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.
DEP and EQT now argue that the case is clear.
"As a surface owner, [Hamblet] does not have a statutorily defined right to seek judicial review," wrote DEP lawyer Joseph J. Jenkins.
EQT lawyer Richard Gottlieb wrote in his brief, "This court should hold that surface owners are not entitled to an administrative appeal of the issuance of a well work permit, and specifically not the issuance of a horizontal shallow gas well work permit."
But the surface owners' group argues that a constitutional right to challenge permits exists, and is all the more important as drilling in the Marcellus Shale region booms, and West Virginia lawmakers refused to allow public hearings on permits when they passed a new regulatory scheme late last year.
"The simple fact is that surface owners need the right to a hearing now," wrote David McMahon, a lawyer for surface owners. "Every week of delay means more surface owners are being denied their constitutional due process and having bad decisions made for the construction of well sites and access roads on their land, and the drilling of oil and gas wells through the groundwater of their land."
Arguments in the case are scheduled for Tuesday.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.