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Make em pay!!!

Meaning of 1995 law debated as high stakes royalties case proceeds
Ben Geman, Greenwire senior reporter
Litigation that could decide whether oil-and-gas producers can forgo tens of billions of dollars in federal royalty payments is winding its way through the federal court system.
The Justice Department plans to file its latest brief today in Kerr-McGee Oil and Gas Corp. v. U.S. Department of the Interior with the 5th U.S. Circuit Court of Appeals.
At issue: whether a 1995 law that waives royalties on deepwater Gulf of Mexico production allows Interior to impose "price thresholds" that suspend the incentive when oil and natural gas prices exceed certain limits.
The law, written when oil prices were far lower, created incentives for costly deepwater projects by allowing companies to produce large volumes of oil and gas royalty-free.
Kerr-McGee sued Interior in 2006, claiming the department does not have authority under the 1995 law to include price thresholds in leases issued between 1996 and 2000.
The case revolved around leases from 1996, 1997 and 2000. Deepwater gulf leases issued in 1998 and 1999 already lack the price triggers, which Interior calls a mistaken omission, although the department has reached voluntary agreements with some companies that will require future payments on production from the 1998-1999 leases.
While Kerr-McGee is contesting payment of royalties on eight leases issued in 1996, 1997 and 2000, the stakes are far higher.
If the courts decide price thresholds are not allowed for any deepwater gulf leases issued between 1996 and 2000, producers could avoid $53 billion in royalties over 25 years, according to a June analysis by the Government Accountability Office, although the levels of forgone royalties vary depending on prices.
Round one in the case went to Kerr-McGee -- which was purchased by Anadarko Petroleum Corp. in 2006 -- when a federal district court judge ruled last fall that Interior's Minerals Management Service cannot condition "royalty relief" on oil and natural gas prices.
The Bush administration has appealed the case.
Two briefs filed thus far before the appeals court are, in effect, a detailed argument about the interplay between two key sections of the 1995 law.
The briefs address Section 303, which broadly allows Interior to sell leases that allow royalty relief and "vary" the suspension of royalties based on energy prices, and Section 304, which lays out the amount of royalty-free production allowed from leases sold for the first five years after the law's enactment at various deep water depths.
Kerr-McGee's brief says Section 304 should be read to require royalty relief for these volumes on leases sold during these five years, which range from 17.5 million barrels of oil equivalent to 87.5 million barrels, regardless of prices.
The company says Congress "unconditionally" allowed owners of these leases to produce these volumes royalty-free. "Interior's Price Threshold Requirement reduces Kerr-McGee's royalty suspensions below the minimum volumes that Congress guaranteed for Section 304 Leases," according to the brief filed late last month.
But administration attorneys say the law plainly allows Interior to suspend royalty waivers when prices reach certain limits and that this was the clear understanding of lawmakers who crafted and passed the act.
"There is no indication that Congress intended to remove the authority for price thresholds for all leases Interior issued from 1996 to 2000, a measure that would be unnecessary to achieve the congressional goal of spurring production and would result in an unanticipated windfall to the industry," states the administration's opening brief filed in June.
Currently, deepwater royalty waivers no longer apply when oil prices exceed about $36-$37 per barrel and natural gas prices exceed roughly $4.60 per million British thermal units. Both commodities are currently trading well above these levels.
In its brief, the administration alleges that the district court judge incorrectly relied on an earlier court case in the 5th Circuit about other aspects of the royalty waiver program -- Santa Fe Snyder Corp. v. Norton -- in concluding that "price thresholds" are not authorized on the 1996-2000 leases.
The Santa Fe case was a successful challenge to MMS rules that had required the amount of royalty-free production allowed in a given "geologic field" to be shared among the leases in that area. The 2004 5th Circuit decision also said MMS rules wrongly disallowed royalty relief for new leases in fields where energy production had already occurred before the mid-1990s law that launched the incentive program.