Source: Dominion Post (Morgantown, WV), September 30, 2012
Posted on: http://envfpn.advisen.com
Two Wetzel County families suing Chesapeake Appalachia in federal district court for trespass regarding gas wells on their land have lost their cases and appealed them to the next level.
Martin and Lisa Whiteman, of Silver Hill, and Dewey and Gay Teel, of Blake Ridge, in similar cases, sued Chesapeake over Marcellus gas well drilling waste buried on their land. Their suits, before Judge Frederick Stamp in the U.S. District Court for the Northern District of West Virginia, contained multiple charges but ultimately boiled down to trespass.
Martin and Lisa Whiteman have alleged that Chesapeake Appalachia has permanently damaged and polluted a portion of their property by burying hazardous Marcellus gas well drilling waste there. The Whitemans wanted the cuttings removed and want various damages awarded.
Just before trial in June, Stamp ruled against the Whitemans on one of their seven counts — trespass. The couple then agreed to drop six other claims; Stamp voided the trial, and the Whitemans appealed the trespass charge to U.S. Court of Appeals for the Fourth Circuit, where the most recent brief was filed Sept. 19.
Both sides had previously agreed: Chesapeake placed drill cuttings — sometimes called waste — in pits on the land and the waste is still there, buried in the now unlined pits; Chesapeake can and does extract gas on other well pads without leaving cuttings on site. They disputed whether the drill cuttings are migrating or causing contamination or health problems, and whether the wells were drilled and completed properly.
In a pretrial order, Stamp noted a number of shortcomings in the plaintiffs’ case:
“Plaintiffs have offered no medical records nor expert opinions to document that they suffer from any harm. … Plaintiffs simply cannot provide any evidence showing defendant’s drilling operations caused any harm.”
Trespass is invasion by tangible objects, not chemical deposits, fumes, dust or other particulates. “Plaintiffs have no expert testimony or other evidence of any harm arising from any alleged trespass. … A party with a legal right to be on and use the premises cannot be a trespasser.”
Chesapeake has a lease and a valid DEP permit. “Plaintiffs’ willful ignorance of the facts and existing law, and belabored assertions of trespass and injury, do not a trespass make.”
Plaintiffs say the pit creates unstable soil and destroys their ability to farm their land.
In March, plaintiffs had applied for partial summary judgment on one of seven counts: Trespass. In May, Chesapeake requested summary judgment on all the Whiteman’s claims.
In his June order on the requests, Stamp said Chesapeake’s action accords with state law, even though Chesapeake had stopped using pits at other well sites. And the Whitemans were aware of the pit permit application and made no objections.
“This court is sympathetic to the Whiteman’s concerns about their surface property,” Stamp wrote, but, “the mere fact that Chesapeake eventually migrated to a closed-loop system does not render its prior use of pits unreasonable.”
Stamp denied the Whitemans’ request for summary judgment on trespass, giving that victory to Chesapeake.
But Stamp denied Chesapeake’s claim that a $15,000 payment for road construction damages applied to the whole 10-acre well site — saying it applied to only one well, not to the pits. Stamp also refused to grant summary judgment on the other claims, keeping those actions alive.
Four days after the order, the Whitemans dropped the remaining six claims. Stamp dismissed them with prejudice, meaning plaintiffs can’t bring action on them again. The trespass claim was appealed to the U.S. Court of Appeals.
Chesapeake said Friday the two sides never reached any agreement on the six dropped claims.
In their Sept. 19 appeal brief, the Whitemans allege that the district court erred in several ways, including ignoring some pertinent facts and retroactively applying state law that did exist when Chesapeake made the pits.
Since Chesapeake had other disposal options, they say, “a practice that is optional cannot be called ‘reasonably necessary.’ ”
The plaintiffs, they say, also have essential property rights, including “the right to exclude persons and things from their land. … Chesapeake’s mineral rights and … limited, implied right to temporarily use the surface for mineral production do not include a right to use the Whitemans’ land as a permanent waste dump.”
Dewey and Gay Teel, Wetzel County, also allege that Chesapeake has permanently damaged and polluted a portion of their property by burying hazardous Marcellus gas well drilling waste there.
The Teels haven’t filed their appeal yet.
The original suit charged Chesapeake with nuisance, trespass, negligence, liability, recklessness or gross negligence and infliction of emotional distress. It sought an injunction for Chesapeake to remove the waste and deposit no more, remediate contamination, detail the quantity, location and composition of the waste, and punitive, compensatory and special damages.
In December 2011, the Teels requested a partial summary judgment from Stamp on the single charge of trespass. They terminated it in March and in late June requested partial summary judgment and an injunction on the same charge.
On the same date, Chesapeake moved for partial summary judgment on the trespass charge in its favor, noting Stamp’s decision in the Whiteman case.
As in the Whiteman case, both sides agreed to dismiss all charges but trespass. Stamp did so Sept. 5, with prejudice, pending his decision — reflected in a preliminary ruling letter — in Chesapeake’s favor on that count. Stamp noted the Teels plan to appeal after he issues his final order.