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Fourth Circuit Rejects Surface Owners’ Trespass Claim Against Drilling Operator

In a victory for hydraulic fracturing interests, the Fourth Circuit held that Chesapeake Energy Corp. did not commit common law trespass upon surface owners’ rights by developing natural gas wells below their farmland. Whiteman v. Chesapeake Appalachia LLC, No. 12-1790 (4th Cir. Sept. 4, 2013), available at

Chesapeake owns the mineral rights below 101 acres in West Virginia, while Martin and Lisa Whiteman own the surface rights. Whiteman, slip opat 2. Chesapeake operates three natural gas wells on 10 of the 101 acres, including a permanent drill waste disposal on the surface. Id. at 3. The Whitemans claimed that Chesapeake’s drilling operations constituted common law trespass, arguing that those ten acres are unusable to them, and requested an injunction and damages. Id. at 8.

Examining the long history of mineral estate owners’ rights in West Virginia law, the court found that Chesapeake’s disposal of drill waste on the surface estate was “reasonably necessary” for enjoyment of the mineral estate. Id. at 10-24. The court emphasized that the drilling only impacted 10 acres, that the Whitemans admitted that their current monetary damages are “trivial,” and that they did not rebut expert testimony that the drilling operations caused no diminution in the value of their property. Id. at 6, 10-24. The court also rejected the Whitemans’ claim that Chesapeake should have implemented a closed-loop system instead, finding that those systems were not “reasonably necessary” because they are expensive and were not used in West Virginia at the time Chesapeake developed these wells. Id. at 25-26.

© 2020 Beveridge & Diamond PC National Law Review, Volume III, Number 302


About this Author

Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.