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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 www.bdlaw.com/assets/attachments/whitemanvchesapeake.pdf.

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.

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About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

212-702 5417
Mackenzie Schoonmaker, Environmental Lawyer, Beveridge & Diamond Law Firm

Mackenzie Schoonmaker focuses her practice on litigation and environmental regulatory matters.  Ms. Schoonmaker’s litigation practice includes representing clients in state and federal courts, as well as in data compensation arbitrations under the federal pesticide statute, FIFRA.  Most recently, Ms. Schoonmaker was part of the Firm’s trial team that secured a defense judgment in the District of Columbia Superior Court after a three week trial on tort claims alleging the client supplied corrosive water to apartment buildings.