American Oil and Gas Reporter - July 2019 - 109

sure the municipalities understand the
oil and gas ordinance the way the operator
does." she related. "We have assisted
with oil and gas language the municipalities can use to respond to citizen complaints. When the municipalities take
phone calls from the citizens, many cannot
effectively explain what is going on at
the well site or why the operator has the
right to be there."
OERB's McBee indicated her organization sought to get out ahead of community
concerns by demonstrating the industry's
commitment to being a good neighbor.

"We have researched the top concerns for
homeowners in these areas and the number
one thing is ruts," she reported. "They
also want to know how long (activity) is
going to impact their lives and if it is
going to impact their drinking water."
"In response, we created educational
materials that spoke to those concerns,"
she related. "Through direct mail, door
hangars, and targeting the ZIP codes through
digital and social media ad efforts, as well
as local papers, we can get this educational
content out to address these concerns."
OERB's other efforts include creating

a liaison team of representatives that meets
with city officials regularly and developing
a community outreach line. "We can figure
out how to help address callers' concerns,
whether it is sending educational content
or connecting them to an appropriate industry source," she said.
"Many of these calls are benign. In
one example, because of the rain, there
were ruts in a lot of peoples' roads, and
the (responsible) pipeline company fixed
them. That could have made it to the city
council, but we stayed ahead of it before
it escalated."
❒

IOGAWV Hails Supreme Court Rulings
CHARLESTON, W.V.-Assessing three
decisions issued in June by the West Virginia Supreme Court of Appeals, Charlie
Burd, executive director of the Independent
Oil and Gas Association of West Virginia,
predicts a ruling on nuisance lawsuits
will encourage production while two negative judgments don't represent significant
burdens for operations.
In their rulings, the justices:
· Decided that a producer must obtain
permission from surface owners before
using their land to access natural gas
under surrounding acreage. Ruling in
EQT Production Co. v. Margot Beth
Crowder and David Wentz, the court held
that while a mineral owner or lessee has
an implied right to use the surface in any
reasonable and necessary way to develop
the underlying minerals, he "does not
have the right to use the surface to benefit
mining or drilling operations on other
lands, in the absence of an express agreement with the surface owner permitting
those operations."
· Affirmed a lower court ruling in
Robert L. Andrews v. Antero Resources
Corp., that held while horizontal well
activities could impact surface owners'
use and enjoyment of their land, any negative effects were protected by the implied
rights granted by the severance deeds.
The ruling came on a 3-2 vote.
· Overturned the state's tax department methodology for calculating allowed deductions for average annual
operating well expenses. The court's
ruling in Steager v. Consol Energy Inc.
says the methodology violates the department's regulations.
Trespass
The Supreme Court's Crowder ruling
says before conducting horizontal drilling
operations, the operator obtained a pooling modification from the mineral owners
to allow the property to be jointly de-

veloped with neighboring properties.
However, the landowners expressed their
belief only the oil and gas estate under
their acreage could be developed from
that property and barred the operator
from entering it. The operator built a
well pad and infrastructure, and then
drilled nine horizontal wells from the
landowner's property.
The ruling holds that under a 1901
lease, EQT only had the right to extract
oil and gas from under the lease, since
it lacked either an express agreement
with the surface owners or an implicit
right to use those surface lands to benefit
its drilling operations on neighboring
lands, the court says. As a result, the
justices determined EQT trespassed on
the plaintiff's acreage to the extent it
used those lands to extract minerals from
neighboring properties.
The justices note their decision doesn't
challenge or constrain production methods
such as horizontal drilling or hydraulic
fracturing, which they term economical
and efficient tools. "Our opinion affirms
a classical rule of property jurisprudence:
it is trespassing to go on someone's land
without the right to do so."
Mineral owners and lessees have an
implicit right to use the overlying surface
to access only the minerals directly below
the surface, the court held, and using the
surface to extract minerals elsewhere,
without the permission of the surface
owner, constitutes trespass.
"IOGAWV disagrees with that decision, but obviously it will endeavor to
have all of its producers comply with
that ruling, which most do anyway," Burd
says. "There are provisions in state code
that allow a producer to use what land is
necessary to produce oil wells, but in
this case the company was not producing
gas on the subject tract. The court ruled
the company needed a specific surface
owner's agreement. Almost all producers

building well pads for the horizontal
wells being drilled obtain surface use
agreements."
Nuisance
The defendants in Andrews v. Antero
were Antero Resources Corp. and Antero
Resources Bluestone LLC, along with
contractor Hall Drilling LLC. Court documents describe the parties as holding
leasehold rights executed in the early
1900s to develop oil and gas prospects in
the West Virginia counties of Doddridge,
Harrison and Ritchie.
Antero operates six well pads for horizontal drilling in the Cherry Camp area
of Harrison County, with five of those
wells within 1 mile of the plaintiffs'
properties. The lease also allows constructing and operating well roads,
pipelines and a compressor station, as
well as truck deliveries of water and sand
for fracturing operations.
The property owners filed a nuisance
complaint against Antero and Hall in
Harrison County Circuit Court in 2013.
The following year, the case was transferred to the state's Mass Litigation Panel
(MLP). MLP determined Antero held
leasehold rights to develop the underlying
oil and gas, and that the "noise, traffic,
dust, lights and odors of which (property
owners) complain are reasonable and
necessarily incident to Antero's development of the underlying mineral," the decision says.
In their appeal, the plaintiffs argued
MLP applied the wrong legal standard
and ignored surface owners' established
rights. They asserted mineral owners
don't have the right to extract natural
gas using methods uncontemplated when
the severance deeds were executed,
where those uncontemplated methods
are not necessary to mineral extraction
and substantially burden the surface,
the decision reads.
JULY 2019 109

American Oil and Gas Reporter - July 2019

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