Surface Owners Have No Say

WHEELING – A Chesapeake Energy well in Wetzel County produced more than 1 billion cubic feet of natural gas last year, leaving the mineral owner who signed the lease with a nice windfall.

For surface owner Martin Whiteman, however, all it produced was a headache because the company lawfully took some of his farmland to build the well pad, leading him to file suit against Chesapeake to try to recoup some of his losses.

West Virginia University geology professor Tim Carr said those who own the mineral rights to some Ohio County wells could be gathering up to about $7,000 per day, based on a number of variables. However, surface owners who own no mineral rights gain nothing.

Thanks to a decision last week by the West Virginia Supreme Court of Appeals, surface owners will continue to have little, if any, say in how and where natural gas wells are positioned on their land. The high court determined surface owners do not have the right to appeal drilling permits issued by the West Virginia Department of Environmental Protection.

“We understand our rights are limited but do not believe they are so limited as to deprive us of all the due process rights property owners should have,” said Dave McMahon, founder of the West Virginia Surface Owners’ Rights Organization. “Surface owners are very disappointed, but we will not give up.”

Many who live in West Virginia – and some who live in Ohio – may own the surface of the property on which their home sits, while someone who lives in a completely different area of the country owns the coal, oil and natural gas under the surface. This can cause problems for everyone because the mineral owner and the gas company have the right to extract the minerals – and can do so without much regard for the desires of the surface owner.

Industry leaders hailed the high court’s decision, as West Virginia energy law attorneys Bridget D. Furbee and Armando F. Benincasa said the action would end industry concerns by eliminating “the possibility of delays by surface owners for otherwise lawful drilling permits.”

“The decision ends significant concerns within the industry that if surface owners were granted appeal rights that future permitting in the state would be greatly impeded if not halted in some instances,” Furbee and Benincasa wrote in their explanation of how the ruling would impact drilling in West Virginia.

The case originated from a conflict in Doddridge County involving EQT Corp.’s efforts to drill gas wells there. Once EQT filed for DEP permits to drill, surface owner Matthew Hamblet filed objection comments with the DEP. After the DEP issued the permits anyway, Hamblet sought relief from the Doddridge County Circuit Court.

The high court’s decision, authored by Justice Margaret Workman, states, “Here, EQT has a legally binding lease that grants it explicit rights of access to the oil and gas underlying Mr. Hamblet’s property.”

She adds that the court finds no provision in state law that gives a surface owner the right to appeal DEP drilling permits.

Workman wrote that the high court “urges the Legislature to re-examine this issue and reconsider whether surface owners should be afforded an administrative appeal under these circumstances.”

Although surface owners lost out on this case, McMahon said the fight continues.

“We continue to hope that in the long run, our state will not make all the mistakes with the Marcellus Shale that it did with coal and will continue to work toward that goal,” he said.