Judge Booker Stephens of McDowell County

Marcellus drilling suits head back to mediation

From an Article by Ken Ward Jr., Charleston Gazette Mail, February 26, 2016

While lawsuits against natural gas drillers are causing a stir among West Virginia lawmakers, the first in a series of those suits is headed back for another shot at settlement through mediation, following a hearing Friday in Charleston.

A three-judge panel hearing the cases against Antero Natural Resources and Hall Drilling said that they wanted the parties to take part in another mediation session after lawyers for the residents dropped one of their two major claims, an allegation that the natural gas companies were operating in a negligent manner.

Alan Moats, a Taylor County circuit judge who heads the panel, encouraged the companies and the residents to try to come up with a settlement that would allow natural gas production to continue, but reduce the impacts on nearby residents and communities. “If there’s anything that can be done that would lessen the impacts these people are experiencing, if we could do that, it would be more important than money,” Moats said.

The parties agreed that they would meet again with McDowell Circuit Judge Booker Stephens, who led a previous mediation session that did not produce a settlement. Moats led Friday’s surprisingly brief hearing, which had been scheduled for arguments on major motions that are pending and need to be resolved before trial. That trial, scheduled for July, is the first in a series of cases filed in at least seven counties by more than 200 people who allege Marcellus Shale operations by the gas industry are disrupting their lives.

The suits, first filed in October 2013, outline concerns regarding noise, dust, excessive traffic, bright lights and a variety of other effects of the boom in the natural gas industry in northern West Virginia. Cases are pending in Doddridge, Harrison, Kanawha, Marion, Monongalia, Pleasants and Ritchie counties. Antero and Hall Drilling, which operate as partners at many sites, are the defendants in almost all of the cases.

In November 2014, the state Supreme Court referred the cases to West Virginia’s Mass Litigation Panel, which often is used to handle complex lawsuits that involve common issues of law and fact, but also involve large numbers of plaintiffs or multiple defendants.

Lawmakers have become interested in the Marcellus cases, and earlier this week the state Senate passed a bill that supports say is aimed at putting a stop to such suits.

Attorneys for the residents, including Charleston lawyers Anthony Majestro and Jim Peterson, brought the cases as nuisance suits, alleging that the industry activity constitutes an unlawful interference with the residents’ use and enjoyment of their property. The lawyers originally claimed negligence by drilling companies, but have since dropped those claims.

In SB508, lawmakers want to narrow the ability of residents to bring nuisance suits. The measure would give defendants a “permit shield” if they have some sort of government authorization for their activities.

Citizens Deserve Strong Regulations & Their Day in Court

What’s going on in the West Virginia legislature after the Session mid-point?

Essay by S. Tom Bond, Retired Chemistry Professor & Resident Farmer, Lewis County, WV

Several very troubling bills are in the hopper at the Legislature. The first we mention is S. B. 508, which effectively does away with nuisance suits. The new requirement would be “causes physical property damage or bodily injury.” Also “No person may bring an action for private nuisance unless proper evidence of physical damage or bodily injury caused by the substantial and unreasonable interference exists.”

First of all, some the things you enjoy as compensation for poor electrical service, poor telephone connections and distance to work and shopping are the peace and quiet. That benefit is legislated out of existence. Bam! Just like that. Also, “substantial and unreasonable interference” has no objective meaning.

It is clarified by this section “an interference with private use and enjoyment of another’s land is substantial when the activity involves more than a slight inconvenience or petty annoyance and instead involves a real and appreciable invasion of that private use and enjoyment.”

The next paragraph reads, “For purposes of this section, an interference with the private use and enjoyment of another’s land is unreasonable when the gravity of the harm outweighs the social value alleged to cause the harm.

At this point we need to interject a little bit about the way nuisance suits have worked for centuries. The values are set by a jury of one’s peers. Whether it really involves damage is seldom a matter of consideration. Why would anyone go to the trouble to hire a lawyer, and spend days of work and weeks of tension between beginning of the suit and resolution if it wasn’t harm? Since it is settled by a jury of peers, what better approach to community standards could be found? What sponsors of the bill are really afraid of is application of community standards of nuisance! They have turned countryside into an industrial zone without a zoning law.

And S. B. 508 doesn’t get better as it goes on. Paragraph “d” is written to say, in effect, a drilling permit not only gives permission to drill, but to ‘screw you over’ as the saying goes. Anyone who lives in the active drilling area knows, as does anyone who has investigated the matter, these guys have a real aptitude for ‘screwing you over.’

The final paragraph reads “No person may bring an action for private nuisance unless the person has an ownership interest or possessory interest in the property alleged to be affected by the nuisance.” So if you are a renter in the area you have the same low status as a stink bug.

There are over 200 hundred nuisance suits that have been filed in half dozen counties where fracking has occurred. Instead of being tried in the counties where they were filed, all the diverse claims have been consolidated in one suit in Kanawha County. Why has this not been in the news? It involves several hundred claimants, dozens of lawyers and million of dollars. Some sketchy details are here.  Judge Alan D. Moats has been designated “Lead Presiding Judge, Marcellus Shale Litigation.” Unquestionably, this is intended as a gift to the drilling industry at the expense of West Virginia citizens.

As if that isn’t an obvious enough taking, there is S. B. 565. It uses a quickie “stormwater permit” to get drillers to work before engineering is done. According to an article in the Charleston Gazette, the bill “would allow oil and gas drillers to begin building well pads and access roads prior to getting a well work permit approved by the state Department of Environmental Protection.” No detailed engineering plans would be required. It does require the company to notify the land owner before starting work on his property, but no input from the owner is anticipated, apparently. If the well pad is less than three acres, the storm permit doesn’t require a professional engineer’s signature.

The bill requires the storm water permittee to give “seven but no more than forty-five days prior to entry” notice to the land owner and certain others, then excavation can start. How about that at hay harvest time? Hope you have the first crop off, ’cause you are not going to get any more – ever! What about the lime and fertilizer you borrowed money to put on? Ha-ha-ha! The reason you own that land is destroyed, and to pour salt in the wound, you have to pay taxes as though nothing had happened, in perpetuity.

Very generously, the owner of the tract (and others) are given a copy of the paperwork, and pointed to the rule book at the web site of the Secretary of the WV-DEP.

So you can match wits with the professionals? And what about the debts the surface owner may have, for example if he is paying for the land expecting production to pay off the mortgage?

The bill mentions notice to the lienholder. It also provides for the coal owner, anyone owning a spring used for human or livestock consumption within 1500 feet, gas storage field owner in other seam (shades of the recent Porter Ranch in California gas leak fiasco) and any one owning other minerals recorded in the court house.

The message these bills clearly send is something like this: ‘You are small people out there, you don’t make much money with your businesses and don’t pay much tax. Your concern with peace and quiet is obnoxious, why can’t you live like the rest of us? As for clean water, you can live with a little chlorine and pay for water. Scenic beauty? How valuable is that? You can always take time off and go to a national park, that’s what I do. You are little people and what this bill causes you and your heirs and assigns to give up isn’t near as important as what we think about.’

Those just a small beginning. There are several bills to support forced pooling. Just can’t leave a smidgen, you know. Who do these farmers think they are, arguing with corporations? It’s in the best interest of all to force our high-priced fracked gas on Europe, you know.

Finally, I’ve got to mention one other idea that is current in the legislature that is totally outrageous. Two resolutions and at least one bill now under consideration dangerously call for a U. S. Constitution (Article V) constitutional convention. WV Citizen’s action group says “Constitutional scholars point out that a convention of the states, even though written into Article V of our US constitution, has never been tried. They feel it would be hard – if not impossible – to keep delegates to such a conclave limited to only one or two issues.” Many thoughtful scholars warn that it could be open season on all the Constitution. No one knows what a revised Constitution would look like coming out the other end. Two of these items passed out of Senate Judiciary. The only thing you can do is to contact your senators and ask them to vote no on any Constitutional Convention.

The WV legislature, since the beginning during the Civil War has shoveled property and lives of the state’s citizens to corporations who presented a vision scattered with fairy gold dust. Remember what the state was like before the Mine Wars? The terrible lives of the miners? Did that make this a rich state?

According to a recent report, the top 25 landowners in West Virginia own about 20 percent of the surface in the state. And perhaps not surprisingly, most of those landowners live elsewhere. ‘Around the world where you have extractive industry, you often have very poor people.’  Research shows the citizens of West Virginia are the most dissatisfied of any state in the union. I’m asking my Legislature to work for me for a change.