Guide Summary: I just got a notice of a driller’s application for a permit to drill a well on my land. What should I do?

This happens when you own the surface, but someone else owns the minerals, and the mineral owners has signed a lease with a gas driller.  (Or it could also mean that even though you own the minerals with your surface, you or someone who owned the minerals before you, signed a lease with a driller.  That could have happened decades ago.)  In any event, the driller now has decided to drill a gas (or oil) well on your surface to produce those minerals.

Unfortunately the driller has a right to do that.  The driller is supposed to recognize your common law rights and not do more than is “fairly necessary” to your land in order to drill his well on your land.  Often they do not, and some do not even think that you have rights.

Some drillers come and talk to you in advance.  Many do not, and the first time you as a surface owner find out they want to drill a well is when you get a copy of the application for a state drilling permit that already has the locations for the access roads and well sites chosen and surveyed by the driller.   Or maybe you first find out the driller is coming when you find a surveyor stake.

The rest of this page assumes that you are finding out the driller is coming only when you get a copy of the permit application – the worst case scenario and you need to act quickly.  It would be best to get a copy of the West Virginia Surface Owner’s Guide to Oil and Gas, but you can start here.  If you have more notice than that, you probably want to get a copy of the West Virginia Surface Owner’s Guide to Oil and Gas and just start with it.  It is more thorough.  But the information below applies in either situation.

In short, if you want them to do something different than they are planning, and they will not change their plans, you either have to hire a lawyer and quickly get an injunction (or block their access and make them get a lawyer and get an injunction against you), or you have to use what few rights state law gives to the surface owner to comment on the permit and claim damages after it is done in order to leverage what you want out of the driller.

If the driller’s proposed well pad is in a FEMA 100-year “flood hazard” zone, you may be able to block it or make them move it!

Here we go.

“Hurry!  You have received a copy of the driller’s application for a state permit to drill a gas or oil well on your surface.  You only have 15 days or less to file a comment with the State (see “State Protections for General Public” below), which is probably the most effective thing you can do without getting a lawyer.  If you have not gotten the official written notice from the driller that the driller is applying for a well permit on your land yet (you definitely know you are getting something when you do), then you have more time and it may be easier to get the driller to change his plans.  Read this pageto start, but get the Guide for sure.”

To get a thorough explanation of what this notice means and what you can do to protect your interests, click here to get an electronic or paper copy of the West Virginia Surface Owners’ Guide to Oil and Gas, and start your reading with Chapters 2and 3.  If you order a paper copy of the Guide you will also receive a copy of the Erosion and Sediment Control Manual that sets out the State requirements that the driller much comply with in the permit plan, during drilling, and after drilling. The Manual, and an explanation of its importance, is available in electronic form by clicking here.

This page of the WV SORO web site will give you an overview of your rights, and the most basic advice to help you protect your interests.

Three sets of laws apply to this situation.  First, you have certain common law rights, but you would probably have to get a lawyer to use those rights to get what you want.  Second, you have the right to comment on the driller’s application to the State for a permit to drill the oil or gas well.  You might be able to make comments that will persuade the State to make the driller change his plans, but only if they are changes that affect the public interest generally.  Your comments, or even just your intention to make comments, also might give you leverage to negotiate other changes just for you with the driller.  Third, you probably have the right to some damages for what the driller is going to do to your land.  You can use your claim for damages as leverage to get what you want now, or you can get prepared to go for bigger damages later.  This can be complicated, so each of these sets of rights is explained in a little more detail below (and in a lot more detail in the West Virginia Surface Owner’s Guide to Oil and Gas).

WVSORO believes that surface owners should have more rights, and that the rights that surface owners do have should be more enforceable.  To help on this, please join us.

Take pictures:

Before reading more below on your rights, we offer some important advice:  Take pictures.  It is likely that the driller is going to get to do something somewhere on your land.  Be sure and take plenty of pictures of the land before anything is done to it.  Do not be stingy with film.  Take some pictures from up close some from far back. Take some in the summer and some in the winter.  Take lots.  (Actually electronic pictures work best these days because you can e-mail them in with complaints.  Be sure you back them up somehow.)

When the driller begins work, keep taking pictures.

You will probably need at some point to show what your land was like before the driller came, and/or what the driller did to it.  Keep it from being your word vs. the driller’s word.  Take pictures.  It is hard to argue with a picture.

Common law rights:

You have certain common law rights, though they are difficult to enforce.  But knowing them is a help.

• The owner of the minerals (and anyone to whom the mineral owner leased the oil and gas drilling rights) has the right to do whatever is “fairly necessary” to the surface in order get to and produce their minerals, but they are supposed to do ONLY what is “fairly necessary”.  And they cannot do more than was “in the contemplation of the parties” at the time the minerals and surface were separated.
• These “fairly necessary” rights may be expanded or limited by the language of a deed that is in the historical “chain of title” for your property.  The deed that counts is the deed which for the first time separated the ownership of the minerals from the ownership of the surface.  This deed language usually does not help the surface owner, but occasionally there may be free gas or something, so it is worth a look.
• If you own the surface and the minerals but the minerals have already been leased, then these “fairly necessary” rights may also be expanded or limited by the language in the lease.  If it is a very old lease and there has been no, or very limited production, and now they want to drill again, you may be able to cancel the lease.

Unfortunately, if you think the driller is doing more than is “fairly necessary”, then in order to get what you want using your common law rights you will need to find a lawyer, pay the lawyer up front, and get into complicated litigation in Circuit Court.  Most people cannot afford to do that.  And if you have already received the notice of the driller’s application for a permit to drill a gas well, you may not have time to use the common law and the Circuit Court to get the driller to change what he is about to do.  (You may still be able to sue under your common law rights for damages later.  Read on.)

WVSORO believes that surface owners laws should be improved so that surface owners  have more rights, and that the rights that surface owners do have should be more enforceable by the average citizen. And WV SORO believes laws should be passed that encourage the Reunion of ownership of the minerals with the ownership of the surface.

WV SORO understands that new laws that would totally deprive mineral owners of their ability to produce their minerals could be “takings” and might not be constitutional.  But there are many improvements, some noted below, and other suggestions that will get added to the web site over time, that can help surface owners and still be constitutional.

To help on this, please join us.

State protections for the general public:

Although the State has no direct power to help you enforce your “fairly necessary” common law rights, the State does regulate the planning, construction, and maintenance of the well site and access road to prevent soil erosion and stream and land sedimentation.  The State also regulates some other aspects of oil and gas well drilling that affect the public and public interests generally.  And some of those general public interests directly affect you.  So you can use these general public interest protections to protect the interests you share with the general public and to try to leverage your private common law rights.

• The State requires, when the driller applies to the State for a permit to drill a well, that the driller submit a plan showing where the well site will be, where the road will be, and what  soil erosion and sediment control measures (limited slopes of roads, water bars, temporary and permanent vegetation etc.) the driller will undertake.  (See the Erosion and Sediment Control Manual in the next bullet paragraph.)  The driller also submits a plan for the placing and cementing metal casing down the drill hole to protect the fresh water aquifers etc.  The notice of the drillers application for a permit to drill a gas well that the driller must send to you contains those documents.

You have a right to comment to the State on the driller’s application for a permit to drill a well, specifically including soil erosion and sediment control plans and down hole casing and cementing plans.  If you think the driller is doing more than is fairly necessary under your common law rights (and if you think there really are problems with the driller’s plans), you can file comments with the State in order to get some changes you want that are in line with the public interests involved.  If your comments point out problems with the driller’s plans that affect the public interest as set out in the statute and regulation, then they may persuade the State to make the driller change his plans, though this does not happen a lot.

In addition, you can use this right to comment to get some leverage to get the driller to do what you want under your common law rights.  The reason this is true is that if you file comments, that will most likely delay the issuance of the permit by the State, and your comments may result in a State inspector coming out and trying to get you and the driller to work out your differences.  The driller knows all of this, and they are often in a hurry, so they will try to get you to sign a wavier of your right to comment.  Before you do that, get what it is that you want.  Be very careful about agreeing to a specific amount of damages at this point.  See below.

Having the West Virginia Surface Owners’ Guide to Oil and Gas to help you understand this commenting process, and your other rights, is advised.  If you do not have time to get the Guide, then we do have a form you can use to help you comment on the drillers application for a permit to drill the well.  The form has some explanations of the process, and the changes that the State can make (and cannot make) to the driller’s permit, though having the Guide is better.  To download the form click here.

• Even after the drilling has been completed, the driller is supposed to maintain well site and access road pursuant to the Soil Erosion and Sediment Control Manual of the State Office of Oil and Gas.  (The driller’s Soil Erosion and Sediment Control Plan that it files with the permit to drill the well also has to comply with this Manual with regard to road slopes etc.  Comment to the State if it does not.)

If the driller does not maintain the water bars, and keep the vegetation growing etc., contact the State Office of Oil and Gas, or e-mail them electronic pictures of the problems.  They should send out an inspector to make sure the right thing is done.

WVSORO believes that we need new laws increasing these public protections, giving surface owners the first option to say where the roads go etc., and that there are not nearly enough state inspectors etc. to enforce the public rights that do exist.  Look around this website for more information on this, and join us to help out!

Payment for Damages.

• If the driller does more than is “fairly necessary”, or if the driller does more than was “in the contemplation of the parties” at the time the deed was made that first separated the surface from the minerals, then the surface owner is entitled to damages.
• A West Virginia law called the Oil and Gas Production Compensation Act (W.Va. Code Chapter 22, Article 7) presumes that most drilling done now does more surface damage than was in the contemplation of the parties at the time of the deed that first separated the minerals from the surface.  The Act which was passed in 1983 entitles you to some damages through an arbitration process, though the Act does not get you all that you might win in a common law lawsuit.

To get the driller to change his plans, let him know that you will seek extra damages under the act, or in a law suit, if he does not do what you want.

Be particularly careful about signing anything before the driller starts drilling that waives your right to comment explained above if what you sign would set a specific dollar figure for your damages.  The driller will want you to do that in exchange for the driller’s moving of the road or site etc.  If you waive your comment rights or agree to a specific dollar figure, then the driller might not be as careful doing the work, or you may not realize all that is about to happen and will feel later like you did not get enough.

If the driller does not do you right, get the Guide, or get a lawyer and bring suit.

WVSORO believes that the Oil and Gas Production Compensation Act does not go far enough compensating surface owners.  It only gives damages for the land taken, not the decrease in value of the land adjoining the well site and access road.  It calculates the value of land lost according to its use at the time of the drilling, and not according to its real market value as a home site etc.  And the arbitration provisions are not getting used enough and need improvement.  Look around our web site for more on this and join us to help out!

Conclusion.

Knowing your rights and exercising them is complicated.  At least use the information above and the comment form explained above to help yourself.  Getting and reading the West Virginia Surface Owner’s Guide to Oil and Gas is the most helpful thing you can do, though some people find it overwhelming, at least until they focus on the parts of the Guide that are relevant to their situation.  Whatever you do, do something, or the driller or the driller’s employees will do what is cheapest, fastest or easiest for them.

And join WV SORO to try to get you more rights, and better ways to enforce the rights you already have.