Two recent decisions from two different states, Pennsylvania and West Virginia, suggest that courts are becoming increasingly skeptical of landowners seeking to capitalize on oil and gas companies utilizing horizontal directional drilling (HDD) to access resources under the property of the landowners. Read More »

Share | Email| Comments|  Topics: Damages, Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Natural Gas, Nuisance, Oil and Gas, Pennsylvania, Property Damage, Property Value, Real Estate, Royalties, West Virginia

In Kerns v. Chesapeake Exploration, LLC, No. 18-3636 (6th Cir. Feb. 4, 2019), released on Monday, February 4, the Sixth Circuit Court of Appeals held that a pipeline’s use of Ohio’s forced pooling law is not a taking under the Fourteenth Amendment. This decision, although not recommended for full text publication, is significant as more states enact and/or expand the scope of such laws, and may influence a similar suit brought in Colorado, within the Tenth Circuit, challenging the constitutionality of Colorado’s forced pooling regulations.  Read More »

Share | Email| Comments|  Topics: Deeds, Drilling, Energy, Exploration, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Royalties, Sixth Circuit, Takings, Takings Clause, Trespass

In the 2012 case of New Jersey Schs. Dev. Auth. v. Marcantuone, 428 N.J. Super. 546 (App.Div. 2012), the New Jersey Appellate Division held that a passive landowner who purchased contaminated property prior to the enactment of the New Jersey Spill and Compensation Act (“Spill Act”) was a liable party under the Act even if the owner did not contribute to the contamination, unless it could meet the Spill Act’s definition of an “innocent purchaser.”  This decision gave rise to an entirely new wave of litigation against landowners who, previously, were not thought to be PRPs under the Spill Act.  Last week, however, the Appellate Division of the Superior Court of New Jersey returned some hope to these property owners when it affirmed a Superior Court decision holding that, while a passive landlord is a  liable party under the Spill Act, application of the equitable principles of allocation may result in a finding that such a landlord is nevertheless 0% responsible  for the costs of remediation.   Read More »

Share | Email| Comments|  Topics: Causation, Cleanup, Contamination, Contribution, Cost Recovery, Expert Witness, Leases, New Jersey, Real Estate, Remediation, Spill Act

In November 2009, a group of 44 plaintiffs, including the Ely family, filed suit against Cabot Oil & Gas Corp. for personal injuries and property damages that allegedly resulted from Cabot’s hydraulic fracturing operations in Dimock Township, Susquehanna County, Pennsylvania. The case is pending in the Middle District of Pennslyvania, captioned as Ely et al. v. Cabot Oil & Gas Corp., et al., Dkt. No. 3:09-cv-2284 (M.D. Pa.) (J. Carlson). After a number of parties settled out of the lawsuit, Cabot filed a motion for summary judgment on the Elys’ claims for breach of contract and lost royalties on an oil and gas lease, fraudulent inducement, negligence and negligence per se, medical monitoring, and violations of the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”).   On Monday, nearly all of the Elys’ claims were dismissed. Read More »

Share | Email| Comments|  Topics: Breach of Contract, Contamination, Cost Recovery, Dimock, Drilling, Exploration, Leases, Medical Monitoring, Natural Gas, Negligence, Nuisance, Oil and Gas, Pennsylvania, Real Estate, Residential, Toxic Torts, Trespass

In a precedential decision issued by the Third Circuit Court of Appeals in the case of Vodenichar v. Halcon Energy Properties, Inc., No. 13-2812 (Aug. 16, 2013), the Court addressed the two exceptions to the Class Action Fairness Act that permits remand to state courts of class action complaints over which the federal courts would otherwise have jurisdiction.  First, the Court provided guidance as to the interpretation of the term “primary defendants” for the purposes of 28 U.S.C. § 1332(d)(4)(B) and, second, held that the “other class action” language of 28 U.S.C. § 1332(d)(4)(A) was not intended to encompass prior actions between the same parties where the procedural history indicates that the second suit was merely a continuation of the prior suit. Read More »

Share | Email| Comments|  Topics: Breach of Contract, CAFA, Class Actions, Drilling, Exploration, Federal Procedure, Leases, Oil and Gas, Pennsylvania, Real Estate, Royalties, Subject Matter Jurisdiction, Third Circuit

Although they’ve been around forever, oil and gas leases continue to provide fodder for the courts, as we’ve discussed before, especially in light of the boom (or temporary bust, as some might argue) of shale gas drilling.  And it is exactly that boom (or bust) that brings us the decision in Beardslee v. Inflection Energy, LLC, No. 3:12-CV-00252 (N.D.N.Y. Nov. 15, 2012). Read More »

Share | Email| Comments|  Topics: Drilling, Leases, Marcellus Shale, Mineral Rights, Oil and Gas, Real Estate, Royalties

In April, we reported on an Arkansas Supreme Court case which held that, at least as of 1934, the term “mineral rights” included oil and gas as a matter of law.  But what about deeds of an older vintage?  Last week, the Arkansas Supreme Court, inNicholson v. Upland Industrial Development Co., 2012 Ark. 326 (Sept. 13, 2012), ruled that a 1903 deed reserving “mineral rights” included oil and gas rights because at the time of the deed and in the general region where the deed was executed, that was the common understanding.  In other words, the per se rule announced in Staggs v, Union Pacific RR Co.* did not apply. Read More »

Share | Email| Comments|  Topics: Arkansas, Deeds, Drilling, Exploration, Leases, Mineral Rights, Oil and Gas, Procedure, Real Estate

One of the very first things I was told by the senior partner when I started practicing law was that there isn’t an honest mistake that can’t be fixed, except blowing the statute of limitations. As a result, my calendar has limitations periods blocked out weeks, months and in some cases years in advance, and if there’s ever a question of when it runs, I use the earliest date. The Tenth Circuit’s decision in Impact Energy Resources, LLC v. Salazar, Nos. 11-4043 & 11-4057 (Sept. 5, 2012 10^th Cir.), is a cautionary tale to those who may not be as conservative. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Cases to Watch, Exploration, Federal Procedure, Interior, Leases, Mineral Leasing Act, Oil and Gas, Procedure, Public Lands, Statute of Limitations, Tenth Circuit, Tolling

Pennsylvania’s Act 13 of 2012, signed in February of this year, revised the Commonwealth’s Oil and Gas Act to accommodate and address the increased activity associated with the extraction of natural gas from the Marcellus Shale.  It included provisions for impact fees, environmental protections, and set-back restrictions.  In addition, it also required local municipalities to adhere to uniform zoning laws that would provide for the development of oil and gas resources in the Commonwealth.  Yesterday, in the case of Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012 (July 26, 2012), the Commonwealth Court in a 4-3 decision held that provision of the law to be unconstitutional. Read More »

Share | Email| Comments|  Topics: Act 13, Cases to Watch, Drilling, Due Process, Leases, Marcellus Shale, Oil and Gas, Pennsylvania, Procedure, Real Estate, Standing, Zoning

Yesterday, in discussing the Pennsylvania Supreme Court’s grant of review in Butler v. Estate of Powers, we suggested that maybe it was time to do away with the rebuttable presumption that the owner of “mineral rights” does not own rights in a property’s natural gas stores and instead make it a firm rule of law, particularly in light of the fact that the presumption has been around for over a century.    Well, last week, this is exactly the step that the Supreme Court of Arkansas took in Staggs v, Union Pacific RR Co., 2012 Ark. 156 (Apr. 12, 2012), although holding that “mineral rights” do include oil and gas rights.  Read More »

Share | Email| Comments|  Topics: Arkansas, Deeds, Leases, Marcellus Shale, Oil and Gas