Beth Walker and other Justices now in impeachment process due to excess spending

From an Article by Ken Ward Jr., The Charleston Gazette-Mail & ProPublica, August 20, 2018

The Republican-led West Virginia House of Delegates received national attention last week for impeaching all four of the state’s sitting Supreme Court justices. Lawmakers cited a swirling scandal over court spending that ranged from using state cars for personal business to extravagant office renovations that included a $32,000 couch.

Among the targets was Beth Walker, who was impeached over allegations of irresponsible spending and poorly managing the court’s administrative affairs.

But left unmentioned in the impeachment and the debate around it has been a peculiar vote by Walker that benefited the natural gas industry. In one of her earliest votes, Walker made a highly unusual decision to reopen a case and then reverse a Supreme Court ruling that would have forced drillers to pay more in profits to residents. Walker voted to reopen the case around the time her husband owned stock in a variety of energy companies, including those participating in West Virginia’s growing gas boom.

The case focused on whether natural gas companies are allowed to deduct a variety of expenses — for the transportation and processing of gas, for example — when they calculate payments for West Virginia residents or companies that lease them drilling rights to their gas. Millions of dollars in gas royalty payments, the riches from the industry’s dramatic growth in West Virginia over the past decade, were at stake.

In November 2016, the court — before Walker joined it — voted in favor of the residents, ruling that producers weren’t allowed to take such deductions.

Two months later, just weeks into her term, Walker provided the pivotal vote to have the court reconsider the ruling. The court then overturned it, siding with the industry and against the residents.

The decision has been a source of significant dispute. This year, lawmakers passed a bill to reverse the court’s second decision. That prompted EQT Corp., the state’s second-largest gas producer, to file a lawsuit in federal court challenging the Legislature’s action, as well as a 36-year-old state law that sets minimum royalty payments for new gas wells. The company said the state law “infringes on EQT’s vested drilling rights” under its leases.

That case is pending in U.S. District Court in Clarksburg and is among the major battles playing out amid the economic shift in West Virginia from coal to natural gas.

Land ownership across West Virginia has often been complex and confusing. Someone may own the surface land, while someone else owns the the coal, oil or gas underneath it. Tracts such as natural gas reserves become divided among multiple owners, as land and minerals are passed down across generations.

Much of the natural gas in West Virginia is produced under leases that are decades or more than a century old. When they were signed in the early 1900s, paying residents and mineral owners $100 to $300 a year for gas was considered reasonable, maybe even generous. Most drillers at the time were after oil. Gas was mostly an undesirable byproduct.

When the market for natural gas increased, it became more common for leases to pay a share of the sales. Residents and others owning the mineral rights would make more money as production increased.

But many West Virginians were stuck with older leases paying a set amount per year, regardless of production. The Legislature decided to step in with a bill in 1982 to increase royalty payments for new wells drilled under older leases. While existing wells were grandfathered in, new wells drilled under those old leases would now have to pay the gas owner at least 12.5 percent of the gas sales price.

It was one of these leases, signed in 1906, that governed the deal between Patrick and Katherine Leggett and EQT, and that led to the case involving Walker.

The Leggetts were supposed to be getting a 12.5 percent royalty on the gas produced from the new wells on their land. But they were actually getting much less, because EQT was taking deductions from their payments for expenses incurred after the gas was extracted.

The Leggetts and their lawyers thought the law was clear: West Virginia courts had already ruled that gas firms couldn’t take deductions unless leases explicitly allowed them. And the 1982 royalty law didn’t mention allowing deductions. (The Leggetts were represented by Charleston lawyer Marvin Masters, who is among a group of local investors who bought the Charleston Gazette-Mail this year.)

EQT, though, argued that the Leggett case was different, because the court was interpreting the 1982 statute, rather than simply deciding a dispute over the language of a gas lease.

So EQT and the Leggetts went to court, and the case ended up before the state Supreme Court — at a very unusual time.

In May 2016, Walker, a Morgantown lawyer, had just won a seat on the five-member Supreme Court. Still, Walker wasn’t scheduled to take her seat until Jan. 1 and wouldn’t be hearing the Leggett case.

The case was decided in November 2016 by a 3-2 opinion written by Brent Benjamin, the justice Walker had defeated a few months earlier. It affirmed that gas companies couldn’t take post-production costs out of the royalties they paid to people like the Leggetts. The ruling was published on Nov. 17, 2016, the last day of the court’s fall term that year.

When Walker was sworn in a few weeks later, one of her first acts was to join the two justices who had voted against the Leggetts — Allen Loughry and Menis Ketchum — to rehear the case, at the request of EQT. The court rarely agrees to rehear cases, and the court’s own rules say this can only be done in “exceptional cases,” where the court has “overlooked or misapprehended” points of law or fact.

The Leggetts’ lawyers argued that Walker should not be involved in the case and should never have voted on whether to rehear the case because of her husband’s holdings in industry stock.

Mike Walker had loaned his wife’s campaign $525,000 during the 2016 election, according to campaign finance reports. Financial disclosures Beth Walker filed as a candidate for the court indicated that Mike Walker owned stock in many natural gas and energy companies, including Chevron, Columbia Pipeline Group, ConocoPhillips, Dominion Resources, Duke Energy, General Electric, Portland General Electric and ExxonMobil, whose subsidiary, XTO Energy, has significant operations in West Virginia. (State disclosure forms do not provide dollar amounts or ranges for such holdings.)

In court filings, the Leggetts’ lawyers said the loans from Walker’s husband accounted for 70 percent of her campaign funds, and that his energy stocks created a conflict of interest for her in the royalties case. The decision on whether a justice should be recused is left up to the justice, and Walker declined to recuse herself.

First, she issued an April 26 memo that said she found “no basis for my disqualification” because “neither I nor my husband has an economic interest in the subject matter in controversy.”

Then, five days later, just a day before an oral argument to rehear the case, Walker issued a second memo that said, “Out of an abundance of caution, my husband has divested himself of ownership of shares of stock of any company engaged in the business of producing coal, oil and gas, wind or solar energy.”

At the time, Walker declined through a court spokeswoman to say exactly when her husband sold his energy stocks or if he sold them before she voted to rehear the case. On Friday, Walker’s attorney declined to answer that question or otherwise comment.

In later court filings, EQT lawyers noted that it wasn’t clear how much energy stock Mike Walker owned and said his holdings represented a “diverse stock portfolio, with investments in many different industries.”

Lawyers for the Leggetts describe the stock sale as having taken place after Beth Walker voted to rehear the case. EQT lawyers said what mattered was that the stock divestiture occurred before Beth Walker took part in the oral arguments and decided on the merits of the case.

Three weeks after the new oral arguments, the court sided with EQT over the Leggett family: Post-production costs could be taken from leases covered by the 1982 law.

After that ruling, lawyers for the Leggetts tried to take the issue of Walker’s involvement to the U.S. Supreme Court. But that court declined to hear the matter, as it does with the vast majority of appeals filed every year.

When West Virginia justices reversed the decision in the Leggett case, they acknowledged that they had created a situation in which some gas owners would have post-production costs deducted from their royalties and others would not, based on when their leases were written and when their wells were drilled.

“We therefore implore the Legislature to resolve the tensions as it sees fit,” the court said. In their 2018 annual session, which began in January, legislators wasted no time in taking the court’s advice and approving a bill to undo the court’s second Leggett decision.

The state Senate approved the bill unanimously, and the House did so by a vote of 96-2. Gov. Jim Justice signed it on March 9, with an effective date of May 31.

Before the bill took effect, though, lawyers for EQT filed suit in Clarksburg challenging the measure and seeking to have the entire royalty statute thrown out. The state is seeking the suit’s dismissal.

“The state is meddling in private contracts because the Legislature prefers one party to the other,” EQT lawyers wrote in a legal brief. “In other words, West Virginia decided that the lessors had not made lucrative enough deals and simply shifted the fruits of the bargain to them.”

The Senate will hold a trial in coming weeks to determine if Walker and the other justices should be removed from office. Walker is mentioned in only one of the formal articles of impeachment approved by the House, which lists all of the justices and summarizes complaints about the court’s use of public funds.

A more specific impeachment article outlining Walker’s own spending on office renovations was rejected by the GOP-controlled House. Another amendment, to add a specific charge about Walker hiring an outside lawyer to write a court opinion, was also rejected by the House. An effort to remove Walker’s name altogether failed.

The five-member court already has lost two members; another has been suspended. Ketchum retired last month, and he subsequently agreed to plead guilty to one federal count of wire fraud. He was charged with using a state vehicle to take multiple trips to a golf club in Virginia.

Then, last week, after the House impeachment vote, Justice Robin Davis announced that she was retiring. Davis criticized the impeachment process, saying House Republican leaders were attempting “to dismantle a separate branch of government.”

Loughry, whose spending practices prompted investigations of the court in the first place, was indicted in June on federal charges of fraud, making false statements and witness tampering. Loughry has pleaded not guilty, and his criminal trial has been set for early October. In the meantime, he has been suspended from the court.

Whatever the ultimate composition of the court, additional natural gas cases await it.

Another group of West Virginia residents is asking the court to overturn the dismissal of a major lawsuit alleging that the state’s largest producer, Antero Resources, is creating a nuisance with its natural gas operations — with unbearable traffic, mountains of dust, constant heavy-equipment noise and bright lights that shine into their homes day and night.

Oral arguments are scheduled for September 5th.

Where is the Court taking us?

WV Supreme Court reverses itself on gas royalties of post-production expenses

From an Article by Ken Ward, Jr., Charleston Gazette – Mail, May 26, 2017

In a ruling that was expected by most industry observers, the West Virginia Supreme Court on Friday reversed its own decision from just last year and ruled that natural gas drillers can deduct post-production costs from the royalties paid to certain types of mineral owners.

In the decision, the court ruled 4-1 in favor of EQT Corp. to allow deduction of such expenses — for things like gathering, transporting or treating gas after it is extracted — when checks are sent to a group of mineral royalty owners covered by a state law meant to update and reform decades-old natural gas industry payment practices in West Virginia.

Chief Justice Allen H. Loughry II wrote the 47-page majority opinion, in which he was joined by Justices Menis E. Ketchum II and Beth Walker. Justice Margaret Workman sided with the majority, but wrote a concurring opinion. Justice Robin Jean Davis dissented and reserved the right to issue a dissenting opinion at a later date.

In a new point of law, Loughry’s opinion stated that royalty payments under that state law “may be subject to pro-rata deduction or allocation of all reasonable post-production expenses actually incurred by the lessee.”

It said that oil and gas companies may use “net-back” or “work-back” methods to calculate royalties owed but that the “reasonableness” of those expenses in specific instances may be decided by future court cases.

The court’s reversal of its November 2016 ruling in the case, called Leggett v. EQT Production, comes after last year’s election, in which Walker defeated Justice Brent Benjamin, who had written that earlier court opinion.

Walker’s involvement in the case generated controversy, because her husband had previously owned significant stock in a long list of natural gas and other energy companies that would be affected by the court’s decision. In the new ruling, Workman also went from ruling with what was then a 3-2 majority opposed to allowing post-production costs to being with the majority that was in favor of allowing such deductions.

Last year’s ruling found that West Virginia’s 1982 law to update old “flat-rate” leases requires that companies like EQT not deduct from royalties they pay to mineral owners any expenses for gathering, transporting or treating gas after it is initially extracted from the ground. The court had ruled a decade ago, in a case called “Tawney v. Columbia Natural Resources,” that deducting these sorts of post-production costs from royalties to gas owners was illegal unless doing so was specifically outlined in the lease.

The case decided Friday, brought on behalf of Patrick Leggett and other mineral owners against EQT, focused on whether the same legal requirements from Tawney also applied to drilling operations that work under the 1982 law.

Legislators passed that law to reform what they said was “wholly inadequate compensation” for mineral owners covered by leases that dated back, in many instances, to the turn of the 20th century. Those leases often paid a flat rate, such as $300 a year, regardless of how much gas was being produced and how much profit drillers were making. Basically, the law said that, to put a new well on a site covered by one of those flat-rate leases, the driller had to agree to pay royalties amounting to a one-eighth — 12.5 percent — royalty.

The Leggett case plaintiffs argued — and the previous court ruling agreed — that EQT has been wrongly deducting post-production expenses before paying owners their one-eighth royalty on a tract that had been covered by a 1906 lease that was updated according to the 1982 law.

In Friday’s majority opinion, Loughry wrote that, “Upon rehearing, with all due regard to the previous majority’s consideration of the admittedly complex and subversively entangled issues implicated in this case, we conclude that it did, in fact, misapprehend the applicability of certain common law principles and exceeded its charge in its interpretation of the subject statute.”

Specifically, Loughry wrote that the earlier majority wrongly concluded that the 1982 law contained an ambiguity that needed to be interpreted to “right past wrongs” by prohibiting dilution of royalty payments by post-production costs.

Just before an oral argument in May, attorneys for the royalty owners had sought to stop the rehearing of the case. They argued that Walker should not have taken part in the vote to grant that rehearing and that she should have disqualified herself from any consideration of the issue because her husband, Michael Walker, owned stock in natural gas and energy companies.

Michael Walker loaned his wife’s campaign $525,000 during last year’s election. After information about that motion by the royalty owners was publicized, Walker released an updated decision not to disqualify herself, saying her husband had sold all of his energy stocks.

Friday’s ruling defended the decision to rehear the case.

“While an admittedly uncommon occurrence, rehearing exists expressly for the purpose of ensuring that opinions which are not well-founded due to misapprehension of the issues, the law, or the facts are rectified,” the new ruling said. “Justice demands this procedural remedy, which this Court has judiciously utilized when the issues or outcome demand it.

“When a petition for rehearing compels the Court to conclude that the law may have been misapprehended, neither hubris nor sanctimony should give the Court pause in granting rehearing to correct any such error of law or fact,” it said.

The majority decision and Workman’s concurring opinion acknowledge a difference between the way royalty owners are treated under the court’s rulings in the Leggett and Tawney decisions, and they urge the Legislature to take action to resolve that conflict.

Workman, for example, wrote, “Where the Legislature’s inaction in the face of such significant changes in the industry leaves this Court to intuit its intentions and/or retrofit outdated statutory language to evolving factual scenarios, the will of the people is improperly disregarded.”

Workman also said she wrote a separate opinion to emphasize that the majority decision to allow cost deductions “may not be abuses to the detriment of lessors who are chargeable with pro-rata costs and to urge the Legislature to enact specific protections to assure fairness and reasonableness in the calculation of post-production costs.

“As the majority’s new syllabus point states, only such costs as are reasonable and actually incurred are properly deductible,” Workman wrote. “Accordingly, to the extent that a lessor alleges that cost deductions are artificially inflated or are otherwise not commercially reasonable, he or she may clearly maintain an action against the lessee pending sufficient proof thereof.”

The Leggett case was a major point of discussion during the legislative debate over potential passage of a forced-pooling natural gas bill this session. Various parties were looking for lawmakers to either codify Tawney and the earlier Leggett decision — or to overturn them, depending on which side those parties were on.

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.

Landowners are fighting for the right to appeal drilling permits, as described in the Charleston Gazette on September 22^nd. The state Supreme Court will hear arguments in a significant case that could decide if surface landowners are able to appeal oil and gas drilling permits on their land. Industry lobbyists and the state Department of Environmental Protection all seem to agree that West Virginia’s oil and gas statute doesn’t specifically allow such appeals.

But though justices appear to have incorrectly cited that statute in a ruling 10 years ago, citizen groups argue now that the court reached the correct result. They say surface landowners should have a due process right to have their challenges to drilling permits heard.

“We are asking the courts to recognize the surface owners’ constitutional right to a hearing – a hearing after the driller files the permit application, and to appeal if the DEP errs in issuing the permit,” said Julie Archer of the West Virginia Surface Owners’ Rights Organization. Archer’s organization filed a “friend of the court” brief in support of Doddridge County resident Matthew Hamblet in his effort to challenge an EQT Production Co. gas well permit on his land.

Hamblet owns the surface of a 443-acre parcel, but does not own the rights to the oil and gas underneath the land. When EQT obtained a lease and applied for a permit to drill on the site, Hamblet objected to parts of the company’s permit application, noting damage from previous drilling and urging DEP to require changes in the company’s plans. DEP’s Office of Oil and Gas approved EQT’s plans anyway, and Hamblet filed a lawsuit in circuit court to challenge that approval.

In his case, lawyers Cynthia Loomis and Isak Howell cite a 2002 Supreme Court opinion that said surface landowners have the right to file court appeals of DEP permit actions on oil and gas wells. But the statute cited by the court in that case doesn’t actually grant that right to landowners — only to coal owners who are concerned about nearby gas drilling.

Broad coverage information on Marcellus drilling and fracking can be found at:

www.WVsoro.org       and         www.FrackCheckWV.net