Marcellus at Your Door - Surface Owner Rights vs. Mineral Owner Rights-- --An Eventual Journey to the U.S. Supreme Court?
This week an important case is to be heard by the WV Supreme Court of Appeals. It involves a Doddridge County landowner in the Arnold's Creek Road area. He is fighting for the right to appeal a drilling permit that the WV DEP issued to EQT to drill on his land some time ago.
(Case Number 10=P-15) The case was filed by attorneys for Matthew Hamblet, Petitioner, vs. James Martin, in his official capacity as Director, Office of Oil and Gas, WV DEP, and EQT Production Company.
You can find all the information about the law suit (including the actual legal briefs and motions filed by the petitioners, respondents, and those filing amicus briefs) on the WV SORO website:
For those unfamiliar, WV SORO (WV Surface Owners Rights Organization) is an advocacy group seeking to protect the rights of surface owners impacted by drilling.
If you don't already know about WV SORO, check out their website: www.wvsoro.org to see all the good work they do. If you don't have internet, just call them at 304-346-5891 to find out about the work they do to help advocate for surface owners who face unwanted drilling on their land. There is a wealth of information on the website that is of benefit for landowners!
In the case of "Hamblet vs. James Martin of WV DEP Oil and Gas Dept., and EQT," the WV SORO filed (via Dave McMahon, their counsel) what is known as a motion to intervene. This was granted by the WV Supreme Court of Appeals. This means that WV SORO can also participate in the oral arguments heard by the court this week, and be a voice for all surface owners who will be impacted by the court's decision.
The outcome of this case is extremely important. It involves whether a landowner has a right to appeal WV DEP's decision to allow a driller to drill on one's land. It decides if a landowner has a constitutional right (by way of an appeal process) to question the decisions made by WV DEP when issuing a permit to drill on one's surface land.
A summary which describes what the court case is all about is below, as taken right off the WV SORO website page:
Case in The West Virginia Supreme Court
Whether the Surface Owner Has a Right to Have a Hearing And/or an Appeal
When the State Issues a Permit to Drill a Well on the Surface Owner’s Land.
WVSORO believes that the State’s decision to issue, condition or deny a permit for an oil or gas driller to construct a well site and access road and drill a well on a surface owner’s land is enough “state action” that the surface owner has a constitutional due process right to ask for and have a hearing before the Department of Environmental Protection’s Office of Oil and Gas. And if that hearing goes against the surface owner, there should similarly be a right to appeal that decision to Circuit Court.
There have been no court decisions on the constitutional right to a hearing.
However, in 2002, in a case named Lovejoy vs. Callaghan, 576 S.E. 2d 246 (W.Va., 2002), the West Virginia Supreme Court of Appeals ruled that surface owners have a right to appeal to Circuit Court the decision of the D.E.P. Office of Oil and Gas whether to grant, condition or deny a permit for the drilling of a gas well on the surface owner’s property.
Since that time a number of surface owners have attempted those appeals. The State and the drillers have asked the Circuit Court judges to dismiss those appeals on the grounds that the Supreme Court was wrong. They say that the Supreme Court was wrong because its decision relied upon a statute in the West Virginia Code that gave a right to appeal to other parties (coal companies) but not to surface owners. Some Circuit Court judges have dismissed appeals based on that argument. WVSORO believes that no matter what the statutes say, surface owners have a constitutional right to a hearing and appeal.
Matthew Hamblet is a surface owner in Doddridge County, West Virginia. EQT Production Company proposed a well pad on his property for a number of Marcellus Shale horizontal gas wells. Due to health problems, he was unable to comment within 15 days on EQT’s applications for permits to drill the first couple of wells on the pad on his property. However, in April 2010, he did file comments on EQT’s application for a permit for yet another well on the pad on his property. Despite his comments the permit was issued without any changes.
Represented by lawyer Cynthia Loomis, Matthew Hamblet filed an appeal of the issuance of the permit to the Circuit Court of Doddridge County. The State and EQT as usual moved to dismiss the appeal on the grounds that the Supreme Court was wrong.
Circuit Court Judge John Henning advised the parties that he was going to follow the Supreme Court’s ruling, but offered to “certify the question” of the right to appeal to the Supreme Court to look at it again. A “certified question” proceeding is a way that a Circuit Court can ask the Supreme Court to rule on a question of law at the beginning of a case, rather than having the parties go through all of the evidentiary etc. hearings in the case, and file an appeal at the end.
The State and EQT did ask the Circuit Judge to certify the question to the Supreme Court. The Supreme Court agreed to hear the certified question.
The West Virginia Surface Owner’s Rights Organization then asked to be able to intervene in the case in the Supreme Court on behalf of surface owners, and that has been granted. The West Virginia Oil and Natural Gas Association and the Independent Oil and Gas association asked for the right to file amicus “friend of the court” briefs in the case, and the Supreme Court granted that.
The issue of whether the surface owner has a right to a hearing before the D.E.P. on the permit application, and not just the right to appeal to Circuit Court, has also been raised in the briefs.
This current course case is but one example of action to test current policies and laws in place that impact both surface owner and mineral owner. In many cases the drilling companies are still using leases that are often 50 to 100 years old. Leases they claim give them "reasonable access" to one's surface land so as to drill a Marcellus well, by way of applying an old, but active lease that someone's grand pappy signed when drilling was still done by horse-drawn rig!! Somehow, the "reasonable access" to the minerals that was granted by grand pappy is a far cry from being the same "reasonable access" being used today when a surface owner has 7-8 acres of land lost to a well pad.
Thus, surface owners are starting to raise serious concerns about this. Somehow, seeing this court case in which the WV DEP Office of Oil and Gas joined forces with EQT to fight against a landowner seeking to protect his own interests seems rather outlandish! Why didn’t they just initiate a policy to hear appeals from concerned landowners desiring to protect their properties from harm? Would it be too much to ask that the WV DEP OOG department act responsive to people's concerned about their own properties? The Office and Oil and Gas has stated that they do not even have to provide written responses to public comments they receive or in any way acknowledge them at all! (From a letter received by a citizen questioning DEP's current policy concerning public comment and the lack of an appeal process.)
Isn't the WV DEP here to protect the environment and health/safety of citizens? And, if so, why are they insistent in maintaining and defending a policy that, in effect, says that landowners are afforded no right to an appeal process, a process which would allow landowners a greater voice in questioning permit decisions being made by the Office of Oil and Gas at WV DEP that affects that person's land? Should the WV DEP OOG share the combined duty of both issuing permits as well as regulating them? Or should the Office of Oil and Gas, as a permitting agency be removed from being under the Office of Environmental Protection which is regulatory? Now there's a thought!
The Horizontal Well Act passed back in December by the WV Legislature appears to give the WV DEP "broad authority to condition the issuance of well work permits....to protect the safety of persons and to prevent inadequate or ineffective erosion control..." Apparently, Mr. Hamblet had raised questions about these things when the WV DEP issued that permit to EQT to drill on his land.
Perhaps it's time that the WV DEP Office of Oil and Gas exercise some of that "broad authority" they've been granted by our state legislature. Maybe to start utilizing it to develop some internal policies? Ones that would give surface owners a greater voice and greater influence on WV DEP's decision to give a driller permission to apply "reasonable access" to their minerals on the person's surface land?
Some may think it odd that it appears James Martin at WV DEP Oil and Gas Office has aligned himself with EQT in this court case and thus is fighting against Mr. Hamblet's petition for a right to appeal something that so greatly impacts him. Isn't WV DEP an agency created for the benefit of citizens and environment? Or has it become an agency, that some folks are saying, is there only to enable the industy (by maintaining policies that appear to deny a landowner's constitutional right to due process?)
There is no doubt that certain legal arguments may be headed for a higher court when these matters are debated. "Contemplation of the Parties" or "Law of Intent" (i.e... is this what grand pappy had in mind when he leased and Marcellus technology was 100 years in the future?) "Unconstitutional taking" (taking away the use and enjoyment of acres and acres of one's surface land for a well pad when the surface owner loses the use of it but still must pay taxes on it!) These are issues that will continue to surface (pun intended.) They may well end up in the U.S. Supreme Court if our WV legislature/governor does not soon act to do more to protect the common man and not just the industry!
Next week's column.... an analysis of another Doddridge County surface owner’s situation (Huff vs. EQT.) Perhaps a similar look at how the industry seemingly is enabled to do what they do to WV landowners with the assistance of DEP's OOG and the legislature?