                                                                                  FILED
                                                                               June 10, 2019
No. 17-0126 – Andrews et al. v. Antero Resources Corp., et al                     released at 3:00 p.m.
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
WORKMAN, J., dissenting:                                                           OF WEST VIRGINIA



              “Throughout West Virginia’s history, [this] Court has attempted to balance

the rights of surface owners entitled to the peaceful enjoyment of their land with the rights

of mineral owners entitled to access and to produce their minerals underneath the surface.”1

In the instant case, the majority failed to provide any guidance on striking a proper balance

between these rights. I must dissent.



                                        I. Background

              This is an appeal from the Mass Litigation Panel’s (the “MLP”) award of

summary judgment in favor of Respondents Antero Resources Corporation (“Antero”) and

Hall Drilling LLC (“Hall”) (collectively “Respondents”) dismissing Petitioners’2 hydraulic

fracturing or “fracking”-based nuisance claims.3 In its summary judgment order, the MLP

explained the distinction between horizontal and vertical drilling:

                     3. The activity at issue in this complaint is horizontal
              well drilling and hydro-fracturing as part of the development
              of the Marcellus Shale in West Virginia. Traditional oil and gas
              wells in West Virginia are vertical wells, with smaller drill rigs

       1
        Jason A. Proctor, The Legality of Drilling Sideways: Horizontal Drilling and Its
Future in West Virginia, 115 W. Va. L. Rev. 491, 500 (2012).
       2
         Petitioners form a portion of the “Cherry Camp Trial Group,” the first trial group
to be resolved by the MLP.
       3
        Recovering natural gas from the Marcellus Shale requires horizontal drilling and
hydraulic fracturing (commonly called “fracking”) technologies.
                                           1
              and fairly small well pads, located on one-third to one-half of
              an acre of land. A well road is built, the well pad is built, and
              the drill rig drills the vertical well several thousands of feet
              deep. After the well is drilled, a steel casing is put in the well,
              the drill rig leaves, and a hydro-fracturing company comes in
              to fracture the well. After the well is fractured and flow-back
              occurs, production starts and pipelines carry the natural gas
              from the well head to a larger transmission line for transport to
              market. . . .

                      4. With the development of the Marcellus Shale,
              horizontal drilling is used to recover natural gas. Horizontal
              drilling requires a vertical well to be drilled, then the drill bit is
              turned and runs underground in a horizontal direction,
              extending anywhere from 2,000 to 10,000 feet away from the
              vertical well site. . . . Several underground, horizontal wells are
              drilled away from the vertical well sites, much like a spider
              web design. Because of the horizontal drilling, more wells can
              be located on one well pad. Consequently, the well pads are
              usually larger, there are more hydro-fracturing zones, hydro-
              fracturing takes a longer period of time, and it takes more sand
              and water. . . .


              Fracking is a recently-emerging new technology4 and this Court has not had

an opportunity to address balancing the rights of surface and mineral owners in this context.

                    Marcellus production occurs primarily in five states:
              Pennsylvania, New York, Maryland, Ohio, and West Virginia.
              While the majority of gas production expansion thus far has
              taken place in Pennsylvania, West Virginia has also seen a

       4
        See Proctor, The Legality of Drilling Sideways: Horizontal Drilling and Its Future
in West Virginia, 115 W. Va. L. Rev. at 494-95 (“The current Marcellus Shale gas ‘play’
appears to have begun in 2003, when Range Resources drilled a natural gas well in
Washington County, Pennsylvania. . . . By the end of 2007, ‘more than 375 gas wells with
suspected Marcellus intent had been permitted in Pennsylvania’ alone. Following the initial
discovery, interest in the Marcellus skyrocketed, and natural gas producers across the
country began to acquire land and business interests in the region and to drill vertical and
horizontal wells in order to evaluate the gas potential of the Marcellus.”) (footnotes
omitted).
                                             2
             significant increase in production. In August 2011, reports
             showed that “natural gas production in West Virginia and
             Pennsylvania now averages almost four billion cubic feet per
             day (Bcf/d), more than five times as much as the average from
             2004 through 2008.” These two states are now responsible for
             more than eighty-five percent of all natural gas production in
             the Northeast. Furthermore, production in West Virginia “has
             grown over [forty percent] since January 2010 and recently
             surpassed [one] Bcf/d.” It appears that the Marcellus Shale will
             play an integral role in the West Virginia energy industry for
             years to come. This production boom would not have been
             possible without the help of a novel drilling technique—
             horizontal drilling.


Proctor, The Legality of Drilling Sideways: Horizontal Drilling and Its Future in West

Virginia, 115 W. Va. L. Rev. at 496 (footnotes omitted).



             The majority did only a cursory analysis of existing principles of law

requiring balance between mineral owners versus surface owners; and failed to enunciate

any legal guidance for such conflict in the context of fracking when the claims of more

than 200 plaintiffs remain pending before the MLP. Both the MLP and the majority are

wrong in holding that a nuisance claim is not tenable under any set of facts when mineral

owners act within their implied rights; and they are wrong in failing to establish any

analytical framework for creating balance between the sets of competing rights.



              For a century, the tenor of our mineral easement caselaw, in each temporal

and technological ideation, has been that there must be a balance of the rights of surface

owners and mineral owners. Rather than making any attempt to establish legal guidance

                                            3
for that goal in this new context, the majority endorses a gross inequity that effectively

gives this new industrialization carte blanche to operate without any regard for the rights

of those who live on the land.



       II. Legislature Declares Surface and Mineral Owners Rights’ are Equivalent

              The Legislature has made it plain that the effect of this method of oil and gas

production was not reasonably contemplated at the time of most original mineral

severances. The Oil and Gas Production Damage Compensation Act (W. Va. Code §§ 22-

7-1 to -8), the Natural Gas Horizontal Well Control Act (W. Va. Code §§ 22-6A-1 to -24),

and the Oil and Gas Horizontal Well Production Damage Compensation Act (W. Va. Code

§§ 22-6B-1 to -8) all express legislative findings that current oil and gas production

methods were not reasonably contemplated at the time of the original severances. More

importantly, the Legislature has recognized that our existing common law is not

sufficiently accommodating of those developments, necessitating Legislative intervention

by way of the above relief acts. Specifically, the Legislature has declared that


              . . . [t]he advent and advancement of new and existing
              technologies and drilling practices have created the
              opportunity for the efficient development of natural gas
              contained in underground shales and other geologic
              formations;

                     (2) These practices have resulted in a new type and scale
              of natural gas development that utilize horizontal drilling
              techniques, allow the development of multiple wells from a
              single surface location, and may involve fracturing processes
              that use and produce large amounts of water[] . . . .

                                             4
              ***

                     (4) Existing laws and regulations developed for
              conventional oil and gas operations do not adequately address
              these new technologies and practices[.]

W. Va. Code § 22-6A-2(a) (1 through 4) (2014) (emphasis added).



              While clearly enunciating a State policy in support of fracking, the

Legislature has made clear that surface and mineral owners’ rights are equivalent. Both

the Oil and Gas Horizontal Well Production Damage Compensation Act and the Oil and

Gas Production Damage Compensation Act provide that “[e]xploration for and

development of oil and gas reserves in this state must coexist with the use, agricultural or

otherwise, of the surface of certain land and that each constitutes a right equal to the

other.” W. Va. Code § 22-6B-1(a)(1) (emphasis added); see also W. Va. Code § 22-7-

1(a)(1) (“Exploration for and development of oil and gas reserves in this State must coexist

with the use, agricultural or otherwise, of the surface of certain land and that each

constitutes a right equal to the other.”). 5 Instead of acknowledging this unmistakable

statement of public policy, the majority designates the rights of adjacent surface owners to




       5
          The wording of these Acts appears to limit its relief to those surface owners upon
whose surface actual, physical entry occurs: “‘Drilling operations’ means the actual drilling
or redrilling of a horizontal well commenced subsequent to the effective date of this article,
and the related preparation of the drilling site and access road, which requires entry, upon
the surface estate[.]” W. Va. Code § 22-6B-2(1). See also W. Va. Code § 22-7-1(d) (“It
is the purpose of this article to provide constitutionally permissible protection and
compensation to surface owners of lands on which oil and gas wells are drilled from the
burden resulting from drilling operations[.]”).
                                               5
the reasonable use of their surface estates as subservient to the unmitigated right of mineral

owners or lessees to develop their minerals in the manner most convenient for them.



                                   III. Nuisance Analysis

              Initially, Petitioners filed claims alleging both nuisance and negligence.

However, the property damage claims were withdrawn, leaving only the nuisance claims.

Petitioners alleged that Respondents’ fracking activities substantially impaired their quality

of life, use, and enjoyment of their property including

              loud noises, concerns about well water safety, flooding due to
              diversion of water, loss of air quality, excessive dust, mud,
              bright lights, emissions diesel fumes, exhaust fumes, gas fumes
              and odors, excessive traffic delays/road blockages, rude,
              aggressive and generally dangerous drivers, speeding of very
              large trucks, vehicle damage due to poor road conditions, rude
              and interrogative flag persons, chemical spills in the streams
              and waters of Cherry Camp, vibrations/shaking,
              explosions/blasting, flaring, blow offs of condensate tanks,
              pipeline blow outs, an invasion of mostly out-of-state workers
              with little regard or respect for local residents, and trespassing.

              As the majority points out, however, the MLP granted summary judgment

based strictly on property and contractual rights, specifically holding that:

                     In addition to the foregoing leases and severance deeds,
              Antero executed various other agreements with several
              Plaintiffs, or the owners of the properties on which Plaintiffs
              reside, entitling Antero to use Plaintiffs’ properties in the
              course of its mineral development. These various agreements
              include right of way agreements, an oil and gas lease, road use
              agreements, surface use agreements, tank pad agreements, and
              pipeline easements.


                                              6
              Because the MLP specifically excluded any analysis of the issues in the

context of nuisance law, the majority holds that the issue of whether there can be a private

nuisance claim against the mineral owner rights is not proper for review. 6 Instead, the

majority holds that because Respondents hold an implied easement for use of the surface

estates, they have the right “to the extent reasonable and necessary” to develop the mineral

leasehold. While the reasonable and necessary standard is consistent with our law in this

area, the majority ignores the fundamental premise that “[w]hether or not the use of the

surface estate by the mineral estate owner is reasonably necessary is a question of fact for

the trier of facts[,]”7 generally precluding summary judgment.



              The majority hinges its analysis on two points: (1) because there is no

physical damage to the property; and (2) because vertical wells would create an even

greater physical intrusion into the surface estate, there is no substantial burden. In effect,

the majority implicitly suggests that landowners who are negatively affected by the large-

scale, around-the-clock industrialization are without recourse because individual vertical

wells would, in their academic exercise, be even worse. This is completely disingenuous



       6
         Contrary to the majority’s assertions, this issue was clearly before this Court. In
their assignment of error two, Petitioners state: “The [Mass Litigation] Panel erred in
concluding that an owner of mineral rights underlying a particular property has the right to
create a nuisance on the surface of that tract to develop minerals underlying another
property.”
       7
        Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 137 (N.D. 1979); but see Adkins v.
United Fuel Gas Co., 134 W. Va. 719, 61 S.E.2d 633 (1950) (stating, in dicta, that issue of
whether mineral owner has exceeded his implied rights is question for court).
                                          7
and constitutes classic “ducking” of the real issue. The majority’s refusal to further develop

our existing law to accommodate the need to balace the physical and atmospheric

disturbances occasioned by fracking leaves West Virginia surface owners completely

without recourse under any circumstances.



              The majority should have recognized existing law on the issue presented as

well as undertaken an analysis in this very new and different technological context. In his

concurring opinion in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013),

Justice Baer offered an apt description of fracking activities:

              these industrial-like operations include blasting of rock and
              other material, noise from the running of diesel engines,
              sometimes nonstop for days, traffic from construction vehicles,
              tankers, and other heavy-duty machinery, the storage of
              hazardous materials, constant bright lighting at night, and the
              potential for life—and property—threatening explosions and
              gas well blowouts.

Id. at 1005 (Baer, J., concurring).



              Even though the techniques in the instant case were found to be normal

fracking operations—not outside the realm of what is reasonably necessary and therefore

within the scope of the easements—a surface owner should still have the right to assert a

nuisance cause of action if the scope or conduct of the operations is so abusive or

unreasonable as to render the balance of rights completely out of kilter. The majority relies

on Quintain Development, LLC v. Columbia Natural Resources, Inc., 210 W. Va. 128, 556

S.E.2d 95 (2001), to dodge the real issue. But Quintain is patently distinguishable as it
                                              8
addressed a narrow and inapposite issue—a coal mining company’s lawsuit to force the

relocation of a natural gas pipeline so that coal could be removed by means of surface

mining. Stretching Quintain beyond reasonable limits, the majority finds that the legal right

to conduct mineral development operations necessarily and completely destroys any

potential nuisance claim. This holding is contrary to black letter nuisance law.



              Unlike a trespass, which is inherently unlawful, a private nuisance may flow

from the consequences of an otherwise lawful act. See e.g., Baumann v. Snider, 532 S.E.2d

468, 472 (Ga. 2000) (“The distinction between trespass and nuisance consists in the former

being a direct infringement of one’s right of property, while in the latter the infringement

is the result of an act which is not wrongful in itself, but only in the consequences which

may flow from it.”); Firth v. Scherzberg, 77 A.2d 443 (Pa. 1951) (finding nighttime

trucking operation constituted nuisance despite being permitted as a nonconforming use

under ordinance). Consequently, the fact that Respondents are exercising valid leasehold

rights should not obliterate Petitioners’ potential nuisance claims. It is not the nature of the

right; it is the scope, manner, and extent of exercising these rights which under some factual

circumstances could constitute an actionable nuisance.



              An actionable nuisance has been defined by this Court as follows:

                     A private nuisance is a substantial and unreasonable
              interference with the private use and enjoyment of another’s
              land.



                                               9
                   An interference with the private use and enjoyment of
             another’s land is unreasonable when the gravity of the harm
             outweighs the social value of the activity alleged to cause the
             harm.

Syl. Pts. 1 and 2, Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989) (emphasis

added).



             Once the MLP effectively determined that there could be no nuisance claim

under any circumstances, any potential balancing of rights dissipated. The tenets of what

constitutes a nuisance in surface/mineral rights together with whether there was a dispute

of material fact should have formed the scope of the inquiry in this case by the MLP in

ruling on the motion for summary judgment.



             The majority errs in effectively upholding the MLP’s legal conclusion that

there can be no nuisance action under any set of facts in light of the severance deeds.

Certainly, in an ordinary nuisance claim, a property owner is typically exercising his

ownership rights, but neighboring property owners unduly and improperly disturbed by his

actions are not without a remedy. Rather, they clearly have the remedy of a nuisance cause

of action. However, in the mineral development context, by refusing to address this issue,

the majority effectively holds that having an equivalent, valid legal right to conduct

operations necessarily destroys any nuisance claim. This is not only inconsistent with the

concept of nuisance and any sense of balance and fairness, but also contrary to the history




                                            10
and caselaw in the mineral/surface conflict context as well as statute. The Oil and Gas

Production Damage Compensation Act provides that

             [n]othing in . . . in this article shall be construed to diminish in
             any way the common law remedies, including damages, of a
             surface owner or any other person against the oil and gas
             developer for the unreasonable, negligent or otherwise
             wrongful exercise of the contractual right, whether express or
             implied, to use the surface of the land for the benefit of the
             developer’s mineral interest.


W. Va. Code § 22-7-4(a). Undoubtedly,



                     [n]uisance is the most common cause of action asserted
             against oil and gas operators related to hydraulic fracturing
             operations. For instance, in Harris v. Devon Energy
             Production Co., L.P., the plaintiffs claimed that the
             defendant’s drilling-related activities created a private
             nuisance on the plaintiffs’ property. The plaintiffs claimed that
             the acts and omissions of the defendant resulted in the
             contamination of the groundwater under plaintiffs’ land, which
             substantially interfered with plaintiffs’ use and enjoyment of
             their groundwater for drinking, bathing, and washing. They
             also claimed that the contaminated well water offended
             plaintiffs’ senses and made their enjoyment of their property
             uncomfortable and inconvenient. In Fiorentino v. Cabot Oil &
             Gas Corp., the plaintiffs claimed that defendants created and
             maintained a continuing private nuisance by allowing gas wells
             to exist and operate in a dangerous and hazardous condition,
             allowing the spills and releases to spread to surrounding areas,
             including plaintiffs’ properties and drinking water supplies,
             resulting in injuries to plaintiffs’ health, well-being, and
             property.


Michael Goldman, A Survey of Typical Claims and Key Defenses Asserted in Recent

Hydraulic Fracturing Litigation, 1 Tex. A&M L. Rev. 305, 310 (2013) (footnotes omitted).

                                             11
              In their depositions, Petitioners described how Respondents’ activities

constituted a nuisance, i.e., “a substantial and unreasonable interference with the private

use and enjoyment” of their land. Syl. Pt. 1, in part, Hendricks, 181 W. Va. 31, 380 S.E.2d

198. Petitioners testified about nonstop noise from trucks driving past their homes all hours

of the day and night so loud that they could not have conversations. The constant noise,

vibrations, and truck traffic prevented Petitioners from sitting on their front porches on

summer evenings and interfered with their sleep. Petitioners also testified about constant

dust and odors from diesel trucks with the smell of diesel fumes so intense it caused

headaches. Petitioners stated the vibrations from the trucks and operations were so

damaging that their homes would rattle and shake like they were living on a volcano.

Petitioners described truck lights shining so brightly they would light up their bedrooms

even with the blinds shut.



              Petitioners’ experts, Drs. Cheremisinoff and Ingraffea, confirmed this

testimony. The experts described how Respondents’ fracking operations brought widescale

industrialization within Petitioners’ small community. These operations caused various

negative consequences including contaminated air, increased ozone and smog, noise

disturbances, light disturbances, and contaminated ground and surface water. Ultimately,

Dr. Cheremisinoff opined that Respondents acted in a reckless and careless manner and

with callous indifference toward their neighbors. He concluded that Respondents were not

relying on reasonable and best industry practices and the well extraction sites and

compressor station were creating significant levels of air pollution.
                                           12
                    IV. Competing Property Rights Must be Balanced

              A review of existing caselaw on surface owner versus mineral owner rights

is informative. While surface rights have historically been considered subservient to

mineral rights in that there must be disturbance of the surface in order to access the

minerals, throughout our cases, whether in vertical drilling, coal mining, or strip mining,

this Court—like most courts in the country—has recognized that the rights of each must

be balanced. In syllabus point one of Oresta v. Romano Brothers, 137 W. Va. 633, 73

S.E.2d 622 (1952), we held: “A person in possession of land is required so to use it as not

to injure the property of another person.” As we explained in Buffalo Mining Co. v. Martin,

165 W. Va. 10, 267 S.E.2d 721 (1980),

                     [o]ur past cases have demonstrated that any use of the
              surface by virtue of rights granted by a mining deed must be
              exercised reasonably so as not to unduly burden the surface
              owner’s use. Adkins v. United Fuel Gas Co., 134 W. Va. 719,
              61 S.E.2d 633 (1950); Porter v. Mack Manufacturing Co., 65
              W. Va. 636, 64 S.E. 853 (1909); cf. McKell v. Collins Colliery
              Co., 46 W. Va. 625, 33 S.E. 765 (1899).

                      We conclude that where implied as opposed to express
              rights are sought, the test of what is reasonable and necessary
              becomes more exacting, since the mineral owner is seeking a
              right that he claims not by virtue of any express language in the
              mineral severance deed, but by necessary implication as a
              correlative to those rights expressed in the deed. In order for
              such a claim to be successful, it must be demonstrated not only
              that the right is reasonably necessary for the extraction of the
              mineral, but also that the right can be exercised without any
              substantial burden to the surface owner. Porter v. Mack
              Manufacturing Co., supra. This concept has been most clearly
              articulated in oil and gas cases. See, e.g., Flying Diamond
              Corp. v. Rust, 551 P.2d 509 (Utah 1976) (surface easement
              “consistent with allowing the fee owner the greatest possible
                                             13
              use of his property”); Getty Oil Co. v. Jones, 470 S.W.2d 618
              (Tex. 1971); Annot., 53 A.L.R.3d 16 (1973).

Buffalo Mining, 165 W. Va. at 18, 267 S.E.2d at 725-26 (footnote omitted).



              In recent years, courts have emphasized that mineral owner rights must be

balanced against the rights of the surface owners. See, e.g., Faith United Methodist Church

& Cemetery of Terra Alta v. Morgan, 231 W. Va. 423, 440, 745 S.E.2d 461, 478 (2013)

(recognizing surface owner has right to use surface for such ordinary uses as may be made

thereof, with right to use as much of subsurface as may be necessary for customary and

ordinary uses of surface, just as owner of subsurface estate has correlative right to use

surface in order to develop subsurface rights).



              Our precedent establishes that mineral and surface estates must exercise their

respective rights with due regard each for the other’s. This principle underlies the

accommodation doctrine, which was developed by the Supreme Court of Texas in Getty

Oil Co. v. Jones, 470 S.W.2d 618 (Tex. 1971).8 The accommodation doctrine has provided

a sound and workable basis for resolving conflicts between various ownership interests.

Although developed in the context of vertical drilling, this doctrine has broad application

to the issue at hand.


       8
         The Getty court found: “where there is an existing use by the surface owner which
would otherwise be precluded or impaired, and where under the established practices in
the industry there are alternatives available to the lessee whereby the minerals can be
recovered, the rules of reasonable usage of the surface may require the adoption of an
alternative by the lessee.” Id. at 622.
                                            14
              A definite trend toward conciliation of conflicts and
              accommodation of both estates is evident in our court decisions
              and in the conduct between the lessees and surface owners. . .
              . This Court has led the way in working out accommodations
              which preserve unto the severed mineral owner or lessee a
              reasonable dominant easement for the production of his
              minerals while at the same time preserving a viable servient
              estate.

Sun Oil Co. v. Whitaker, 483 S.W.2d 808, 817 (Tex. 1972).



              In some instances, the accommodation doctrine requires the owner of the

mineral estate to make modifications of its proposed use of the surface to accommodate

the surface estate owner, at least to the extent possible consistent with the right of the owner

of the mineral estate to develop the minerals. Gerrity Oil & Gas Corp. v. Magness, 946

P.2d 913 (Colo. 1997); see also Coyote Lake Ranch, LLC v. City of Lubbock, 498 S.W.3d

53, 60-61 (Tex. 2016) (finding accommodation doctrine applied to relationship between

city, as owner of severed groundwater estate, and surface estate held by landowners; city

was required to exercise its implied right to use of surface estate with due regard for

landowners’ rights). By way of analogy, although the methods necessary for fracking will

create unavoidable disruption, annoyance, and inconvenience to surface owners who reside

on the property, each side should be willing to seek accommodation to the degree

reasonable with the other’s interests.



              Practically speaking, the accommodation doctrine requires the mineral owner

to use available, non-interfering, and reasonable ways of producing the minerals which


                                              15
would permit the surface owner to continue his existing use of the surface;9 although by

virtue of the very nature of fracking, those residing on the surface will have increased

traffic, inconvenience, annoyance, dust, loud noise, and excessive light, the right of the

mineral owner to enter and use the surface is not unfettered. Nothing in this opinion is

intended to suggest that surface owners will have the kind of peaceful enjoyment of their

property as they had prior to the fracking operation, just that neither side has the right to

act in derogation of the rights of the other. Such accommodations, even if they make

drilling operations less convenient or profitable, are not per se unreasonable. These

determinations are highly fact-specific. As aptly explained in Hunt Oil,

              [w]hat may be a reasonable use of the surface by the mineral
              lessee on a bald prairie used only for grazing by the servient
              surface owner could be unreasonable within an existing
              residential area of the City of Houston, or on the campus of the
              University of Texas, or in the middle of an irrigated farm. What
              we have said is that in determining the issue of whether a
              particular manner of use in the dominant estate is reasonable
              or unreasonable, we cannot ignore the condition of the surface
              itself and the uses then being made by the servient surface
              owner.

284 N.W.2d at 136.



              Applying this principle to the instant case, the central issue is whether

Respondents’ fracking operations should be subject to reasonable modification in order not


       9
         See Tara Righetti, Contracting for Sustainable Surface Management, 71 Ark. L.
Rev. 367 (2018) (examining accommodation doctrine as background for discussion of
“surface use agreements” whereby surface users and mineral owners tailor agreements to
suit anticipated use by mineral owner, existing and planned uses of surface owner, unique
topographical and ecological conditions of surface parcel, and priorities of surface owner).
                                            16
to constitute an actionable nuisance or, in the alternative, whether surface owners should

be able to assert a cause of action for damages for nuisance. For instance, a fact finder may

find that it is not reasonable for Respondents to run speeding trucks up and down rural

roads twenty-four hours a day with jack brakes blaring. Rather, alternative methods such

as specific times to run these trucks may be employed to accommodate the rights of the

surface owners while still facilitating transport of the sand, water, and other materials and

equipment needed for production. The cost of periodic amelioration of dust could be borne

by drillers; and compliance with groundwater regulations are examples of possible

accommodations so surface owners are not living in constant worry about their families’

health.



              This case also highlights the need for surface and mineral owners to consider

negotiating a surface use agreement to avoid using litigation to define their respective rights

and obligations. Mineral owners/operators are often willing to accept manageable delays

in order to negotiate a use agreement with the surface owner. The parties should consider

the following terms:

              (1) Timing and coordination of operations;
              (2) Predetermined, reserved, and platted future sites, access
              roads, and rights-of-way corridors;
              (3) Locations of any associated production equipment;
              (4) Coordination of future surface development;
              (5) Setback requirements (this may be required by regulations);
              (6) Noise mitigation (this may be required by regulations);
              (7) Visual aesthetics (this may be required by regulations);
              (8) Safety issues (this may be required by regulations);
              (9) Compensation for oil and gas directional and horizontal
              drilling costs from centralized drilling pads;
                                             17
               (10) Timing of operations (i.e., based on planting, harvesting,
               or hunting seasons);
               (11) Use of surface or well water in exploration and
               production;
               (12) Disposal/discharge of produced water (this may be
               required by regulations);
               (13) Abandonment procedures following the completion of
               operations (this may be required by regulations); and
               (14) Reclamation (this may be required by regulations).[10]



               If the conflicting owners fail to do so, then court-ordered mediation should

center not just on monetary damages, if any, but on how both sides can work effectively

together to accommodate their conflicting interests.          Neither side will like this

accommodation plan because drillers want maximum profit in the shortest time and

attorneys for surface owners, while trying to protect the interests of their clients, want

maximum damages. Sorting all this out can be a tedious process for courts, as well, and

may even at times require additional proceedings before the MLP.11




      10
         Kendor P. Jones, John F. Wellborn, Chelsey J. Russell, Split Estates and Surface
Access Issues, Landman’s Legal Handbook Ch. 9 (Rocky Mt. Min. L. Fdn., (5th ed. 2013))
at www.wsmtlaw.com/cms-assets/documents/129546-236263.00194839.pdf.
      11
           Rule 26.07 of the West Virginia Trial Court Rules provides:

                      (b) If the [Mass Litigation] Panel requests the
               assignment of additional active or senior status circuit court
               judges to assist in resolving Mass Litigation or proceedings
               therein, the request and recommendation shall be filed with the
               Clerk of the Supreme Court of Appeals and sent to the Chief
               Justice. The order of assignment by the Chief Justice shall be
               filed with the Clerk and sent by the Clerk to the Panel Chair

                                             18
              Although Petitioners at this juncture have dropped their property claims,

numerous    environmental/groundwater      citations   already issued    demonstrate   the

relentlessness of this heavy and untrammeled industrialization and the significant worry

about potential health consequences to Petitioners and their families. The potential claims

of groundwater contamination were identified by the Natural Resources Defense Council

(“NRDC”) in its recently released report concluding that fracking has dramatically stressed

West Virginia’s groundwater resources.12 NRDC states that chemical constituents used by

well operators during drilling, fracking, or maintenance vary greatly but often include

contaminates that pose serious threats to human health. Id.

                     What about claims of flaming water? The theory is that
              fracturing releases methane gas, and the gas migrates to
              groundwater, finding its way into landowners’ wells. The
              claim is that methane escapes through home faucets, creating
              fire hazards. Landowners complain that other chemicals, such
              as benzene, enter the water supply through ground spills and
              improper disposal techniques.

                      Landowners claim that careless treatment of fracture
              fluids allows chemicals to enter aquifers, water wells and soil.
              They contend that fumes from diesel-powered engines cause
              them to inhale large quantities of nitrogen oxides, carbon




              and to the clerk of the circuit court where the Mass Litigation
              is pending for service on all parties.
       12
          Natural Resource Defense Council, West Virginia’s Groundwater is not
Adequately     Protected    from    Underground      Injection   (April    2019)    at
https://www.nrdc.org/resources/west-virginias-groundwater-not-adequately-protected-
underground-injection.


                                            19
              monoxide and other chemicals. Also, fracturing and drilling
              create smog and dust[.13]


See also Kaoru Suzuki, The Role of Nuisance in the Developing Common Law of Hydraulic

Fracturing, 41 B.C. Envtl. Aff. L. Rev. 265, 271-72 (2014) (“Numerous complaints from

citizens near hydraulic fracturing wells, who alleged that methane gas and fracking fluid

additives had contaminated their drinking water, spurred the EPA to reinvestigate. For

example, citizens in the Marcellus Shale region, which spans Pennsylvania and upstate

New York, have raised numerous concerns about the safety of drinking water from their

underground water supply. Documentaries show tap-water discoloration, the emission of

unnatural odors, and even flammable tap water in affected regions.”) (footnotes omitted).



                                      V. Conclusion

              The majority’s refusal to develop our law to provide a workable set of

standards that balances the rights of surface and mineral owners is untenable. The MLP

and the majority opinion of this Court effectively preclude any cause of action for nuisance

while completely eviscerating existing legislative and caselaw. This Court should have

enunciated the parameters of a nuisance claim in the fracking context; and we should have

remanded the case with directions for the MLP to determine whether sufficient material

issues of fact exist to permit a jury, under proper instruction of law, to decide whether


       13
         Michael J. Mazzone, Changing Times Bring Conflict With Surface Owners, The
American Oil & Gas Reporter (Dec. 2011) at https://www.aogr.com/web-
exclusives/exclusive-story/changing-times-bring-conflict-with-surface-owners.

                                            20
Respondents’ actions constitute a nuisance, and if so, what damages should be awarded. In

cases still pending, there should be a court-directed process to mediate competing rights of

surface/mineral owners.



              Accordingly, I respectfully dissent. I am authorized to state that Judge

Clawges joins in this dissent.




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