"EQT has a legally binding lease that grants it explicit rights of access to the oil and gas underlying Mr. Hamblet's property," the Supreme Court said. "It is this contractual obligation burdening Mr. Hamblet's surface estate that deprives him of an unrestricted right to enjoyment of his property, not the issuance of the well work permit at issue. As such, the constitutional guarantees of due process and equal protection do not apply."
The Supreme Court's ruling comes nearly a year after West Virginia lawmakers passed Gov. Earl Ray Tomblin's bill to rework state permitting rules for horizontal drilling in the state's Marcellus Shale gas fields.
In that bill, lawmakers declined to provide surface owners appeal rights, and surface owners' right advocates have complained the legislation did little -- if anything -- to address their concerns about the Marcellus drilling boom.
Randy Huffman, secretary of the state Department of Environmental Protection, said he doesn't have an official position on whether lawmakers should give surface owners permit appeal rights.
"I think that's a good debate to have, but I haven't really formed a solid opinion on that," Huffman said Monday.
Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association, said his group would not support such a change in current state statute or regulations.
"I think we've had that before the Legislature on several different occasions, and it didn't go very far," DeMarco said. "If you start to give them the right to appeal or object, you start to tear away at the mineral rights having primacy over the surface rights."
Dave McMahon, a lawyer for the West Virginia Surface Owners' Rights Organization, noted that the court declined to take up a related issue: whether surface landowners have a constitutional right to a preapproval hearing on drilling permits.
McMahon's group argues that landowners do have that right, and that issue could provide a forum for later litigation on the matter.
"Surface owners are very disappointed, but we will not give up," McMahon said. "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 we'll continue to work toward that goal."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.