice, the court may award as damages double the amount due, legal interest on that sum from the date due, and a reasonable attorney's fee regardless of the cause for the original failure to pay. In Adams v. Chesapeake Operating, Inc., the Fifth Circuit assessed an unleased mineral owner’s claim for penalties and attorney’s fees under the above cited statute, La. R.S. 31:212.21.6 Specifically, the plaintiff in Adams argued that he was “entitled to a production payment equivalent 6 561 Fed. Appx. 322 (5th Cir. 2014). Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 3 of 9 PageID #: 1152 4 4631806_1 to his property interest” in the well, and therefore, he claimed to be an “owner of a mineral production payment.”7 The Court found the phrase “owner of a mineral production payment” in these statutes to be ambiguous.8 In light of this ambiguity, the Court looked to the title of the statute to “provide some aid in interpreting the legislative intent where the language [was] unclear,” and concluded that the statutory framework only applied to “purchasers of mineral production payments.”9 Accordingly, because unleased mineral owners do not fall within this class of persons, the Fifth Circuit upheld the district court’s finding that the plaintiff-unleased owner in Adams had no claim under La. R.S. 31:212.21 et seq.10 Here, Adams establishes the controlling Fifth Circuit rule – Plaintiff is an unleased mineral owner that has no claim for penalties or attorney’s fees under La. R.S. 31:212.21 et seq. Thus, all of Plaintiff’s claims under La. R.S. 31:212.21 et seq. lack merit and should be dismissed. II. PLAINTIFF HAS NO CLAIM FOR CONTRACT FRAUD PURSUANT TO LA. C.C. ART. 1953. Plaintiff has also alleged claims of fraud against BHP. Specifically, Plaintiff claims that BHP committed fraud by intentionally inflating the categories of drilling costs delineated in La. R.S. 30:10 that were charged to Plaintiff’s interest.11 Plaintiff also claims BHP intentionally 7 Id. 8 Id. 9 Id. 10 Id. 11 See Plaintiff’s Petition for Damages & Declaratory Relief (Entry No. 1, Attachment No. 2), ¶ 67. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 4 of 9 PageID #: 1153 5 4631806_1 inflated the post-production expenses deducted from Plaintiff’s proportionate share of revenue from the Subject Wells.12 In Louisiana, there are two kinds of fraud: contract fraud and tort fraud. Contract fraud is governed by La. C.C. art. 1953. As summarized by the Louisiana Supreme Court, there are three basic elements to an action for fraud against a party to a contract: (1) a misrepresentation, suppression, or omission of true information; (2) the intent to obtain an unjust advantage or to cause damage or inconvenience to another; and (3) the error induced by a fraudulent act must relate to a circumstance substantially influencing the victim’s consent to (a cause of) the contract.13 Plaintiff’s contract fraud claim fails because there are no contracts between Plaintiff and BHP for the Subject Wells. Plaintiff is an unleased mineral owner of a tract of land included within the Powers Unit and Jestma Unit,14 and BHP is the operator of the Subject Wells in both units.15 The Powers 21H-1 Well, the Powers 21H-3 Alt. Well, and the Powers 21H-4 Alt. Well were all drilled in accordance with orders issued pursuant to the Commissioner’s compulsory pooling power.16 Likewise, the Jestma 22H-1 Well and the Jestma 22H-2 Alt. Well were also drilled in accordance with orders issued pursuant to the Commissioner’s compulsory pooling power.17 12 See id at ¶ 68. 13 Shelton v. Standard/700 Assoc., 2001-0587 (La. 10/16/01); 798 So. 2d 60, 64 (emphasis added); See also Gandhi v. Sonal Furniture and Custom Draperies, L.L.C., 49,959 (La. App. 2 Cir. 7/15/15); 192 So. 3d 783, 790-91 (citing La. C.C. art. 1953 et seq. and stating that “[t]he above Civil Code provisions on fraud pertain to conventional obligations and the vitiation of consent between the parties to a contract.” (emphasis added)). 14 Declaration Under Penalty of Perjury Pursuant to 28 U.S.C. § 1746 of Chris Griffin, attached hereto as Exhibit “1,” ¶ 9. 15 Id. at ¶ 8. 16 Id. at ¶ 4-5. 17 Id. at ¶ 6-7. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 5 of 9 PageID #: 1154 6 4631806_1 Significantly, Plaintiff and BHP have executed no agreements regarding any of the Subject Wells located within either the Powers Unit or the Jestma Unit.18 More specifically, Plaintiff and BHP have not executed any joint operating agreements, marketing election letters or any other contract pertaining to the costs associated with the joint development of the Subject Wells, marketing of production from the Subject Wells, and/or the terms of payment of revenue attributable to production from the Subject Wells.19 Because there are no contracts between the parties, there is, as a matter of law, no basis for Plaintiff’s claim of contract fraud per La. C.C. art. 1953. If there is no contract, there can be no contract fraud or fraud in the inducement; the existence of a contract to which both parties consented must be a prerequisite to any claim that one of the parties’ consent was vitiated by fraud. Since the parties never voluntarily contracted with one another, there is no contract to rescind as a remedy for contract fraud. Here, there is no consent that could be vitiated by fraud. Accordingly, Plaintiff cannot state a cognizable claim for contract fraud under La. C.C. art. 1953. Thus, the Court should grant BHP judgment as a matter of law on Plaintiff’s claim for contract fraud under La. C.C. art. 1953. III. PLAINTIFF CANNOT RECOVER ATTORNEY’S FEES PURSUANT TO LA. R.S. 31:212.31 OR A TORT FRAUD CLAIM Plaintiff also seeks to recover attorney’s fees by two distinct avenues: (1) pursuant to the “Check Stub Statute” located in La. R.S 31:212.31; and (2) based upon a theory of tort fraud. Statutes providing for attorney’s fees are strictly construed because an award of attorney’s fees is 18 Id. at 11. 19 Id. at ¶ 12. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 6 of 9 PageID #: 1155 7 4631806_1 considered to be “exceptional and penal in nature.”20 Thus, Louisiana law provides that “attorney’s fees are not due and owing unless specifically provided for by contract or by statute.”21 Plaintiff cannot recover fees in this case. First, neither La. R.S. 212.31 or La. C.C. art. 2315 provide for recovery of attorney’s fees or authorize an award of attorney’s fees. Second, as established above, there is no contract between Plaintiff and BHP for the Subject Wells. Accordingly, this Court should reject Plaintiff’s claim that it has a right to recover attorney’s fees in this suit. Like any other tort under Louisiana law, tort fraud carries no attorney fee penalty. The statute codifying tort, La. C.C. art. 2315, has no specific provision for attorney’s fees. In contrast, the Louisiana article for contract fraud, La. C.C. art. 1958, does provide for attorney’s fees under a limited scenario: “The party against whom rescission is granted because of fraud is liable for damages and attorney fees.”22 By its terms and its placement in the Code regarding contractual obligations, article 1958 authorizes attorney’s fees only for claims of contract fraud in which the victim seeks rescission of the contract.23 This necessarily means contract fraud must first be established and rescission granted before the Court may award attorney’s fees. But because it is undisputed that there is no contract between the parties as to the Subject Wells, Plaintiff has no contract fraud claim.24 20 L & A Contracting Co., Inc. v. Ram Indus. Coatings, Inc., 1999-0354 (La. App. 1 Cir. 6/23/200); 762 So. 2d 1223, 1236 (citing Lain v. Credit Bureau of Baton Rouge, Inc., 93-1166, p. 10 (La. App. 1st Cir. 4/8/94); 637 So. 2d 1080, 1086; Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So. 2d 1014, 1015-16 (La. 1984)). 21 Id. 22 La. C.C. art. 1958. 23 Ratcliff v. Boydell, 93-0362 (La. App. 4 Cir. 4/3/96); 674 So. 2d 272, 282. 24 See Coates v. Anco Insulations, Inc., 2000-1331 (La. App. 4 Cir. 3/21/01); 786 So. 2d 749, 755-56. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 7 of 9 PageID #: 1156 8 4631806_1 In sum, the law is clear. An award of attorney’s fees is not specifically provided for in either the Check Stub Statute (La. R.S. 31:212.31) or La. C.C. art. 2315 for tort fraud. And there is no contract between the parties, rendering La. C.C. art. 1958 inapplicable. Accordingly, Plaintiff has no legal right to recover attorney’s fees pursuant to La. R.S. 31:212.31, La. C.C. art. 2315 or the inapplicable La. C.C. art. 1958, and BHP is entitled to judgment as a matter of law on such claims. IV. SUMMARY JUDGMENT STANDARD Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought.”25 In addition, “[t]he court shall grant summary judgment if the movant shows that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”26 Here, it is undisputed that (1) Plaintiff is an unleased mineral owner in drilling and production units created by the Commissioner of Conservation, and (2) Plaintiff and BHP have not executed any contracts governing the rights and obligations of the parties with respect to the wells, production and/or revenue attributable to production therefrom. Thus, Plaintiff’s right to relief as an unleased owner pursuant to theories premised on La. R.S. 30:212.21, La. R.S. 30:212.31, La. C.C. art 1953, and tort fraud are ripe for disposition in accordance with Rule 56. CONCLUSION For the foregoing reasons, the undisputed material facts reveal BHP is entitled to judgment as a matter of law dismissing Plaintiff’s claims under La. R.S. 31:212.21 and La. C.C. art. 1953. 25 Fed. R. Civ. P. 56(a). 26 Id. Case 5:16-cv-01193-EEF-MLH Document 48-2 Filed 06/29/17 Page 8 of 9 PageID #: 1157 9 4631806_1 Additionally, this Court should find that Plaintiff has no right to attorney’s fees pursuant to La. R.S. 31:212.31, La. C.C. art. 1958 or tort fraud pursuant to La. C.C. art. 2315. Respectfully submitted, LISKOW & LEWIS s/ April L. Rolen-Ogden April L. Rolen-Ogden (Bar # 30698) Brittan J. Bush (Bar # 34472) Michael H. Ishee (Bar # 36507) LISKOW & LEWIS 822 Harding Street Lafayette, Louisiana 70503 P. O. Box 52008 Lafayette, Louisiana 70505-2008 Telephone: (337) 232-7424 Facsimile: (337) 267-2399 arolen-ogden@liskow.com bjbush@liskow.com mhishee@liskow.com Attorneys for BHP Billiton Petroleum Properties (N.A.), LP, Petrohawk Energy Corporation, BHP Billiton Petroleum (KCS Resources), L.L.C., and BHP Billiton Petroleum (TXLA Operating) Company CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the Memorandum in Support of BHP’s Motion for Partial Summary Judgment is being served upon all counsel of record by electronic mail by the Clerk of the Court via the CM/ECF system this 29th day of June, 2017. s/ April L. Rolen-Ogden April L. 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