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Who owns Coalbed Methane?
The West Virginia Supreme Court ruled in the Moss case in 2003 that leases and deeds that granted or reserved rights to “oil and gas” or “natural gas” did not give or reserve rights to coalbed methane (“CBM”) found in coal seams unless 1) the lease or deed specifically mentioned it or 2) there was enough commercial CBM production going on in the area that it was contemplated by the parties. The issue is important to surface owners under the Moss case because surface owners can end up owning the CBM and the right to use the surface to produce it, and because CBM wells have a greater impact on the surface than conventional vertical wells that someone else might put on their land if someone else owns the CBM.
WVSORO believes that the West Virginia Supreme Court got it right in the Moss case even though it does give rise to some uncertainty in some situations. In the cases that have arisen in some of those uncertain situations, some of the parties have tried to argue again that CBM should always belong to the coal owner or always belong to the gas owners whether it was contemplated by the parties or not at the time of the lease or deed.
The most recent case to reach the West Virginia Supreme Court was the 2016 Paulos case where the coal owner and the gas owner each were wanting the CBM. WVSORO filed a friends of the court “amicus” brief pointing out that the ruling had implications for surface use and surface owners.
Fortunately the West Virginia Supreme Court again upheld the Moss case. Our brief was mentioned in footnotes 2 and 13 of the “Opinion of the Court” written by Justice Davis. Justice Ketchum filed a “Concurring Opinion” but said he would prefer to overrule Moss to make title opinions more certain.
