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Natural gas producer wants High Court to reverse lower court decision

The Free Press WV

The state Supreme Court will decide if a lower court judge got it right when he ruled natural gas production company EQT trespassed on property in Doddridge County where it owned the mineral rights.

The case, originally decided on summary judgment in 2016 by Circuit Judge Tim Sweeney, was argued before the High Court Tuesday. EQT filed the appeal.”

The mineral owner has the right to use the surface so long as that use is reasonable and necessary,” EQT attorney Nicolle Bagnell told the Court.

EQT began drilling nine wells on the property of Margot Beth Crowder and David Wentz in 2013. Crowder-Wentz owned the surface rights but EQT owned the mineral rights. Crowder-Wentz claimed EQT was trespassing because it was drilling on their property to get gas from other properties. The lower court judge agreed.

In his response, Crowder-Wentz attorney Dave McMahon said Judge Sweeney got it right. He told the High Court Tuesday it was like his clients’ property was being condemned.

“We’re going to come here,” McMahon said EQT told the property owners. “‘We’d like you to sign this surface-use agreement but if you’re not the bulldozers are going to come here anyway.’ That’s not a very fair bargaining situation.”

Bagnell argued that even though two-thirds of the gas produced at the site came from underneath other properties where EQT had leases, the company still had the right to be on the Crowder-Wentz property.

“I think that’s probably true of everyone who is a surface owner, they would prefer the surface use be somewhere else,” Bagnell said. “But so long as the mineral owner has the rights they have the rights to exercise those even though it’s not the preference of the surface owner.”

Bagnell said the right to use comes down to it being “reasonable and necessary” but Supreme Court Justice Margaret Work said she’s not convinced it was in this case.

“That argument is not persuasive,” Workman said. “That reasonable-necessary concept applies when you have one mineral owner and one surface owner with competing rights.”

McMahon said recent public policy moves by the state legislature show surface owners have more rights than EQT believes they do. McMahon said the High Court’s decision on the appeal comes down to a couple basic facts.

“When there’s a severance of the surface (rights) from the mineral (rights) does the mineral owner retain just the right to use the minerals from the tract underlying the surface or is there some applied right for the mineral owner to use the surface to drill into neighboring mineral tracts,” McMahon said. “We say there is not and EQT trespassed.”

The state Supreme Court is expected to issue a written opinion on the case later this year.

~~  Jeff Jenkins ~~

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