CHARLESTON, W.Va. -- The West Virginia Supreme Court is urging lawmakers to reconsider whether surface landowners in the state should have the right to appeal when oil and gas drilling permits are issued for their land.
The suggestion was included as part of a new court ruling concluding that current state law does not give appeal rights to surface property owners who don't also hold title to oil and gas reserves buried underground.
Justice Margaret Workman, writing for a unanimous court, noted that current laws on drilling permit appeals were written prior to the "extensive development of the Marcellus Shale in this state."
"This court urges the Legislature to re-examine this issue and consider whether surface owners should be afforded an administrative appeal under these circumstances," Workman said in the court's 23-page opinion.
The court ruled in a case brought by Doddridge County resident Matthew Hamblet, who was trying to challenge an EQT Production Co. gas well permit on his land.
Like many West Virginians, 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 cited 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.
Lawyers for DEP and for EQT sought to have Hamblet's court case dismissed, arguing that the Supreme Court's 2002 ruling was wrong. Doddridge County Circuit Judge John L. Henning refused, but did agree to submit the matter to the Supreme Court for clarification.
In its ruling last week, the Supreme Court overturned its 2002 decision and said current state statutes do not give surface landowners the right to appeal drilling permits. The court also ruled against the arguments of the West Virginia Surface Owners' Rights Organization, which said surface landowners have constitutional rights to appeal drilling permits.