February 26, 2014 @ noon
Noble Energy Offices
333 Technology Drive
Canonsburg, PA 15317
Recent Litigation Affecting
the Oil & Gas Industry
Please note that an invitation
only luncheon will be held from
11:30 a.m. to 12:00 p.m.
Summary of Presentation
This one hour presentation will focus upon and examine three recent litigation matters
affecting the oil and gas industry. The three matters to be examined are: Robinson Township et
al. v. Commonwealth of Pennsylvania et al. (Supreme Court of Pennsylvania J-127A-D-2102),
Cain v. XTO Energy, Inc. (U.S. D.C. for N.D. of WV Case #:1:11-cv-0111-IMK; and EQT Production
Company v. Doddridge County Commission, (Circuit Court of Doddridge County Civil Action 12C-17). Following the presentation there will be the opportunity for questions as time allows.
Robinson Township et al. v. Commonwealth of Pennsylvania et al.
Opinion from the Supreme Court of Pennsylvania regarding the constitutionality of Act 13 of
2012 a statute amending the Pennsylvania Oil and Gas Act (“Act 13”) under Section 27 of the
Declaration of Rights in the Pennsylvania Constitution. Act 13 was sweeping legislation
designed to standardize the regulation of oil and gas exploration on a statewide level. In
particular, Act 13 contained a Chapter that prohibited any local regulation of oil and gas
operations and required statewide uniformity among local zoning ordinances with respect to oil
and gas development. Following the passage of Act 13, certain Townships and individuals and
advocacy groups brought suit challenging its constitutionality under Section 27 of the
Declaration of Rights in the Pennsylvania Constitution in the Commonwealth Court. The
Commonwealth Court found portions of Act 13 unconstitutional and in a lengthy decision, the
Pennsylvania Supreme Court affirmed that ruling in part and an remanded the case for further
resolution by the Commonwealth Court.
Cain v. XTO Energy, Inc.
This case involved a suit by a surface landowner against the owner of the oil and gas estate and
its lessee, XTO Energy, Inc. In the suit, the surface owner alleged that the XTO’s plan to use 36
acres of the surface to construct 18 well pads to extract gas on adjacent parcels by horizontal
drilling constituted a trespass and went beyond the rights afforded to XTO as a mineral lessee
to extract minerals from the Cain parcel. Although this case was dismissed after a confidential
settlement before a dispositive order was issued by the Court, it raises interesting questions for
oil and gas operators going forward. The main questions raised by the Cain case are whether
the actions of XTO could be construed as a trespass and if those actions were a trespass what
would be the appropriate measure of damages.
EQT Production Company v. Doddridge County Commission
This case was a suit by an oil and gas operator against a County Commission over the denial of a
floodplain permit. Doddridge County first enacted a floodplain ordinance in 2011. In November
2011, the Floodplain Administrator issued a permit to EQT to engage in construction within
“Area A” of the floodplain on a well site. (Area A being an area within the floodplain where the
floodway has not been delineated.) EQT’s application for the permit included an engineering
report showing that its work in the floodplain would not increase the base flood elevation by
more than one foot. Approximately six months later, at the request of the surface owner the
County Commission rescinded the permit. EQT then sued the County Commission. The Circuit
Court ruled on summary judgment that the Ordinance violated the West Virginia Constitution
by failing to provide due process to surface and adjoining landowners potentially affected by
the development for which EQT sought a permit. On that basis, the Court denied EQT’s request
for relief. As a result of the Court’s Order, a moratorium was issued on all floodplain permits
until the Ordinance could be amended. On May 7, 2013, a new Ordinance was enacted. Jay-Bee
Oil & Gas was the first party to see a permit under the new Ordinance. After that initial permit
was processed, the Ordinance was then amended further. EQT itself has not reapplied for a
permit.
Speakers
Timothy M. Miller is a Member of Robinson & McElwee PLLC where he has practiced since
1980. He is primarily involved in general civil litigation in federal and state courts at both the
trial and appellate levels. Mr. Miller maintains an emphasis on oil and gas, as well as natural
resources and energy-related litigation. He is the immediate past-President of the Energy and
Mineral Law Foundation, and is Chair of the Energy Law Committee of the Defense Trial
Counsel of West Virginia. Mr. Miller has tried over 30 significant cases to jury trial conclusion in
the federal courts in both the Northern and Southern Districts of West Virginia, and numerous
state courts.
Mr. Miller has significant experience with complex litigation before the West Virginia Mass
Litigation Panel and the Supreme Court of Appeals of West Virginia. Mr. Miller typically
represents clients in the oil and gas industry. Mr. Miller has also represented electric utilities,
natural gas utilities, exploration and production companies, as well as land and timber owners
and operators. Mr. Miller completed the West Virginia State Board Basic Mediation Training.
Mr. Miller has served as arbitrator and counsel in arbitration.
Mr. Miller earned both his undergraduate and law degrees from West Virginia University.
Charles F.W. Saffer is a Member of Robinson & McElwee PLLC where he has practiced since
1998. Mr. Saffer is an experienced real estate attorney, who has handled numerous complex
transactions and has litigated business and real property issues in courts throughout West
Virginia. He currently maintains an extensive title research and analysis practice throughout
West Virginia for several natural gas exploration and production companies. This practice
includes analysis of fee and leasehold titles, including issues arising from deed reservations, tax
sales and intestate succession. Mr. Saffer also represents commercial property owners and
tenants in leasing and development matters.
Mr. Saffer earned both his undergraduate and law degrees from West Virginia University.
PRESENTATION OUTLINE
12:00 p.m. to 12:20 p.m. (Charles F.W. Saffer)
I.
Robinson Township et al. v. Commonwealth of Pennsylvania et al.
A. Enactment of Act 13
B. Constitutional Challenges to Act 13 in Commonwealth Court
C. Commonwealth Court ruling
D. Discussion of Pennsylvania Supreme Court Opinion
E. Where do we go from here?
12:20 p.m. to 12:40 p.m. (Timothy M. Miller)
II.
Cain v. XTO Energy, Inc.
A
Background Facts
B
Plaintiff’s Complaint
C
Procedural History and Disposition of Case
D
Issues Raised: Was XTO a “trespasser” and if so what were the appropriate
damages?
12:40 p.m. to 1:00 p.m. (Charles F.W. Saffer)
III.
EQT Production Company v. Doddridge County Commission
A
Floodplain Regulations Generally
B
Procedural History
C
Disposition of Case
D
Discussion of Current Doddridge County Floodplain Ordinance and procedures
thereunder
1:00 p.m. Adjourn