The West Virginia Supreme Court of Appeals has ruled that state law doesn’t give landowners the right to seek judicial review of well permits issued by the Department of Environmental Protection (DEP). However, the appeals court urged lawmakers to consider changing the law to give landowners more say.

The five-member high court ruled unanimously Nov. 21 against Matthew Hamblet, a resident of Doddridge County who had filed suit against the DEP and EQT Corp. in May 2010 (James Martin et al v. Matthew Hamblet, No. 11-1157).

“Mr. Hamblet’s constitutional arguments are premised upon the notion that surface owners have an unrestricted right to enjoyment of their property,” wrote Justice Margaret Workman. “A surface owner’s rights, however, are subject to the mineral owner’s rights. Here, EQT has a legally binding lease that grants it explicit rights of access to the oil and gas underlying Mr. Hamblet’s property. It is this contractual obligation burdening Mr. Hamblet’s surface estate that deprives him of an unrestricted right to enjoyment of his property, not the issuance of the well permit at issue. As such, the constitutional guarantees of due process and equal protection do not apply.”

According to court documents, EQT owns a valid oil and gas lease dated in 1905 for 2,654 acres of mineral estate in Doddridge County, including about 442 acres owned by Hamblet. Over Hamblet’s objections, the DEP’s Office of Oil and Gas issued EQT a permit for its 513136 Lewis Maxwell well in April 2010.

“We understand our rights are limited but do not believe they are so limited as to deprive us of all the due process rights property owners should have,” said Dave McMahon, founder of the West Virginia Surface Owners’ Rights Organization (WV-SORO). “Surface owners are very disappointed, but we will not give up.”

Despite ruling against the landowners, the justices urged the West Virginia Legislature to revisit the issue and consider ultimately amending the law, making it more accommodating to landowners.

“Given the fact that the statutes granting the right of judicial review discussed herein…were enacted prior to the extensive development of [the] Marcellus Shale in this state, this court urges the legislature to re-examine this issue and consider whether surface owners should be afforded an administrative appeal under these circumstances,” Workman wrote.

A Doddridge County judge had ruled in favor of Hamblet on July 5, 2011, saying the DEP’s permits could be revoked, citing a landmark decision from 2002 titled State ex rel Lovejoy v. Callaghan (see Shale Daily, July 25, 2011).