MORGANTOWN, W.Va. — The West Virginia Supreme Court dealt some Harrison County surface owners a loss on Monday, denying their contention that shale gas development on neighboring property harmed their use and enjoyment of their land.

In a 3-2 split, the court said defendants Antero Resources’ and Hall Drilling’s operations were reasonably necessary to extract the gas.

However, Chief Justice Beth Walker, in a four-page concurrence, and Justice Margaret Workman, in a strongly worded 21-page dissent, both said the majority left open the whole question of nuisance and how that affects the balance of property rights.

The case began in Harrison County Circuit Court in 2013 and was transferred to the Mass Litigation Panel in 2014 under the designation Harrison County Cherry Camp Trial Group. The MLP is a panel of seven appointed judges who handle mass litigation involving two or more civil actions with common questions of law.

The plaintiffs occupy surface land where the mineral estates are severed. Antero holds the leases to the minerals and set up six well pads in the Cherry Camp area to perform horizontal drilling. No pads are located on the plaintiffs’ lands. Five of the pads sit from .42 mile to 1 mile from the plaintiffs’ properties.

The plaintiffs acknowledge that Antero has the right to enter the lands for extraction and could enter their properties to drill vertical wells.

But they claim that the nuisance harms their ability to enjoy their property. Workman quotes the list at length: loud noises, well water safety, flooding, loss of air quality, excessive dust, mud, bright lights, diesel and exhaust fumes, excessive traffic delays/road blockages, rude, aggressive and generally dangerous drivers, speeding of very large trucks, vehicle damage due to poor road conditions, rude and interrogative flag persons, chemical spills in the streams and waters of Cherry Camp, vibrations/shaking, explosions/blasting, flaring, blow-offs of condensate tanks, pipeline blowouts, and loss of sleep.

In considering the case, MLP ignored the nuisance issue and focused solely on mineral owner rights, saying all of that was reasonably and necessarily incidental to the mineral development.

The majority agreed with MLP, saying the plaintiffs in their appeal applied the wrong case law, wrongly contending “that a mineral owner does not have the right to extract natural gas using methods that were uncontemplated when the operative severance deeds were executed, where those uncontemplated methods are not necessary to the extraction of the minerals and substantially burden the surface.”

The majority said MLP correctly agreed with Antero that “that Antero holds an implied easement to use Property Owners’ surface estates to the extent reasonable and necessary to develop its mineral leasehold.

The Supreme Court majority also noted that if Antero had asserted its right to use the plaintiffs’ properties for vertical wells, the plaintiffs would have suffered far worse damage.

Writing for the majority, Justice Evan Jenkins said, “It was incumbent upon [plaintiffs] to present evidence to establish how the burdens resulting from the off-site horizontal drilling of which they now complain has prohibited them from using their land in any way that would be compatible with the physical presence of vertical wells directly on their land. They have failed to do so.”

Joining Jenkins and Walker in the majority was Justice Gregory Howard, sitting by temporary assignment, as Justices Tim Armstead and John Hutchison recused themselves.

In her concurrence, Walker notes that the majority opinion deliberately avoided the question of whether Antero’s activity constitutes a nuisance, choosing to focus on contract and property law.

Walker also notes that the majority also did not answer the broader question of whether the mineral owner under one surface estate may create a nuisance on that surface in order to obtain minerals under a different surface.

Workman, more critically, said the majority failed to provide any guidance on striking a proper balance between mineral and surface rights under the still-recent technology of horizontal fracking.

She wrote: “Both the MLP and the majority are wrong in holding that a nuisance claim is not tenable under any set of facts when mineral owners act within their implied rights; and they are wrong in failing to establish any analytical framework for creating balance between the sets of competing rights.”

She continued: “The majority implicitly suggests that landowners who are negatively affected by the large-scale, around-the-clock industrialization are without recourse because individual vertical wells would, in their academic exercise, be even worse. This is completely disingenuous and constitutes classic “ducking” of the real issue. The majority’s refusal to further develop our existing law to accommodate the need to balance the physical and atmospheric disturbances occasioned by fracking leaves West Virginia surface owners completely without recourse under any circumstances.”

Nuisance, Workman said, may flow from the consequences of an otherwise lawful activity. “It is not the nature of the right; it is the scope, manner, and extent of exercising these rights which under some factual circumstances could constitute an actionable nuisance.”

Workman suggests ways that surface owners and gas developers could work together to reach mutual accord and offers 14 bullet points of issues that could be addressed in surface use agreements designed to avoid litigation.

She concludes: “The MLP and the majority opinion of this court effectively preclude any cause of action for nuisance while completely eviscerating existing legislative and case law.” The court should have remanded the case back to MLP with instructions to determine if the defendants’ actions constitute a nuisance and what damages might be awarded. In pending cases, a court directed mediation process to balance the rights of both sides should be established.

Justice Russell Clawges, also sitting by temporary assignment, signed onto Workman’s dissent.

West Virginia Surface Owners Rights Organization co-founder Dave McMahon said this ruling has no effect on a recent case he litigated before the court: the Crowder case, where the court sided with surface owners in saying 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.

And, he said, this case still leaves ways open for people who believe they’ve been put upon by drillers, particularly those who don’t have well bores under them, to address the annoyance and inconvenience.

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