Wednesday, November 21, 2012

W.Va. Supreme Court Rules Against Expanding Ability of Surface Owners to Appeal


On November 21, 2012 the West Virginia Supreme Court of Appeals issued its decision on the certified question presented in the Martin, et al. v. Hamblet, et al., Docket 11-1157.  The Court found that owners of surface rights of property upon which a proposed well is to be drilled is not entitled to judicial review with regard to the issuance or refusal of a well work permit under W. Va. Code § 22-6-40 or § 22-6-41.   The Court focused on the clear and unambiguous language of the statutes to reach this conclusion.  To the extent the prior decision in State ex rel. Lovejoy v. Callaghan indicates otherwise, it was overruled. 

The Court went on to address the issues of due process and equal protection raised by the surface owner.  Citing to Buffalo Mining Co. v. Martin, the Court found that surface owner’s rights are subject to the mineral owner’s rights to utilize the surface for purposes “reasonably necessary for the extraction of minerals.”  The Court further found that it was the legally binding lease granting explicit rights of access to the oil and gas underlying Mr. Hamblet’s property that deprived Mr. Hamblet of an unrestricted right to enjoy his property, not the permit.  Thus, because it is a contractual obligation and not a state action, due process and equal protection guarantees do not apply.  The Court held “Thus, there is no merit to Mr. Hamblet’s constitutional arguments.”
 
The Court did specifically decline to address the argument raised by intervenor West Virginia Surface Owner’s Rights Organization that surface owners have a constitutional right to a pre-decisional hearing in addition to the right to appeal the issuance or denial of a well work permit because it was not raised below.