A district court judge has reconsidered her decision last month to pass a key surface rights case on to the highest court in West Virginia, the Supreme Court of Appeals.

Last month, Judge Irene Keeley, of the U.S. District Court for the Northern District of West Virginia, asked the high court to certify whether existing state law allows a company to drill on land where it doesn’t own the surface rights, but it owns the underlying mineral rights (see Shale Daily, April 4).

But according to court documents, a motion hearing was held on May 10, and Keeley subsequently reversed course on May 16, filing a summary order that said an appeal to the high court “is premature at this time.” She ordered both parties in the case — Cain v. XTO Energy Inc. et al., (No. 1:11-CV-111) — to submit a proposed discovery plan by May 20.

At issue is whether XTO Energy Co., an Exxon Mobil Corp. subsidiary, may drill horizontal wells on 105 surface acres in Marion County owned by Richard Cain, a farmer from Mannington, WV. XTO also plans to build oil and natural gas pipelines across Cain’s property.

Court records show that a June 5 deadline has been set for a defendant expert disclosure, followed by a July 3 deadline for rebuttal expert disclosure and a completion of discovery deadline of Oct. 31.

“Within 30 days of the completion of discovery, the parties shall file a propose schedule for dispositive motions,” Keely said on May 22.

Cain filed a lawsuit against XTO and Waco Oil & Gas Inc. in Marion County Circuit Court in July 2011, arguing that the companies didn’t have the right to use his property to drill horizontal wells that would access natural gas from his neighbors’ reserves (see Shale Daily, Aug. 29, 2011). Cain’s motions to have the case — Cain v. XTO Energy Inc. et al., (No. 1:11-CV-111) — remanded back to county court have been denied. Waco is also no longer listed as a defendant.

Court records show that Cain owns about 105 surface acres, but Waco, formerly Trio Petroleum Corp., purchased the mineral rights to an underlying 138-acre oil and gas reservation at a tax sale in 1999. The company then signed itself as leasee.

XTO has already drilled at least three wells from one pad on Cain’s property. The company had plans to drill at least another three wells on the first pad, plus a combined 12 wells on another two pads, for a total of 18 horizontal Marcellus Shale gas wells.