Can a Leaky Well Be Protected by Free Speech?

Link to Co-author Gunner West Co-author Gunner West

Yes, says Trivista Oil Company LLC v. Fort Apache Energy, Inc., Trivista sued Fort Apache for poaching its mineral lessors and obtaining top-leases in what could have been a more or less typical dispute of that nature. But a Texas court of appeals affirmed dismissal with prejudice of all claims against Fort Apache under the Texas Citizens Participation Act, Texas’s anti-SLAPP statute (Strategic Lawsuits Against Public Participation).

Fort Apache’s communications with landowners about well conditions and top-leasing qualified as speech on matters of public concern, and the TCPA’s commercial-speech exemption didn’t apply.

The facts

Trivista operates roughly 250 wells in the Serbin (Taylor Sand) field across Bastrop and Lee Counties. In 2024, lessor Nancy Littlefield locked Trivista’s pumpers out of the Act Ranch Lease lands, saying she’d signed a new lease with Fort Apache. The lockout lasted less than a day.

Trivista discovered Fort Apache had been contacting its lessor-owners across the area to solicit top-leases. Trivista sued for tortious interference, declaratory judgment and trespass to try title, and obtained a temporary restraining order. The trial court later denied the temporary injunction, and Fort Apache moved to dismiss under the TCPA.

The court’s analysis

The court worked through the TCPA’s framework in three parts.

First, all of Trivista’s claims were “inextricably intertwined” with Fort Apache’s communications to lessors. Trivista argued its trespass to try title claim stood independent of any speech because the cause of action doesn’t require proving a communication. The court disagreed. Trivista’s own pleadings, its president’s testimony and a landman’s affidavit all traced the alleged harm back to Fort Apache’s contact with landowners. Also, Trivista never specified to the trial court which property was the subject of its TTT claim and didn’t mention it at the TCPA hearing.

Second, Fort Apache’s communications related to a “matter of public concern” (§27.001(7)). Fort Apache’s agents inspected 45 wells and found 36 with some form of leak or spill. They documented equipment in disrepair, storage tanks with holes, and wells choked with vegetation. One well appeared to be producing without a required permit or with misreported revenue. Lessor-owners wrote back to Fort Apache expressing frustration with Trivista and hoping wells would be cleaned up. The court found that private statements about safety and environmental risks satisfied the public-concern requirement. Given the scale (20,000 acres, hundreds of landowners, overlap with the Lost Pines Habitat Conservation Plan) and the community responses, these communications went beyond a private contract dispute.

Third, Trivista invoked the TCPA’s commercial-speech exemption, arguing Fort Apache was “primarily engaged in the business of selling or leasing goods or services” because oil and gas leases include covenants to produce, market, and deliver royalties. The court rejected this on the first Castleman element. A mineral lease is a real property interest under Texas law. The TCPA doesn’t define “goods,” and the court applied the word’s plain meaning: tangible or movable personal property, not realty. The court held Fort Apache was in the business of securing development rights, not selling goods or leasing services. The exemption didn’t apply.

The result

Trivista did not argue on appeal that it had established a prima facie case for any of its claims. The court affirmed dismissal with prejudice.

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