Court News

Lewis County Man Sues WVDOC Over Car Accident

The Gilmer Free Press

A Lewis County man is suing the West Virginia Division of Corrections after he was injured in a car accident.

Hailey Mayfield, in her individual capacity and as administratrix for the Estate of John David Mayfield, was also named as a defendant in the suit.

On November 01, 2010, Edgar L. Bleigh Sr. was operating a 1996 Mack Tri-Axel Dump Truck loaded with gravel on U.S. 50 near West Union when John Mayfield, who was driving a 2007 Dodge Caravan passenger van owned by WVDOC, ignored a stop sign and flashing caution traffic signal and caused his vehicle to collide with Bleigh’s, according to a complaint filed Oct. 31 in Kanawha Circuit Court.

Bleigh claims John Mayfield was acting in the scope of his employment as a correctional officer for WVDOC at the time of the collision.

As a result of the collision between the two vehicles, Bleigh’s truck overturned and spilled gravel over U.S. 50 and a fire ensued, according to the suit.

Bleigh claims he was trapped in his truck and tried to kick out a window to escape, but was unsuccessful. However, a bystander broke the window with a rock and Bleigh was able to escape the fire.

Due to the collision, Bleigh suffered serious personal and emotional injuries which are permanent in nature and he incurred medical expenses and loss of income, according to the suit.

Bleigh is seeking compensatory damages with pre- and post-judgment interest. He is being represented by David C. Glover.

The case has been assigned to Circuit Judge Louis H. Bloom.

Kanawha Circuit Court case number: 12-C-2185

~~  Kyla Asbury - The WV Record  ~~

Ritchie Judicial Candidate Previously Cited For Conflicts Of Interest

The Gilmer Free Press

The WV Record Reports:

Prior to the current ethical violations leveled against him, records show several times in his nearly 30-year career, a Ritchie County attorney, and candidate for circuit judge, was warned about conflicts of interest in cases he handled.

In April, the Lawyer Disciplinary Board, the prosecutorial arm of the state Supreme Court, filed a six-count statement of charges against Ira M. Haught. The statement, which acts like an indictment for disciplinary purposes, accuses Haught, a sole practitioner in Harrisville, of, among other things, deceiving investigators as to whose interest he was representing in a property transfer in Doddridge County.

A review of Haught’s disciplinary file show that at least five times the Board cautioned Haught about the conflicts of interest in his cases. Two of those came very early in his practice, and centered on legal matters involving his father.

In fact, the first one resulted in formal disciplinary action, and a warning that has gone unheeded.

Three between 2001 and 2007

Most recently, the Office of Disciplinary Counsel, the Court’s investigative arm, opened a complaint against Haught on September 06, 2007 at the request of Keith White, a St. Marys attorney. According to the complaint, Haught represented Allen R. Lacaria and Megan Smith in a real estate purchase contract that involved Earl and Lurri Craddock.

Apparently, Earl Craddock spoke with Haught about the contract before retaining White. Though he said a review of his appointment book and time records disputed that, Haught withdrew as Lacaria’s and Smith’s attorney after the matter came up in the course of the contract discussions.

In closing the complaint on January 31, 2008, Chief Lawyer Disciplinary Counsel Rachael L. Fletcher Cipoletti expressed concern about Haught “lack[ing] an appropriate and sufficient mechanism for conducting checks for conflicts of interest in his office.” Provided he could give proof within the next 30 days he instituted a way to check conflicts of interest, Cipoletti said ODC would not refer his case to the Board.

Two months prior to the complaint in the Lacaria-Smith-Craddock real estate case, William E. Edwards alleged Haught created a conflict of interest in taking his ex-wife, Janet, as a client in their divorce despite first speaking with him. According to his complaint, William first spoke with Haught about representing him in the divorce the previous January, but didn’t have enough money to retain him.

After he obtained the necessary funds, Haught told William to return, and he would file his divorce. Before he could do that, William says Janet retained Haught.

Despite having no notes or recollection of ever speaking with William, Haught, in response to the complaint, filed a motion to withdraw as Janet’s attorney. In closing the complaint on August 22, 2008, Cipoletti reminded Haught “of his obligation to perform appropriate conflict check procedures when accepting new clients” and warned him “that failure to do so in the future may result in appropriate disciplinary action.”

More than six years earlier, John W. Martin of Waverly accused Haught of failing to timely disclose a potential conflict of interest in defending him in a property damage lawsuit filed in 2000 by Drilco Oil Products in Wood Circuit Court. When Drilco refused to cap a well on property he purchased, Martin removed the well’s pumping unit, and placed a barricade around the well.

After Judge George Hill ruled in Drilco’s favor following a one-day bench trial on October 25, 2001, Martin the following December filed his complaint against Haught. In it, he alleged Haught neglected the case, failed to return phone calls and omitted telling him he received royalty payments from a leasehold interest Drilco had in Gilmer County.

In response to Martin’s complaint, Haught admitted to receiving the royalty payments from Drilco’s Gilmer County interest. However, he added that he completely explained that to Martin prior to the trial, and it did not effect his representation of him.

Though it did determine Haught receiving royalties from Drilco while fighting against the company in court a conflict of interest, the Board’s investigative panel said it was “limited in nature” and Martin was not harmed by it. However, in closing the complaint on March 27, 2003, Allan N. Karlin, the panel’s chairman, warned Haught about potential conflicts, and encouraged him to obtain waivers in writing to avoid misunderstandings.

Two Involving Dad

A decade earlier, Haught, while serving as the county prosecutor, apologized for his behavior in a case involving his father, Warren.

According to the complaint, Haught on August 29, 1991, moved to dismiss a speeding ticket against Warren in Ritchie Magistrate Court. When the magistrate’s assistant refused to accept his motion without specifying the reason why, Haught wrote on the form “because I want to.”

Later, he said then-Judge Sam White said he would not appoint special prosecutors to cases in magistrate court, and the magistrates informed him if a prosecutor failed to appear for a hearing on misdemeanor a case, they would not hesitate to dismiss it. Along with his apology, Haught assured the Board should a potential conflict arise, he would disqualify himself from the case, and seek the appointment of a special prosecutor.

Two years after he was admitted to the Bar, Jeannette E. Kincaid of Wheeling filed a complaint against Haught accusing him of helping his brother, Barry, to prepare “deeds and other transfers to defraud her and her creditor rights against the brother’s property.” According to the complaint, Kincaid obtained a judgment against Barry on June 17, 1983.

In response to Kincaid’s complaint, Haught admitted he made the transfers, but at the request of Warren. The transfers, he said, were conducted to “‘clean up some loose ends remaining from the [business] merger,’ of the family businesses.”

According to the complaint, a subsequent lawsuit was filed by one of the banks that held the note to some of the property. Because of an apparent conflict he had by representing Warren while serving as a bank trustee, Haught was named as a co-defendant.

In closing the complaint on November 04, 1988, the Board determined there was insufficient evidence to prove Haught committed fraud by transferring the property. However, because he committed a technical conflict of interest in helping his father do it while serving as the bank’s trustee, the Board admonished him for his actions, and warned him “to avoid future violations of ethical rules.”

A hearing on the statement was tentatively scheduled for October 31. However, it was continued on a motion by Haught so his new attorney could become familiar with the case.

Previously, Haught was represented by former Wood County Prosecutor Ginny A. Conley. Now, he is represented by Ancil Ramey, a former Court Clerk, now with Steptoe and Johnson.

In Tuesday’s general election, Haught, age 53, a Republican, is seeking to fill the unexpired term of Judge Robert Holland, who died two years ago. Former Pleasants County Prosecutor Tim Sweeney, age 55, who was appointed to fill the vacancy by Governor Earl Ray Tomblin, is his Democratic opponent.

The Third Judicial Circuit includes Pleasants, Ritchie and Doddridge counties.

A hearing has been rescheduled for December 05 and 06 at ODC’s office in Kanawha City.

West Virginia Supreme Court of Appeals case number 12-0528

~~  Lawrence Smith - WV Record  ~~

G-otcha™: Four FCI-Gilmer Inmates Enter Pleas and Are Sentenced in Federal Court

The Gilmer Free Press

Four FCI-Gilmer inmates entered pleas of guilty and were sentenced on October 23, 2012, in United States District Court in Clarksburg before Judge Irene M. Keeley.

•  JAYSON JONES, age 26, entered a plea of guilty to Possession of a Prohibited Object on December 27, 2011, when the staff at FCI-Gilmer found four packages of marijuana hidden in mail sent to inmate JONES.

JONES was sentenced to 4 months imprisonment to be served consecutively with his current 135-month sentence.

This case was investigated by the Special Investigative Services Staff at FCI-Gilmer and the United States Postal Inspection Service.

•  HECTOR BLAS, age 23, entered a plea of guilty to Possession of a Prohibited Object on April 24, 2012, when he was found in possession of heroin.

BLAS was sentenced to 12 months imprisonment to be served consecutively with his current 240-month sentence.

•  GUSTAVO VASQUEZ-PRETO, age 48, entered a plea of guilty to Possession of a Prohibited Object on June 14, 2012, when he was found in possession of heroin.

VASQUEZ- PRETO was sentenced to 12 months imprisonment to be served consecutively with his current 54-month sentence.

•  JAMES NEALY, age 29, entered a plea of guilty to Possession of a Prohibited Object on May 20, 2012, when he was found in possession of marijuana.

NEALY was sentenced to 4 months imprisonment to be served consecutively with his current 222-month sentence.

These three cases were investigated by the Special Investigative Services Staff at FCI-Gilmer.

These four cases were prosecuted by Assistant United States Attorney Brandon S. Flower.

Gilmer County Family Court Report – 10.23.12

The Gilmer Free Press

One divorce granted as follows:

•  Lisa Kirkland (46) of Glenville, WV divorced 10/23/12 Lance Kirkland (44) of Normantown, WV on Tuesday, October 23, 2012.

Gilmer County Circuit Court Report – 10.22.12

The Gilmer Free Press

Four fugitives from justice were before the Court on Judge Richard A. Facemire‘s motion day, Monday, October 22, 2012.

All 4 were represented by Daniel Armstrong of Gassaway, who was standing in for Daniel Grindo and each waived extradition back to their respective states.

•  Daniel McColgan waived to return to Pennsylvania.

•  Harold Doss waived to return to Kentucky.

•  Rufus Gunn waived to return to Michigan.

•  Michael Rickard waived to return to New York.

Authorities in those states have until 4:00 PM on Wednesday, October 31, 2012 to pick these defendants -up or they will be released from Central Regional Jail.

•  Stephanie Smarr was before the Court with her court appointed attorney, Christina Flanigan of Buckhannon.

Smarr completed the Anthony Center program so Judge Facemire placed her on 5-years’ probation and ordered her to enroll in and successfully complete NA and AA programs, as well as a substance abuse program.

She also must obtain full time employment and speak to at least 3 high school classes about addiction as part of her sentence.

•  Two juvenile cases were dismissed.

•  One juvenile was completed.

•  One was set for Thursday, December 20, 2012 at 9:00 AM.

•  Another was set for Wednesday, October 31, 2012 at 9:00 AM.

•  Two more were set for Monday, January 28, 2013 at 9:00 AM.

•  Another was set for Monday, January 28, 2013 at 9:15 AM.

•  Another was heard without being set for further hearing.

•  State of West Virginia vs. Catherine McGhee

The case was denied probation or alternative sentencing and was sentenced to 1-5 in the penitentiary with credit for time served and she must pay court costs within 18 months of her release.

She was represented by Daniel Armstrong.

•  State of West Virginia vs. Kevin Curry

He was before the Court for reconsideration of is sentence.

He was represented by Christina Flanigan of Buckhanno and Judge Facemire denied his reconsideration.

•  The magistrate case of State of West Virginia vs. Kenneth Greenlief

The case was dismissed.

Greenlief was represented by Daniel Armstrong.

WV Record: May Trial Scheduled for Doddridge EMS Suit

The Gilmer Free Press

The WV Record Reports:

A paramedic’s personal injury suit against a Doddridge County ambulance service is slated for trial late next spring.

Harrison Circuit Judge Thomas A. Bedell on July 09 set May 28, 2013, for trial to begin in the case of Joseph G. Sadie v. Doddridge County Emergency Squad, Inc. Also, Bedell scheduled, among other things, the previous Tuesday for a pre-trial conference.

In his complaint filed March 01, Sadie alleges he was injured last year when an ambulance driven by Jason Leasure collided with another vehicle in route to United Hospital in Clarksburg. The collision caused the ambulance to overturn resulting in not only Sadie’s injuries, but also the subsequent death of the patient.

According to the suit, Leasure responded to a 911 call on October 02, 2011 to transport William Wiseman to United. The suit does not specify Wiseman’s location in Doddridge County.

Believing he may need an advanced life support system which required the assistance of a paramedic, Leasure, an emergency medical technician, called the 911 center and requested any on-duty Doddridge County Ambulance Authority paramedic provide him the needed assistance. At a time not specified, Sadie met Leasure, and accompanied him to Clarksburg.

According to the suit, Sadie began treating Wiseman. After stabilizing him, Sadie “communicated his vital signs and other information to the trauma team at United Hospital.”

However, the ambulance failed to make it to United as at a time not specified Leasure collided with another vehicle at the intersection of U.S. 50 East and the Interstate 79 South off ramp. The resulting collision caused the ambulance to overturn and slide nearly 100 yards.

According to the suit, the collision also resulted in Wiseman’s death.

In his suit, Sadie accused Leasure, who is named as a co-defendant, of negligently operating the ambulance. Specifically, he accused Leasure of, among other things, “[s]peeding or operating the emergency vehicle at a speed in excess of the conditions then existing…[f]ailing to keep a proper lookout and [o]perating the emergency vehicle in reckless disregard for the safety of others.”

Also, Sadie accused DCEMS of not only failing to properly train and educate Leasure on the proper operation of an ambulance, but also have the necessary equipment available to treat patients. As a result of his injuries, Sadie maintains he’s incurred, among other things, emotional distress, loss of enjoyment of life, medical and health care bills and a diminished capacity to earn.

Just over a month later, DCEMS and Leasure filed their answer to Sadie’s suit. Though they admitted to most of the allegations including the ambulance overturning following a collision, DCEMS and Leasure denied it was in any way their fault. Instead, they place the blame on Benjamin Gear, the driver of the vehicle Leasure collided with, and named him as a third-party defendant.

In his answer filed April 16, Gear admitted only to being involved in collision, and a resident of Clarksburg. He denied any responsibility for Sadie’s injuries, and filed a cross claim against DCEMS and Leasure.

Sadie is represented by Wheeling attorney Donald J. Tennant Jr., DCEMS and Leasure by Melvin F. O’Brien and Keith R. Huntzinger with Dickie, McCamey and Chilcote’s Wheeling office and Gear by D. Andrew McMunn with Smith, McMunn and Glover in Clarksburg.

Harrison Circuit Court case number 12-C-101

~~  Lawrence Smith - WV Record  ~~

Gilmer County Circuit Court Report - 10.10.12

The Gilmer Free Press

On Tuesday, October 09, 2012 Chief Judge Alsop held his regular monthly motion day.

•  Four fugitives from justice waived extradition back to their states.

All 4 were represented by David Karickhoff of Sutton.

Tony Patterson and Jimmy Dozier waived to return to the state of Tennessee, Kareem Thomas waived to return to Ohio and Daquawon Haten waived to return to Michigan.

•  Eight juvenile cases were heard, several were set for further review and 2 were dismissed.

•  State of West Virginia vs. Matthew Capelety

He was before the Court for reconsideration of sentence heretofore handed down by Judge Alsop.

He was represented by Christopher Moffatt of Charleston and Judge Alsop denied his motion stating he received a favorable plea bargain and other reasons for denying the same.

Gilmer County Family Court Report - 10.10.12

The Gilmer Free Press

On Wednesday, October 10, 2012, Family Court Judge Larry Whited came to Gilmer County and presided over Family Court.

•  Two domestic violence cases were continued

•  One was granted for 1 year

•  A guardian ad litem was appointed in the a divorce case and it was rescheduled for Wednesday, December 12, 2012.

•  A temporary relief hearing was held in another divorce case.

•  One modification of child support was granted.

•  One contempt hearing was continued.

Two divorces were granted as follows:

•  Phillip E. Moore (75) of Glenville, WV divorced Marcia L. Arman-Moore (67) of Glenville, WV.

•  James Greenlief (36) of Glenville, WV divorced Delores Greenlief (52) of Sand Fork, WV.

Massachusetts Woman Enters Plea of Guilty to Traveling to WV to Have Sex with a Minor in Linn

Imprisonment Status: Federal Inmate
Full Name: Hads,  Carissa  Ann
Height: 5’  2”
Weight: 100 lbs.
Birth Date: 06.16.1987
Gender: Female
Booking Date: 06.05.2012
Facility: North Central Regional Jail
Imprisonment Status: Federal Inmate

Offender Court Order Information

Court Info Number Issuing Agency Location

United States Attorney William J. Ihlenfeld announced that CARISSA HADS,  age 25, of Quincy, Massachusetts, entered a plea of guilty on October 10, 2012,  in United States District Court in Clarksburg before Magistrate Judge John S.  Kaull.

HADS entered a plea of guilty “Traveling in Interstate Commerce with the Intent to Engage in Illicit Sexual Conduct” on February 23, 2012, when HADS traveled from Massachusetts to North Central West Virginia to have sex with a minor.

Court documents indicate that HADS posed as an 18- year old man on a social media website and also took steps to change her appearance in order to deceive the victim as to her true identity.

HADS met the alleged victim online in 2010 and the two communicated for over a year before the first in-person meeting took place.

HADS traveled at least three times from Massachusetts to visit the alleged victim, and was arrested at the Pittsburgh International Airport by F.B.I. agents on May 25, 2012, on one of her visits to the area.

As part of her plea, HADS has agreed to the forfeiture of the computer and electronic equipment seized from her and her residence.

HADS, who is in custody pending sentencing, faces up to 30 years imprisonment and a $250,000 fine.

The case was be prosecuted by Assistant United States Attorney Shawn A. Morgan, Chief of the Criminal Division for the U.S. Attorney’s Office and investigated by the West Virginia Internet Crimes Against Children Task Force and the Federal Bureau of Investigation.

G-otcha™: Two FCI-Gilmer Individuals Sentenced on Escape Charge

The Gilmer Free Press

Two individuals who were convicted on March 22, 2012, by a Clarksburg jury were sentenced on October 05, 2012, in United States District Court in Clarksburg by Judge Irene M. Keeley.

HARVEY BREWER,  age 40, an inmate at FCI Gilmer was sentenced to 15 months imprisonment to run concurrent with the 120-month sentence he is currently serving and TASHA SHELEKA SAUNDERS, age 33, of Baltimore, Maryland, was sentenced to 12 months and 1 day imprisonment.

BREWER was convicted of escape and SAUNDERS was convicted of aiding and abetting the escape of BREWER from FCI Gilmer on August 28, 2010, where he was in confined at the direction of the Attorney General upon a conviction in the District of Maryland for the offense of conspiracy to distribute and possess with intent to distribute heroin.

The Court found that both defendants committed extensive perjury when they testified at trial.

BREWER was remanded to the custody of the United States Marshal and SAUNDERS, who is on bond, will self-report to the designated Federal institution on January 11, 2013.

The case was prosecuted by Assistant United States Attorney Brandon S. Flower and was investigated by the West Virginia State Police-Glenville detachment and the Federal Bureau of Investigation and the Federal Bureau of Prisons.

G-otcha™: Shock, WV Resident Enters Plea to Methamphetamine Charge

The Gilmer Free Press

A 37 year old Shock, West Virginia,  resident entered a plea of guilty on October 05, 2012, in United States District Court in Clarksburg before Magistrate Judge John S. Kaull.

United States Attorney William J. Ihlenfeld, II, announced that: DANIEL RAY KING entered a plea of guilty to Possession of Material used in the Manufacture of Methamphetamine on February 01, 2012, in Gilmer County, West Virginia.

KING, who is on bond pending sentencing, faces a maximum exposure of 10 years imprisonment and a $250,000 fine.

The case was prosecuted by Assistant United States Attorney Stephen D. Warner and was investigated by the West Virginia State Police.


The Gilmer Free Press

Chesapeake Appalachia, LLC (hereinafter “Chesapeake”) entered pleas of guilty today in federal court to three violations of the Clean Water Act related to natural gas drilling activity in Northern West Virginia, according to United States Attorney William Ihlenfeld, II.

Chesapeake pled guilty to three counts of “Unauthorized Discharge into a Water of the United States” in that it discharged sixty (60) tons of crushed stone and gravel into Blake Fork, a water of the United States, on at least three different occasions in December of 2008. Chesapeake also admitted that after discharging the stone and gravel that it then spread the material in the stream to create a roadway for the purpose of improving access to a site associated with Marcellus Shale drilling activity in Wetzel County, West Virginia.

“Our nation’s wetlands play a critical role in maintaining water quality, reducing flood damage, and providing habitat for fish and wildlife,” said David G. McLeod, Jr., Special Agent in Charge of EPA’s criminal enforcement program in West Virginia.  “The defendant illegally filled at least three sensitive wetlands; in one instance, obliterating a natural waterfall.  This plea agreement demonstrates that those who illegally fill in or destroy these essential natural resources will be prosecuted.”

The plea agreement calls for Chesapeake to pay a fine of $200,000 for each conviction, for a total fine of $600,000.  It also requires that Chesapeake be placed onto probation for two years and be under the supervision of the Court during that time period.

Additionally, the parties have agreed that separate violations committed by Chesapeake and occurring in connection with impoundments constructed in Marshall and Wetzel Counties would be addressed by civil penalties and not via criminal charges.

The Clean Water Act, also known as the Federal Water Pollution Control Act, was enacted by Congress to restore and maintain the integrity of the Nation’s waters.  It prohibits the discharge of any pollutant from a point source into the waters of the United States without a permit.  Discharges of dredged or fill material into waters of the United States are prohibited unless authorized by a permit issued by the U.S. Army Corps of Engineers.

Chesapeake violated the Clean Water Act when, in 2008, it selected the location for an access road to a site associated with its drilling activities, hired construction contractors to discharge and spread rock and gravel in Blake Fork in order to develop access to the Hohman Pit, and supervised and directed the work of the construction contractors. These contractors hired by Chesapeake discharged gravel from dump trucks into Blake Fork, also known as Blake Run, on at least three separate and distinct occasions.

Chesapeake’s contractors, under the supervision of a Chesapeake employee, subsequently used bulldozers to spread the 60 tons of gravel in Blake Fork to develop access to the Hohman Pit in order to facilitate Marcellus Shale gas drilling activities. Chesapeake failed to obtain a Clean Water Act permit prior to this discharge.

Chesapeake Appalachia, LLC, is a wholly owned subsidiary of Chesapeake Energy Corporation.

The case was investigated by the U.S. Environmental Protection Agency, Criminal Investigation Division.  It is being prosecuted by David Perri, Assistant United States Attorney.

Doddridge County: Triple Murder Now An Adult Case

The Gilmer Free Press

A Doddridge County teenager charged in the shooting deaths of his father, mother and younger sister will be tried as adult.

The Gilmer Free Press

Doddridge County Circuit Court Judge Tim Sweeney transferred the case of Joseph Spencer, age 16, to adult status on Wednesday, October 03, 2012.

Spencer allegedly killed his family on Labor Day.

The defendant, a junior at Doddridge County High School, is facing three counts of first degree murder.

Killed in that shooting were Fred and Dixie Spencer and their 9-year-old daughter Patience.

They were found in their home in West Union on September 03, 2012.

Investigators have never revealed a motive behind the triple-homicide.

In fact, they have released few details into the crime.

Joseph Spencer could face a grand jury as early as this month.

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Plea Deal in Works for Massachusetts Woman Who Posed as Boy, Allegedly Had Sex with WV Girl

The Gilmer Free Press

A Massachusetts woman accused of posing as a 17-year-old boy to prey on a West Virginia girl intends to enter a plea next week in federal court.

U.S. Magistrate John Kaull entered an order Monday scheduling a Wednesday, October 10, 2012 hearing for 25-year-old Carissa Hads of Quincy, MA.

The document says she has entered a plea agreement with the government, but it does not specify details.

Hads’ public defender did not immediately respond to a message seeking comment.

Hads previously pleaded not guilty to one count of traveling in interstate commerce to engage in illegal sexual conduct.

Investigators say Hads pretended to be a 17-year-old boy and began an online relationship with the girl in 2010.

She visited the Linn, West Virginia teen at least three times and had a sexual encounter in February.

Doddridge County: Court Addresses Surface Owner Appeal Rights Involving Marcellus Shale Gas Wells

On September 25, 2012, the West Virginia Supreme Court of Appeals entertained oral arguments in the case of James Martin, Director v. Matthew L. Hamblet, Docket No. 11-1157.

This appeal arises from a ruling issued by the Circuit Court of Doddridge County, West Virginia, finding in favor of Mr. Hamblet, the owner of the surface of land on which EQT Production Company proposes to drill a horizontal well targeting the Marcellus Shale formation.

EQT was granted a permit by the West Virginia Department of Environmental Protection (WVDEP) to drill the well on Mr. Hamblet’s property, and the circuit court determined (over the objections of EQT and the WVDEP) that he has the right to appeal that permit in court.

Unlike other environmental/ regulatory programs that typically grant comment and appeal rights to any person who can claim to be “adversely affected” by the issuance of a permit, the statutes in West Virginia governing the issuance of drilling permits for shallow and deep gas wells provide objection and appeal rights only to coal owners and operators who may be affected by the drilling that would take place under such a permit.

The Gilmer Free Press

Further, the main focus of those types of appeal proceedings is on ensuring the safety of mining operations that may occur in proximity to well drilling or fracturing.

Surface owners, on the other hand, are generally granted the right to comment on permit applications – and such comments must be considered by the WVDEP prior to making a decision on a permit application – but are not vested with the right to object or appeal the issuance of such a permit to any administrative appeals body or otherwise.

Surface owners of land on which a gas well is drilled are, however, granted certain statutory rights to compensation for damages caused by drilling operations undertaken after a permit is issued, in addition to common law rights of action that are specifically preserved by West Virginia statute.

In Hamblet, the Circuit Court of Doddridge County based its determination that a surface owner has a right to appeal a drilling permit on the per curiam (“by the court,” unpublished) decision of the West Virginia Supreme Court in State Ex. Rel. Lovejoy v. Callaghan, issued in 2002. In Lovejoy, the Supreme Court denied a petition for a writ of mandamus filed by a surface owner who sought to force the WVDEP to revoke a previously-issued exploratory deep well permit.

That denial was based on the Court’s finding that a specific provision in the West Virginia gas well statute provided the petitioner in that case with a right to administratively appeal that permit. Because that administrative appeal route had not been pursued, under well-established legal principles a writ of mandamus was deemed to be unavailable to the petitioner.

The Doddridge County Circuit Court’s reliance on Lovejoy, however, is problematic for several reasons.

First, the West Virginia Constitution and applicable jurisprudence dictates that a per curiam decision of the West Virginia Supreme Court has no precedential value and may not be relied upon in establishing a new principle of law.

Second, the opinion in Lovejoy cited an inapplicable provision within the West Virginia gas well permitting statute that, simply stated, does not stand for the proposition for which it was cited.

Third, even if Lovejoy had been properly decided and could be given controlling weight, it addressed a deep well drilling permit.

There is an entirely separate statutory procedure that applies to the issuance and appeals of permits for the drilling of wells into shallow gas formations, and (by definition) the Marcellus Shale formation is considered to be a shallow gas formation.

In allowing four different lawyers (two on each side of the dispute), to make presentations and answer questions, the West Virginia Supreme Court touched on all of these arguments (and others) during oral arguments that were held in the Hamblet appeal on the afternoon of September 25, 2012.

Further, the Court explored with the parties the notion that an owner of surface lands like Mr. Hamblet, who purchased his property rights after the mineral estate had been severed from the surface, should be recognized as having a Constitutional due process right to appeal the issuance of a well drilling permit.

In this regard, some members of the Court expressed varying degrees of sympathy for surface owners like Mr. Hamblet, who are given the right to comment on a proposed permit but may not thereafter appeal its issuance, and who may not be entitled to any royalties from gas production occurring beneath his property.

In the final analysis, however, it appeared that a majority of the Court recognized that this dispute centers on Mr. Hamlet’s real property rights rather than the WVDEP permitting system, and in granting Mr. Hamblet permit appeal rights the circuit court was actually simply enhancing his property rights.

Indeed, if the activities undertaken on the surface of his land pursuant to the WVDEP permit exceed those that EQT is entitled to undertake under the relevant property right conveyances, then regardless of the existence and terms of the permit Mr. Hamlet would have the right to seek injunctive and/other relief in circuit court on that basis.

In addition, the Supreme Court justices seemed to recognize that in order to sustain Mr. Hamlet’s constitutional challenge, the Court would have to strike down much of West Virginia’s oil and gas statutes on the same ground.

Again, though it is always difficult to predict the outcome of an appeal based upon the nature and tenor of oral arguments, it would be quite a surprise if the West Virginia Supreme Court was to affirm the Doddridge County Circuit Court’s opinion on this basis.

A written decision in the Hamblet case (presumably, one that will be published and therefore carry precedential weight) can be expected within the next few months.

Obviously, the outcome of this closely-watched case may have a significant effect on current Marcellus well permitting in West Virginia. Beyond that, the briefing and arguments raised with the Court could conceivably affect future legislative reform efforts, and the Court’s opinion will be worth reading from that perspective as well.

~~  Dinsmore & Shohl LLP ~~

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