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 that an appeal to the state’s 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.

“They can choose to deny the question,” Jones said. “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. The DEP’s Office of Oil and Gas (OOG) issued a permit to EQT in April 2010.

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