Lawyer Dave McMahon speaks on natural gas wells in WV

From an Article by David Beard, Morgantown Dominion Post, June 5, 2019

CHARLESTON, W.Va. — Surface owners scored a victory over natural gas developers in a ruling handed down by the state Supreme Court on Wednesday.

The court unanimously upheld a Doddridge County Circuit Court ruling that said a developer and mineral owner have no right to use a surface owner’s land to develop minerals under neighboring properties without the surface owner’s express permission.

The Supreme Court said, “A mineral owner or lessee has an implicit right to use the overlying surface to access only the minerals directly below the surface. Using the surface to extract minerals elsewhere, without the permission of the surface owner, is a trespass.”

The case is known as the Crowder-Wentz case, after the plaintiffs, Margot Beth Crowder and David Wentz, a divorced couple who sued EQT over alleged trespass in November 2014.

Crowder and Wentz own a portion of a 351-acre tract known as the Carr Tract. The tract’s original owners signed an oil and gas development lease with EQT’s predecessors in 1901. In 1936, the mineral and surface estates were separated. Wentz owns two parcels of the Carr Tract and Crowder owns one; they have only surface rights.

In 2011, the mineral owners agreed with EQT to modify the lease to allow pooling or unitization with other tracts.

Crowder and Wentz expressly denied EQT permission to use their surface to develop other mineral tracts. EQT nonetheless entered their land and adjacent parcels in 2013; cleared 42 acres; built roads and a 19.7 acre well pad; and used it to drill nine horizontal wells drawing gas from 3,232 acres. About 37.5% of the bores were under the Carr Tract, the remainder under other tracts.

In their 2014 suit, the plaintiffs acknowledged EQT had a right to use their surface to develop minerals under the Carr Tract, but not from neighboring tracts.

EQT argued that its surface use conformed to existing law regarding reasonable and necessary use of surface to develop minerals. EQT also argued that because the mineral owners modified the lease in 2001, the modified lease carried with it the right to use the plaintiffs’ surface to develop the larger unit.

The Supreme Court sided with the circuit court in rejecting both arguments. In rejecting the second argument, it said, “in 2011, the owners of the mineral estate no longer owned the right to use the surface estate for exploration on and production from neighboring tracts. Because the mineral estate was severed from the surface estate in 1936, that right belonged to the plaintiffs or, more specifically, was a right attached to their surface estate. Hence, the mineral owners could not have conveyed that right to EQT in the 2011 amendment.”

The Supreme Court did caution that this ruling doesn’t challenge or constrain contemporary drilling methods.

“The industry has shown that horizontal drilling and hydraulic fracturing techniques are evolving at a rapid pace and are an economical and efficient tool for producing hydrocarbons,” the court said. “Our opinion only affirms a classical rule of property jurisprudence: it is trespassing to go on someone’s land without the right to do so. … Should the mineral owner or lessee want to utilize the surface to access minerals under neighboring land, they can certainly reach a separate agreement with the surface owner.”

West Virginia Surface Owners Rights Organization Dave McMahon represented the plaintiffs. After the ruling he told WV MetroNews’ Jeff Jenkins, “We’re absolutely thrilled. We’ve thought this was the law all along. We thought it was obvious.”

But it took eight years for the issue to reach the Supreme Court to affirm it’s the law statewide, McMahon said. “What’s really kind of sad is for eight years these companies have been going on and implying, if not telling surface owners, they had to allow the pads on there and they had to take whatever money the driller was willing to pay them to do it, and that just wasn’t right,” he said.

One impact of the ruling, McMahon speculated, may be that developers will have to offer surface owners compensation for the land’s mineral production value, not just for the face value of the surface. And if a surface owner doesn’t want the surface disturbed, wellbores are so long the driller can choose another parcel in the unit.

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See Also: West Virginia Surface Owners’ Rights Organization

WVU Extension Service Educational Programs:  July 7 and July 8, 2015

Public Meetings — Understanding Unitization of Interests or “Forced Pooling”

What is pooling? Who benefits? What does it mean to be “forced”?
What was in House Bill 2688 (Providing for the unitization of interests in drilling units in connection with all horizontal oil or gas wells)? What are the concerns with Forced Pooling? What were the concerns with House Bill 2688? What and when will new legislation be proposed?

Presenters: Joshua Fershee, Associate Dean for Faculty Research and Development and Professor of Law, WVU College of Law; Delegate Lynwood “Woody” Ireland (R-Ritchie, 07); *Delegate Pat McGeehan (R-Hancock, 01); and **Senator Mike Romano (D-Harrison, 12). [Delegate McGeehan will attend the July 7 meeting only. Senator Romano will attend the July 8 meeting only.]

July 7 – Blaskovich Community Center, 4453 National Road, Triadelphia, WV (Ohio County)
July 8 – Doddridge County Park, Snowbird Road (County Rt. 50/16), West Union, WV (Doddridge County)

Both programs start at 6:00 p.m. For more information and directions, click here to download the flyer .  For questions, contact Georgette Plaugher, WVU Extension Service Natural Gas Team Coordinator at 304-329-1391 or via email at Georgy.Plaugher@mail.wvu.edu.

More information on forced pooling and SORO’s position can be found in the newsletter and on our website, www.wvsoro.org.

July 13: Not Your Grandparent’s Oil & Gas Industry, Meeting Two

About 200 folks showed up for a recent meeting hosted by our friends at the Ohio Valley Environmental Coalition (OVEC) titled “Not Your Grandparent’s Oil & Gas Industry.”

At that meeting, we heard from lawyers, including WV-SORO’s Dave McMahon and activists like Bill Hughes who have been dealing with shale-fracking issues in other parts of the state. Now OVEC is having a second meeting where folks can share, in a moderated discussion, stories of what is already happening in Wayne and surrounding counties.

Please plan to join us at 6:30 p.m. on Monday, July 13 at First Congregational UCC, 701 5th Ave, Huntington, WV.

WV-SORO will not have a speaking role at this meeting, but will have a representative present and available to help answer questions.

>>> Source: Julie Archer, WV Surface Owners’ Rights Organization, 1500 Dixie Street, Charleston, WV 25311

WV-SORO Phone: (304) 346-5891,  Internet: www.wvsoro.org

WV government has "no respect"

WV gas industry sues landowners to “legally” perform forced-pooling of mineral rights

From an Article by Andrew Brown, Charleston Gazette, June 21, 2015

West Union, WV — When Lorena Krafft received the court summons in 2013, she didn’t quite understand what was happening. Months before, she had received a letter and a draft lease from Antero Resources asking her to sign over a portion of minerals she owns in Harrison County so the company could drill. She ignored that letter and the string of calls that followed. She told the company to consult with her attorney.

It wasn’t that Krafft, a resident of Ohio, was opposed to drilling. She had been willing to lease the 15 pieces of property she inherited from her mother in Doddridge and Harrison counties. The problem was that her interactions with Antero had soured because of disagreements over the location of a gas-compressor station and the cutting of trees on land she owns in Doddridge.

She wanted those issues resolved before she would sign a lease with the company. Instead of bringing the company to the negotiation table, though, Krafft’s refusal to sign prompted Antero to file a lawsuit in Harrison County Circuit Court seeking to end her ownership in the tract of minerals.

Without Krafft’s signature on a lease, the entire Marcellus Shale well that would be drilled through nearly 14 properties could be put on hold, delaying profits for Antero and the other property owners, who already had signed over their mineral rights.

Krafft’s case is just one example of how the oil and gas industry has turned to West Virginia’s court system in the absence of a pooling law to force mineral owners to either sign leases or sell their property. In county courthouses throughout the north-central part of the state, gas companies have filed what are known as partition lawsuits, seeking court-ordered buyouts of partial mineral owners who have yet to sign a lease.

In Doddridge and Harrison counties alone, Antero, one of the region’s largest gas producers, has filed nearly two-dozen lawsuits over the past two years. Lawyers who have worked on similar cases in the state say the lawsuits also have been used by other companies, like EQT Corp., in the state’s other Marcellus gas-producing counties.

For the companies, the lawsuits are a necessary part of their effort to clean up the state’s fragmented mineral acreage, which often is split between dozens of shared owners, the result of property being passed down through generations, sometimes unknowingly.

For the people who are sued, though, the litigation often is seen as an unfair process in which they are either compelled to sign a lease or watch as their property is sold to a gas company for whatever price the court determines is fair — often less than what can be made from the minerals once they are drilled.

Two years after the lawsuit was filed, Krafft continues to fight Antero in court, an effort that has cost her a significant amount of money and shaken her confidence in the court system. “We’re tired of it. We are tired of the expense. We’re disillusioned with our legal system because the cost is outrageous. From attorney fees to court fees, the amount of money that is involved is way beyond our imagination,” she said. “You get the feeling they are just waiting for us to run out of money, to get tired and give up. But what do you do? You have this much money invested already.”

In lieu of ‘forced pooling’

The use of the lawsuits coincides with several years of failed attempts by the industry to push a forced-pooling bill through the West Virginia Legislature — the most recent defeat coming three months ago, when a large number of Democrats and the right wing of the state’s Republican party united to force a last-minute tie on the controversial bill.

A pooling bill would allow companies to group dozens of mineral tracts into organized rectangular areas, sign up at least 80 percent of the owners in that space and petition the West Virginia Oil and Gas Conservation Commission to force the remaining people to sign a lease.

If passed, the law would have ensured that drilling in West Virginia was as efficient as possible, reducing the amount of time and number of wells needed to get the gas out of the ground. Opponents of the law balked at the sections of the bill that required unwilling owners to sign a lease with gas companies. So, instead, gas companies have relied on the tools they do have at their disposal — namely partition lawsuits — to buyout or lease portions of shared minerals. The costly litigation can often take over a year to resolve, but industry officials say that, in the absence of forced pooling, the lawsuits are the only means available to open up mineral acreage for drilling.

In many ways, the lawsuits achieve the same goals that pooling would, but on a case-by-case basis in the county courts. One of the few differences is that the lawsuits can’t be filed against people who own 100 percent of their minerals, while forced pooling could.

“It is an indirect way to achieve what pooling would do,” said Jay Leon, a lawyer from Morgantown who has represented mineral owners in partition lawsuits. “The point is that it is a blunt instrument to get the property into production.”

Kevin Ellis, president of the West Virginia Oil & Natural Gas Association, said the need to remove the holdout owners — some of whom live in other states — is the only way to ensure that the cooperating property owners can profit from the minerals.

“It doesn’t make sense that litigation is the only way that you can get 100 percent development,” Ellis said, adding that the industry would rather use pooling, which he said would be a quicker and fairer process.

In West Virginia, all people with shares in a co-owned piece of property need to sign leases before a company can drill and hydraulically fracture a well. That can make it difficult for companies to secure those minerals.

While a gas company needs partial ownership in a tract of minerals to file a partition lawsuit, the development of those minerals has almost been guaranteed once it does.

In every case reviewed by the Gazette-Mail, Antero began by having one of the already-leased mineral owners sign a small portion of the property over to the company. Without that ownership — usually about 1 acre — the company can’t file the lawsuit. Lisa Ford, an attorney from Clarksburg, said the practice is an example of companies acquiring a “minuscule” interest and asserting what she believes is a perceived right to file a lawsuit. “While sitting on inventories of hundreds of thousands of acres, companies allege that individuals who ask for a square deal are refusing to cooperate in development,” she said.

Once a property transfer is finalized, there is very little the holdout owners can do, besides sign a lease or accept whatever price the court decides the minerals are worth. Even if the unwilling owners make up more than 48 or 50 percent of the ownership in a tract of minerals, court records suggest the companies have the upper hand.

Of the 16 Antero lawsuits reviewed from Doddridge County, at least 10 were dismissed after holdout mineral owners relented and signed leases. “It’s like any other type of negotiation; it comes down to leverage,” said Leon, who is representing Krafft in her lawsuit against Antero.

In cases where the court does determine a price for the minerals, court records show that the price is usually set around $2,500 per acre, and that the valuation often is based on evidence presented by the gas companies. Ellis, who also is an employee of Antero, said those numbers are based on the prices paid for other minerals in the immediate area, which court records show is normally previous purchases made by the same companies. “It’s no different than the sale of a house,” Ellis said. “You base it on what’s comparable in the area.”

Dave McMahon, a Charleston lawyer who represents mineral owners in the state, said that when clients have approached him in the past and asked how to handle a partition lawsuit, he told them to negotiate for the best lease terms they can get and sign with the company. McMahon, who is a founder of the West Virginia Surface Owners’ Rights Organization, said it’s often not worth fighting the company and losing out on the money that can be made from gas royalties.

For any of the owners, the decision between selling out or leasing can be difficult, but for people who object to drilling for conscientious reasons, like environmental or human-health concerns, the choice can be particularly hard to swallow.

‘A tangled mass of weeds’

In West Virginia, partition lawsuits — meant to resolve disputes between co-owners of land and minerals — are well established in the legal system. They’re relics from English law, passed down from when the state was still part of Virginia. But while the law has been used for decades to settle land disputes and open up minerals for mining and drilling, some people involved in the lawsuits have recently questioned if the right to partition gas minerals is guaranteed and whether the gas companies’ particular use of the law is actually legal or not.

In September, Judge Timothy Sweeney issued a decision in a Pleasants County Circuit Court case — Elder v. Diehl — that challenged what has been an almost guaranteed right to force the sale of other people’s minerals. “Partition is not an absolute and unqualified right,” Sweeney wrote in the decision, which denied a private mineral owner’s request to sell off a co-owner’s portion of the property.

Sweeney, who has presided over numerous partition lawsuits in the past couple years, also called on the West Virginia Supreme Court to review the case. He wrote that the use of the law to partition minerals is like fitting a “round peg into a square hole.”

“The current state of partition law in West Virginia is a tangled mass of weeds,” Sweeney wrote. “The court finds this to be especially true with regard to oil and gas minerals.”

Sweeney’s opinion immediately caught the attention of law firms that represent the gas companies in the state. They quickly posted messages that warned of the possible implications the decision could have for the industry. They argued that it was evidence of the need to convince the Legislature to pass a forced-pooling bill.

Still, industry officials remain confident in their legal right to file the lawsuits. “The Supreme Court has already ruled on the validity of the partition statutes,” Ellis said. “I am aware of the case in Pleasants County. He has an opinion. It’s out there. To my knowledge, the partition statute is applicable to oil and gas, the same as it is to the utilization of the surface.”

But Judge Sweeney is not the only person who has reservations about the recent number of partition lawsuits that have been filed in county courts. Numerous lawyers who have represented mineral owners, including Attorneys Leon and Ford, argue that the way the companies file the lawsuits might not be exactly legal, according to their reading of the law.

In every case reviewed by the Gazette-Mail, the companies named as defendants only the owners who wouldn’t sign leases, which Ford said was a type of “procedural Hail Mary.” Leon said that practice might go against the basic purpose of the partition law, which is meant to leave the entire property in the hands of a single owner. “That’s not what the statute was meant to do, in my humble opinion,” Attorney Leon said.

In Krafft’s case, several of her relatives who signed leases and shared ownership in her tract of minerals were named as plaintiffs against her. She said they were never consulted by the company about the lawsuit and wouldn’t have consented to their names being used in a case that was seeking to force the sale of her property.

If the companies were forced to name all owners as defendants, the attorneys said, even the people who signed leases with the company would be forced to sell their minerals, making it more difficult for companies to get people to sign over an acre of the property to begin with.

But without a case being appealed to the state Supreme Court, Attorney Jay Leon said, the attorneys, judges, companies and property owners involved in the lawsuits are left to operate in an unclear legal environment. “For the most part, these are 100-year-old concepts that are being applied in a unique environment,” he said. “When these laws were created, they didn’t foresee horizontal drilling. The law is playing catch up a little bit. It’s a new wrinkle to an old problem.”

Attorney Lisa Ford maintains that the lawsuits are illegal and violate the rights of property owners. “This suspect partition practice is causing great harm to West Virginians. Companies are taking mineral interests without affording West Virginia mineral owners their constitutionally guaranteed due process of law,” she said. “In my opinion, there are holes in the industry’s scheme to take mineral properties with our partition statute that are big enough to drive a water truck through.”

See also here and here.

Hundreds of Miles of Land are Being Disturbed

We should not forfeit the future for the sake of energy today

Letter from S. Tom Bond, Clarksburg Exponent-Telegram, June 7, 2015

The fossil fuel industry is finding more and more opposition as time goes by. The reasons are many. The list of new pipelines is amazing — for example, the Atlantic Coast Pipeline, the Mountain Valley Pipeline, the Momentum Pipeline, the Rover Pipeline — on and on it goes.

These are no babies; some of them are as large as 42 inches, and they operate at up to 100 times the pressure of the atmosphere — at 1440 pounds per square inch. They will be among the largest ever built in the United States.

Literally thousands of miles of pipelines are being built to transport gas at a time when fossil fuels face a political and technological storm of a variety of problems hardly meeting public attention a decade ago.

Recently the International Monetary Fund published in a white paper that fossil fuels get a worldwide subsidy of $5.7 trillion, which amounts to 6.5 percent of the world gross domestic production, mostly due to environmental costs and damage to health — with coal the primary culprit.

The worldwide annual subsidy to renewables, which the fossil fuel industry likes to complain about, is only $77 billion, meaning fossil fuels get 66 times as much! The fossil fuel companies simply take the money while putting costs off on the public, the World Bank says.

This will encourage world leaders to impose a “carbon tax,” bringing cost of energy so provided more in line with its true economic worth. Things are so serious in China that the Communist Party is afraid it will lose its grasp if it does not do something about its smog. The chief U.S. climate negotiator, Todd Stern, claims nations representing 60 percent of the carbon dioxide emission are already on board for a deal which will limit CO2 to 450 parts per million.

The Bank of England has launched an inquiry to determine how much of the $5.5 trillion invested in fossil fuel exploration and development over the last six years is really viable, and whether it could become the new “subprime” for the global financial system. In other words, could it cause another big bank crash like the one from which we are now recovering?

Both solar and wind are making great progress, as is electrical storage. By 2020, Denmark will be completely powered by wind. Spain is moving toward solar.

Bill Wyant, a friend, recently traveled through Spain, and says the effort is quite conspicuous to everyone. Utility-scale solar is being built all over the world. Companies in the United Arab Emirates have contracts to deliver solar power for as little as $59 per megawatt hour, as cheap as hydroelectricity.

Battery storage cost is falling fast. The IEA estimates that the cost of a lithium-ion battery for grid-scale storage has fallen by more than three-quarters since 2008. The batteries last over three times as long.

Research continues. At Harvard, a project to develop a large battery promises to cut costs two-thirds in three years and avoid use of rare earth minerals — a huge operational improvement.

The science papers on effects of fracking have been doubling yearly. The press and scientific experts no longer ignore health effects of fracking, long accepted by physicians. Drilling companies are big advertisers and generous donors to higher ed, but the evidence is too strong to counter. Campaigns for divestment from carbon energy are underway everywhere, even far from operations.

Banks don’t want drilling on mortgaged property because of loss of value, and insurance companies don’t want to pay for losses due to drilling contamination or accidents on one’s property. As I write this, an email comes from a person whose realtor said his house and land would be worth 75 percent less if a pipeline came on the lot. Day before yesterday, I had lunch with a man who had lost seven cows and a $20,000 horse since fracking began on his farm. Individual stories can be ignored, but when they are institutionalized by realtors, lending agencies and insurance companies, the reality is too powerful to ignore. They are a huge subsidy from the poorest property owners to the industry.

Disposal of huge quantities of waste is a growing problem, since people are coming to understand its properties. Once it was dumped in streams and on roads to keep the dust down. It is “brine,” but not simply table salt dissolved in water. Pumping brine underground is controversial, because in a place or two it has caused earthquakes. In dry California, it has been used to irrigate crops, but this is quite controversial, too.

Liability is a constant problem. A jury awarded the Parr family $3 million in damages for the fracking-related impacts caused by Aruba Petroleum’s operations near their home in Texas. Public Broadcasting estimates 100 claimants have filed in West Virginia alone. These are nuisance and negligence largely, although at least one multimillion-dollar suit in Central West Virginia has been for retained royalty. The rest involve 50 suits in Harrison and Doddridge primarily, but also in Pleasants, Kanawha, Ritchie, Marion and Monongalia.

Religious considerations are entering the arguments about extreme extraction. Numerous religious groups have come out to say ethics require consideration of effects on people and the environment — this is the only planet we can live on; we must protect it.

A few claim humanity has the right to “dominion over the earth,” but most claim it is a garden for us to cultivate and protect. Pope Francis, leader of the largest organized religious group on earth, has said causing climate change is a “sin” — the word he used.

There are other problems, such as traffic congestion, beauty of the landscape is altered, noise, odors, lights at night and other quality-of-life issues. The community must provide housing and meals for people who come in very dirty after work, who have irregular hours — workers with money living away from family.

Of course, the white elephant in the room is the carbon dioxide that comes from burning carbon-containing compounds for energy. Also, the emission of methane, a far more serious greenhouse gas, resulting from use of natural gas.

There is an active denial campaign, financed by those who have a lot to lose from keeping hydrocarbons in the ground, but practically all of the scientific community who have studied it are quite unified.

Much of the evidence is easily understood, such as the ability of carbon dioxide and methane to retain infrared heat, known for over 100 years; melting of glaciers, since there are plenty of historical photographs; changing temperatures of air and sea waters; movement of flowering to earlier dates; and change of migration of birds. The monsoon rains in Asia are coming later and later.

On the other hand, some evidence is not subject to common-sense argument, because it involves airflows from equator to the poles, currents circulating in the sea, and why more water evaporates from a warm sea. These things are known to those who study these phenomena, but not to the general public.

No one expects extraction of hydrocarbons to completely stop; they are important inputs for the chemical industry. Coal and oil are needed to make many things from plastics to pharmaceuticals. Gas is the source of nitrogen fertilizer and hydrogen. I remember Dr. Lazzell, who taught my organic chemistry class at WVU, saying, “You can make such valuable things from hydrocarbons, it is a shame to burn them.” That was about 1962, over 50 years ago.

But we must stop using the atmosphere as a dump for byproducts of making energy. More and more realize this as time passes.

The organization against extreme energy extraction is growing. I have a list of over 250 organizations opposed to fracking. Real progress is being made on the level of local government. Even Wisconsin, which provides the sand, has organizations against fracking

We humans have 10,000 years of civilized past. There is no reason we should forfeit an even longer future if we can listen to the wisest among us and choose a new rational path, as we humans have often had to do before. For the sake of the future of mankind, we cannot continue to spoil the surface and use the atmosphere as a dump — it is not infinite.

See also: www.FrackCheckWV.net

Gas-drilling case settled

XTO offer taken after 2-year suit

From the Article by David Beard, Morgantown Dominion Post, November 29, 2013

A Marion County landowner’s federal lawsuit to throw a gas-drilling company off his land has been settled out of court.

Richard Cain sued XTO Energy — an Exxon subsidiary — about horizontal gas wells on his land that also drain gas from neighboring tracts. Cain said XTO had no right to use his only drawing gas from neighboring mineral tracts.

Cain’s complaint said XTO planned for a total of three well pads with 18 horizontal gas wells. Those wells would drain the minerals under him and up to 3,000 acres of mineral tracts around him. But all the surface burdens would be his.

“I got involved in this case,” McMahon said in a release issued after The Dominion Post called his office, “to try to set a precedent in the West Virginia Supreme Court. Mr. Cain really wanted to protect not only this piece of recreational property, but also other properties, including his home property and the properties of others in the state, where the drillers were headed next.”

But the case, begun in June 2011, dragged on too long, McMahon said. Cain suffered some financial difficulties, “and the company finally made him an offer he was not in a position to turn down. We appreciate that he hung in as long as he did.”

McMahon said that settlement papers haven’t been signed and he wasn’t at liberty to discuss possible future activity on the Cain property at this time.

XTO referred questions to its parent, Exxon, which did not respond to a request for comment.

McMahon said in the release, “Our position is that the law is clear. A driller has no right to put a pipeline across your land from a well above, and producing gas from, a neighboring mineral tract. If there is no right to disturb your land for just a pipeline, then there certainly is no right to use your land to put one of these enormous, long lasting, property devaluing, and potentially dangerous Marcellus well pads on you with multiple horizontal wells that produce gas from neighboring mineral tracts. They have less need for your surface for horizontal drilling because they can drill to the minerals under you from a mile away.”

McMahon said SORO is again looking for the right test case to take to the state Supreme Court.

“We think the law is clear based on legal treatises and cases on coal mining, but there is no West Virginia Supreme Court case on this issue for horizontal gas we l l s, ” he said. “As a result, the companies get away with having their landmen tell surface owners that the company has a right to put these awful well pads on them, and maybe offering them what the land is worth to the surface owner, but not what the location is worth to the driller.

“Most people’s life savings are tied up in their home and land,” he said.

FrackTracker and WV Host Farms Confer in WV Gas Field

Article by S. Tom Bond, Resident Farmer, Lewis County, September 29, 2013
 
FrackTracker sent a small group to meet with West Virginia Host Farms the 26th of September.  Most people who study fracking know about FrackTracker through it’s maps which show newly permitted wells and know about Host Farms from it’s program which allows scientists and other visitors to have access to points of interest through landowners and providing meals and lodging for them.
 
The groups met in West Union for lunch and then toured a well site, a pipeline laying location, and a large and growing compressor station.  Extensive discussion of “after-the-fact” permits and “negotiated settlements” of fines for infractions of law and regulations occupied a large part of the lunch period.  There is a great contrast between the way corporations and individuals are treated.
 
There is immediate concern for a gas well drilled sometime back near the high school.  It uses the school driveway and is within easy walking distance of the school.  Vapors from the well could easily reach the high school, accidents could occur with busses and cars driven by students, and it would contribute to discipline problems.  This gas well is a vertical well, but suppose they decide to drill Marcellus wells from the same pad.  It seems likely the well was drilled to establish a precedent.
 
Other considerations discussed were careless flairing, changing creeks without Army Corps of Engineers permission, fracking tanks not surrounded by earth embankments, “grandfathered” wells on old pads, endless water complaints.    These included loss of water in wells, contamination, and companies supplying water for a while, and then abandoning the complainant.  Also, various discrepancies between what land men claim is the law and what the law actually is.  Two of these are claims that public road 30 foot rights-of-way can be widened by condemnation, and that the company can condemn land for a compressor station.  Both are false claims.
 
One of the sites visited was a gas well in the process of the deeper vertical drilling. It involved air drilling down to some depth, then this larger drill, and finally a smaller rotary rig for the horizontal part to complete the well.  Each time the drill is changed, all the attendant equipment is removed before the next stage.  Two large impoundments were in sight, one for fresh water, one for drilling fluids.  The landowner had several groups at this site before and relations were quite cordial.  One of the biggest complaints here was that the gas well site, access road and pipeline right-of-way occupied a measured 37 acres of her 80 acre property.  As usual, the timber on the property was wasted.  Here it is common practice to deny compensation for damage (presumably since it is regrowth forest) and to give the surface owner $1500 for “compensation for taxes.”  The surface owners are ripped off for production of the property far beyond one lifetime, and must continue to pay the same tax as before drilling, forever, so $1500.  This is another example of the (deliberate?) insensitivity of drillers to passage of time.
 
A second location visited was Robinson Ridge, where pipeline laying was in progress.  Robinson Ridge was, in pioneer times, a main route through Doddridge county.  A well-kept cemetery, dating to Civil War times, is right on the ridge.  The pipeline was to follow the ridge, but had to deviate to miss the cemetery and the public road by it, putting it on a very steep bank.  Issues here were inferior pipe of Chinese manufacture, welders less well qualified than West Virginia union welders, absence of remotely controlled valves to contain the gas in case of fire, the difficulty of fighting fires in case of leak or rupture in remote steep places.  The lack of trained fire fighters and appropriate equipment for large gas fires is a problem at all sites.
 
The other site visited was the new Mark West compressor and liquids removal plant off Morgan’s Run, within sight of Rt. 50.  The author remembers this as one of the best farms in Doddridge County in his youth.  Recently it has been seen more of a site for investment, because it is one of the largest pieces of contiguous flat land in the county.  Much of it is within the 100 year flood plane, which seems to have been ignored.  It now contains two well pads and the compressor station, which is being expanded rapidly.   (Drilling was in progress across the valley on the pad near the hillside.)
 
There are quite a number of interesting things to be seen here.  Access is by public ownership of the old Rails to Trails right-of-way.  Visitors were quite unwelcome originally, but people are entitled to walk it, just like any other section of the Rails-to-Trails path.  Mark West has paved it through their domain, whereas it is gravel most of the way from Parkersburg to Clarksburg.
 
The expanding plant is built in a cove, and a small mountain is being leveled to keep it at a higher elevation.  One can see a large crane used in the construction. The liquid product is being piped down near the rail trail to load it into liquid petroleum product trucks.  These are trailer trucks which have huge tanks with characteristic rounded ends, and thus are easily recognizable.  They are supposed to have the 1075 hazardous material signs displayed, which also helps recognition.  About a dozen were lined up for filling at a small building near the road.  Several different companies appear to be employed to haul the liquids.
 
These trucks can be considered as bombs.  The shape of the trailers is a design to use the least metal to surround the liquid which is only about 75% as dense as water, and to keep it under pressure.  Low density accounts for the very large size.  The design of some of them involved pipes sticking down from the middle of the trailer, so that running over a bank would drag them off, allowing the liquid to escape.  We speculated about what would happen if the drivers understood the hazard they were putting themselves into.
 
In several places we saw pipelines being laid up over a hill at angles far in excess of 45 degrees. A huge one is just east of the Mark West installation.  You have to wonder how these labor heros do it, and how they expect to keep any soil cover over the pipes when they are in place.
 
FrackTrcker is a coalition of about 175 groups which is dedicated to enhancing the public’s knowledge of the global impacts of the oil and gas industry. They have a map of new wells worldwide and a vast trove of information.  The visiting team consisted of four individuals with different areas of expertise.  It was lead by  Brook Lenker, the Executive Director.  The internet site is here.
 
West Virginia Host Farms is a coalition of landowners who are affected or interested in the problems of the natural gas industrialization of a once pristine rural area.  They are able to let scientists and others interested in slick water hydraulic fracturing to view sites they want to study, because the landowner has the right to go on his/her land near the drilling and take visitors. These areas is remote, so they also provide free accommodations and meals.  The internet site is here.
 

EDITORIAL: Morgantown Dominion Post, November 29, 2012

Ruling scratches surface of rights: The decision to recommend that lawmakers take up the appeal of DEP gas well permits is right

Which should come first: Judicial review of proposed gas well permits or complaints and hearings about any resulting damages?  About a year ago, the Legislature passed the groundbreaking Natural Gas Horizontal Well Control Act, the first such comprehensive legislation in the Appalachian Basin to address regulation of Marcellus shale drilling. Yet, if you want to know why this law has gained so little traction among surface owners, you need look no further than a decision by the state Supreme Court last week.

At issue was a Doddridge County surface owner’s right to appeal a Department of Environmental Protection (DEP) gas well permit on his property. State code does not provide for administrative hearings and judicial reviews of DEP permits for gas wells. We’ll reserve our judgment on this ruling. However, the court was correct to refuse to rewrite the code from the bench and to recommend in its 19-page ruling that the Legislature take up this issue.

We urge lawmakers to revisit this issue in February and amend the Natural Gas Horizontal Well Control Act to provide for surface owners’ right of appeal of any DEP gas well permits on their land. Virtually every legislative candidate we interviewed prior to Election Day — Democrats and Republicans — was quick to admit that surface owner rights got the short end of the stick when the Marcellus shale bill was approved. Yet, some defer now — and others may later — that since these regulations are just a year old, we need to step back and watch them work to determine their shortcomings. We think not. This recent ruling by the high court is an eyeful.

Furthermore, to argue that surface owners’ comments alone about the DEP’s gas well permits are enough based on the premise that they can seek remedies if their land is unduly damaged, is a case of too little, too late.  To file a complaint in circuit court after the fact is much like taking up public safety after the flood, or mine safety after the explosion, or vehicular homicide after the wreck.

It’s in everyone’s best interest if there are going to be questions that merit judicial review to answer them before the fact, to spare all parties.

Obviously, these appeals of DEP permits may still end with the same result. However, such a review allows for discovery of any number of issues.  Such appeals are already granted to coal seam owners. They can request judicial reviews of DEP permits, while surface owners can only offer comments on proposed gas wells within 30 days. These concerns are not secondary. Let’s hope our legislators think so, too.

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WV host farm program is the result of concerns for the surface owners and residents: West Virginia landowners living on or near drilled properties and/or compressor stations opt to participate in the program by becoming volunteer “host farms” for researchers and journalists. Through a managed database of participant landowners throughout the state, the WV Host Farms Program serves as a point of contact between those in the environmental community seeking suitable locations for study of Marcellus in WV, and those who are landowners able to provide them.  See www.wvhostfarms.org

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Organic farmer concerned about fracking

Stephen Cleghorn owner, of a 50 acre certified organic farm and goat dairy in Reynoldsville, PA, is concerned about hydraulic fracturing gas drilling activity nearby and how it might affect his animals and the farm he and his wife started in 2005. See the video “here.”

The Joint Select Committee on Marcellus Shale is scheduled for meetings Monday at 8 a.m. and Thursday at 3 p.m. during the November interim sessions, according to Co-Chairs Tim Manchin (Delegate-Marion) and Douglas Facemire (Senator-Braxton). This committee is currently working on four amendments that still remain pending for proposed regulation of the industry.

According to the state legislative Web site, four amendments to the Marcellus shale legislation are still pending while more than 20 have already been adopted. The four amendments remaining for consideration are (a) inspector qualifications, (b) karst (limestone) formations, (c) permit considerations, and (d) surface owner issues.

Wednesday at the capitol, West Virginia Delegates and Senators, as well as Beth Little from the Sierra Club, spoke of the need for regulations on the gas industry to make sure drilling is done responsibly.

The theme of the meeting was that job and revenue creation must be balanced with protecting surface owners rights, as well as the health of communities and the environment.

Read the full article here…