Kenai Landing, Inc. v. Cook Inlet Natural Gas Storage Alaska, LLC
Kenai Landing, Inc. v. Cook Inlet Natural Gas Storage Alaska, LLC
Opinion of the Court
*957I. INTRODUCTION
A public utility filed a condemnation action seeking the land use rights necessary to construct a natural gas storage facility in an underground formation of porous rock. The utility held some rights already by assignment from an oil and gas lessee. The superior court held that because of the oil and gas lease, the utility owned the rights to whatever producible gas remained in the underground formation and did not have to compensate the landowner for its use of the gas to help pressurize the storage facility.
The court held a bench trial to determine the value of the storage space. The landowner appeals the resulting compensation award. It argues that it retained ownership of the producible gas in place because the oil and gas lease authorized only production, not storage. It also argues that it had the right to compensation for gas that was discovered after the date of taking. But we conclude that the superior court did not err in ruling that the landowner's only rights in the gas were reversionary rights that were unaffected by the utility's non-consumptive use of the gas during the pendency of the lease.
The landowner also challenges several findings related to the court's valuation of the storage rights: that the proper basis of valuation was the storage facility's maximum physical capacity rather than the capacity allowed by its permits; that the valuation should not have included buffer area at the same rate as area used for storage; and that an expert's valuation methodology, which the superior court accepted, was flawed. We conclude that the superior court did not clearly err, and we therefore affirm its judgment.
II. FACTS AND PROCEEDINGS
A. Facts
Cook Inlet Natural Gas Storage Alaska, LLC ("CINGSA"), is a private company building a natural gas storage facility on the Kenai Peninsula.
To ensure the efficient extraction of gas, the facility must maintain a minimum amount of pressurization, which in turn requires that it retain a minimum amount of gas in storage. This is called "base gas" (or "cushion gas"). In the Sterling C Reservoir, part of the need for base gas was satisfied by gas left in the reservoir at the time CINGSA acquired it; such gas left in the ground is known as "native gas." Any gas in the reservoir in addition to the base gas is called "working gas," since that gas moves in and out of storage according to demand.
The storage facility's "safety, pressure limitations, and other operational matters" were subject to regulation by the Alaska Oil and Gas Conservation Commission (AOGCC), and its "financial and economic matters and relationships with its customers" were regulated by the Regulatory Commission of Alaska (RCA). The RCA granted CINGSA a certificate of public convenience and necessity in 2011, and CINGSA, as a regulated public utility, proceeded to use the power of eminent domain to acquire the property rights necessary for the storage facility's operation.
Kenai Landing, Inc. owns a parcel of land overlying the Sterling C Reservoir. Kenai Landing acquired the property subject to an existing oil and gas lease - the "Wards Cove Lease" - entered into in 1978 by C.W.C. Fisheries and Union Oil Company. The *958Wards Cove Lease, committed to the Cannery Loop Unit,
Sometime after CINGSA commenced its condemnation action, it discovered "a pocket of gas" referred to as the "isolated reservoir." CINGSA's drilling brought this "new gas" into contact with the gas already known to be in the reservoir; the new gas, thus, increased the volume of native gas overall, including that underlying Kenai Landing's property.
B. Proceedings
In March 2011 CINGSA filed a complaint against Kenai Landing and others to condemn the rights to the Sterling C Reservoir that it had not been able to acquire through negotiation. It sought to condemn (1) an easement for gas storage, to include the underground formations in the Sterling C Reservoir plus an adjoining geological zone for use as a "buffer"; and (2) an easement in the mineral interests, which would allow CINGSA the use of "all gas, oil, or other minerals ... located within the Sterling C Pool and the correlative buffer geological formation," including the use of native gas as "base gas for the storage facility."
CINGSA moved for partial summary judgment, asking for a ruling that Kenai Landing had no right to compensation for any of the native gas in the Sterling C Reservoir because CINGSA owned this gas as assignee of the Wards Cove Lease. Kenai Landing countered that the lease had been terminated, either by the condemnation itself or by DNR's severance of the Sterling C Reservoir from the Cannery Loop Unit, and that ownership of the minerals had therefore reverted to Kenai Landing. The superior court decided that the Wards Cove Lease was still in effect and granted summary judgment on this issue in CINGSA's favor.
The parties agreed that Kenai Landing had a right to compensation for the use of its property for underground gas storage.
III. STANDARD OF REVIEW
We review a decision on summary judgment de novo.
The proper amount of compensation to be paid for a taking is a factual question.
IV. DISCUSSION
Kenai Landing raises five issues on appeal. First, it argues that the superior court erred by failing to compensate it for CINGSA's use of the native gas remaining in the Sterling C Reservoir as base gas. Second, it argues that it was also entitled to compensation for its proportionate share of the new gas CINGSA discovered after the taking.
Kenai Landing's other three claims relate to the superior court's valuation of the gas storage space. It argues that the court erred by failing to consider the "highest and best use" of the land and the "fullest extent" rule; that the court erred by giving equal value to the storage space and the surrounding buffer zone; and, finally, that the court erred by relying on the valuation testimony of one of CINGSA's expert witnesses, who Kenai Landing contends applied the valuation methodology improperly.
We conclude that none of these issues involves legal error or a clearly erroneous finding of fact, and we therefore affirm the superior court's judgment.
A. The Superior Court Did Not Err In Deciding That Kenai Landing Was Not Entitled To Compensation For CINGSA's Easement In The Native Gas.
Kenai Landing argues that the superior court erred when it concluded that Kenai Landing owned at most "a reversionary interest in the native gas in place." Kenai Landing argues that the only interest in native gas that its predecessor-in-interest transferred to Marathon under the Wards Cove Lease was the right to extract it. Kenai Landing argues that the rights transferred under the lease "relate exclusively to production and do not include the right to make use of the native gas as Base Gas," a right which "is instead part of the rights the lessor retained and belong to the property's fee simple owner, [Kenai Landing]." Kenai Landing argues that its perspective is supported by the language of the lease, "which the superior court utterly failed to analyze."
We do not find the lease language to be as "straightforward" as Kenai Landing characterizes it. The granting clause is broad: "[The] lessor ... has ... leased ... exclusively unto the lessee the hereinafter described land ... for the purpose of the drilling, mining, and operating for, producing, and saving all of the oil [and] gas ...." A later paragraph provides that "[t]he lessee shall have the right to use, free of cost, gas ... found on said land for its operations thereon ...." The lease specifically contemplates that it will remain in effect even if not producing, as long as it is part of a unit on which some production is occurring and the lessor is being paid royalties on the unit's production.
Citing cases, Kenai Landing argues that "it would be unusual to interpret a production lease like the Wards Cove Lease to include the right to store non-native gas absent specific language conferring that right upon the lessee."
Relying on general principles of oil and gas law (applied by some but not all jurisdictions), CINGSA contends that when it "acquired the native gas under [Kenai Landing's] property by virtue of acquiring the Wards Cove Lease, it acquired ownership of this gas for any and all purposes."
"In Alaska, the fundamental goal of 'just compensation' is to make the property owner whole."
We must conclude that the answer is "nothing." The Wards Cove Lease gave the lessee production rights - which CINGSA had by assignment - and gave the lessor a royalty interest - which CINGSA also had by assignment. As the superior court explained, "[Kenai Landing] does not have the current right to produce or receive royalties on any portion of the native gas in place ... as long as its ownership is subject to the Wards Cove Lease because the production *961rights belong to the lessee ...." And "[Kenai Landing] had no ability to stop gas production in the Sterling [C], which could have continued until economically depleted." Marathon could have extracted the native gas and sold it as its own, and CINGSA, as Marathon's assignee, had the same right, as Kenai Landing recognizes. It is only if the Cannery Loop Unit as a whole ceases production that there will occur "the collateral effect of terminating the Wards Cove Lease, and the full [Kenai Landing] fee interests will thereupon be held by [Kenai Landing], including its reversionary interests in the oil and gas aspects of the mineral estate."
Until that time, and however Kenai Landing's current interest is characterized, its right to the gas may fairly be called reversionary: it has no current right to extract native gas, to block its production, or to use the native gas in place for any purpose.
Notably, Kenai Landing focuses its argument on appeal not on what it lost by the condemnation but rather on what CINGSA gained: the use of the native gas as base gas. Kenai Landing writes, "Using native gas as Base Gas saved CINGSA the cost of acquiring, transporting and injecting gas into the Sterling C Pool for this purpose from another source." Kenai Landing argues that "there is nothing novel or untoward about requiring payment of compensation for such use." But "just compensation" is payment for what the condemnee lost.
B. The Superior Court Did Not Err By Deciding That Kenai Landing Was Not Entitled To Compensation For The Newly Discovered Gas.
Kenai Landing's second claim involves what is termed the "isolated reservoir" of native gas, discovered after the date of taking.
*962Kenai Landing separately argues against the superior court's reliance on the "scope of the project" rule, which holds that enhancements to the condemned property's value, arising after "it becomes likely that the property will be condemned," do not benefit the condemnee.
But the exception is inapplicable here. Gas from the isolated reservoir was not just undiscovered as of the date of the taking, it was not present under Kenai Landing's property at all. The superior court found, and Kenai Landing does not dispute, that the gas came into pressure communication with the gas underlying Kenai Landing's property only after CINGSA accidentally tapped into the isolated reservoir while working on the project. Even if Kenai Landing were otherwise entitled to compensation for CINGSA's use of the native gas as base gas, the scope of the project rule would preclude recovery based on the additional gas released from the isolated reservoir, as it was not a part of Kenai Landing's property when condemnation proceedings began.
C. The Superior Court Did Not Clearly Err In Finding That The "Highest And Best Use" Of The Property Was An 11 Bcf Facility And Properly Refused To Apply The "Fullest Extent" Rule.
Kenai Landing's remaining arguments concern the value of the pore space rights, the subject of the seven-day bench trial. Kenai Landing first argues that the superior court undervalued these rights by failing to consider the "highest and best use" of the pore space.
Kenai Landing's expert appraisal witness, Kenneth Gain, "based his analysis on the assumption that the CINGSA facility would operate at a working gas capacity of 19.54 Bcf, and would cycle 100% of the stored gas each year for 60 years." But the court credited the testimony of CINGSA's expert, Richard Gentges, that there were "technical problems, engineering problems, and market demand problems" that would have to be overcome before such a working gas capacity could be realized. It found Gain's value analysis - "based on assumed revenues on a hypothetical gas storage facility" - to be unreliable and "not grounded in fact," finding instead that the reservoir's capacity was 11 Bcf - the limit set by CINGSA's "current regulatory approvals."
Kenai Landing argues that this finding of fact leads to an unfair result, because the reservoir could conceivably hold 19.54 Bcf, and CINGSA, regardless of its current *963intentions and regulatory approvals, "now has the right to make use of the pore space's maximum capacity. That is what it obtained, and that is what it should pay for." Kenai Landing relies on the "fullest extent rule," which presumes that "the appropriator will exercise [the rights acquired] and use and enjoy the property taken to the full extent."
We need not address that argument, because the superior court reached an alternative holding as well: "Even if the fullest extent rule were not limited to the realm of severance damages," applying it in this case would conflict with Alaska law on just compensation. The court explained that while Kenai Landing "seeks to value its storage rights based on the maximum possible working gas capacity CINGSA could theoretically create, assuming extensive expensive investments in infrastructure," the correct standard was "what price a market buyer would have paid for the pore space as it existed on the date of taking."
In Martens v. State we examined how a change in zoning laws, and consequently a possible change in the property's "highest and best use," might affect its value.
Regulatory approvals limited CINGSA's use of the Sterling C Reservoir to the storage of 11 Bcf of gas. Assuming that the reservoir could hold 19.54 Bcf of gas, CINGSA, like the builders in Martens , could not use the property in that way without first getting permission of the regulators. The superior court recited testimony by Gentges, CINGSA's expert witness - whom the court specifically found to be credible
For [a capacity of 19.54 Bcf] to be realized, an operator would have to overcome technical problems, engineering problems, and market demand problems. Gentges testified about those problems, which include the fact that the feasibility of expansion had not yet been studied by or for CINGSA; the need to invest in infrastructure to increase both storage and deliverability; well-pad limitations; and the complexity of drilling in an area already riddled with existing wells.
....
Gentges testified that he was unaware of any evidence of demand for a working gas capacity beyond 11 Bcf, and that an expansion to that level may not be physically or technologically possible or feasible. The actual storage activity under the comparable leases after the date of taking gave no evidence of unmet demand.
The evidence recited by the superior court supported its finding that a change in the *964approved storage capacity was not reasonably probable in the near future, as required in Martens for that change to affect value. Kenai Landing cites no evidence to the contrary; indeed, its expert witnesses at trial simply assumed the possibility of expanded use and did not explore its likelihood.
Because the superior court did not clearly err when it found that a change in the property's current storage capacity was not reasonably probable in the near future, it properly declined to apply the fullest extent rule as urged by Kenai Landing.
D. The Superior Court Did Not Clearly Err By Including The Buffer Area When Valuing The Condemned Property.
Kenai Landing also argues that the superior court erred when it calculated Kenai Landing's percentage of the condemned area - and thus its percentage of the area's value - based not only on the area of the Sterling C Reservoir itself but also including 722 acres of buffer zone. Kenai Landing argues that by "assign[ing] equal value to land not used to store gas (i.e., the Buffer Zone) as though it were so used," the court's analysis "dilutes the value assigned to the actual pore space" and "punishes [Kenai Landing] based on CINGSA's arbitrary determination as to how much non-pore buffer area to include within its proposed 'storage boundary.' "
The court included the buffer zone for valuation purposes based on the testimony of CINGSA's expert witnesses, whom the court specifically found credible on this issue as on others. The court cited expert testimony that the only commercial value of Kenai Landing's pore space was for gas storage, and "in reality, it had no use until someone put all of the necessary elements for a gas storage project together." Those necessary elements included a buffer zone. Three of CINGSA's experts testified consistently that a buffer zone is "required for prudent operation" of a gas storage field, that it is "important to the integrity of a gas field," and that "in the industry no difference is made in the leasing rates applicable to surface land over the reservoir area versus land located over the buffer area." As the superior court recognized, the fact-finder in eminent domain proceedings has flexibility in determining the appropriate valuation method under the circumstances.
Kenai Landing contends that industry practice cannot "dictate a rule that assigns the same value to [a] non-productive buffer zone as to the land that creates the value - the productive pore space." In support of this proposition, Kenai Landing cites one case, Consumers Power Co. v. Allegan State Bank ,
*965We see no clear error in the superior court's finding that, consistent with industry practice, its valuation should include the buffer area at the same rate as the land including the useable pore space.
E. The Superior Court Did Not Commit Clear Error When It Chose To Credit An Expert's Valuation Methods.
Kenai Landing's final argument is that one of CINGSA's valuation experts, Louis Petho, did not properly carry out the "income" approach to valuation he claimed to be using. Petho looked at comparable leased properties, determined the revenue they generated for the lessors, and divided the revenue by the number of leased acres to determine an annual per-acre lease rate, which he then applied to Kenai Landing's property to reach a total value of $ 47,500. Kenai Landing faults this method because "[t]he leased properties in question[ ] were not leased on an annual-per-acre lease rate; they generally included only a very nominal per acre payment, and generated the bulk of their revenues from storage and injection fees paid." Kenai Landing argues that these revenue histories "tell us nothing about the probable revenue the Sterling C Pool, and [Kenai Landing's] interest in same, can generate from gas storage."
The superior court found Petho's testimony "credible and reliable" and that he was "the most experienced in the valuation of gas storage rights" of the three expert appraisers who testified at trial. But the superior court did not rely entirely on Petho's testimony. CINGSA called a second appraiser, Bernie Shaner, who identified what he considered to be problems with Kenai Landing's estimate of value. Shaner "approved Petho's methodology, testifying that it is the one he uses and has seen used throughout his career, [but] he did not approve Petho's analysis wholesale." Rather, Shaner "conducted his own appraisal of [Kenai Landing's] interests, using all the comparable data relied on by both of the other appraisers" - Petho and Kenai Landing's expert, Gain. After making some adjustments to Petho's numbers, Shaner came up with "a total value of $ 64,754 for [Kenai Landing's] three parcels, which he rounded up to $ 65,000."
The superior court observed that "Petho, Gentges, and Shaner all testified that Petho's method is the one actually used by the market throughout the natural gas storage industry," whereas the method proposed by Gain - a "discounted cash flow analysis" that assumed certain hypothetical injection and withdrawal rates for CINGSA's stored gas - "is a novel approach that is not in use in the storage industry." The court found "that Petho's method is the appropriate method to value the subject property and further accept[ed] Shaner's review adjustment of his opinion to find $ 65,000 as just compensation for the gas storage easement ...."
Again, we note the fact-finder's flexibility in determining the appropriate valuation methodology under the circumstances of the case,
*966V. CONCLUSION
We AFFIRM the judgment of the superior court.
We recently described CINGSA's storage of natural gas in underground porous rock formations in City of Kenai v. Cook Inlet Natural Gas Storage Alaska, LLC ,
See AS 42.05.631.
Unitization allows the joint operation of a producing reservoir by different interest holders. See White v. State, Dep't of Nat. Res. ,
The parties also stipulated that CINGSA's storage easement did not include any rights to use the surface of Kenai Landing's property.
The "non-producible minerals" are those that will remain in the subsurface after the lease expires, including some gas that will never be removed from the Sterling C Reservoir because it is not technologically or economically feasible to produce it. CINGSA compensated Kenai Landing for these minerals by stipulation on the theory that it is "industry custom" to compensate the landowner for the nominal value of the easement over the non-producible minerals.
Alakayak v. B.C. Packers, Ltd. ,
State v. Alaska Laser Wash, Inc. ,
See Triangle, Inc. v. State ,
Beeson v. City of Palmer ,
See Mason v. Range Res.-Appalachia LLC ,
Kenai Landing concedes that "[w]ere CINGSA at some future date to abandon its storage operation, and then seek to produce the remaining native gas, it would have that right ...."
See Comm'r v. P.G. Lake, Inc. ,
See Miller v. Ridgley ,
The majority rule is that the landowner owns the minerals in place (in the ground). See, e.g. , McDonald v. Unirex, Inc. ,
City of Kenai v. Burnett ,
Ketchikan Cold Storage Co. v. State ,
Gackstetter v. State ,
Teller Native Corp. ,
See Collins v. Chappell ,
Teller Native Corp. ,
See City of Kenai v. Burnett ,
The parties stipulated to March 11, 2011, as the date of taking. The superior court referred to the interior reservoir as a "post-taking discovery" and quoted the RCA as stating that "CINGSA was not aware of the existence of the 14.5 Bcf [billion cubic feet] when it acquired the reservoir." The relevant facts thus appear to be undisputed.
See City of Valdez v. 18.99 Acres ,
AS 09.55.330 ("For the purpose of assessing compensation and damages, the right to them accrues at the date of issuance of the summons, and its actual value at that date is the measure of compensation of the property to be actually taken ...."); State v. Hammer ,
See, e.g. , City of Little Rock v. Moreland ,
Coos Bay Logging Co. v. Barclay ,
See Sackman , supra note 26, § 14A.02[3] ("In considering the effect of the taking on the remainder, the after value must take into account the proposed use of the project and the effect of that use on the remainder. The landowner is entitled to assume ... that the taking authority will make the full use 'physically possible of any easement or land described in the taking certificate.' " (internal citation omitted) (quoting 2,953.15 Acres of Land v. United States ,
We grant "[p]articular deference ... to the superior court's credibility determinations." Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co. ,
See Babinec v. State ,
See United States v. Silver Queen Mining Co. ,
The superior court also credited testimony that seismic data made available to CINGSA after the condemnation showed that in fact there was "little usable pore space below [Kenai Landing's] property," and "part or all of [Kenai Landing's] property more likely than not lies outside the zero gas line" demarcating the boundary between productive and buffer areas. Because we affirm the superior court's choice of a valuation method, we need not address the issue of whether Kenai Landing's interest inside the productive zone was in fact negligible, as one of CINGSA's experts characterized it.
See Babinec ,
See Silver Queen Mining Co. ,
Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co. ,
Reference
- Full Case Name
- KENAI LANDING, INC. v. COOK INLET NATURAL GAS STORAGE ALASKA, LLC Kirkpatrick-Walkowski-Watkins Trust and Chere D. Kaas
- Cited By
- 2 cases
- Status
- Published