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Court rules with Antero, but doesn’t set new standards for gas drilling

WV Supreme Court

The West Virginia Supreme Court

The West Virginia Supreme Court on Monday sided with Antero Resources in a case brought by Harrison County landowners, but it did not fully close off the ability of residents to use the courts to limit the effects of West Virginia’s growing natural gas industry.

Justices upheld a lower court ruling that threw out a collection of lawsuits that argued Antero’s operations in the Cherry Camp area had created a nuisance, but the 3-2 decision written by Justice Evan Jenkins did not include any new points of law setting precedent for future cases.

The decision is the second one issued by the court this month on major disputes between surface landowners and natural gas companies.

Last week, in a unanimous decision, the court ruled that gas companies no longer may drill on one person’s property to reach gas reserves underneath adjacent tracts without permission of the surface owner.

Monday’s decision involved a different situation, in which the residents suing were surface landowners who did not have wells located on their property, but wells located nearby to reach gas under their surface property.

Anthony Majestro, a lawyer for the Harrison County residents, said the ruling reflects the developing law over the kinds of conflicts that are occurring in parts of the state where the natural gas industry has dramatically expanded.

“As the Marcellus Shale drilling has expanded, there have been conflicts between surface owners and the companies that are drilling,” Majestro said. “These cases are new cases, and we are seeing from the Supreme Court what theories work and what theories don’t. Trespass works, and the jury is still out over nuisance.”

In an email message Monday evening, an Antero spokeswoman said only that, “We appreciate the court’s thorough review of this important matter and its decision.”

Chief Justice Beth Walker wrote a concurring opinion because she wanted to specifically point out that the court “does not answer the broader question of whether the owner of mineral rights underlying Surface Estate A may or may not create a nuisance on Surface Estate A to develop the minerals below Surface Estate B.”

Justice Margaret Workman dissented, criticizing the majority opinion for not providing any guidance on striking a proper balance between the industry and nearby residents who live with its effects.

“The majority’s refusal to develop our law to provide a workable set of standards that balances the rights of surface and mineral owners is untenable,” Workman wrote.

The two recent gas cases were decided by quite different courts.

Last week’s trespass case involving EQT Corp. was unanimous and written by Justice Hutchison. But Hutchison and Justice Tim Armstead recused themselves from the Antero case.

Armstead and Hutchison were replaced by Monongalia County Circuit Judge Russell Clawges and Cabell Circuit Judge Gregory Howard. Clawges dissented and Howard voted with the majority.

The EQT and Antero cases were featured last year as part of the Gazette-Mail’s investigation with the nonprofit journalism organization ProPublica of the growth of West Virginia’s natural gas industry.

Reach Ken Ward Jr. at

kward@wvgazettemail.com, 304-348-1702 or follow

@kenwardjr on Twitter.

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