This article originally provided by The Charleston Gazette

July 9, 2011

Surface owners plan to turn to courts over Marcellus drilling

By Alison Knezevich

CHARLESTON, W.Va. -- Frustrated with state lawmakers' failure to approve regulations on Marcellus Shale development, the West Virginia Surface Owners' Rights Organization says it plans to shift its focus from the Statehouse to the courthouse.

Legislators are coming to Charleston this week for their interim monthly meetings. Part of the schedule will include the first two meetings of a new committee focused on Marcellus issues. Dave McMahon of the surface owners group said his organization wants to participate in the discussion, but he isn't hopeful.

"Four years at the Legislature has taught us not to expect much," said McMahon, a lawyer. "So we are going to turn to the courts."

Since 2008, McMahon's group has unsuccessfully pushed lawmakers to pass a surface owners' bill of rights. Earlier this year, the Legislature failed to work out new regulations for Marcellus drilling. The Senate approved a measure (SB424), but the House -- which backs stronger protections for the environment and surface owners -- never voted on the bill.

Now, with Marcellus development growing, McMahon says, it's time for his group to broaden its tactics.

McMahon already has filed one lawsuit on behalf of a Marion County man who says two companies don't have a right to put wells on his property to get to the gas on a neighbor's land.

Another possible lawsuit would seek to give surface owners the right to a hearing on well permit applications, McMahon said.

A third potential lawsuit would focus on abandoned wells. There are 5,000 in West Virginia, said McMahon, who contends that the state should not issue new permits until it plugs those wells.

In both cases, the state Department of Environmental Protection would be the likely defendant.

The surface owners group might work with nonprofit law firms and environmental groups to file the lawsuits, McMahon said.

He said some lawmakers have been open to listening to the concerns of surface owners, but in general, citizens have a hard time getting heard.

"The usual lobbyist ratio, if you combine surface owners and environmental people, [compared] to corporate lobbyists, is 17 to 3," he said. "And if you count donations to campaigns, who knows?"

Legislative leaders formed the new Marcellus committee to work out a compromise between the House of Delegates and state Senate, with hopes of drafting a bill that could be approved during a special session later this summer or fall.

McMahon said he also is worried because the co-chairman of the Marcellus committee is Sen. Doug Facemire, whom he calls the Senate's biggest advocate of the gas industry.

Facemire calls himself "an advocate for economic development."

"And I do believe that oil and gas is a vehicle that can help take this state to a new level through the economic development of it," the Braxton County Democrat said. "I thank God every night for our coal and gas and timber, that he blessed our state.  . . . People have to have jobs."

Facemire said the committee would use SB424 as a framework for next week's meetings. The legislation is a scaled-back version of an earlier measure, but Facemire said it still addresses issues such as notification to landowners, illegal dumping of fracking water and damage to state roads.

"We really tried to address a lot of the concerns that the people have," he said.

"You think the industry was tickled about a $100,000 fine?" he added, referring to penalties for companies that dump fracking water.

Corky DeMarco, head of the West Virginia Oil and Natural Gas Association, said he couldn't respond to surface owners' legal plans because he doesn't know the details, but he said that, as lawmakers try again on the legislation, "we need certainty in this industry."

Because of the lack of state regulations, the city of Morgantown last month banned fracking.

"Are we going to be in a situation where every county has laws and every city in the county has laws?" DeMarco said. "That's not certainty. And people are not going to invest under those conditions."

Delegate Tim Manchin, D-Marion, will serve as co-chairman of the committee. Manchin said the Senate bill is "not a bad framework from which to start," even though it's not as strong as what many delegates want.

"I think we're going to do something for surface owners," Manchin said. "Will it be as much as they would like? Will it go as far as the House would like to go? We might not get there."

Senate President Earl Ray Tomblin, who is acting as governor, has said a special session on Marcellus issues could come by August.

Manchin said he thinks September might be more realistic.

"It's hard to get consensus," he said, "but I think we have probably the best chance that I've seen since I've been in the Legislature to make some changes, to make some progress."

The first meeting this week is set for 6 p.m. Tuesday, and the second at noon Wednesday. Both are scheduled for the Senate Judiciary room. The initial meeting will be an informational session featuring guest speakers.

A new group, called West Virginians for a Moratorium on Marcellus, plans a 10 a.m. rally at the Capitol on Monday.

Reach Alison Knezevich at or 304-348-1240.

West Virginia Surface Owners' Rights Organization
1500 Dixie Street, Charleston, West Virginia 25311