Teel et al v. Chesapeake Appalachia, LLC
Filing
72
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION TO STRIKE, DENYING MOTIONS IN LIMINE AND APPROVING THE PARTIES' JOINT STIPULATION OF DISMISSAL: granting in part and denying in part 44 Motion for Summary Judgment; denying 46 Motion for Partial Summary Judgment; denying 49 Motion to Strike ; denying Motions in Limine 55 , 56 , 57 , 58 , 59 , 60 , 61 ; Stipulation of Dismissal 71 is approved. Clerk directed to enter judgment in this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 10/25/2012. (copy to counsel of record via CM/ECF)(rjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DEWEY and GAY TEEL,
Plaintiffs,
v.
Civil Action No. 5:11CV5
(STAMP)
CHESAPEAKE APPALACHIA, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT,
GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT,
DENYING DEFENDANT’S MOTION TO STRIKE,
DENYING MOTIONS IN LIMINE AND
APPROVING THE PARTIES’ JOINT STIPULATION OF DISMISSAL
I.
Procedural History
The plaintiffs, Dewey and Gay Teel, commenced this civil
action in the Circuit Court for Wetzel County, West Virginia based
on allegations that the defendant, Chesapeake Appalachia, LLC
(“Chesapeake”),
physically
intruded
and
caused
damage
to
plaintiffs’ land by depositing drilling waste and other material in
pits on plaintiffs’ property.
In their complaint, the plaintiffs
make claims of nuisance, trespass, negligence, strict liability,
intentional
infliction
infliction
of
emotional
of
emotional
distress.
distress,
The
and
plaintiffs
negligent
seek
both
monetary relief and injunctive relief, including the removal of the
waste
and
the
remediation
of
the
contaminated
areas
of
the
plaintiffs’
property.
Based
on
diversity
jurisdiction,
the
defendant removed this action to federal court.
Thereafter, the plaintiffs and the defendant filed motions for
partial summary judgment.
The defendant makes two arguments in
support of its motion for summary judgment, arguing: (1) the
plaintiffs, as a matter of law, do not have common law trespass
claims; and (2) the plaintiffs’ claims for damages may not exceed
fair market value of their damaged property.
In the plaintiffs’ motion for partial summary judgment, the
Teels seek summary judgment only as to their claim of common law
trespass.
In support of the motion, the plaintiffs argue: (1) the
defendant is strictly limited to those acts reasonably necessary to
the extraction of its minerals and acts unnecessary to extraction
are trespass; (2) mineral law widely recognizes that a mineral
owner’s permanent waste disposal or purely optional occupation of
surface owner’s property is a trespass; (3) the defendant disposed
of hundreds of barrels of drilling waste in pits it created on the
plaintiffs’ property, even though it has avoided using pits for
years in many operations for reasons of safety, sanitation, surface
disturbance
prevention,
and
structural
stability;
and
(4)
plaintiffs are entitled to injunctive relief.
Both parties filed responses to the motions for partial
summary judgment.
In their response to the defendant’s motion for
partial summary judgment, the plaintiffs argue: (1) the defendant’s
2
West Virginia Department of Environmental Protection (“WVDEP”)
permit does not insulate the defendant from common law liability;
(2) the defendant’s waste disposal was not necessary to mineral
extraction and thus, the plaintiffs’ common law claims are not
precluded; and (3) injunctive relief is proper because monetary
damages are not adequate.
The defendant filed both a response to the plaintiffs’ motion
for partial summary judgment and a motion to strike plaintiffs’
motion for partial summary judgment.
In the defendant’s response,
Chesapeake reiterates the arguments made in its motion for partial
summary judgment.
Thus, again it argues: (1) the plaintiffs, as a
matter of law, do not have common law trespass claims; and (2) the
plaintiffs’ claims for damages may not exceed fair market value of
their damaged property. In the motion to strike plaintiffs’ motion
for partial summary judgment, the defendant argues that based on
this Court’s ruling in Whiteman v. Chesapeake, No. 5:11CV3, 2012
U.S. Dist. LEXIS 78876 (N.D. W. Va. June 7, 2012), the Court should
strike plaintiffs’ motion for partial summary judgment as this
Court already determined that common law trespass is not an
available remedy for the activity at issue in this case.
The
defendant also takes issue with an affidavit included in the
plaintiffs’ motion for partial summary judgment, arguing that the
submission was not only procedurally improper but also factually
incorrect.
3
The parties then both filed replies in support of their
partial motions for summary judgment and the plaintiffs also filed
a response to the defendant’s motion to strike.
In plaintiffs’
response to the defendant’s motion to strike, the Teels argue that
the affidavit was not procedurally nor factually incorrect.
so,
the
plaintiffs
argue
this
Court
should
not
strike
Even
the
plaintiffs’ entire motion based on the affidavit, but rather the
Court may disregard the affidavit without striking the entire
motion.
In the reply, the plaintiffs reiterate the arguments
presented in their response to defendant’s motion for partial
summary judgment.
The defendant argues in its reply: (1) Chesapeake obtained
broad rights to use the property through the severance deed and
lease and the WVDEP permit recognizes that its actions were
reasonable and necessary and thus it did not commit a trespass; and
(2) the plaintiffs’ damages may not exceed the fair market value of
the damaged property and the Court is not bound to award injunctive
relief in this situation.
Thereafter, the parties submitted a joint motion to continue
the trial and amend the scheduling order.
In this motion, the
parties agreed that if this Court ruled on the summary judgment
motions in accordance with its recent opinion in Whiteman, and thus
grants the defendant’s motion for summary judgment on the trespass
claim, the plaintiffs will voluntarily stipulate to a dismissal
4
regarding all other claims.
Plaintiffs then may file an appeal of
the Court’s ruling regarding the trespass claim.
Following a
status conference concerning the joint motion, the undersigned
judge issued tentative rulings on the motions for summary judgment
and the matters raised by the joint motion. The parties thereafter
filed a joint stipulation agreeing to the dismissal of all claims
except the plaintiffs’ trespass claim.
This Court approves the
parties’ stipulation of dismissal as to those claims.
Thus, the
only claim left for this Court to resolve in the present action is
the plaintiffs’ trespass claim. For the reasons stated below, this
Court finds that defendant’s motion for partial summary judgment is
granted in part as to the portion relating to plaintiffs’ trespass
claim
and
denied
in
part
as
to
the
portion
limitation of damages, as this matter is moot.
concerning
the
Due to this Court
granting defendant’s motion for summary judgment as to plaintiffs’
trespass
claim,
the
plaintiffs’
motion
for
partial
summary
judgment, defendant’s motion to strike, and all motions in limine
are denied as moot.
II.
Facts
The Teels own the surface of approximately 104 acres of land
in Wetzel County, West Virginia, known as Blake Ridge.
live
on
this
livestock.
land
together
with
their
two
sons,
The Teels
pets,
and
In 1959, the then owner of Blake Ridge entered into a
severance deed that split the surface estate and the mineral
5
estate.
Consequently, the Teels own only the surface rights to
Blake Ridge.
Chesapeake began its natural gas drilling operations on the
Teels’ property in 2008 pursuant to a third party lease agreement.
At that time, Gay Teel and her siblings owned the surface rights;
it was not until 2009, that Dewey and Gay Teel became the joint
owners of Blake Ridge.
The plaintiffs nor their predecessors
leased mineral rights to Chesapeake, but instead, Chesapeake’s
rights flow entirely from its lease with a third party, whose
rights flow entirely from the 1959 deed severing the mineral
rights.
There is, however, no dispute that Chesapeake currently
owns the mineral rights underlying plaintiffs’ land.
When Chesapeake started its operations on Blake Ridge, it
cleared and graded five acres of land where it installed two
natural gas wells and constructed two pits for waste disposal.
Chesapeake
obtained
construction.
the
required
ECF No. 44 Ex. 2.
WVDEP
permits
for
such
According to the plaintiffs,
Chesapeake deposited large volumes of drill cuttings,1 mud, and
chemical additives from their operations into one of the pits. The
Teels allege that the pit was originally lined with a plastic
liner.
However, Chesapeake ruptured the lining and eventually
removed it.
Thereafter, Chesapeake did not remove the residual
1
Drill cuttings are pieces of rock and earth
dislodged by the drill as it creates a bore hole.
6
that
are
waste from the pit but instead, covered the pit containing the
waste with soil from the plaintiffs’ property. The Teels’ property
remains
in
this
condition
today.
The
Teels
allege
that
Chesapeake’s waste disposal actions damaged their property value
and will likely cause harm to the plaintiffs’ persons and property.
III.
Applicable Law
Under Rule 56(c) of the Federal Rules of Civil Procedure,
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in
the record, including depositions, documents,
electronically stored information, affidavits
or
declarations,
stipulations
.
.
.
admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.
Fed. R. Civ. P. 56(c).
The party seeking summary judgment bears
the initial burden of showing the absence of any genuine issues of
material fact.
(1986).
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
“The burden then shifts to the nonmoving party to come
forward with facts sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm’rs, 945 F.2d 716, 718-19 (4th Cir.
1991), cert. denied, 502 U.S. 1095 (1992) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). However, as the
United States Supreme Court noted in Anderson, “Rule 56(e) itself
provides that a party opposing a properly supported motion for
7
summary judgment may not rest upon the mere allegation or denials
of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.”
Id. at 256.
“The inquiry
performed is the threshold inquiry of determining whether there is
the need for a trial -- whether, in other words, there are any
genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of
either party.”
Id. at 250; see also Charbonnages de France v.
Smith, 597 F.2d 406, 414 (4th Cir. 1979)(stating that summary
judgment “should be granted only in those cases where it is
perfectly clear that no issue of fact is involved and inquiry into
the facts is not desirable to clarify the application of the law.”
(citing Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th
Cir. 1950))).
In Celotex, the Court stated that “the plain language of Rule
56(c) mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to make a
showing
sufficient
to
establish
the
existence
of
an
element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex, 477 U.S. at 322.
Summary
judgment is not appropriate until after the non-moving party has
had sufficient opportunity for discovery.
See Oksanen v. Page
Mem’l Hosp., 912 F.2d 73, 78 (4th Cir. 1990), cert. denied, 502
U.S. 1074 (1992). In reviewing the supported underlying facts, all
8
inferences must be viewed in the light most favorable to the party
opposing the motion.
See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
IV.
Discussion
As both parties acknowledge “[i]t is well settled in West
Virginia that one who owns subsurface rights to a parcel of
property has the right to use the surface of the land in such a
manner and with such means as would be fairly necessary for the
enjoyment of the subsurface estate.”
Depeterdy v. Cabot Oil & Gas
Corp., No. CA-97-966-2, 1999 WL 33229744, at *2 (S.D. W. Va. Sept.
13, 1999) (citing Squires v. Lafferty, 121 S.E. 90, 91 (W. Va.
1924)).
The West Virginia Supreme Court of Appeals has held that
the issue of unreasonable use is one to be determined by the court.
[W]e do not think that whether the plaintiff’s rights
have been invaded, or whether the defendant has exceed
its rights are questions of fact for determination of the
jury. In a case where there is a dispute of fact, the
jury should find the facts, and from such finding of
facts by the jury it is the duty of the court to
determine whether the use of the surface by the owner of
the minerals has exceeded the fairly necessary use
thereof, and whether the owner of the minerals has
invaded the rights of the surface owner, and thus
exceeded the rights possessed by the owner of such
minerals.
Adkins v. United Fuel Gas Co., 61 S.E.2d 633, 724 (W. Va. 1950).
The United States Court of Appeals for the Fourth Circuit has
confirmed that the rule of Adkins is binding on a federal court
sitting in diversity. Justice v. Pennzoil Co., 598 F.2d 1339, 1343
(4th Cir. 1979) (“The court will then determine as a matter of law
9
whether Pennzoil has exceeded its right to fairly and reasonably
use the surface for enjoyment of its mineral estate.”). Thus, this
Court must determine whether Chesapeake’s use of the plaintiffs’
land was fairly necessary to the extraction of the natural resource
under the circumstances.
This
Court
must
begin
its
determination
of
whether
Chesapeake’s use of the plaintiffs’ land was fairly necessary to
the extraction of gas by examining the instrument through which
Chesapeake derived the subsurface rights.
As stated above, the
plaintiffs do not own the subsurface rights due to a severance deed
entered into in 1959 by the previous owners of Blake Ridge.
Chesapeake’s subsurface rights, which are the result of a lease,
flow from that severance deed.
reservation
of
the
oil
and
The severance deed contains a
gas
rights
for
the
then
owners.
Specifically the severance deed provides:
There is reserved from this conveyance all of the oil and
gas within the underlying said real estate herein
conveyed, along with all leasing rights and also along
with all rights in mining or producing said oil and gas.
ECF No. 46 Ex. 2 (emphasis added).
The later lease between the
owners of the reservation and The Manufacturers Light and Heat
Company (“Light and Heat Co.”), which was entered into in 1963
provides the Light and Heat Co. with
“the exclusive right to enter upon the [land] to drill,
maintain and operate new wells and to recondition,
reopen, operate and maintain all existing and abandoned
wells located thereon for the production of oil and gas
. . . and all other rights and privileges necessary,
10
incident to, or convenient for the operation of the above
described tract . . . .”
ECF No. 44 Ex. 1.
Clearly, the reservation and the later lease do
not provide Chesapeake with the explicit right to construct waste
pits or dispose of drill cuttings and other materials within those
pits.
The only rights Chesapeake is able to claim it has are
rights that are implied in those documents for the mining or
producing of the oil and gas.
Furthermore, as mentioned above,
those rights must still be considered fairly necessary for the
extraction of the minerals.
As this Court explained in Whiteman, although there are cases
that provide some insight as to what surface use rights will be
implied
in
situations
similar
to
this,
no
case
specifically
discusses the construction and use of pits for drill cuttings and
other materials.
See Buffalo Mining Co. v. Martin, 267 S.E.2d 721
(W. Va. 1980) (construing language in a mineral severance deed to
allow by implication a surface easement for an electric line for
the ventilation of a coal mine); Creasey v. Pyramid Coal Corp., 61
N.E.2d 477 (Ind. 1945) (interpreting the broad terms in a grant of
mining rights to allow for the installation of a high-voltage
electric transmission pole line); Trivette v. Consolidation Coal
Co., 177 S.W.2d 868 (Ky. 1944) (finding that where a deed of
minerals and mining rights conferred the right to use the surface
for the enjoyment of rights conveyed and to erect necessary
equipment, the right to construct a power line was authorized
11
though not literally expressed); Flannery v. Utilities Elk Horn
Coal Co., 138 S.W.2d 988 (Ky. 1940) (finding that a provision in
the
mineral
construction
deed
and
giving
operation
the
of
grantees
tramroads
an
easement
deemed
for
the
necessary
and
convenient in mining operations, included the right to construct
telephone and transmission lines on the right of way of their
tramroad, though not specifically mentioned in the deed).
This
Court acknowledges that:
[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
Co.,
267
S.E.2d
at
725-26.
Therefore,
in
determining whether these rights are in fact implied, this Court
must not only look to whether the construction and use of the pits
is fairly or reasonably necessary, but also this Court must look at
whether the pits substantially burden the surface owner.
To determine whether such rights were implied, this Court in
Whiteman began by first looking at whether such actions were
contemplated by the West Virginia Code and the regulations of the
WVDEP.
The WVDEP permits were issued to the defendant pursuant to
Chapter 22 of the West Virginia Code.
12
Chapter 22 sets forth
reclamation
requirements
that
concern
pits
containing
drill
cuttings, stating that “[w]ithin six months after the completion of
the drilling process, the operator shall fill all the pits for
containing muds, cuttings, salt water and oil that are not needed
for production purposes, or are not required or allowed by state or
federal law or rule . . .”
W. Va. Code § 22-6-30(a).
Thus,
Chesapeake’s decision to fill the pits on the Teels’ property was
an act contemplated by West Virginia law.
The plaintiffs are
correct in stating that permits do not provide immunizations from
common law standards.
FPL Farming Ltd. v. Envtl. Processing Sys.,
L.C., 351 S.W.3d 306, 310 (Tex. 2011); see Moundsville Water Co v.
Moundsville Sand Co., 19 S.E.2d 217, 220 (finding that a party’s
permit from the War Department did nothing to neutralize the
trespass).
However, the WVDEP permits can, as they do in this
case, serve to inform this Court of the practices of the oil and
gas industry in West Virginia.2
2
On December 14, 2011, the West Virginia Natural Gas
Horizontal Well Control Act (“Horizontal Well Act”), W. Va. Code
§ 22-6A-1 et seq., which was enacted to more adequately address the
new technologies and practices for conventional oil and gas
operations, became effective. The Horizontal Well Act states, in
part: “In some instances [the practice of drilling for natural gas
contained in underground shales and other geologic formations] may
require the construction of large impoundments or pits for the
storage of water or wastewater.” W. Va. Code. § 22-6A-2(a)(3). A
“pit” is defined as “a man-made excavation or diked area that
contains or is intended to contain an accumulation of process waste
fluids, drill cuttings or any other liquid substance generated in
the development of a horizontal well and which could impact surface
or groundwater.” W. Va. Code § 22-6A-4(b)(10). The Horizontal
Well Act also discusses the certificate of approval required for
13
West Virginia also promulgated regulations and rules governing
horizontal well development. The West Virginia Code of State Rules
provides that “[a]ll drill cuttings and associated drilling mud
generated from well sites . . . shall be disposed of in an approved
solid waste facility or managed on-site in a manner otherwise
approved by the Secretary.”
including
drill
cuttings,
35 C.S.R. § 8-4.3.
can
be
disposed
of
Drilling waste,
into
pits
and
subsequently buried, pursuant to the reclamation plan described in
35 C.S.R. § 4-16.4.
Although the plaintiffs stated that it is no
longer Chesapeake’s practice, at least in West Virginia, to place
drill cuttings on-site, there is no law to suggest that the West
Virginia legislature has banned on-site pits from use.
The
discussion of pits and impoundments in the statutes, rules, and
regulations governing the exploration, drilling, storage, and
production of oil and natural gas, suggests that the creation of
the pits on the Teels’ property was necessary and reasonable.
Earlier this year, the United States District Court for the
District of North Dakota decided a case that is factually similar
to the case before this Court.
In Kartch v. EOG Res., Inc., No.
large pits or impoundment construction and provides that if a pit
is to be constructed, notice must be provided to property owners.
W. Va. Code §§ 22-6A-9 and 22-6A-10. Moreover, the Horizontal Well
Act sets forth reclamation requirements for all pits and
impoundments. W. Va. Code § 22-6A-14. Although the Horizontal
Well Act was enacted after the pits were constructed on the Teels’
property, it serves to show that the practice of using pits to
collect drill cuttings is one that is still recognized and
regulated by West Virginia law.
14
4:10-cv-014, 2012 WL 661978 (D. N.D. Feb. 29, 2012), the plaintiffs
alleged that the liner and waste remaining in a reserve pit created
in connection with a drilling operation constituted a trespass and
caused unnecessary damage to the surface estate.
Id. at *3.
In
response to the plaintiffs’ allegations, defendant EOG Resources,
Inc. (“EOG”) argued that it is entitled to use a reserve pit as a
matter of law because the North Dakota Industrial Commission
regulates and permits reserve pit use.
Id.
In the alternative,
EOG argued that if common law principles apply, the use of a
reserve pit is reasonable and within EOG’s rights as the dominant
estate owner.
Id.
Before discussing the reasonableness of the
reserve pit, the Kartch court first noted:
Whether the express uses are set out or not, the mere
granting of the lease creates and vests in the lessee the
dominant estate in the surface of the land for the
purposes of the lease; by implication it grants the
lessee the use of the surface to the extent necessary to
a full enjoyment of the grant.
Id. at *6 (quoting Texaco, Inc. v. Faris, 413 S.W.2d 147, 149 (Tex.
1967)).
In addressing EOG’s contention that its use of a reserve
pit
not
is
unreasonable
because
the
North
Dakota
Industrial
Commission permits and regulates their use, the court stated
“compliance with a rule or statute is evidence of reasonableness,
but it is not dispositive as to an activity’s reasonableness.” Id.
at *8 (“Accordingly, the fact that the North Dakota Industrial
Commission’s rules permit the use of a reserve pit is evidence that
15
EOG’s use of a reserve pit, rather than a closed-loop system,3 is
reasonable but is not dispositive.”).
Turning to the reasonableness of the reserve pit, the Kartch
court
rejected
the
plaintiffs’
argument
that
the
pit
was
unreasonable given the alternative of a closed-loop system, finding
that “the existence of an alternative is not sufficient to render
the developer’s use of the land unreasonable.”
Id. at *10.
The
Kartch court held that at the time when EOG drilled and reclaimed
the well, reserve pits, rather than closed-loop systems, were
commonly used in North Dakota.
Id.
Therefore, the court found as
a
use
of
matter
of
law
that
EGO’s
a
reserve
pit
was
not
unreasonable.
Id.
Additionally, the court held that “the burying
of waste and the use of a synthetic liner in a reserve pit does not
constitute a trespass under North Dakota law.”4
Id. at *20.
Recently, this Court decided a case that is also factually
similar to this case.
In Whiteman v. Chesapeake Appalachia, LLC.,
No. 5:11CV31, 2012 U.S. Dist. LEXIS 78876 (N.D. W. Va. June 7,
2012), the plaintiffs, like the plaintiffs in Kartch, argued that
3
A closed-loop system is one in which there is no on-site
disposal of any waste produced or created during the drilling,
completion or other operations phrase associated with the well.
See Bottrell Dep. 48:14-24 (stating that in a closed-loop system,
there is no pit dug).
4
The court did, however, allow the parties to conduct limited
discovery regarding the effects of the reserve pit, the tear in the
liner, and any potential resulting contamination. Kartch, 2012 WL
661978, at *20.
16
the use of the pits was unreasonable because the closed-loop system
existed as an alternative. Id. at *24. The plaintiffs in Whiteman
also argued that the disposal of residual industrial waste on a
surface owner’s land is trespass.
Id. at *24-25.
In support of
this argument, the plaintiffs cited to case law that did not
discuss drill cutting pits created in connection with natural gas
wells, but rather dealt with other minerals and practices.
Id.
After examining the West Virginia statutes, rules, and regulations
and also examining the Kartch case, this Court found that the
placement of drill cuttings in pits on the plaintiffs’ property was
suitable and reasonable to the natural gas operation.
Id. at *25.
Specifically, this Court said, “the mere fact that Chesapeake
eventually migrated to a closed-loop system does not render its
prior use of pits unreasonable, especially given the West Virginia
law currently in place regulating the use of the pits.”
Id. at
*26.
The Teels argue, like the plaintiffs in Whiteman and Kartch,
that
because
the
alternative
closed-loop
system
defendant’s use of the pits was unreasonable.
existed,
the
Moreover, like the
plaintiffs in Whiteman, the Teels argue that disposal of residual
industrial waste on a surface owner’s land is trespass by citing
cases law that did not discuss drill cutting pits created in
connection with natural gas wells but rather dealt with other
minerals and practices.
See Phillips v. Sipsey Coal Mining Co.,
17
118 So. 513, 530-31 (Ala. 1928) (stating that in the absence of an
agreement, express or implied, the lessee of a coal mine has no
right to dump upon the surface of the leased premises slate and
refuse taken from adjoining land not owned by the lessor); Marvin
v. The Brewster Iron Mining Co., 1874 WL 11019, at *4 (N.Y. Jan.
27, 1874) (finding that the defendant had no right to keep on the
plaintiff’s land any ore, refuse, rubbish, barn, stable, blacksmith
shop, or other building); Hooper v. Dora Coal Mining Co., 10 So.
652, 654 (Ala. 1892) (holding that the frequent and continuous
deposit of vast quantities of slate on lands valuable and used for
agricultural purposes, and the emptying of foul or filthy water
pumped from the mines, deteriorates the value and usefulness of the
land and permanently injures its future use and enjoyment).
While
this Court is sympathetic to the Teels’ concerns about their
surface
property,
this
Court
finds
no
consequential
factual
difference between this case and the Whiteman case that would alter
the Court’s findings regarding the use of pits in natural gas
operations.
Thus, this Court finds like in Whiteman, that based
upon West Virginia law and the facts in this case, plaintiffs’
trespass claim fails, and the plaintiffs’ motion for partial
summary judgment must be denied.5
5
To the extent the defendant’s
Because this Court finds that Chesapeake’s use of pits for
drill cuttings on the plaintiffs’ land is not a trespass, there is
no need to address the question of whether the plaintiffs are
entitled to injunctive relief.
18
motion for summary judgment argues that the pits do not constitute
trespass, it is granted.6
V.
Conclusion
For the above stated reasons, plaintiffs’ motion for partial
summary judgment (ECF No. 46) is DENIED, defendant’s motion for
partial summary judgment (ECF No. 44) is GRANTED IN PART and DENIED
IN PART, defendant’s motion to strike (ECF No. 49) is DENIED, all
motions in limine (ECF Nos. 55, 56, 57, 58, 59, 60, and 61) are
DENIED, and the parties’ joint stipulation of dismissal (ECF No.
71) is APPROVED.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:
October 25, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
6
Defendant’s other argument in its partial motion for summary
judgment regarding the amount of damages plaintiffs may seek is
denied as moot because this Court found that the plaintiffs’
trespass claim fails and plaintiffs stipulated to the dismissal of
all other remaining claims. Thus, damages are no longer at issue.
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