June 11, 2026 | By: Jason T. Seay, AIGP, CIPP-US

Cybersecurity and privacy are no longer back-office concerns for the energy sector; they are front-line legal and operational risks. With expanding federal directives, evolving threat tactics, and an increasingly aggressive privacy litigation landscape, some energy companies are rethinking how they manage cyber and data risk. This Alert highlights the latest developments and what they mean for your business.

Key Takeaways

1. Federal Cybersecurity Mandates Are Expanding Rapidly

• The Transportation Security Administration (TSA) continues to roll out mandatory cybersecurity directives for critical pipeline infrastructure.
• These apply to designated pipeline owners and operators and are evolving annually.
• Expect more assets to be classified as “critical infrastructure,” increasing regulatory reach.

2. Compliance Now Requires a Structured, Documented Cyber Program

• TSA directives establish a two-layer framework:
  • Governance and Reporting (01 Series):
    • Designated cybersecurity coordinator (24/7 availability)
    • Mandatory incident reporting to the Cybersecurity and Infrastructure Security Agency (CISA)
    • Formal risk assessments and governance structures
  • Mitigation and Testing (02 Series):
    • Cybersecurity Implementation Plans
    • Incident response and recovery planning
    • Ongoing testing, validation, and documentation
• Key shift: Regulators now expect audit-ready evidence of compliance, not just policies.

3. 2025–2026 Updates Signal a Move Toward Continuous Oversight

• Recent TSA updates emphasize:
  • Performance-based compliance
  • Real-time monitoring and detection capabilities
  • Stricter reporting timelines and remediation tracking
• Implication: Cybersecurity is now an ongoing operational obligation, not a periodic exercise.

4. Threat Actors Are Targeting Identity, Not Just Systems

• Attack strategies are evolving quickly:
  • Help desk impersonation and social engineering
  • Multi-factor authentication (MFA) fatigue (“push-bombing”)
  • Identity provider (IdP) compromise (e.g., centralized access systems)
  • Exploitation of non-human identities (API keys, service accounts)
• Generative AI is accelerating:
  • Phishing sophistication
  • Malware development
  • Attack scale and speed
• Takeaway: Traditional perimeter defense is becoming obsolete.

5. Privacy Litigation Is Expanding Beyond Traditional Targets

• The California Invasion of Privacy Act (CIPA) is being applied to:
  • Website tracking technologies (cookies, pixels)
  • Chatbots and AI tools
  • Session replay and user interaction tracking
• Plaintiffs argue that third-party tools “intercept” user communications—triggering potential liability under California state law.
• Risk exposure: Up to $5,000 per violation, with broad applicability to any site accessible in California.

6. New Privacy Laws Add Another Layer of Compliance

• The Oklahoma Privacy Act (effective 2027) introduces:
  • Enforcement by the Attorney General
  • Penalties up to $7,500 per violation
• At the same time, updated California Consumer Privacy Act regulations require:
  • Risk assessments for high-risk data processing
  • Cybersecurity audits for covered businesses
• Notably: Sensitive data like precise geolocation is a key focus.

7. Proactive Risk Management Is Now a Business Imperative

• Leading practices include:
  • Comprehensive data and AI tool inventory (chatbots, analytics, tracking tools)
  • Vendor contract scrutiny (data use, model training, reuse rights)
  • Regular audits (at least every 6 months)
  • Stronger consent frameworks (clear disclosures and enforceable terms)

The Bottom Line

Legal, IT, and operations teams must work in lockstep as cybersecurity and privacy risks in the energy industry are converging and intensifying. Federal mandates, sophisticated cyber threats, and expanding privacy litigation, are creating a complex, high-stakes environment.

Companies that treat cybersecurity and data governance as core business functions, not just compliance exercises, will be best positioned to manage risk, maintain operational resilience, and avoid costly enforcement actions.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Jason T. Seay, AIGP, CIPP-US

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 8, 2026 | By: Kat Statman

In a significant decision impacting the utility and energy industries, the Texas Supreme Court recently issued an opinion in Boerschig v. Rio Grande Electric Cooperative, Inc., making clear the limited scope of an easement by estoppel.

Private land in Texas, with one of the highest rates of private land ownership (more than 96%) and the second largest state by land size in the United States, is crisscrossed with utilities and energy extraction and delivery operations that date back more than a century. As a result, the recent opinion issued by the Texas Supreme Court, which concluded that easements by estoppel are to be narrowly construed in terms of scope, may have an impact on any utility or energy easement holders that are not properly recorded for historical reasons, significantly limiting what the easement holder can and cannot do within its easement rights.

In Boerschig, the Texas Supreme Court was tasked with determining

• Whether an electric cooperative held an easement by estoppel for its power distribution lines that were built pursuant to an agreed, albeit unrecorded, easement with the prior ranch owners and
• Whether the scope of that easement by estoppel allowed the electric cooperative to upgrade the power distribution lines that increased the number of power lines originally constructed.

Based on these questions, the Texas Supreme Court concluded that the electric cooperative did have an easement by estoppel; however, in a significant decision, the Court concluded that the power distribution line upgrades exceeded the scope of the easement by estoppel because the cooperative did not offer any evidence “that the upgrade was reasonably necessary to continue its existing use of the line.”

What Happened?

The Rio Grande Electric Cooperative was originally formed in 1945 to provide electricity to rural ranches and property owners in south, central, and west Texas. Since 1945, Rio Grande has expanded to cover 18 counties in Texas and two in New Mexico. In 1947, Rio Grande acquired a “Right of Way Easement” over the property at issue, giving it “the right to place, construct, operate, repair, maintain, relocate and replace an electric transmission or distribution line or system on 5,684 acres” of the property at issue. However, the easement was never recorded in the real property records.

The distribution line was constructed after Rio Grande obtained the easement and crossed 1.6 miles of the property at issue. Subsequently, in 2002, John Boerschig purchased the U-Bar Ranch in Kinney County, Texas, which included the plot of land where Rio Grande’s utility easement ran. Mr. Boerschig was aware of the distribution line at the time of purchase, as he observed the distribution line in addition to the fact that it was marked on a survey that was prepared in connection with the purchase transaction.

In 2012, Rio Grande provided notice to Boerschig about its plan to bulldoze and upgrade the existing feeder along the utility line easement. Additionally, Rio Grande planned to move the distribution line approximately 15 feet and add to the line to serve new customers (specifically a gas compressor station and a new electric substation Rio Grande was planning to build to accommodate anticipated future demand and growth). While Boerschig contended that he never received the letter, after observing a bulldozer for Rio Grande starting to clear a route through his property, he demanded copies of the easements covering the route. Rio Grande did not provide the specific easement covering the area at issue, only providing other easements it held over the property.

Boerschig filed a suit against Rio Grande for trespass and obtained a temporary restraining order. Rio Grande filed a counterclaim seeking a declaratory judgment that it had a valid express easement or, in the alternative, that it had a prescriptive easement or one by estoppel. During the course of the litigation, the parties agreed Rio Grande would cease construction. Rio Grande also alleged that Boerschig had interfered with its easement rights and potential contracts to reroute the distribution line through the town of Brackettville, Texas.

Throughout the litigation, Boerschig offered to allow Rio Grande to build a new line in a different area of his property and alongside a different existing transmission line owned by another company. Rio Grande, however, refused. After Boerschig dropped his opposition to the continued construction, subject to his trespass claim that the upgrade was not authorized by a valid and enforceable easement, Rio Grande decided to keep the line on the original footprint, but upgraded it to include additional poles and lines as originally planned.

The dispute between the parties eventually went to trial, and the jury returned a verdict that Rio Grande did not have a written or prescriptive easement but concluded that it did have an easement by estoppel. The jury also concluded that Rio Grande’s upgrade to the distribution lines failed to exceed the scope of the easement, which included utilizing 60 poles carrying seven wires versus the original distribution line that was 20 poles carrying four wires.

On appeal, the Court of Appeals was presented with two questions:

1. Whether there was sufficient evidence for the jury to find that there was an easement by estoppel; and,
2. Whether there was sufficient evidence for the jury’s failure to conclude that the transmission line upgrades by Rio Grande exceeded the scope of the easement by estoppel.

The Court of Appeals found that there was sufficient evidence for both jury findings.

Supreme Court’s Fundamental Legal Analysis

Whether There Was Sufficient Evidence for Easement by Estoppel Jury Finding

The elements to prove a claim of easement by estoppel are relatively well-settled under Texas law.

1. “[T]he owner of the burdened estate represented that an easement would be conveyed,
2. The holder believed the representation, and
3. The holder relied on the representation to its detriment.”

The question the Supreme Court focused on was whether the defective easement, because it was unrecorded, could be evidence to establish Rio Grande’s easement by estoppel claim.

The Texas Supreme Court answered this in the affirmative and upheld the Court of Appeals, while declining to adopt the Restatement (Third) of Property. As the Supreme Court stated:

A writing that fails as an express easement can be some evidence supporting the representation element of an easement by estoppel. The function of such easement is to preserve reliance interests for uses of land intended by the parties but not supported by formal written documentation. Thus, easements by estoppel arise only in cases in which an express easement fails to cover the use at issue. An easement that the parties intended but failed to perfectly memorialize is no less relevant than an easement the parties intended to memorialize by a handshake.

Based on this, the Court concluded that there was legally sufficient evidence based on the unrecorded written easement from 1947 that the jury could rely on finding that Rio Grande had an easement by estoppel.

Did Rio Grande’s Upgrade Exceed the Scope of its Easement by Estoppel

The second issue presented to the Supreme Court was on the scope of the easement by estoppel and whether the upgrades by Rio Grande exceeded its scope. This is where the Supreme Court reversed both the trial court and the court of appeals’ conclusions, finding that as a matter of law Rio Grande exceeded the scope of its easement by estoppel under Texas law. Therefore, Boerschig, the property owner, is entitled to judgment as a matter of law on his trespass claim.

In coming to this conclusion, the Supreme Court specifically looked at the public policy surrounding easements by estoppel. As the Court noted, because easements by estoppel are not recorded like express easements, determining their scope is more difficult and is fraught with other considerations, like this situation where the easement would be extended to subsequent property owners such as Boerschig. Based on this, the Court stated “[T]he scope of such an easement [by estoppel] is limited to preventing injustice by protecting the holder’s reliance interest—that is, the actual investment (or other change of position) that the holder made to use the land in reasonable reliance on the owner’s representations.” Based on this, the Court made clear that easements by estoppel are limited in scope to that which “would be discovered by reasonable inspection or inquiry.”

In support of this conclusion, the Court looked closely at separation of powers issues,

Courts and juries are not free to give away more of a landowner’s property rights whenever they feel that the societal benefit of an expanded use outweighs its burden on the landowner. That judgment is for the other branches of government and entities on which they have conferred condemning authority, and our Constitution demands that the landowner be compensated when a greater easement is taken.

There are additional considerations that can be made in assessing whether an easement by estoppel holder exceeded the scope of its easement, such as whether the activity is “reasonably necessary to fairly enjoy the usage rights defined by the representations, reliance, and knowledge.” This assessment of whether the use is reasonably necessary must be narrowly drawn, however, “to burden the landowner as little as possible.”

In undertaking this analysis, the Supreme Court concluded that Rio Grande’s increasing the number of distribution line poles, increasing the height of those poles by seven feet, and increasing the number of lines on those poles was not an activity that was reasonably necessary for it to enjoy the usage of the easement based on the representations it received and relied upon as well as the knowledge of the easement.

In essence, the issue boiled down to whether Rio Grande could continue to use and maintain its line in its present form, which was not contested. However, the Rio Grande CEO testified that the changes made constituted an upgrade and would provide electric services to a new gas compressor station as well as connect a new electrical substation to accommodate anticipated future growth. The CEO also testified that the existing line served roughly 1,000 consumers. This testimony at the trial court showed that under the narrow construal of the easement by estoppel, Rio Grande had exceeded its scope because it was taking additional steps beyond simply using and maintaining the distribution line and easement that had been in place since the 1940s.

On this basis, the Court concluded as a matter of law that Rio Grande trespassed on Boerschig’s property when it upgraded the distribution line and remanded the case to the trial court for further proceedings regarding the appropriate relief.

Key Takeaways

With Texas’ historic amount of private property, utility and energy companies are often holders of easements that crisscross private landowners’ land. The decision in this case is likely to have an impact on what easement holders can or cannot do within their easement where the easement is not properly recorded. This is likely to be a greater consideration when the land where the easement runs is transferred to a new property owner, as in Boerschig. Many of these easements may have been inherited from prior producers or utility companies or granted by prior landowners before the sale of the property to the current landowner. It is fundamental, particularly with these historic property rights, to confirm both that any easements supporting the utility or infrastructure owned are appropriately recorded in the real property records and review the scope of those express easements to ensure that the activity complies with the use and scope of the express easement.

Additionally, it is necessary to understand the narrow limitations on what rights an easement holder may have under the Boerschig decision. Under the rule expressed in Boerschig, an easement by estoppel will be very narrowly construed in scope, limiting what actions the easement holder may take as reasonably necessary for the use and enjoyment of the limited property right they have.

The Boerschig decision underscores the critical importance of proper recording of easements in the property records for utility and energy companies operating across Texas and beyond. Additionally, it underscores the importance of confirming that historical easements, such as the one at issue in Boerschig, were recorded in the property records when obtained to avoid the risk of losing an easement or significant narrowing of an easement already negotiated and obtained years prior.

Attorneys at GableGotwals have experience advising energy clients on the full spectrum of easement and real property issues impacting operations — from auditing existing easement portfolios, ensuring proper recordation in county real property records, and defending real property disputes such as in the Boerschig case.

Kat Statman

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 3, 2026 | By: Ethan T. Mock and Alex R. Telarik

In energy and land transactions, few legal doctrines create as much hidden risk as the Rule Against Perpetuities (RAP). Often overlooked during drafting and diligence, RAP can quietly invalidate valuable property interests or trigger costly disputes years after a deal closes. This Alert outlines how RAP applies to oil and gas transactions and what landmen and deal professionals can do to avoid unintended consequences.

Key Takeaways

1. RAP Is Designed to Prevent Long-Term Uncertainty in Property Rights

The rule requires that property interests must vest, if at all, within 21 years after a “life in being” at the time the interest is created. Its purpose is to prevent indefinite control of property (“dead-hand control”) and ensure assets remain transferable and commercially usable.

Key risk: Interests tied to uncertain future events may violate RAP at inception, even if the issue doesn’t surface immediately.

2. Oil & Gas Interests Are Not Exempt

Oklahoma courts treat many energy-related interests as real property, meaning RAP applies to:

• Overriding royalty interests (ORRIs)
• Non-participating royalty interests (NPRIs)
• Working interests and related assignments

Common transaction documents impacted include:

• Mineral deeds
• Leases
• Assignments

Implication: Routine deal structures can unintentionally trigger RAP violations.

3. Violations Can Be Severe, But Outcomes Are Evolving

Historically, RAP violations rendered interests void from the outset. Modern Oklahoma statutes allow courts to reform defective provisions and attempt to honor the original intent of the parties.

Reality check: Judicial reformation is unpredictable and should not be relied upon as a primary safeguard.

4. Drafting Missteps Are the Most Common Trigger

High-risk provisions include:

• Open-ended contingencies (e.g., tied to indefinite future events)
• Delayed-commencement “top leases” or other interests transferred only upon uncertain future occurrences
• Poorly structured renewal or extension clauses

Even protective mechanisms like anti-washout provisions can create fiduciary obligations and fail if not carefully limited within RAP-compliant timeframes.

Bottom line: Precision in drafting is critical—small ambiguities can create major legal exposure.

5. Recent Case Law Highlights Ongoing Uncertainty

In a recent appellate opinion, the Oklahoma Court of Civil Appeals found certain lease structures violated RAP due to indefinite commencement triggers but ultimately upheld the transaction because related unrecorded agreements imposed a defined time limit and saved the transaction from a RAP violation.

Takeaway: While courts may evaluate transactions holistically, outcomes remain fact-specific and unsettled. In fact, the dissent in Tributary Resources argued the unrecorded instruments should not have been considered because, in the dissent’s view, RAP compliance is determined only by recorded instruments.

6. Proactive Risk Management Is Essential

Best practices include:

• Due diligence: Identify RAP risks early (via comprehensive title work) and account for them in deal pricing
• Portfolio review: Audit existing assets for latent issues
• Drafting discipline:
  • Tie contingencies to clear, finite time periods
  • Include RAP savings clauses
  • Avoid vague or open-ended triggers

Don’t rely on courts: Reformation is a fallback, not a strategy

The Bottom Line

The Rule Against Perpetuities remains a powerful, and often underestimated, constraint on energy transactions. Left unaddressed, it can undermine deal value, cloud title, and disrupt operations long after closing.

Companies and land professionals who proactively identify and mitigate RAP risk through careful drafting and diligence will be far better positioned to protect their investments and avoid costly surprises.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Ethan T. Mock

Alex R. Telarik

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May, 27 2026 | By: Jason T. Seay, AIGP, CIPP-US

Emerging technologies are actively transforming how energy companies operate, transact, and compete. From blockchain-enabled digital tokens to the rapid rise of generative AI, these tools offer significant upside, but also introduce legal, regulatory, and operational risks. This Alert explores what energy companies need to know now.

1. Technology Is Now a Core Driver of Performance and Value

Adoption of advanced technologies is directly impacting:

• Operational efficiency
• Emissions reduction
• Cost control and uptime

Companies leveraging AI, sensors, and analytics are:

• • Producing more efficiently
  • Reducing compliance risk
  • Gaining a competitive edge

2. Digital Tokens Go Far Beyond Cryptocurrency

Digital tokens are used to create blockchain-based representations of:

• Asset ownership (e.g., royalties, working interests)
• Contract rights
• Units of value or access rights

Built on distributed ledger technology, they enable:

• Secure, transparent recordkeeping
• Programmable transactions and automated settlement

Key distinction: Tokens can be fungible or non-fungible, depending on their structure.

3.Tokenization Can Help Transform Energy Transactions

Practical use cases include:

• Fractional ownership of energy assets
• Tokenized royalty or production interests
• Streamlined commodity trading and settlement

Platforms like VAKT demonstrate:

• Faster settlement cycles
• Reduced administrative burden
• Improved auditability

Business impact: Lower transaction costs and broader market participation.

4. Adoption Barriers for Digital Tokens Remain Significant

Key challenges include:

• Regulatory uncertainty (securities, tax, and financial regulations)
• System fragmentation across energy data platforms
• Integration complexity with existing infrastructure

Successful implementation requires targeted use cases and strong governance, not wholesale transformation.

5. Generative AI Is Unlocking New Operational Capabilities

Tools like ChatGPT and Microsoft Copilot enable:

• Natural-language querying of complex operational data
• Predictive maintenance insights
• Automated reporting and documentation

AI can also:

• Identify anomalies in equipment performance
• Translate data into actionable insights
• Serve as a knowledge repository for field and office teams

6. AI Use Cases Span the Entire Energy Industry

• Operations:
  • Equipment monitoring and failure prediction
  • Maintenance automation and workflow generation
• Business and Legal Functions:
  • Contract review and due diligence
  • Market analysis and reporting
  • Regulatory and compliance documentation
• Cybersecurity:
  • Threat detection and incident response support
• Customer & Vendor Interaction:
  • AI-driven chatbots and communication tools

7. AI Introduces New Legal and Risk Considerations

Key concerns include:

• Liability exposure (e.g., whether AI outputs create legal risk)
• Data quality and reliability
• Cybersecurity and confidentiality risks
• Rapidly evolving regulatory frameworks

Takeaway: Governance and internal policies are essential for responsible deployment.

8. Competitive Advantage Will Favor Strategic Adoption

Companies that move beyond experimentation and:

• Integrate AI into workflows
• Identify high-value tokenization use cases
• Invest in data infrastructure

Will benefit from:

• Faster decision-making
• Lower operational costs
• Better resource allocation

The Bottom Line

Digital tokens and generative AI are shifting how energy companies operate and transact. While both technologies offer meaningful efficiency gains and new business models, they also introduce complexity across legal, regulatory, and operational domains.

Energy companies that take a measured, strategic approach, focusing on governance, targeted implementation, and risk management, are best positioned to unlock value while avoiding costly missteps.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Jason T. Seay, AIGP, CIPP-US
918-595-4832
jseay@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May 21, 2026 | By: Byron C. Keeling and Brian K. Tully

Recent Texas court decisions are redefining core principles in oil and gas law – from joint operating agreements and insurance coverage to subsurface ownership and royalty rights. For energy companies and investors, these rulings carry significant implications for operations, deal structuring, and litigation risk. This Alert highlights the most impactful developments and what they mean in practice, recently presented at GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar.

Key Takeaways

1. Contract Language Still Reigns Supreme in Joint Operations

In Tex. Crude Energy, LLC v. Burlington Resources Oil & Gas Co., LP, the non-operated working interest owners (Non-Ops) proposed a number of wells to which the Operator consented.  Under the applicable Joint Operating Agreement (JOA), the Operator was required to begin drilling these wells within 90 days, but shortly before that time expired, the Operator then announced its determination that the drilling of the well would not be prudent, and that if the Non-Ops still wanted the well to be drilled, they should resubmit it.

The trial court ruled that the operator did not breach the JOA by doing so.  The court of appeals reversed because the JOA required that if the Operator consented to a well proposed by the Non-Ops, drilling of the well “shall” begin within 90 days, and resubmitting the well was not an adequate remedy.  The Supreme Court of Texas may weigh in on this matter, but “shall means shall,” and Operators cannot rely on broad discretion clauses to avoid explicit contractual duties.

Takeaway: Strict compliance, but not malicious compliance, with JOA provisions is critical to avoid operational disputes, particularly where the Non-Ops and the Operator may have different incentives with regard to the drilling of wells or development plans.

2. Insurance Coverage Disputes Are Expanding in Scope

In BPX Production Co. v. Certain Underwriters at Lloyd’s, the insured poorly performed a cement job at a well, causing it to have to be shut in.  The insured tendered the dispute to its insurer, which denied coverage, effectively cutting the insured loose.  After the insured declared bankruptcy, the Operator was able to take an assignment of claims that the insured had against its insurer for the failure to provide coverage.  The Fifth Circuit reversed the district court’s dismissal under Rule 12, holding that the Operator could bring such claims against the insurer and determine both the coverage issues as well as the insured’s underlying liability for the event, in a single proceeding under the Hamel line of cases.

Takeaway: All may not be lost when the party causing harm declares bankruptcy, and its insurer has denied coverage.  If the denial of coverage was wrongful, the injured party may be able to step into the insured’s shoes and assert claims against the insurer directly.

3. Conditions Precedent Can Halt Development Entirely

In Endeavor Energy Resources v. Comanche Maverick Ranch Investments, the lease and surface agreement at issue referenced that seismic testing would be done under mutually-agreeable terms in a subsequent agreement, but the landowner later refused to negotiate.  Because the existence of a seismic testing agreement was found to be a condition precedent, no obligation existed to negotiate or act in good faith. Projects can stall indefinitely if triggering conditions are not satisfied.

Takeaway: Be wary of clauses leaving key terms on related issues to be determined in a separately-negotiated agreement.  There might not be any obligation for the other party to negotiate such an agreement at all.

4. The Surface Owner Usually Owns Any Subsurface Cavern or Pore Space

In Myers-Woodward, LLC v. Underground Services Markham, LLC, the Texas Supreme Court confirmed that surface owners, not mineral owners, generally own subsurface pore space and caverns. It overruled prior conflicting precedent; however, it recognized that mineral owners and operators under oil and gas leases may still use subsurface space as reasonably necessary for production.

Takeaway: A producer that wants to use any subsurface space for commercial purposes (e.g., storage) may want to secure an agreement with the surface owner.

5. Royalty Rights Continue to Evolve

The Myers-Woodward case also confirmed that a royalty of “1/8 of all oil, gas, and minerals” is an in-kind royalty interest. When producers sell the in-kind royalty owner’s fractional share of the production, the producer generally should pay the royalty owner its fractional share of the net proceeds.

In Fasken Oil & Ranch, Ltd. v. Puig, the Texas Supreme Court ruled that the term “free of cost” in an in-kind royalty clause refers to pre-production costs, not post-production costs.  A “free of cost” term in an in-kind royalty clause does not change the fact that an in-kind royalty owner is generally entitled to receive only its fractional share of the net proceeds; the royalty owner is not entitled to demand a fractional share of the gross proceeds.

Takeaway: Royalty clause language continues to be under heightened scrutiny, but as always, the Texas Supreme Court tries to enforce royalty clauses as they are written.

6. Produced Water Ownership Is Now Clear—But Questions Remain

In Cactus Water Services, LLC v. COG Operating, LLC, produced water is part of the mineral estate unless expressly reserved. However, unresolved issues include:

• Whether royalties apply to produced water
• How profits from reuse or disposal are allocated
• Potential implied duties regarding water management

Takeaway: This area is primed for the next wave of litigation.

The Bottom Line

Texas courts are actively redefining foundational oil and gas principles, often in ways that elevate the importance of contract clarity, strategic drafting, and proactive risk management.

From JOAs and insurance coverage to subsurface rights and emerging asset classes like produced water, the message is clear: small drafting decisions can have outsized legal and financial consequences. Companies that stay ahead of these developments will be better positioned to protect value and avoid costly disputes.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Byron C. Keeling
246-594-5007
bkeeling@gablelaw.com

Brian K. Tully
346-200-6017
btully@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May, 19 2026 | By: Ethan T. Mock

The global race for critical minerals is no longer a future prospect; it is a current economic and national security imperative. As highlighted in recent reporting by Bloomberg Law, the surge in demand for rare earth metals, essential for everything from electric vehicle batteries to defense technologies, has propelled a specialized niche in the legal sector. At GableGotwals, we are uniquely positioned to lead in this arena, offering a powerhouse trifecta of expertise in Federal Indian Law, sophisticated transactional law, and direct BIA regulatory experience. Our reputation has earned us a Band 1 ranking in Energy and Natural Resources, Native American Law, Corporate/Commercial, and Environment by Chambers & Partners.

The Tribal Frontier of Critical Minerals

The Bloomberg Law analysis underscores that many of the most significant untapped deposits of critical minerals are located on or near tribal lands. However, unlocking this potential requires navigating a jurisdictional landscape that many law firms find impenetrable. Over time, GableGotwals has developed strong relationships with local tribes and is ready to bridge this gap with its dedicated attorneys, many of whom are tribal members. We are committed to facilitating between Native American tribal governments and businesses to achieve economic development.

With a premier Native American Law practice, our Firm understands the nuances of tribal sovereignty and the essential role of tribal nations as partners in the global energy transition. We don’t just see a mining deal; we see a path toward tribal economic self-determination and sustainable resource management.

Transactional Precision Meets Federal Insight

Successful mining deals in Indian Country require more than just an understanding of the minerals; they require a mastery of the “machinery” of the Bureau of Indian Affairs (“BIA”). The complexity of subsurface leasing is where projects often stall, trapped in the regulatory requirements of Title 25 of the Code of Federal Regulations.

Our team includes attorneys with direct, “inside-the-agency” experience at the BIA. This specialized background provides our clients with:

• Regulatory Fluency: Deep knowledge of the Indian Mineral Leasing Act and the Indian Mineral Development Act to structure flexible, high-value agreements.
• Navigational Expertise: An intimate understanding of BIA Standard Operating Procedures and the internal flow of lease approvals, ensuring that environmental and appraisal standards are met without unnecessary delays.
• Risk Mitigation: Transactional experts who can draft and negotiate complex joint ventures and development agreements while ensuring strict compliance with federal trust responsibilities.

Integrated Transactional & Environmental Practices

Beyond Indian law and BIA leasing, GableGotwals brings a full-service platform to critical-minerals projects, pairing sophisticated deal counsel with environmental and regulatory guidance. Our transactional team structures acquisitions, joint ventures, offtake arrangements, and financing to allocate risk, protect value, and keep projects bankable. In parallel, our environmental practice helps clients anticipate and address permitting and compliance issues early, including NEPA strategy, air and water approvals, cultural-resource considerations, and remediation planning, so transactions can close with clear, practical pathways to development and operations.

Ready for the Mining Paradigm Shift

As the market for rare earth minerals evolves, the legal counsel supporting it must be equally sophisticated. GableGotwals offers the rare combination: “Big Law” transactional capability paired with the niche, technical expertise of BIA leasing, environmental, and Indian Law. This expertise is made possible by many of our attorneys who formerly practiced at AmLaw 100 firms, former in-house counsel at major energy companies, and those who graduated top of their class from prestigious universities.

Whether you are a tribal nation seeking to leverage your subsurface assets for the next generation of energy, or a commercial developer looking to navigate the federal trust landscape, GableGotwals has the expertise to move your mining project from prospecting to production. We are not just observing the race for rare earth minerals; we are providing the roadmap for our clients to lead it.

 Ethan T. Mock
918-595-4875
emock@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May, 14 2026 | By: Thomas J. Hutchison

Closing an energy transaction is not the finish line, it is the beginning of a new phase of risk. Post-closing disputes are common in energy deals, often arising from purchase price adjustments, title defects, environmental liabilities, and operational misalignment. This Alert highlights where disputes arise and how thoughtful structuring can mitigate exposure. recently presented at GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar.

1. Purchase Price Adjustments Are a Frequent Source of Conflict

• Post-closing true-ups are standard, but often contentious.
• Disputes typically stem from:
  • Differing accounting methodologies
  • Working capital calculations
  • Ambiguities in the purchase agreement
• Mitigation tip: Clearly define adjustment mechanics and align accounting principles upfront to reduce ambiguity

2. Title Defects Require Precision in Drafting and Diligence

• Energy deals rely heavily on detailed title frameworks, including:
  • Definitions of “Defensible Title” and “Permitted Encumbrances”
  • Thresholds, deductibles, and valuation methodologies
• Pre-closing diligence is critical, but post-closing remedies are often limited to special warranty protections for a defined period
• Mitigation tip: Ensure purchase and sale agreements (PSAs) clearly outline defect remedies, timelines, and valuation methods

3. Environmental Liabilities Can Be Underestimated

• Known environmental issues are typically addressed through:
  • Specific indemnities
  • Purchase price adjustments
• Unknown risks present greater challenges:
  • Representations and warranties may be narrowly scoped
  • Buyers may face limited recourse without robust protections
• Mitigation tip: Accurately quantify remediation costs and negotiate flexibility to exclude high-risk assets

4. Post-Closing Operations Can Trigger Disputes Quickly

• Common friction points include:
  • Misallocated revenues and expenses
  • Ineffective “true-up” mechanisms
  • Delays in redirecting payments from third parties
• Overlapping remedies can further complicate resolution
• Mitigation tip: Establish clear operational transition protocols and avoid duplicative or conflicting remedies

5. Transition Services Agreements (TSAs) Offer Limited Protection

• TSAs are often:
  • Narrow in scope
  • Limited in enforceability (e.g., gross negligence standards)
• Practical risks include:
  • Lack of continuity if key personnel are unavailable post-closing
• Mitigation tip: Confirm operational readiness and do not over-rely on TSAs for critical business functions.

The Bottom Line

Energy M&A deals do not end at closing. Without careful structuring, diligence, and post-closing planning, routine provisions can evolve into costly disputes. Companies that proactively address these risks ― through precise drafting, realistic valuations, and operational alignment — are better positioned to protect deal value and avoid litigation.

If you have any questions, please contact any member of GableGotwals’ Energy, Oil & Gas team.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

Thomas J. Hutchison
918-595-4858
thutchison@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May 11, 2026 | By: Scott Kiplinger and Tim Sullivan

On May 6, 2026, Governor Stitt signed House Bill 1371, enacting the most significant amendments to the Oklahoma Production Revenue Standards Act (“PRSA”) since its adoption in 1980. The amendments become effective November 1, 2026.

The PRSA establishes Oklahoma’s statutory framework governing the timing and manner in which producing owners and operators must remit to interest owners their share of the proceeds received from the sale of oil and gas production to mineral owners. In general, the statute requires payment to commence within six months after first sale and continue on a periodic basis thereafter. If proceeds are not timely paid, the PRSA imposes statutory interest and provides mineral owners with an exclusive remedy to recover unpaid proceeds and interest, subject to limited exceptions. Historically, disputes under the PRSA have focused on the accrual of interest during title defects, probate proceedings, and other common delays, as well as disputes over royalties not paid due to disagreement over the point at which gas becomes marketable. Such disputes could result in substantial interest exposure and litigation costs for producing owners and operators due to the statutory interest alleged to have accrued under the PRSA (and potentially still accruing during the pendency of a lawsuit). Even when proceeds were held in good-faith suspense, operators could face ongoing interest exposure at 12% compounded annually (or 6% for unmarketable title).

HB 1371 materially reshapes the PRSA interest regime, clarifying when interest does and does not accrue, and it creates a new statutory mechanism allowing operators to escrow long-term unpaid proceeds if they cannot locate the mineral owner and obtain a release from future liability.

HB 1371 replaces the prior 12% compounded annual interest rate with a 15% simple interest rate for untimely paid proceeds. While the nominal rate is higher, eliminating compounding substantially narrows the historical escalation of PRSA interest exposure.

The Legislation also clarifies that interest does not accrue during several common, good-faith payment delays, including probate proceedings, unresolved lien disputes, owner-requested payment holds, and situations involving uncashed or returned checks or rejected electronic payments. Importantly, these non-accrual periods are available provided the operator maintains appropriate records and demonstrates reasonable diligence.

Another consequential change for operators is HB 1371 establishes a Mineral Owner’s Fund, an escrow account administered by the State Treasurer. After proceeds remain unpaid for 36 months, operators may remit the proceeds and accrued interest to the Fund, thereby fully discharging further payment and interest liability. This mechanism functions as a statutory alternative to interpleader, allowing operators to eliminate long-term suspense exposure without court involvement. Mineral owners retain the right to recover funds directly from the State upon proof of identity and ownership. In this manner, HB 1371 also aligned the PRSA with Oklahoma’s Unclaimed Property Act by clarifying that mineral proceeds are not presumed abandoned until 36 months after they become due, unless earlier remitted to the Mineral Owner’s Fund.

Taken together, the House Bill 1371 amendments to the PRSA represent the most comprehensive modernization of PRSA in decades, raising the stakes for true noncompliance while offering operators clearer rules, defined interest boundaries, and predictable exit from prolonged suspense situations.

This Alert was prepared in collaboration with the Firm’s Energy Practice Group in a continuing effort to keep our clients informed of the transitions of law within the areas they operate. For questions regarding this development, or any other energy questions, please contact Scott or a member of our team.

Scott Kiplinger
405-568-3317
skiplinger@gablelaw.com

Tim Sullivan
918-595-4863
tsullivan@gablelaw.com

This alert is provided as a summary for information purposes. It does not contain legal advice or create an attorney-client relationship. It is not intended or written to be used and may not be used by any person to avoid penalties imposed under Oklahoma laws. The information provided should not be taken as an indication of future legal results; any stated information should not be acted upon without consulting legal counsel.

May 7, 2026 | By: James F. Lea, III and David G. Woodral

In an industry increasingly driven by technology, data, and innovation, intellectual property (IP) is no longer a niche concern, it’s a core business asset. From patents and trade secrets to trademarks and copyrights, understanding how IP rights are created, protected, and transferred is critical to preserving value and avoiding costly disputes. This Alert breaks down the fundamentals and highlights key contractual considerations recently presented at GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar.

Key Takeaways

1. Intellectual Property Comes in Multiple Forms – Each with Distinct Protections

The primary types of IP include:

• Patents (protect inventions and processes)
• Trademarks (protect brand identifiers such as names, logos, and slogans)
• Copyrights (protect original works of authorship)
• Trade Secrets (protect confidential business information)

Each of these categories has different legal standards, duration of protection, and enforcement mechanisms.

2. Patents Provide Powerful, but Limited, Rights

Under the U.S. Patent Act, patents protect new and useful inventions, processes, or improvements. To qualify, inventions must be novel and non-obvious. Patent holders gain the right to exclude others from making, using, or selling the invention. Rights generally last 20 years from filing.

3. Timing Is Everything – Early Disclosure Can Destroy Patent Rights

Patent protection can be lost if an invention is:

• Publicly disclosed
• Offered for sale
• Used publicly before filing

While U.S. law provides a limited grace period, disclosing the invention to the public prior to filing presents risks. Be sure to file early or risk losing protection entirely.

4. Ownership Is Not Always Automatic

By default, inventors own patent rights.  An employment relationship can change this, but the best practice is to address IP ownership through employment agreements and assignment provisions.

For copyrights, “Work made for hire” doctrines may assign ownership to employers, but only in specific circumstances.

Failure to properly address ownership of IP can undermine ownership claims.

5. Trade Secrets Require Active Protection

Trade secrets include:

• Proprietary data
• Processes
• Software or formulas

Protection depends on maintaining secrecy and implementing reasonable safeguards (e.g., NDAs, access controls). However, once disclosed, protection may be lost permanently.

6. Contracts Are the Front Line of IP Risk Management

Key contractual considerations include:

• Ownership of newly developed IP during a project
• Assignment obligations for inventions
• Confidentiality provisions to preserve trade secrets

Agreements should clearly define:

• Who owns what
• Who can use what
• Under what conditions

7. Licensing Strategy Can Make or Break Value

Patent licenses can:

• Be explicit or implied (though explicit is best practice)
• Be limited by geography, time, or field of use, or other parameters

The patent exhaustion doctrine (or first sale doctrine) may prevent enforcement after an authorized sale of a particular item.

Poorly structured licenses may unintentionally give away rights.

8. IP Rights Must Align with Business Strategy

Patents function as a limited legal monopoly, but only within defined boundaries. Risks to manage include:

• Expiration of rights
• Loss through litigation or administrative challenges
• Failure to maintain patents (e.g., unpaid fees)

Be sure to align IP protection and licensing strategy with long-term commercial goals.

The Bottom Line

Intellectual property is one of the most valuable and most misunderstood assets in the energy sector. Without careful planning, companies risk losing rights, undermining deals, or exposing themselves to litigation.

By proactively managing IP through thoughtful drafting, early filing strategies, and clear contractual frameworks, energy companies can protect innovation, preserve competitive advantage, and unlock long-term value.

GableGotwals Intellectual Property Practice Group advises clients on patents, trademarks, copyrights, trade secrets, licensing, and other intellectual property matters. The team regularly works with clients across a variety of industries, including the energy sector, to help protect innovation, manage intellectual property risks, and develop strategies tailored to each client’s business objectives. For questions regarding this topic or other intellectual property matters, please contact the authors or a member of our Intellectual Property team.

This series covers topics featured during GableGotwals’ Annual Energy Market Drivers and Current Legal Issues Seminar. To receive Alerts and information on future Firm events, subscribe to our mailing list.

James F. Lea, III
918-595-4884
jlea@gablelaw.com

 David G. Woodral
OK: 918-595-4883
TX: 346-594-5009
dwoodral@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

May 5, 2026 | By: Ellen A. Adams and Trisha E. Bunce

Oklahoma has passed HB 3127, updating its Medical Marijuana and Patient Protection Act (Okla. Stat. Tit. 63, § 427.8) effective November 1, 2026. The changes matter in two practical ways:

1. They reframe how employers designate “safety-sensitive” positions; and
2. They expand when an employer may rely on a positive marijuana test to take adverse action against applicants and employees.

If you have Oklahoma operations, this is the right time to revisit your safety-sensitive positions and drug-testing framework. You should prepare now to provide the requisite 10-day notice of policy changes in the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Okla. Stat. Tit. 40, § 551 et seq.) well before the effective date of the new rules.

There’s also an important federal backdrop that employers must consider in responding to the enactment of HB 3127. The Department of Justice has acted on Executive Order 14370, and issued a final rule, reclassifying cannabis and cannabis containing products covered by a state medical marijuana license, from Schedule I to Schedule III. While the Department of Transportation (“DOT”) has not changed its rules yet, employers are encouraged to keep following DOT guidance and regulations for potential changes. Because Schedule III drugs are not “illegal” per se, policies prohibiting “illegal” drugs may create ambiguity. Further, depending on the facts, because medical marijuana licensed under state law is no longer categorically “illegal” under federal law, the Americans with Disabilities Act, as amended (the “ADA”), may require accommodation unless that accommodation would result in “undue hardship” or the accommodation would pose a “direct threat” – both legal terms of art requiring detailed analysis.

On safety-sensitive roles, Oklahoma’s amendment moves away from the old “reasonable belief” approach and uses an example-based list that still gives employers some room to designate similar jobs as safety-sensitive. Once you designate a job as safety-sensitive, Oklahoma law allows a zero-tolerance approach: you may take adverse action based on a positive marijuana test even if the applicant or employee has a medical marijuana license. That said, you still need to account for the federal reclassification and the ADA when deciding what action to take in a particular situation, and DOT rules continue to control for DOT-regulated roles.

Outside safety-sensitive roles, Oklahoma’s amendment also broadens when you can act on a positive test. You may take action if the person doesn’t have a valid medical marijuana license; if a licensee possesses, uses, or is under the influence at work or while performing job duties; or (this is the notable change) if your action is based on a written policy that complies with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act. In practice, a compliant policy lets you rely on a positive marijuana test even for non-safety-sensitive positions under Oklahoma law. Given the federal shift to Schedule III, however, it’s wise to think carefully about which roles you test and why, and to consult experienced employment counsel before you finalize your approach.

What should employers do between now and November 1, 2026?

• Identify all positions subject to DOT regulations;
• Reevaluate which roles you will treat as safety-sensitive and make sure they align with the statute’s amendments;
• Consider which jobs could create a “direct threat” if someone is under the influence of medical marijuana and document your analysis;
• Decide where, when, and why you will test for marijuana based on your business objectives;
• Update your written testing policy so it complies with the Oklahoma Standards for Workplace Drug and Alcohol Testing Act (Okla. Stat. Tit. 40, § 551 et seq.);
• Review and tighten policy language that bans “illegal drugs” to avoid ambiguity;
• Determine how you will administer a zero-tolerance policy for safety-sensitive roles;
• Refresh HR guidance and supervisor training on the interactive process and disability accommodations to address the federal reclassification of medical marijuana products licensed under Oklahoma state law;
• Consult with your experienced employment counsel to align state and federal requirements with your goals; and
• Develop a communication plan to announce and explain upcoming policy changes to employees.

GableGotwals’ Labor & Employment attorneys are well-versed in recent developments regarding the state-sanctioned marijuana industry and how those developments impact employers. If you need help in any of these areas, please contact any GableGotwals Labor & Employment attorney.

Ellen A. Adams
405-235-5520
eadams@gablelaw.com

Trisha E. Bunce
405-235-5596
tbunce@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.