Attorneys for the West Virginia Department of Environmental Protection (DEP) and an EQT Corp. subsidiary plan to appeal a Doddridge County judge's ruling allowing a surface owner to have a gas well permit issued by the DEP revoked.
Jody Jones, an attorney with the DEP's Office of Legal Services, told NGI's Shale Daily that an appeal to the Supreme Court of Appeals was in the works, following Circuit Court Judge John Henning's bench ruling from July 5. Henning denied a motion by the DEP and EQT Production to have Matthew Hamblet's legal challenge to EQT's permit dismissed.
"We plan on filing a certified question to the Supreme Court and will ask them to review [their earlier] ruling that has really muddied the waters [on this issue]," Jones said Friday, adding that the case in question was a 2002 decision by the appeals court called State ex rel Lovejoy v. Callaghan.
Jones said dissatisfied surface owners in West Virginia sometimes attempt to get permits revoked through the courts, but circuit court judges usually sustain motions by the DEP and producers to have the legal challenges dismissed. Since Lovejoy, Jones said circuit court judges have continued to agree with the DEP, often times arguing that Lovejoy "was an incorrect ruling or an incorrect interpretation of the statute, that a surface owner does not have the right to an administrative appeal in the way that Mr. Hamblet is attempting."
But Jones said Henning cited the Lovejoy decision as precedent-setting, and that if the Supreme Court of Appeals takes up the case it will be the first time the court has undertaken a review of its original ruling.
"The proceeding in Doddridge will be stayed, not move forward, while we present this question to the Supreme Court," Jones said. "They can choose to deny the question. If they do, then we will proceed to the actual [Hamblet] hearing to see if the DEP's issuance of the well work permit was proper. But if the Supreme Court does take it up we will file briefs and oral arguments on whether or not a surface owner has a right to challenge permits in this fashion."
According to court papers filed on May 21 by Hamblet attorney Cynthia Loomis, EQT was causing erosion and sediment control problems and also made roadways on Hamblet's property impassible.
Loomis alleged that EQT was "driving around and off the access roads, parking in the meadows in an unorganized way, taking more time than is reasonably necessary to construct the well site, leaving chemicals and trash all over the ground, allowing for the silting of the creeks, which washes away meadow and destroys creek life and habitat," according to court filings cited by the Charleston Daily Mail.
The paper also reported that Hamblet owns 442 acres in the Arnold Creek area of Doddridge County. EQT is using 23 acres of his property for the well.
Loomis and Richard Gottlieb, an attorney representing EQT, did not respond to messages seeking comment.
The DEP's Office of Oil and Gas (OOG) issued a permit to EQT in April 2010. Although EQT is drilling on Hamblet's property, court records show that he challenged the permit before it was issued.
In an April 22, 2010 letter to Hamblet, the OOG said an inspector had visited the property and the office determined that EQT's permit application met state requirements. The OOG also reminded Hamblet that state law entitled him to compensation for damage to his property resulting from oil and gas drilling activity.
Attorneys for EQT hammered on that issue. In other court documents cited by the Charleston paper, EQT argued that "as a matter of law, petitioner's claims of damages to the surface are addressed after the drilling, not during the permitting process."