4th Circuit Rejects Plaintiffs Common Law Claims
On September 4, 2013, the U.S. Court of Appeals for the Fourth Circuit rejected plaintiffs’ common law trespass claims and affirmed that “the district court was correct to hold that creating drill waste pits was reasonably necessary for recovery of natural gas and did not impose a substantial burden on the Whitemans’ surface property, that creation of the pits was consistent with Chesapeake’s rights under its lease, was a practice common to natural gas wells in West Virginia, and consistent with requirements of applicable rules and regulations for the protection of the environment.” Whiteman v. Chesapeake Appalachia, L.L.C., 12-1790, 2013 WL 4734969 (4th Cir. 2013).
Plaintiffs live on and farm their 101 acres, primarily raising sheep and, relatedly, using part of the land to produce hay for the sheep. See JA at 22–23. Conversely, Chesapeake operates three natural gas wells on approximately ten acres of the plaintiffs’ property that was formerly used for hay production. JA at 22, 417. The plaintiffs can no longer produce hay on those ten acres because Chesapeake’s well operations and permanent drill waste disposal on the surface have rendered that portion of the plaintiffs’ property unusable for any suitable purpose. JA at 258, 264, 420. Plaintiffs asked for an injunction and damages based on claims arising from the drilling and operation by Chesapeake of three natural gas wells on surface property owned by the Plaintiffs. Whiteman v. Chesapeake Appalachia, L.L.C., 12-1790, 2013 WL 4734969 (4th Cir. 2013).
The substantive legal issue before the Court on appeal was “whether Chesapeake’s permanent disposal of drill waste upon the Whitemans’ surface property is “reasonably necessary” for the extraction of minerals.” Whiteman v. Chesapeake Appalachia, L.L.C., 12-1790, 2013 WL 4734969 (4th Cir. 2013). The Court applied the “reasonably necessary” test from Buffalo Mining Co. v. Martin, 165 W.Va. 10, 267 S.E.2d 721 (1980) when it affirmed the decision of the district court:
[W]here 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. Buffalo Mining, 267 S.E.2d at 725–26 (emphasis added).
Whiteman v. Chesapeake Appalachia, L.L.C., 12-1790, 2013 WL 4734969 (4th Cir. 2013).