WV Supreme Court Rules On Surface Owner's Right to Object to Gas Drilling Permit

In a decision that was closely watched in West Virginia, the West Virginia Supreme Court of Appeals has ruled that surface owners do not have a right to  object to the issuance of an oil and gas drilling permit.  In Martin v. Hamblet, 11-1157 (Nov. 21, 2012) the court ruled that the statutory right to object was  given to the operator of a coal seam the well would run through, not the owner of the land on which the well was located.

The Circuit Court of Doddridge County had certified the following question to the Court:

Does the West Virginia Supreme Court of Appeal’s [sic] opinion in State ex rel. Lovejoy v. Callaghan, 576 S.E.2d 246, 213 W. Va. 1 (2002) interpret the relevant statutes, when read in para materia, to permit a surface owner to seek judicial review of the West Virginia Department of Environmental Protection, Office of Oil and Gas’s issuance of a well work permit for a horizontal Marcellus well?

Syllabus Point 6  expressed the Court's conclusion:

6. The right of judicial review with regard to the issuance or refusal of a well work permit as provided by W. Va. Code § 22-6-41 (1994) (Repl. Vol. 2009) does not extend to owners of the surface rights of the property upon which the proposed well is to be drilled. To the extent that State ex rel. Lovejoy v. Callaghan, 213 W. Va. 1, 576 S.E.2d 246 (2002), indicates otherwise, it is overruled.

The Court also addressed Mr. Hamblet's  Due Process and Equal Protection arguments, even though they weren't part of the certified question, and found no public action to condemn.  Mr. Hamblett, having entered into a lease with EQT that allowed it access to his land for the purposes of drilling a well, was adversely affected by that agreement, not the issuance of the well permit.

Mr. Hamblet's constitutional arguments are premised upon the notion that surface owners have an unrestricted right to enjoyment in their property. A surface owner's rights, however, are subject to the mineral owner's rights. A mineral owner generally has the right to utilize the surface for "purposes reasonably necessary for the extraction of the minerals." Buffalo Mining Co. v. Martin, 165 W. Va. 10, 14, 267 S.E.2d 721, 723 (1980).  In other words, "'[t]he owner of the mineral underlying land possesses as incident to this ownership the right to use the surface in such manner and with such means as would be fairly necessary for the enjoyment of the mineral estate." Squires v. Lafferty, Pt. 1, Syl., 95 W.Va. 307, 121 S.E. 90 [(1924)]." Syllabus, Adkins v. United Fuel Gas Co., 134 W.Va. 719, 61 S.E.2d 633 (1950). Here, EQT has a legally binding lease that grants it explicit rights of access to the oil and gas underlying Mr. Hamblet’s property. 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. Article III, § 10 of the Constitution of West Virginia “protects the individual from deprivations by the State, but not from actions of private persons.” Queen v. West Virginia University Hospitals, 179 W. Va. 95, 103, 365 S.E.2d 2d 375, 383 (1987).