Operating Blindly?: Recalibrating Lightning v. Anadarko’s Impact on the Use of MWD/LWD in Off-Lease Drilling

I. Introduction

Though well logs and seismic data both contribute useful information about the subsurface, it is unclear whether current geophysical trespass case law applies to these methods of exploration under the right to explore usually granted to mineral lessees.^[1] A recent Texas Supreme Court case, decided on May 19, 2017, has muddied the geophysical trespass waters.^[2] The court’s decision considered existing case law regarding off-lease wells drilled through another operator’s mineral estate and determined that off-lease wells that traverse but do not produce from the unpermitting operator’s mineral estate do not constitute trespass.^[3] The decision is problematic because it appears to issue blanket approval for off-lease drilling without considering whether the off-lease driller’s effort to log the mineral estate with logging-while-drilling technology (LWD) constitutes geophysical trespass.^[4] The court’s failure to address the issue of geophysical trespass in its holding may lead off-lease drillers to cite the decision for the implicit proposition that the use of LWD while drilling an off-lease well does not constitute geophysical trespass.^[5]

The resulting ambiguity regarding the application of geophysical trespass case law to measurement-while-drilling technology (MWD) and LWD is significant because of the technology’s importance to horizontal drilling operations; if a later Texas Supreme Court decision clarifies that geophysical trespass case law does apply, the viability of off-lease drilling may be significantly impacted. In fact, some commentators have remarked that drilling a horizontal well without the aid of MWD/LWD is akin to “drilling blind[ly].”^[6] This Comment attempts to determine whether geophysical trespass case law should apply to MWD/LWD, and if so, whether the Texas Supreme Court will update Texas geophysical trespass precedent to comport with horizontal drilling practices by affirming its implicit holding in Lightning.^[7]

This Comment discusses how the Court’s implicit holding in Lightning, i.e., that MWD/LWD used in an off-lease wellbore does not constitute geophysical trespass, breaks with existing Texas geophysical trespass case law. Part II of this Comment issues a detailed recitation of Lightning v. Anadarko. Part III surveys Texas’s current geophysical trespass case law and provides an overview of seismic surveying, LWD, and MWD. Part IV proposes a hypothetical based on the Lightning v. Anadarko fact pattern. Part V compares seismic surveys with MWD/LWD and applies current geophysical trespass case law to the facts of Lightning v. Anadarko by way of analogy. Part VI concludes this Comment by asserting that geophysical trespass cases should apply to the use of MWD/LWD tools while drilling a nonproducing horizontal wellbore through a neighboring mineral estate, with the caveat that the Texas Supreme Court may rule differently given the strong policy support for its holding in Lightning v. Anadarko.

II. Case Recitation

Anadarko E&P Onshore, LLC (Anadarko) leased minerals underlying the Chaparral Wildlife Management Area (CWMA) from the State of Texas on January 28, 2010 (CWMA Lease).^[8] The CWMA Lease restricted Anadarko’s use of the surface, stipulating that “[d]rilling locations will be established off the Chaparral [Wildlife Management Area (WMA)] site, when prudent and feasible.”^[9] Subsequently, Anadarko entered into a surface use agreement with the owner of a neighboring surface estate, the Briscoe Ranch, with a three-year primary term beginning on December 1, 2013.^[10] The surface use agreement authorized Anadarko to drill directionally or horizontally from the Ranch’s surface through its subsurface to access Anadarko’s minerals underneath the adjacent CWMA Lease.^[11]

The mineral estate underlying the Briscoe Ranch was severed from the surface and belonged to the Hurd family, which had leased the minerals to Lightning Oil on October 19, 2009 (Cutlass Lease).^[12] Anadarko planned to drill through Lightning’s mineral estate in order to access its own minerals but did not obtain permission from Lightning Oil.^[13] When Lightning discovered Anadarko’s plans to drill wells through its mineral estate, Lightning objected to Anadarko’s first proposed well location and made it clear that it would not approve any other locations that Anadarko might propose.^[14] Shortly thereafter on January 21, 2014, Lightning filed suit against Anadarko, alleging trespass and tortious interference with contract and seeking injunctive relief to prevent Anadarko from siting any wells on the surface overlying the Cutlass Lease.^[15] After Lightning filed suit, Anadarko formalized its agreement with the Briscoe Ranch in its “Surface Use and Subsurface Easement Agreement” (Agreement).^[16]

A. Procedural History

Lightning sued Anadarko for trespass to its mineral estate and tortious interference with contract for interfering with its mineral lease.^[17] Lightning also sought a temporary restraining order and an injunction preventing Anadarko from drilling on the Briscoe Ranch.^[18] Lightning and Anadarko each filed traditional and no-evidence motions seeking partial summary judgment.^[19] Lightning moved for traditional summary judgment on its request for injunctive relief and its request “for the court to declare that Briscoe Ranch could not ‘grant Anadarko a right to trespass through Lightning’s property.’”^[20] In its no-evidence motion for summary judgment, Lightning asserted that Anadarko did not have any evidence to support its affirmative defense of justification against Lightning’s claims of tortious interference with contract.^[21] Anadarko moved for traditional summary judgment, asserting that it had proven justification as an affirmative defense to Lightning’s claims of trespass and tortious interference.^[22] Anadarko also moved for no-evidence summary judgment, asserting that Lightning did not have evidence of at least one element of each of its claims for trespass and tortious interference.^[23] The trial court granted Anadarko’s motion for partial summary judgment and denied Lightning’s motions without stating the reasons for its rulings.^[24] The trial court severed the rulings so that they could be appealed, and Lightning appealed.^[25]

The Texas Fourth Court of Appeals subsequently affirmed for Anadarko on both grounds for partial summary judgment.^[26] The court affirmed the trial court’s grant of partial summary judgment regarding Lightning’s trespass claim on the basis of no-evidence, holding that Lightning had no right to exclude the surface owner from use of the subsurface structures beneath its surface estate because such structures, excluding the hydrocarbon molecules within, belong to the surface estate.^[27] Accordingly, the court of appeals held that Lightning had not proven any right to exclude Anadarko from its estate and had failed to provide any evidence of an essential element of trespass.^[28] Additionally, the court of appeals affirmed the trial court’s grant of partial summary judgment against Lightning’s tortious interference claim on the basis of traditional summary judgment, holding that Anadarko had proven justification as an affirmative defense to Lightning’s tortious interference claims because Briscoe Ranch controlled the subsurface structures underlying its surface estate and granted Anadarko the legal right to drill through the subsurface in its Agreement.^[29] Consequently, Lightning petitioned for review.^[30] The Texas Supreme Court granted the petition and unanimously affirmed the Fourth Court of Appeals.^[31]

B. The Texas Supreme Court’s Reasoning

The opinion begins by analyzing Lightning’s trespass claim.^[32] The Court noted that Lightning’s claim, as a mineral lessee, to the right to exclude a surface owner or an adjacent lessee from drilling through its mineral estate–despite their having no intent to produce hydrocarbons from Lightning’s estate–was an issue of first impression unresolved by divergent case law.^[33] In analyzing the Fourth Court of Appeals’ reasoning, the Court agreed with the court of appeals’ assessment of the “subsurface control cases”^[34]— i.e., the Court agreed that the surface estate includes the “geological structures beneath the surface”—but was careful to distinguish these cases because they did not address the situation in which a surface owner was allowed to drill through portions of the mineral estate containing geological structures in which hydrocarbons were “embedded.”^[35] Because Anadarko’s proposed well sites would result in the removal of portions of Lightning’s mineral estate that were “embedded” with hydrocarbons, the Court explained that the subsurface control cases were not dispositive in determining whether Anadarko committed a trespass, stating that further analysis of the mineral interests at issue was necessary.^[36] In its analysis of Lightning’s mineral interests, the Court considered Lightning’s right to develop and the extent to which Anadarko’s drilling operations could result in extraction of Lightning’s hydrocarbons.^[37]

1. Lightning’s Right to Develop. The Court explained that generally only oil and gas lessees are granted the right to develop under a lease.^[38] As the holder of a valuable property right to the mineral estate, Lightning may have a cause of action for trespass when an “unauthorized interference with physical property [occurs] . . . [or when] an unauthorized interference with one of the rights the property owner holds [occurs].”^[39] Because Lightning is entitled only to the “rights to explore, obtain, produce, and possess the minerals subject to the lease,” and not the right to possess the portion of the earth where the minerals are located, a trespass is committed only when unauthorized interference with the place where the minerals are located interferes with Lightning’s right to develop.^[40] In addressing Lightning’s trespass claim and request for injunctive relief, the Court explained that the accommodation doctrine governs, holding that an unauthorized interference did not occur because Lightning’s ability to use the surface as reasonably necessary to develop its oil and gas resources was not unreasonably interfered with by the surface estate or an adjacent lessee.^[41] Furthermore, the Court stated that Lightning was not entitled to injunctive relief on the basis of speculation but rather must show “that absent such relief, it will suffer imminent, irreparable harm.”^[42] The Court held that no trespass to Lightning’s right to develop occurred because the right would be adequately protected by the accommodation doctrine and statewide spacing rules.^[43]

2. Extraction of Lightning’s Hydrocarbons. Though no trespass to the place where the minerals were located occurred because neither Anadarko nor the Briscoe Ranch interfered with Lightning’s right to develop, the Court emphasized the possibility of a claim arising from unauthorized physical interference with the minerals themselves.^[44] The Court acknowledged that the removal of “minerals embedded in the physical matter that will be drilled out of the ground” may be a trespass, but stated that such a determination should be made only after balancing the interests of Lightning with the collective interests of the oil and gas industry.^[45] After comparing the de minimis amount of minerals that would potentially be displaced by Anadarko’s wellbore to the benefits of a policy promoting off-lease drilling, the Court held that Anadarko’s proposed wellbore was not a trespass.^[46] In so holding, the Court cited a strong policy rationale supporting the maximization of oil and gas recovery and the prevention of waste.^[47]

III. Analysis of Texas Subsurface Trespass Jurisprudence Unaddressed by the Court: Geophysical Trespass

Although the Court addressed the issues of physical trespass by Anadarko’s wellbore through Lightning’s mineral estate and potential interference with Lightning’s right to develop, the Court failed to address the issue of geophysical trespass via Anadarko’s potential use of MWD/LWD tools while drilling through Lightning’s mineral estate.^[48] Though the Court acknowledged “a trespass is not just an unauthorized interference with physical property, but also is an unauthorized interference with one of the rights the property owner holds,” the Court’s analysis focused on potential interference with Lightning’s right to develop without discussing potential interference with Lightning’s right to explore.^[49] Instead, the Court’s discussion of the right to develop emphasized the potential for interference with Lightning’s ability to utilize the surface and subsurface to produce its own minerals and actual extraction of a small amount of Lightning’s minerals.^[50]

Though the Court did not address the right to explore and its corresponding body of geophysical trespass case law, both Lightning Oil and Anadarko briefed the issue on appeal to the Fourth Court of Appeals.^[51] Lightning argued that it would suffer the loss of proprietary information because Anadarko would be able to obtain information about the mineral estate through its well logs.^[52] Lightning contended that this would enable Anadarko to calculate the hydrocarbon content of the formations within Lightning’s mineral estate.^[53] Additionally, because Anadarko is required by the Texas Railroad Commission to disclose its well log information after drilling, this proprietary information would be made public.^[54] Anadarko countered that Lightning would suffer no real loss of valuable information because Anadarko would only run minimal logs while drilling.^[55] Anadarko stated it planned to run only a basic gamma ray log and mud gas detection to avoid perforating its well near Lightning’s mineral estate and ensure that it could drill its laterals safely.^[56] Additionally, Anadarko proposed to limit the amount of information recorded by only running its gamma ray log from a depth of 7000 feet to Total Depth.^[57] The Fourth Court of Appeals held for Anadarko, stating that no geophysical trespass had taken place because Anadarko had not conducted any seismic surveys of Lightning’s mineral estate.^[58]

As argued later in this Comment, the Fourth Court of Appeals inappropriately limited application of the geophysical trespass cases to their facts.^[59] However, Lightning’s allegation of geophysical trespass was not discussed any further because Lightning did not brief the issue on appeal to the Texas Supreme Court.^[60] Though it is unclear why Lightning decided not to brief its allegation of geophysical trespass, its decision not to brief may have caused the Texas Supreme Court to avoid discussing the implications of its opinion for geophysical trespass because the issue was not before the court. However, given the sweeping policy justifications the Court cited in holding that Anadarko’s off-lease drilling arrangement were nontrespassory, the court should have at least issued its opinion with the caveat that, while the physical act of drilling a nonproducing horizontal wellbore through a neighboring mineral estate may not constitute a trespass, the use of MWD/LWD while doing so may constitute a trespass.^[61]

A. Survey of Geophysical Trespass Jurisprudence

Geophysical trespass is not a separate cause of action from trespass; rather, it is one of several types of claims for wrongful interference based on a theory of trespass and is commonly associated with oil field operations, such as fracking, geophysical testing, and waterflooding.^[62] Geophysical trespass claims have typically been associated with seismic exploration in the oil and gas industry.^[63] In Texas, the traditional cause of action for trespass consists of three elements: “(1) entry (2) onto the property of another (3) without the property owner’s consent or authorization.”^[64] The Texas geophysical trespass cause of action is distinct from traditional trespass for two reasons: first, the trespass may take the form of an invasion of a mineral estate owner’s right to explore and obtain geophysical information; second, claimants in Texas are allowed to waive the trespass and sue in assumpsit to recover the reasonable value of the use and occupation of their land.^[65] Four cases have clarified the cause of action for geophysical trespass in Texas.^[66] Accordingly, this Comment will focus on these four cases.

1. Kennedy v. General Geophysical Co. In Kennedy, the Galveston Court of Civil of Appeals held that the defendant surveying company, General Geophysical Co. (Geophysical), did not commit a trespass by conducting seismic surveys on a public road adjoining plaintiff Kennedy’s land.^[67] Because Kennedy denied Geophysical permission to conduct seismic surveys on his land, Geophysical instead conducted its seismic survey on the public road adjoining Kennedy’s land such that the receiving sets were directly under the neighboring property. On that configuration, the receiving sets would not obtain any geophysical information except for information obtained from the vertical path to and from the receiving sets on the neighboring property.^[68] The court found no evidence of physical damage to Kennedy’s property, no evidence that information was obtained from Kennedy’s property, and no evidence that geophysical information or interpretations were delivered to the defendant’s client, Skelly Oil Company.^[69] Without more, such as proof of damages to Kennedy’s land or proof that Geophysical directly entered Kennedy’s land, the court held that vibrations emanating from a seismic survey on a neighboring property and traveling through Kennedy’s subsurface were not enough to support a finding of trespass nor an award of actual and nominal damages.^[70]

Though the plaintiff’s trespass claim failed, the Kennedy court established that both direct physical entry without permission and the performance of a seismic survey are required to establish a trespass on a plaintiff’s property.^[71] Additionally, the Kennedy court established that, without direct physical entry on a plaintiff’s property, a plaintiff must show actual physical damage to his land to establish a trespass because the mere presence of vibrations is insufficient.^[72] The Kennedy court also found no liability for trespass by Geophysical due to any extrapolation of geologic information regarding the subsurface of Kennedy’s lands, which was based on the assumption that the trends of subsurface information gathered on neighboring property would continue under Kennedy’s property.^[73] However, the court left open the important question of whether a plaintiff land owner whose land was not physically entered could successfully establish a trespass claim based on proof that the alleged trespasser “acquired information as to the sub-surface formation and the probable presence or absence of oil, gas, or other minerals in and under appellant’s land.”^[74]

2. Cowden I and Cowden II. In Cowden I, the Fifth Circuit held defendants Phillips Petroleum Company and Geophysical Services, Inc. liable for trespass because Phillips hired Geophysical to conduct seismic surveys of the underlying mineral estate owned by the Cowden family, Plaintiff in the suit, without permission.^[75] Though the defendants obtained permission to enter the surface from the surface estate holder, Paul Moss, the court held that the surface estate does not have the right to grant entry to the mineral estate for exploration purposes.^[76] The court recognized that “the right to explore for oil and minerals is a valuable property right that can be legally protected” and that the right typically belongs to the mineral owner rather than the surface estate.^[77] On the facts presented, the court stated Moss could have no interest in the right to explore because he had been granted only the right to use the surface by the original owners of the undivided estate.^[78] Because the defendants invaded the Cowdens’ right to explore, the court held that a trespass had taken place.^[79]

Though this case involved a conflict between a surface owner and the original owners of the mineral estate, it is important to take notice of the court’s acknowledgement that, on different facts, i.e., a conflict between a mineral lessor and its lessee as to who has the exclusive right to explore, the issue depends on the express language of the lease.^[80] Furthermore, the court noted that, whether the lessee holds an exclusive or nonexclusive right to explore, the permission of a surface owner alone will not suffice to allow geophysical surveys of another’s mineral estate.^[81]

Though the court found a trespass had occurred, some uncertainty remained as to the appropriate measure of damages. The court recognized that the Cowdens could sue for trespass but not for conversion of geophysical information or the right to obtain such information, and thus the defendants argued the Cowdens could recover only nominal damages because the Cowdens were unable to prove a decrease in the market value of their property caused by the defendants’ seismic exploration.^[82] The court overruled this contention, holding “Texas belongs to the minority of states that permit a landowner to waive the trespass and sue in assumpsit for the reasonable value of the use and occupation.”^[83] When the issues of damages appeared before the Fifth Circuit again on appeal in Cowden II, the court instructed that reasonable value of the use and occupation of the land damaged must be shown by: (1) limiting the number of acres “to the area reasonably regarded as being ‘occupied’ by the seismograph survey”; (2) including the acres through which seismic vibrations actually traveled; and (3) including any “additional areas for which the trespasser would have had to obtain licenses from a hypothetically ‘reasonable’ mineral estate owner, if it had conducted the actual operation without trespassing.”^[84]

The Cowden I court established several important precedents for geophysical trespass cases: (1) like Kennedy, a physical entry on the surface estate overlying the mineral estate at issue is still required for a geophysical trespass; (2) an invasion of one of the valuable property rights held by the mineral estate, the right to explore, can constitute an actionable trespass; and (3) the owner of the invaded right may waive trespass and sue in assumpsit for the reasonable market value of the exercise of that right.^[85] More importantly for this Comment, the Cowden I court appears to leave some room for interpretation as to what constitutes an invasion of the right to explore. The court states clearly that the seismic surveys constituted geophysical trespass because they were tests conducted for the purpose of oil and gas exploration and “were reasonably expected to reveal geophysical and geological information” about the land.^[86] However, the court also noted in preceding dicta that the rationale supporting a geophysical trespass was to avoid the loss of the speculative value of unexplored mineral rights belonging to the mineral estate by “reduc[ing] . . . the right to reduce to a certainty” and changing the value of the property.^[87] As argued below, this emphasis on the loss of speculative value supports the application of geophysical trespass case law to the use of MWD/LWD in the horizontal drilling context.^[88]

3. Villarreal v. Grant Geophysical, Inc. In Villarreal, the Fourth Court of Appeals held that defendant seismic surveying company, Grant Geophysical, committed no geophysical trespass even though its survey mistakenly obtained seismic information from plaintiff Villarreal’s tract without permission.^[89] Prior to conducting an extensive 3D seismic survey across three Texas counties, Grant Geophysical sought permission to survey from both surface estate and mineral estate holders in the targeted survey area.^[90] Grant Geophysical was unable to obtain permission to survey 125 tracts, so it reconfigured its seismic survey to avoid trespass by ensuring that no receivers were placed on the surface estates of tracts not permitting the survey and deleted any information from unpermitted tracts that may have been incidentally obtained prior to distributing survey information to third party clients.^[91]

The court held no trespass occurred because Grant Geophysical never physically entered the surface estate above the Villarreals’ mineral estates.^[92] The court found the lack of physical entry to be dispositive as a matter of law, refusing to eliminate the physical entry requirement established by both the Kennedy and Cowden I courts.^[93] Though the court recognized no trespass on the Villarreals’ mineral estate, the court, in dicta, lamented how “it appears that Texas law regarding geophysical trespass has not kept pace with technology . . . .”^[94] In keeping with this sentiment, the court emphasized the fact that Grant Geophysical actually did obtain information from the Villarreals’ tracts.^[95] However, in its refusal to overturn standing precedent requiring physical entry to demonstrate a valid geophysical trespass claim, the court may have relied on the fact that Grant Geophysical deleted all information obtained from unpermitted tracts and corrected its error after distributing some data from unpermitted tracts to clients.^[96]

4. Summary of Geophysical Trespass Case Law. Looking forward, the preceding case law bears significance when considering whether geophysical trespass case law should apply when an operator uses MWD and LWD tools while drilling through an unpermitting mineral estate. As the Villarreal court established, geophysical trespass requires direct, physical entry on to the surface estate overlying the mineral estate. Additionally, where no actual damage to the allegedly trespassed property occurs because of seismic waves traveling through the land, the property owner must show the invasion of a valuable property right, i.e. the right to explore, in order to make a valid claim. In determining whether the right to explore has been invaded, it is important to consider whether the information obtained will lead to a loss in speculative value by revealing geophysical or geological information about the property. When the property owner does establish the invasion of his right to explore, he may waive the trespass and sue in assumpsit for the lost value of his right to explore. Finally, the attainment of information from unpermitting mineral estates, on which no physical entry of the surface estate has occurred, may not constitute geophysical trespass provided the surveyor deletes the data obtained from the unpermitting tract and does not distribute the information to third parties.

B. Overview and Comparison of Seismic Surveys to MWD/LWD

The Texas Supreme Court’s failure to address whether the use of MWD and LWD tools while drilling through another’s mineral estate constitutes geophysical trespass is significant because conflicting answers have been provided by various commentators and the issue has not been addressed by Texas courts. One viewpoint is that when there are no concerns of drainage at issue, geophysical surveys conducted on tract A for the purpose of developing oil and gas resources on tract B require only the permission of the surface owner of tract A, not the permission of the owner of the minerals underlying tract A.^[97] Another viewpoint is that an operator should not obtain any subsurface information from a nonconsenting mineral lessee’s estate because doing so would violate the nonconsenting mineral lessee’s exclusive right to explore.^[98] These conflicting views are the result of a lack of clarification by Texas courts regarding what forms of geological and geophysical operations constitute a violation of the right to explore.^[99]

This lack of judicial clarification is illustrated by the Fourth Court of Appeals’ decision to limit application of the geophysical trespass cases solely because Anadarko did not plan to conduct any seismic surveys without Lightning’s consent.^[100] As argued in this Comment, the Fourth Court of Appeals incorrectly limited application of the geophysical trespass cases due to strict interpretation of what constitutes geophysical operations and failed to further consider the effect of MWD/LWD on another’s right to explore or the speculative value of another’s mineral estate.^[101] Furthermore, the Texas Supreme Court’s failure to address the issue of geophysical trespass in its subsequent decision may foster more confusion. Specifically, other operators similarly situated to Anadarko may cite the court’s decision as standing for the implicit proposition that the use of MWD/LWD does not constitute a geophysical trespass. Consequently, the Court may be required to walk back its decision or affirm its implicit holding with additional explanation. Because Texas courts have not yet clarified which methods of geological and geophysical exploration, other than seismic exploration, merit protection under the right to explore, I propose to do so in this Comment through a comparison of seismic exploration and MWD/LWD.

1. Seismic Exploration. As both the most widespread method of geophysical exploration in the oil and gas industry and the subject of the geophysical trespass cases, an overview of seismic exploration is necessary in order to understand what subsurface information MWD/LWD reveal by comparison.^[102] Seismic methods of exploration consist of measuring “the rate of transmission of shock waves through the earth” by a seismograph.^[103] Using reflection or refraction surveys, participants in the oil and gas industry can map the geological substructure underneath the surface and locate oil and gas reservoirs.^[104] Though several different types of seismic surveys have been developed since the technology’s conception in the early 1900s,^[105] seismic information is still generally gathered by sending acoustic or compressive waves into the earth, either by drilling holes and detonating dynamite charges or by using an airgun or vibrator at the surface and measuring seismic energy reflected back to receivers placed at the surface.^[106] The seismic reflections recorded by each receiver are generated by differences in certain physical characteristics, such as density and the speed of sound within a particular rock layer, present at the interface between different layers of rock.^[107] The depth of a particular geological boundary is determined by the amount of time it takes the seismic reflection generated by that boundary to return to the receiver at the surface.^[108] Seismic sections are then generated by lining up multiple seismic traces^[109] side by side to create a “structural picture of the sub-surface” that can be interpreted by geophysicists.^[110]

After acquisition of the data needed to create a seismic section, geophysicists must process the seismic data to “remove all noise and distortions introduced by the seismic acquisition method and produce a seismic section as close as possible to the subsurface image of the earth that can be interpreted . . . .”^[111] Once the seismic data has been processed, geophysicists may choose one of two methods to interpret the resulting seismic section: conventional stratigraphy^[112] or seismic stratigraphy.^[113] Though seismic stratigraphy is more widely utilized, both methods allow for the direct detection of hydrocarbons and quantification of existing hydrocarbon reserves or confirmation that no hydrocarbon reserves exist.^[114] Seismic surveys can be utilized to map geologic structures, stratigraphy, reservoir architecture, and subsurface lithology.^[115] Additionally, seismic surveys allow direct detection and quantification of hydrocarbon reservoirs.^[116]

2. MWD/LWD. The “basic gamma ray” log that Anadarko proposed to run while it drilled its horizontal well through Lightning’s mineral estate represents one of several types of well logs that are frequently run during MWD/LWD.^[117] Accordingly, an understanding of the type of information that MWD/LWD reveals about the subsurface is necessary to determine whether these technologies are comparable to seismic exploration and thus merit application of geophysical trespass case law.

i. MWD.^[118] Measurement-while-drilling technology is used to transmit data about drilling conditions downhole and the directional path of the drill bit and allows industry operators to essentially “steer” the drill bit accurately in real time.^[119] The tools which record the relevant measurements for both MWD and LWD are stacked within a drill collar above the drill bit according to order of priority of the different measurements.^[120] The information recorded by MWD tools is then sent to the surface via mud-pulse telemetry for use by the drilling operator.^[121] MWD tools included in the drill collar include: triaxial accelerometers, which measure the inclination of the well bore from vertical by measuring the bottom hole assembly’s (BHA)^[122] position relative to the Earth’s gravitational field; triaxial magnetometers, which measure the BHA’s position relative to the Earth’s magnetic field to determine its azimuth^[123] “with respect to magnetic north”; strain gauges, which measure weight and torque on the bit to determine if there is any friction between the borehole wall and the drill string; and a temperature gauge.^[124] Together with geological information provided by LWD, MWD tools provide necessary information about the direction, inclination, and depth of the drill bit which allow drillers to calculate the real time position of the drill bit when attempting to drill a horizontal well along a targeted well path.^[125]

ii. LWD.^[126] Traditionally, wireline logging, LWD’s precursor, was performed immediately after a well was drilled to measure geological properties helpful in formation evaluation and correlation, such as lithology; permeability; porosity; water, oil, and gas saturation; and the vertical extent of a hydrocarbon-bearing zone.^[127] These measurements, along with the volume of the reservoir calculated during seismic interpretation and well-to-well log correlation, can be used to calculate the total volume of hydrocarbons in place.^[128] However, the introduction of improved LWD tools in the 1980s allowed similar measurements to be recorded in real time before drilling fluids invaded the wellbore and allowed logging in horizontal well bores where conventional wireline tools could not function.^[129] Like MWD tools, these LWD tools are included within the drill collar, record information, and transmit it to the surface in real time.^[130] Several different types of measurements can be recorded depending on which logging tools a driller chooses to include in its logging suite, including (1) resistivity-conductivity logs, (2) nuclear logs, and (3) nuclear magnetic resonance logs (NMR).^[131]

a. Resistivity-Conductivity Logs. In their most basic forms, resistivity-conductivity^[132] logs use an electrode to send an electrical current into the formation, and a receiver electrode to measure the response of the formations along the wellbore to this current.^[133] Geologists can use measurements obtained from resistivity and conductivity logs to: detect reservoirs; determine what types of fluids are present (i.e., water, oil, or gas); and correlate between wells to determine geological structures, lithology, bed thickness, and the dips of beds.^[134] One of the most important uses of conductivity-resistivity tools is to determine changes in fluids, such as an oil/water contact, because this information can provide “[k]nowledge of the relative depth from the top of a reservoir to the oil/water contact” necessary to calculate the amount of hydrocarbon reserves in place.^[135]

b. Nuclear Logs. An atomic nucleus can be excited to energy levels above its ground state and, if so, re-emits this additional energy as gamma rays.^[136] Several different nuclear logs can be used to identify elemental composition according to each element’s unique energy of excitation.^[137] These include natural radioactivity logs and logs of radiation induced by neutron bombardment.^[138] Gamma Ray Log. “The measurement of the total natural radioactivity of the formations crossed by a well is known as the gamma ray log.”^[139] This form of logging measures “the number of gamma rays emitted from the disintegration of the three naturally occurring radioactive isotopes commonly found in Earth formations: thorium (Th), uranium (U), and potassium (K).”^[140] Gamma ray logs are used to identify minerals and rocks containing radioactive elements, such as clays, shales, and sandstones, and thus are commonly used to determine lithology.^[141] Additionally, because gamma ray logs are unaffected by the existence of formation fluids like oil, gas, and water, they are sometimes included in the BHA as the only correlation tool useful for determining the BHA’s position relative to a target geological formation.^[142]

Neutron Porosity Logs. These logs involve the bombardment of the formations surrounding the wellbore with neutrons and the measurement of the energy lost by each neutron as it collides with atoms of different elements.^[143] The presence of hydrogen atoms has the strongest slowing effect on emitted neutrons because hydrogen’s mass is almost equal to that of a neutron.^[144] Due to hydrogen’s importance in slowing down emitted neutrons, neutron porosity logs allow measurement of the hydrogen present in a formation and corresponding calculation of the Hydrogen Index (HI).^[145] Because hydrogen is present in both oil and water, geologists can use the HI to estimate the amount of liquid-filled porosity present in a formation.^[146]

c. NMR Logs. Nuclear magnetic resonance logs introduce a magnetic field into the formation, causing nuclei and their corresponding magnetic moments to interact with the introduced magnetic field in a way that creates a measurable signal.^[147] Hydrogen is abundant in oil, gas, and water, and is frequently measured by NMR tools.^[148] The hydrogen index calculated using NMR can then be used to determine formation porosity, formation permeability, hydrocarbon characteristics,^[149] and well producibility.^[150]

iii. Uses of the MWD/LWD System. The measurements provided by the MWD and LWD tools described above serve two main purposes for oil and gas operators: geosteering and formation evaluation.^[151] Over the past thirty years, advances in MWD/LWD technology and the measurements available in real time during the drilling process have allowed drillers to use the MWD/LWD system as a “geological steering tool which can be used to accurately place the horizontal section with reference to formation features and/or fluid contacts.”^[152]

a. Geosteering. Geosteering in the context of horizontal drilling consists of interpreting the information provided from MWD/LWD tools downhole to “model the data in real time and update the geological maps of the subsurface and the well location as it relates to geological events and boundaries.”^[153] Geosteering a well can often be accomplished using only MWD tools to monitor the drill bit position and a gamma ray tool to “correlate known marker formations,” however, the conditions of a particular reservoir may necessitate the use of additional LWD logs such as resistivity or nuclear logs.^[154] Depending on the chosen method of well placement, (i.e., reactive or proactive),^[155] a drilling engineer will use different LWD tools to ensure placement of the well bore in the reservoir by detecting potential geological obstacles such as faults, fractures, formation dips, or oil/water contacts.^[156] Despite its high upfront costs, the use of geosteering is increasing because accurate well placement for maximum reservoir contact can help offset the high costs of horizontal drilling.^[157]

b. Formation Evaluation. The same tools that provide geosteering capability in real time also provide formation evaluation^[158] capability in real time.^[159] The information provided by the various types of LWD can be used to determine the lithology, permeability, porosity, reservoir thickness, hydrocarbon saturation, and total reserves of the formations surrounding the wellbore.^[160] This information can then be used to evaluate “whether hydrocarbons are present and if so what volume of hydrocarbons and thus have a critical role in the decision to develop a reservoir or not.”^[161]

IV. The Lightning v. Anadarko Hypothetical

In determining whether geophysical trespass case law should apply to the use of MWD and LWD tools while drilling horizontally through an unpermitting mineral estate, it is useful to construe the facts of Lightning v. Anadarko as a hypothetical.^[162] Consider the following: Mineral lessee Able, an oil and gas company, holds the mineral estate underlying Blackacre. Baker is the owner of the surface estate overlying the mineral estate on Blackacre. Mineral lessee Charlie, a competing oil and gas company, holds the mineral estate underlying neighboring Whiteacre. Charlie negotiates a surface use agreement with Baker, allowing Charlie to drill from Baker’s surface estate on Blackacre to access his neighboring mineral estate underlying Whiteacre. This arrangement requires Charlie to drill through the subsurface containing Able’s mineral estate, but Charlie does not receive permission from Able to drill through his mineral estate. Though current case law holds that no actual trespass has occurred on Able’s mineral estate, does Able have a cause of action for geophysical trespass if Charlie uses MWD and LWD tools while drilling horizontally through Able’s mineral estate?

V. Application of Geophysical Trespass to the Lightning Hypothetical

To determine whether the use of MWD and LWD by an operator in Anadarko’s position constitutes geophysical trespass, it is first necessary to clarify whether such operations should be classified as geological operations or geophysical operations.^[163] Additionally, in Texas, whether a particular operation should be classified as a geophysical trespass may turn on the type of information gathered by that operation and its impact on the speculative value of the nonconsenting owner’s land.^[164] Furthermore, the policy rationale in support of encouraging oil and gas development cited by the Texas Supreme Court in its holding that the removal of a minimal amount of minerals from Lightning’s estate did not constitute trespass may also determine whether the use of MWD/LWD in off-lease horizontal wells constitutes geophysical trespass.^[165]

A. Comparison of the Technologies

As stated by Kuntz, Texas courts have not clearly distinguished between various geological and geophysical operations; however, it appears that the courts have clearly held seismic surveys to be a form of geophysical exploration which constitutes trespass when conducted on an unpermitting mineral estate.^[166] On the other hand, MWD and LWD appear to meet Kuntz’ definition of geological operations because operators acquire “subsurface data derived from drilling operations” to prepare geological maps and surveys.^[167] However, this distinction between MWD/LWD and seismic surveys is superficial because it focuses on each technology’s method of acquiring information rather than the type of information acquired and how it is used by oil and gas operators. Several key comparisons are important to consider in determining whether MWD/LWD is similar enough to seismic surveys to warrant application of geophysical trespass case law: (1) when each technology is deployed during the oil and gas exploration process; (2) what information is gathered; and (3) who uses the information.

The first key difference between MWD/LWD and seismic surveys is when each technology is deployed during the oil and gas exploration and development process. Seismic surveys are usually conducted when oil and gas companies are evaluating a tract of land for development potential with the goal of confirming the presence (or absence) of hydrocarbons beneath the tract.^[168] MWD/LWD, on the other hand, is conducted during the drilling process, usually after seismic surveys have already been conducted.

The first key similarity between MWD/LWD and seismic surveys is that the information gathered by MWD/LWD and seismic surveys may be used to confirm the presence (or absence) of hydrocarbons and estimate the volume of hydrocarbons present in a reservoir.^[169] However, Kuntz distinguishes geophysical operations, including seismic surveys, from geological operations, stating that geophysical methods secure “direct information as to the subsurface structures,” while geological methods secure subsurface data that may be used to derive geological maps and observations.^[170] Seismic methods do obtain direct information about subsurface structure and hydrocarbon content but the information obtained is often cross-referenced with data from offset wells in order to better detect DHI’s and calculate the volume of hydrocarbons present in a reservoir.^[171] On the other hand, the derivations of hydrocarbon volume and reservoir thickness from MWD/LWD measurements must be cross-referenced with seismic data and data from offset wells in order to determine the total volume of hydrocarbons in a reservoir.^[172] Though the measure of the volume of hydrocarbons in place provided by MWD/LWD must be extrapolated in order to determine the total volume of hydrocarbons present in a reservoir, both MWD/LWD and seismic surveys provide direct data regarding the subsurface in some form. Accordingly, Kuntz’s distinction is not appropriate for the geophysical trespass context because both seismic surveys and MWD/LWD are capable of directly obtaining information about the subsurface and its hydrocarbon content.

The second key difference between MWD/LWD and seismic surveys is the availability of the information obtained to various parties. Seismic surveyors may license a “speculative survey” to multiple third-party oil and gas operators, or the surveyor may conduct a “proprietary survey” for exclusive use by one such operator.^[173] Well log data, on the other hand, may be used by the operator or released to a third-party company to process and provide geosteering models, and that data is required to be published within ninety days of well completion.^[174]

Though MWD/LWD and seismic surveys differ in terms of how each technology acquires information and who can use that information, they share an important similarity in that the information collected by each can be used to determine the volume of hydrocarbons in place and the volume of hydrocarbons in the reservoir, respectively. Consequently, classification of each method as a “geological” or “geophysical” operation is insufficient to determine whether geophysical trespass case law applies in each case. Further analysis of geophysical trespass case law is necessary to determine its application to MWD/LWD.

B. Application of Geophysical Trespass Case Law

Considering the simplified facts of the previous hypothetical and the more detailed fact pattern of Lightning Oil v. Anadarko, existing geophysical trespass case law arguably applies to Anadarko’s situation because a similar operator in Anadarko’s position running a full suite of logs could obtain valuable information about the underlying reserves of the unpermitting mineral estate. However, liability may not run to Anadarko’s use of a MWD tool string that includes only basic gamma ray logging because this type of log does not provide valuable information about underlying reserves, though it does allow drilling engineers and geologists to correlate targeted marker beds in order to determine when to kick off and land the wellbore. Regardless, given the policy rationale in support of oil and gas development previously cited by the Texas Supreme Court, the court may limit application of geophysical trespass precedent to MWD/LWD by adopting dicta by the Galveston Court of Civil Appeals of Texas in Kennedy v. General Geophysical Co.^[175] or by the Fifth Circuit in Philips Petroleum v. Cowden.^[176] A discussion of the following factors is helpful in understanding how geophysical trespass case law applies to the Lightning hypothetical: (1) the physical entry requirement; (2) the right to explore; (3) self-protection by operators; and (4) Texas Supreme Court policy rationale.

1. The Physical Entry Requirement. The first factor is perhaps the most easily resolved, but it still merits discussion because Anadarko argued that its proposed use of MWD/LWD tools would not satisfy the physical entry requirement.^[177] Anadarko incorrectly cites Villarreal for the proposition that the “plaintiff [Lightning] has no claim when data is obtained without a trespass,” arguing no trespass occurred because Anadarko was authorized to “conduct all planned activities” by the surface estate.^[178] However, Anadarko’s argument represents a misconstruction of the physical entry requirement; a legal entry at the surface does not equate to a legal entry at the subsurface.^[179] Rather, Anadarko’s proposed use of MWD/LWD tools while drilling through Lightning’s mineral estate is a physical entry because Anadarko entered the subsurface without Lightning’s permission to drill or log its mineral estate and with the intent to gain the “knowledge of the subsurface conditions” necessary to land their drill in the targeted reservoir layer.^[180]

2. The Right to Explore. As noted by the Fifth Circuit, “in Texas the right to explore for oil and minerals is a valuable property right that can be legally protected.”^[181] Because Lightning suffered no actual damage to its minerals, the following discussion will focus on damages pursued under an assumpsit theory.^[182] In determining whether different methods of exploration—including MWD/LWD—are legally protected, two questions must be asked: First, who possesses the right to explore in the Lightning hypothetical? Second, is legal protection of the right to explore limited by dicta in Kennedy and Cowden?

First, as stated in the Lightning hypothetical and the language of its lease, Lightning does not possess the exclusive right to explore.^[183] Instead, Lightning possesses a nonexclusive right to explore. This distinction may subject the Lightning hypothetical to a split in Texas case law on the question of whether “the surface owner of Whiteacre [may] authorize the owner of an interest in minerals in other premises to conduct geophysical surveys upon Whiteacre[.]”^[184] According to the treatise, one Texas court has “held that the easement of a lessee to conduct geophysical operations on the premises (which the court assumed) was not exclusive, and hence the lessor might authorize other persons to enter upon the premises for the purpose of conducting geophysical operations.”^[185] On the other hand, the same treatise notes that Cowden I stands for the proposition that the right to explore “is either held by the lessee or mineral owner exclusively or is held jointly by such person and the surface owner, and hence one who conducted a geophysical survey with the consent of the surface owner was liable to the owner of mineral rights in such land for trespass.”^[186] Resolution of who holds the exclusive right to explore depends on the language of the lease and is important because it can determine whether a lessor has the right to grant the right to additional third parties besides the lessee.^[187]

However, even though Lightning possesses a nonexclusive right to explore, which may be shared with the grantor and any other grantees, the conflict at issue in the Lightning hypothetical is not between a lessee and its lessor and/or an additional third party granted the right to explore by the lessor. Instead, the conflict is between a lessee and the holder of an easement granted by the surface estate holder. Therefore, the Lightning hypothetical is not subject to the split in the case law discussed above, and Anadarko does not have any right to explore because they were not granted that right by the Briscoe Ranch—rather, they were granted only an “easement and permission to drill through Briscoe’s surface estate to access” Anadarko’s property.^[188] As a threshold matter, Lightning possesses a nonexclusive right to explore, which is legally protected and may not be invaded by Anadarko.^[189]

Second, the question of whether geophysical trespass is limited by dicta in Kennedy and Cowden I is a crucial one because future defendants in a similar position to Anadarko may argue these points to persuade the Texas Supreme Court to rule against application of the geophysical trespass cases to MWD/LWD. Because of dicta in both cases, it is unclear whether an operator with no mineral rights will be liable in damages for physically entering another’s property and violating their right to explore by running logs through a portion of the hole as a means of gaining information about the reservoir.^[190] Three approaches to this problem bear discussion: (1) the right to explore approach; (2) the Kennedy approach; and (3) the Cowden I approach.

The right to explore approach views geophysical trespass in its simplest form: physical entry and a violation of the right to explore.^[191] As the trial court in Cowden I noted, the right to explore entails “investigation and exploration for oil, gas and other mineral purposes . . . reasonably expected to reveal geophysical and geological information as to [the] land involved . . . .”^[192] Because MWD/LWD measurements convey a number of geological characteristics, such as lithology, porosity, and fluid saturation, MWD/LWD satisfies the requirements for geophysical trespass under this approach.^[193] Though few articles address the use of MWD/LWD directly, several commentators have adopted this approach, suggesting that operators must secure permission from both the surface and mineral estate before logging a well being drilled through another’s mineral estate.^[194]

The Kennedy approach could possibly modify the right to explore approach through dicta, requiring that information obtained relate to the “sub-surface formation and the probable presence or absence of oil, gas, or other minerals in and under appellant’s land.”^[195] Though the dicta in Kennedy was offered in a context contemplating geophysical trespass when the physical entry requirement had not been met, the court’s emphasis on the value of the information obtained could be used to limit the types of geological and geophysical information to which geophysical trespass may apply. Under this approach, it may be more difficult to find that Anadarko commits geophysical trespass if allowed to use its proposed MWD tool string equipped with basic gamma ray logging—Anadarko would receive information about the lithology of sub-surface formations but would not receive any information about the structure of the sub-surface or the presence or absence of hydrocarbons.^[196] However, an operator in Anadarko’s position running a more advanced logging suite, including resistivity logs, etc., would likely commit geophysical trespass because the logs would provide information such as porosity, permeability, and fluid saturation, which would enable the determination of the hydrocarbons in place and would likely be of value to the operator.^[197]

Finally, the Cowden I approach could also modify the right to explore approach through dicta by limiting geophysical trespass to situations where the information obtained might reduce the speculative value of the land.^[198] Under this approach, it may be considerably more difficult to reach a finding of geophysical trespass because of vague treatment of the meaning of “speculative value” by Texas courts and federal courts applying Texas law.^[199] However, this approach merits discussion because it may limit the application of geophysical trespass precedent to MWD/LWD. When compared to seismic surveying methods, several different factors affect whether MWD/LWD can impact the speculative value of land in a similar manner: (1) the type of information acquired; (2) who can use the information; (3) the timing of each exploration method; and (4) the ability to provide evidence of similar transactions or of the value of the right to explore.^[200]

First, seismic surveys can directly obtain information about the sub-surface structure and its contents, allowing calculation of the hydrocarbon reserves. MWD/LWD, on the other hand, can only obtain data from which hydrocarbons in place at that wellsite may be determined.^[201] Further correlation with similar data from other well logs and/or seismic data is necessary to allow calculation of the total hydrocarbon reserves or determination of sub-surface structures.^[202] Second, seismic surveys may be exclusively licensed by third-party oil and gas companies, but well logs are required to be published within ninety days of well completion.^[203] Third, seismic surveys occur early in the exploration process, i.e., when an oil and gas company is evaluating a tract of land for development, but MWD/LWD occurs during the development process, i.e., when drilling commences.^[204] Finally, it is unclear whether Lightning would be able to provide evidence of similar transactions or the value of the right to explore because oil and gas operators do not usually contract for the right to perform MWD/LWD on tracts they do not own or lease.^[205]

Whether the Texas Supreme Court would resolve the previously mentioned factors in favor of finding that MWD/LWD can reduce speculative value will likely depend on the court’s policy rationale.^[206] One can envision a scenario where the court may view the damage suffered by wrongful use of MWD/LWD to be de minimis because a determination of a lack of hydrocarbons at one well may not “condemn” the land, well logs are accessible by other operators once the well is complete, logging takes place towards the end of the field evaluation process when other operators have likely conducted seismic surveys and made leasing decisions, and the court may be reluctant to award damages without evidence of similar transactions.^[207] However, one could also envision a scenario where the court would find that a MWD/LWD log confirming an absence of hydrocarbons in place on an unpermitting mineral estate may materially reduce the speculative value of the tract because, though the lessee may have already conducted a seismic survey, the well log data confirms that a targeted formation has been drained or is not accessible due to a structural fault.

The Lightning hypothetical would likely align more closely with the first scenario because Anadarko held leases on the properties surrounding the Cutlass Lease and Lightning had already drilled several wells on the Cutlass Lease.^[208] Because Anadarko held leases on the properties surrounding the Cutlass Lease, it was likely to make a determination of hydrocarbon reserves under Lightning’s property using the seismic trends and geologic information from its own seismic surveys and logs on the surrounding lands. In addition, any publication of well log data would likely not condemn or reduce the speculative value of the Hurds’ mineral estate by causing Lightning not to lease or develop the property because Lightning had already begun developing the tract. However, as mentioned above, other fact patterns may lead to findings of geophysical trespass under the Cowden approach.

3. Self-Protection by Operators. Depending on which approach the court takes regarding the right to explore, geophysical trespass may still not apply to Anadarko’s proposed use of an MWD tool string with basic gamma ray logging. Operators may be able to shield themselves from geophysical trespass by “blacking out” information received from unpermitting mineral estates.^[209] Because no well log data will be gathered until Anadarko’s tool string reaches 7,000 feet, and because that well log data will consist of basic gamma ray data, Anadarko will not obtain information regarding the subsurface structure or the presence of hydrocarbons, and the lithologic information obtained will not reduce the speculative value of the land.^[210] Under the right to explore approach, an attempt to “black out” any log data from 7,000 feet to the surface will likely not succeed because Anadarko will still obtain log data from Lightning’s mineral estate without permission.^[211] However, under the Kennedy and Cowden approaches, Anadarko’s “black out” will likely aid in preventing a finding of geophysical trespass because no valuable information will be revealed by its gamma ray log.^[212]

4. Texas Supreme Court Policy Rationale. Whether the Texas Supreme Court will continue to follow the right to explore approach or adopt dicta in Kennedy or Cowden depends on which policy rationale the court follows. In Lightning, the court followed up its discussion of the benefits of off-lease drilling and its ability to maximize mineral production by avoiding blind spots and landing horizontal wellbores within as much of the target reservoir as possible with a strong policy rationale supporting mineral development despite the removal of a de minimis amount of Lightning’s minerals.^[213] The court’s policy rationale in Lightning gives reason to believe that it may accept arguments from operators in Anadarko’s position and adopt a limiting approach such as the Kennedy or Cowden approaches in the future because the court will likely want to avoid the impedance of exploration and development by obstructive lessees such as Lightning.^[214] According to one commentator, the court has been willing to reform other oil and gas common law doctrines in order to accommodate horizontal drilling, and it may be willing to do so again in this context.^[215] Affirmation of its implicit holding in Lightning and adoption of either the Kennedy or Cowden approach would achieve this result by allowing the use of MWD with basic gamma ray logging (and possibly additional log types), which would allow off-lease wells to be safely drilled without the threat of suit for geophysical trespass.^[216] On the other hand, affirmation of the right to explore approach would achieve the opposite result by allowing mineral estate holders and mineral lessees to impede off-lease drilling under threat of suit for geophysical trespass because drilling operators would not be able to accurately place horizontal wells without a correlation tool like gamma ray logging, even though the physical act of drilling per se is not trespass per the court.^[217]

VI. Conclusion

By refusing to apply geophysical trespass case law to the use of MWD/LWD, the Fourth Court of Appeals inappropriately limited the application of Villarreal on the facts because Anadarko did not plan to conduct any seismic surveys on Lightning’s lease. The Texas Supreme Court then affirmed the Fourth Court of Appeals’ decision on other grounds, but in doing so stated a broad policy rationale in support of its holding that off-lease drilling does not constitute trespass, which may implicitly support the proposition that the use of MWD/LWD in off-lease wells also does not constitute geophysical trespass. As Kuntz states in his treatise, further judicial development is needed to determine what geological and geophysical operations besides seismic surveys are legally protected under the right to explore. The decision by the Fourth Court of Appeals and the subsequent decision by the Texas Supreme Court fail to further develop geophysical trespass case law by limiting its application to the traditional context of seismic surveys.

Considering the existing body of case law regarding geophysical trespass in Texas and similarities between seismic surveys and MWD/LWD, geophysical case law applies to MWD/LWD under the current right to explore approach. However, given the policy rationale supporting its holding in Lightning, the Texas Supreme Court may limit the application of current geophysical trespass case law by adopting a limiting approach based on dicta in Kennedy or Cowden. As a result, the Texas Supreme Court would affirm its implicit holding in Lightning and significantly distinguish existing case law, which requires operators in Anadarko’s position to obtain permission from the mineral estate holder in Lightning’s position before drilling through the subsurface. Consequently, future operators like Anadarko may only need permission from the surface estate in order to drill and use MWD/LWD off-lease.

D. Duggan Baker V: J.D. Candidate, University of Houston Law Center, 2019. Many thanks to Professor Bret Wells, who provided much needed guidance in writing this Comment, the Houston Law Review editing team, and my loving friends and family.