The Pennsylvania Supreme Court will hear oral arguments on the constitutionality of Act 13, the state’s new omnibus Marcellus Shale law, on Oct. 17 in Pittsburgh.
Meanwhile records show the high court is also scheduled to hear oral arguments in an unrelated but controversial mineral rights case — a dispute that has caused anxiety among landowners and energy companies alike over ownership rights in the Marcellus — during the same week.
Attorneys for the Commonwealth and several state agencies will argue that an appellate court erred on July 26 when it ruled 4-3 that Act 13’s zoning restrictions were unconstitutional on the grounds that they violate municipalities’ right to substantive due process (see Shale Daily, July 27).
Kevin Moody — general counsel for the Pennsylvania Independent Oil and Gas Association (PIOGA), one of the amicus curiae parties in the case — told NGI’s Shale Daily that attorneys for the state and, if necessary, the industry will be ready to present their argument at the Supreme Court Courtroom in Pittsburgh.
“Our attorneys have asked for permission to argue,” Moody said Monday. “They’ve asked in the past, and those requests have been granted, so we would expect this one to be granted. I haven’t heard yet that it has been, but we would expect it to be.”
Moody said the parties in the case, Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012), faced a Sept. 18 deadline to file reply briefs to the initial briefs filed by the state and the industry on Sept. 4 (see Shale Daily, Sept. 6). In their initial briefs the plaintiffs asked the high court to reverse the lower court’s decision to remove the Delaware Riverkeeper Network and a doctor from Monroeville, PA, from the list of plaintiffs, citing a lack of legal standing.
Moody said a third round of briefs was possible. “If the second round of briefs raises new issues, then either side can respond to those in a reply brief, and that would be due on Sept. 25,” he said.
Asked when a final ruling could be issued, Moody said both sides in the case were hopeful that one would be forthcoming by the end of the year.
“The court did grant the request for an expedited consideration, which both sides supported,” Moody said (see Shale Daily, Aug. 1). “That’s an indication that the court will act more quickly than usual, but of course their usual time for acting is anywhere from one to two to three years. Obviously, they’re not going to do that. I think both sides are confident that we’ll get something before the end of the year.”
Moody added that it was unclear how long the oral arguments would last. He said the justices have, in some cases, only allowed attorneys for one side to argue for 15 minutes.
“A lot of times, in cases like this, the court lets the arguments go until they’re satisfied that they’ve heard enough,” Moody said. “It’s really from their perspective. It’s not whether either side thinks they’ve said enough. If the justices think they’ve heard enough, that’s when they’ll cut it off.”
The Pennsylvania Supreme Court will take up the case Butler v. Charles Powers Estate on Oct. 16. In that legal matter, the court will decide who owns the rights to Marcellus Shale natural gas under John and Mary Butlers’ 244 acres in Apolacon Township, which is in Susquehanna County (see Shale Daily, Oct. 13, 2011).
The land was last sold in 1881 and has a deed that specifies ownership of minerals and petroleum oils, but not natural gas. A Court of Common Pleas of Susquehanna County judge agreed with the Butlers’ assertion that they owned the natural gas rights, citing the Dunham v. Kirkpatrick state Supreme Court decision from 1882.
But last September the state Superior Court disagreed and remanded the case back to Common Pleas Court (see Shale Daily, Sept 19, 2011). The higher court argued that the appellants in the case should be given the chance to prove that the Marcellus Shale is a “mineral” and the treatment of shale gas should be the same as coal and coalbed gas, rather than the treatment afforded conventional oil and natural gas reservoirs. If this were proven, it would mean any Pennsylvania deed conveying “mineral” rights would include the shale and its gas, just as conveyance of the coal mineral includes the coalbed gas.
The Butlers subsequently filed a petition for allowance of appeal to the Supreme Court in an effort to overturn the Superior Court’s ruling.
Energy companies active in the Marcellus have been scrambling to determine whether their leaseholds are affected by the Butler case (see Shale Daily, Sept. 28, 2011). At least two companies, Cabot Oil & Gas Corp. and Range Resources Corp., have said they would not be adversely impacted by the case.
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