Last week, we discussed what a busy year it had been nationally for agricultural law.  To learn more, read here or listen here. This week, we are shifting our focus closer to home and looking at the biggest agricultural law issues in Texas this year.

Photo by Micah Boswell on Unsplash

Ownership of Produced Water 

The question of who owns produced water in Texas is extremely important and will have major implications for landowners and oil and gas operators across the state.  At issue is ownership of “produced water,” the water that comes out of the ground with oil and gas during production.  This was the question in Cactus Water Services, LLC v. COG Operating, LLC, a lawsuit between a company who leased the groundwater rights from the surface owner and the oil and gas operator who leased the minerals.   There is no question under Texas law that the surface owner owns the groundwater.  Instead, the question is whether that groundwater ownership includes ownership of produced water.  Both the trial court and the El Paso Court of Appeals held that it is the mineral lessee who owns produced water.  [Read blog post here.]  Cactus Water Services, LLC filed a Petition for Review at the Texas Supreme Court on November 11.  [Read Petition here.]  COG Operating waived their right to respond to the Petition.  The Court has not acted on the Petition.

Texas Drone Privacy Law Upheld

The United States Court of Appeals for the Fifth Circuit recently upheld Texas’ drone privacy law in National Press Photographers Association v. McCraw.  The law prohibits drones from capturing images of persons on private property with an intent to conduct surveillance and designates certain no-fly areas where drones cannot operate.  A group of journalists and media associations filed suit claiming the law violated the First Amendment.  The trial court agreed and struck down the law.  But this fall, the United States Court of Appeals for the Fifth Circuit reversed, finding the law constitutional.  [Read blog post on opinion here.]  The deadline to file a Petition for Certiorari with the United States Supreme Court has not yet passed, so we will have to wait and see whether plaintiffs seek review and, if so, whether the Court will hear the case.

Right to Farm

There were a number of important developments related to the Right to Farm in Texas.  First, the Texas legislature amended the state’s Right to Farm Statute, which has been on the books since the 1980s.  The amendments made some producer-friendly modifications to the portion of the law dealing with nuisance lawsuits against farms by other landowners and also made significant changes to the ability of a city to regulate agricultural operations within the city’s bounds.  [Read more here and here.]  Then, in November, Texas voters overwhelming passed Proposition 1, which made the Right to Farm part of the Texas Constitution.  [Read blog post here.]  How these new changes, both to the statute and the creation of the new constitutional right, will be applied and interpreted by courts will be something to watch in the new year.

Royalty Calculations

The Texas Supreme Court issued an important ruling in Van Dyke v. The Navigator Group, a lawsuit involving the interpretation of an oil and gas royalty provision.  As the Court wrote, “only in a legal context could the formula ‘one-half of one-eighth’ mean anything other than one-sixteenth.”  And indeed, the Texas Supreme Court held that at least under the facts in this case, the language “1/2 of 1/8” did not use 1/8 in the arithmetical sense, but instead referred to the mineral estate as a whole.  [Read blog post here.]

Lesser Prairie Chicken Challenges

A number of lawsuits are pending challenging the listing of the lesser prairie chicken under the Endangered Species Act.  One such lawsuit, Texas v. U.S. Department of the Interior, was filed in the United States District Court for the Western District of Texas.  [Read Complaint here.]  A second suit was filed in the same court by the Permian Basin Petroleum Association and state cattle organizations.  In July, a third lawsuit was filed in Kansas by a number of farms, ranches, and counties.  In September, Congress passed bills that would have removed the lesser prairie chicken from the Endangered Species Act list, but those were vetoed by President Biden.  [Read article here.]  Recently, the Kansas lawsuit was transferred to Texas to be heard with the Texas suits. [Read articles here and here.]  This litigation will continue next year.

Tofurkey Lawsuit

If you were here the week of Thanksgiving, you know we celebrated by discussing Turtle Island Foods SPC v. Abbott, a lawsuit filed by the makers of Tofurkey challenging the legality of a Texas statute related to labeling of plant-based and cell-cultured products.  Deemed “the fake meat bill,” the law at issue was passed this session and requires analogue and cell-cultured meat products to include labels such as analogue, cell-cultured,  meatless, plant-based, made from plants, or something similar. The Tofurkey Company and Plant Based Foods Association claim this law is unconstitutional.  Interestingly, the plaintiffs have filed other lawsuits challenging similar laws in other states around the country as well.  [Read more here.]

Honorable Mentions

There are a couple of other topics worthy of at least mentioning briefly.

The Texas Supreme Court issued an opinion in Helena Chemical Co. v. Cox, a lawsuit involving pesticide drift due to range herbicide application in West Texas.  The Court found in favor of the Spade Ranch (the applicator) and rejected claims of the allegedly damaged plaintiff farmers.  [Read more here.]

The states in Texas v. New Mexico and Colorado reached a proposed settlement agreement in the decades-long lawsuit over deliveries of Rio Grande water under a 1938 Compact.  The United States, who intervened as a party, objects to the settlement agreement.  The US Supreme Court will have to decide whether it will approve the agreement. [Read articles here.]

In Green v. Lajitas Capital Partners, LLC, the El Paso Court of Appeals sided with a resort in a lawsuit filed by a guest who was injured when she fell off a horse that spooked due to a sprinkler system activating.  The court analyzed the liability waiver signed by the guest and found it was valid and prevented her from pursuing her claims against the resort. [Read more here.]