American Oil and Gas Reporter - March 2019 - 100

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with extensive permitting experience.
"The two briefs complement each other," he praises. "I believe the justices'
decision will be determined by the geological facts as set forth by these geologists.
Those facts contradict the basis for the
Superior Court's decision."
Moody points out if the Supreme
Court upholds the Superior Court decision
that Southwestern's fracturing and production amounted to a trespass, it would
make Pennsylvania an outlier among energy-producing states. "Many other states
have a lot more case law developed over
the years," he says. "Even though Pennsylvania started the drilling industry, it
doesn't have the case law developed like
Texas, Oklahoma and other states."
While some in the anti-development
community could use such a decision as
ammunition to fight oil or gas activity in
their states, Moody points out the main
victims are landowners who may not see
their properties developed. "They will
not be able to drill as close to boundary
lines, or they could end up with court
fights over wells that are drilled, such as
trespass actions and actions for damages
for stolen gas," he describes.
Zoning Compatibility
The Gorsline case involved whether
oil and gas drilling is similar to other
uses authorized in residential-agricultural
zones (AOGR, July 2017, pg. 21). While
the Pennsylvania Supreme Court reversed
the Commonwealth Court's decision that
the drilling was "similar to" uses permitted
in the R-A district, Moody says, the significance of the Supreme Court's decision
was the rejection of the objectors' request
that the high court create a statewide judicial rule prohibiting drilling in zone
districts other than industrial. "This request
was exactly the opposite of the opponents'
position in the Robinson Twp case that
zoning decisions are based on local considerations and statewide zoning is unlawful," he explains.
The Supreme Court subsequently granted review of the Commonwealth Court's
Delaware Riverkeeper decision and immediately vacated the lower court's decision, directing it to reconsider its decision
in light of the Supreme Court's June
2017 decision in the PEDF case that involved the scope and standards of Pennsylvania's Environmental Rights Amendment, Moody says. The high court also
directed the Commonwealth Court to reconsider the relevance of the Supreme
Court's Gorsline decision to the Commonwealth Court's analysis of the issues
appealed. He adds the difference between
the Gorsline and Delaware Riverkeeper
cases is that the Middlesex Township su-

100 THE AMERICAN OIL & GAS REPORTER

pervisors amended their zoning ordinance
to specifically allow the drilling that the
Commonwealth Court allowed.
An interesting development in the case
surfaced Jan. 31, Moody notes, when the
Pennsylvania Chamber of Business and
Industry filed an amicus brief that challenged what many see as an overly broad
interpretation of the Pennsylvania ERA
in the Robinson Township and PEDF decisions.
"It was filed by four very knowledgeable
attorneys," he describes. "There are many
things wrong with what the Supreme Court
concluded about the ERA in these decisions,
such as municipalities are commonwealth
'trustees" under the ERA, disregarding
what we believe are clear distinctions in
our constitution between the commonwealth
and subordinate governmental units.
"The briefs were submitted at the end
of January, so next the court will schedule
oral arguments in the upcoming months,"
he says. "We usually have to wait at least
three-six months after the oral arguments
for the court to render a decision. Because
oral argument is not even scheduled yet,
we could be looking eight or nine months
from now. It's not certain that the court
will address the chamber's arguments,
but we are hopeful it will."
Stream Ownership
An issue concerning the state's claim
of ownership of "public highway"
streambeds has emerged, Moody reports.
In September 2010, the Department of
Conservation and Natural Resources announced a "Navigable Streams Management Program," based on Pennsylvania
legislative declarations that certain streams
are public highways. DCNR also asserted
that the legal consequence of the declarations is that the state owns the streambeds
and the oil and natural gas beneath.
"Therefore, even when the streams
are deeded and run through private properties that are leased, the state now says
you don't own this land or the resources,"
he says "A lot of companies responded
and reduced the unit acreage for landowners by the acreage DCNR was claiming.
They then put the royalties into escrow,
because DCNR, not the landowners, was
claiming them."
Several landowners have filed a lawsuit
before the Board of Property, a state administrative board within the Department
of Community and Economic Development. Moody says the board exists to resolve claims of land ownership by the
commonwealth.
According to Moody, Pennsylvania is
arguing that the public highway designation means that a stream is navigable in
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American Oil and Gas Reporter - March 2019

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