Pro Gas, Inc. v. Har-Ken Oil Co.

883 S.W.2d 485, 1994 Ky. LEXIS 87, 1994 WL 473790
CourtKentucky Supreme Court
DecidedSeptember 1, 1994
DocketNo. 93-SC-751-DG
StatusPublished
Cited by1 cases

This text of 883 S.W.2d 485 (Pro Gas, Inc. v. Har-Ken Oil Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pro Gas, Inc. v. Har-Ken Oil Co., 883 S.W.2d 485, 1994 Ky. LEXIS 87, 1994 WL 473790 (Ky. 1994).

Opinion

REYNOLDS, Justice.

Emanating from the Commonwealth’s public policy upon oil and gas conservation is an issue, in this ease, which bears upon the determination of the party(s) obligated to plug oü and gas wells and the responsibility to post bond with the Department of Mines and Minerals to ensure the plugging of such wells.

In December of 1989, a trustee in bankruptcy for Empire Oü & Gas Company, Inc. and Ambereo, Inc. assigned, transferred and conveyed to Pro Gas, Inc., for the sum of $375,000, the right, title and interest of the two bankrupt companies in and to described oü and gas leases. The assignment provided that the trustee was entitled to the proceeds of all oü previously sold and Pro Gas, Inc. was entitled to all proceeds from the sale of oü located in tanks on the leases.

The assignment provided that Pro Gas, Inc. assume the responsibility for obtaining satisfactory bonds evidencing financial responsibility to the Department of Mines and Minerals and agree to immediately execute and file all necessary well transfer forms pertaining to oü wells and facilities with the state of Kentucky, or, in the alternative, to be responsible for the plugging of same. The well transfer forms were not executed and the transfer of the plugging operation was ignored.

Har-Ken (appeUee/plaintiff below) instituted this action in March 1991, maintaining that it was the party liable on the well plugging bonds heretofore posted with the Department of Mines and Minerals, and that it has not been released therefrom. A special judge of the Ohio Circuit Court, by order, dismissed the complaint and the Court of Appeals subsequently vacated the order and remanded the action to the trial court with directions for Pro Gas to comply with KRS 353.590(6).

This record, although scant, is substantiated by the admissions as to the genuineness of the oü and gas lease assignments dated December 12,1989. The identities of the leases are also of record.

AppeUee alleged that Pro Gas was the owner of an interest in, and the operator of, described oü and gas leases/weUs located in Ohio County, Kentucky, and the wells were, at that time, covered by its bond to the Department of Mines and Minerals to ensure the proper and ultimate plugging which is required by KRS 353.590. Pro Gas was stated to be a “successor weU operator” and obligated, statutorily, to replace Har-Ken’s bond with its own. It is further claimed that Pro Gas was obligated by the contractual assignment to “immediately execute ah necessary wefi transfer forms covering ah weUs and facifities with the state of Kentucky and cause same to be filed with the Department of Mines and Minerals, Division of Oü and Gas, or, in the alternative, to be responsible for the plugging of same.”

A determinative question arising in this appeal is whether the former operator of the weUs is responsible for plugging, or whether the most recent assignee, Pro Gas, is required, by KRS 353.590(6), to assume the obligation.

Pro Gas acquired its interest in the oü and gas leases through the December 12, 1989, assignment from the bankruptcy trustee to itself and the version of KRS 353.590(6) existing on that date is aUeged to be materially different from the provision that currently exists. It is maintained that the Court of Appeals erroneously construed the more recent statute to be retroactive without it having been expressly declared so by the legislature. The argument lacks merit as retroae-tiveness is not a factor at issue.

[487]*487The version of KRS 353.590(6) in existence at the time of the execution of the assignment read:

Notification in writing to the department by a successor to the well operator with bond as provided in subsection (5) that said successor is assuming the obligations of this chapter as to a particular well or wells, will relieve the original permittee of responsibility under this chapter with respect to such well or wells.

KRS 353.590(6) was improved, effective July 13, 1990, to read:

A successor to the well operator shall post bond and notify the department in writing in advance of commencing use or operation of a well or wells. The successor shall assume the obligations of this chapter as to a particular well or wells and relieve the original permittee of responsibility under this chapter with respect to the well or wells. It shall be the responsibility of the selling operator to require the successor operator to post bond before use or operation is commenced by the successor and relief of responsibility under this chapter is granted to the original permittee.

The changes enumerated above are illustrative ones which flow from the historical development of the oil and gas well industry. Generally, the public has an interest in the preservation of oil and gas from destruction or waste, which is based upon the peculiar nature of these minerals. The Kentucky legislature, in 1960, enacted KRS 353.500, declaring it to be the public policy of this Commonwealth to foster conservation of all mineral resources and, to that end, the enactment provided that KRS 353.500 through KRS 353.720 shall be liberally construed to give effect to such public policy. Smith v. Rogers, Ky., 702 S.W.2d 425 (1986). Legislatively, there has been an exercise and broadening of powers in conserving oil and gas and in preventing the unnecessary depletion thereof. In this regard, public policy is applicable to the determination of duties and obligations of well operators in the ongoing development or the termination of oil/gas production.

There are several similarities existing in the interpretation of both the earlier and the current provisions of KRS 353.590(6). This was both collaterally evident and explicitly acknowledged by appellant when it acquiesced and accepted in its contract of assignment such language as:

Progas assumes responsibility for obtaining satisfactory bond or bonds evidencing financial responsibility in an amount satisfactory to the Commonwealth of Kentucky, Department of Mines and Minerals, Division of Oil and Gas, and if necessary satisfactory to the United States Environmental Protection Agency. Progas agrees that it will immediately execute all necessary well transfer forms covering all wells and facilities with the State of Kentucky and cause same to be filed with the Department of Mines and Minerals, Division of Oil and Gas, or in the alternative, to be responsible for the plugging of same.

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Cite This Page — Counsel Stack

Bluebook (online)
883 S.W.2d 485, 1994 Ky. LEXIS 87, 1994 WL 473790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pro-gas-inc-v-har-ken-oil-co-ky-1994.