EFiled: Jan 15 2016 04:23PM EST Transaction ID 58437703 IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA IN RE: MARCELLUS SHALE LITIGATION CIVIL ACTION NO. 14-C-3000 THIS DOCUMENT APPLIES TO MULTIPLE CASES: ROBERT ANDREWS, et al. v. Antero, et al. RODNEY ASHCRAFT, et al. v. Antero, et al. LINDSEY FEATHERS v. Antero, et al. ROBERT GOLDEN, et al. v. Antero, et al. DANIEL KINNEY, et al. v. Antero, et al. CHARLES A. MAZER v. Antero, et al. CHARLES T. MAZER v. Antero, et al. DOUGLAS MAZER, et al. v. Antero, et al. SHAWN MAZER v. Antero, et al. SUSAN MAZER v. Antero, et al. GREGG MCWILLIAMS, et al. v. Antero, et al. DAVID NUTT v. Antero, et al. ROBERT SIDERS, et al. v. Antero, et al. 13-C-434 HRR ANDREWS RL 13-C-434 HRR ASHCRAFT R 13-C-434 HRR FEATHERS LN 13-C-434 HRR GOLDEN R 13-C-434 HRR KINNEY DL 13-C-434 HRR MAZER CA 13-C-434 HRR MAZER CT 13-C-434 HRR MAZER DA 13-C-434 HRR MAZER SA 13-C-434 HRR MAZER SJ 13-C-434 HRR MCWILLIAMS G 13-C-434 HRR NUTT DS 13-C-434 HRR SIDERS R MEMORANDUM OF LAW IN SUPPORT OF ANTERO RESOURCES CORPORATION’S MOTION FOR SUMMARY JUDGMENT Table of Contents Table of Authorities .......................................................................................................................... iii I. INTRODUCTION ................................................................................................................ 1 II. STATEMENT OF MATERIAL FACTS AND PROCEDURAL HISTORY ....................... 4 III. A. Statement of Material Facts ....................................................................................... 4 B. Procedural History ..................................................................................................... 7 LEGAL ANALYSIS ............................................................................................................. 7 A. Summary Judgment Is Proper Where There Exists No Genuine Issue Of Material Fact Triable To A Jury. .............................................................................................. 7 B. Plaintiffs’ Negligence Claim Fails As A Matter Of Law. ......................................... 8 1. 2. C. Plaintiffs Cannot Establish Causation. ........................................................... 9 a. Plaintiffs’ Expert Witnesses Cannot Establish Water Contamination. ...................................................................................12 b. Plaintiffs’ Expert Witnesses Cannot Establish Soil Contamination. .15 c. Plaintiffs’ Expert Witnesses Cannot Establish Air Contamination. ..15 Plaintiffs Do Not Claim Any Recoverable Damages. ...................................18 Plaintiffs’ Nuisance Claim Fails As A Matter Of Law. ............................................20 1. As a Matter of Law, the Alleged Nuisance of Which Plaintiffs Complain Is A Permanent Nuisance—Not a Temporary Nuisance—and Plaintiffs’ Claims Are Barred By the Statute of Limitations. .........................................20 2. Antero Has Not Substantially and Unreasonably Interfered With Plaintiffs’ Use And Enjoyment Of The Land. ................................................................23 a. Antero’s Use of Plaintiffs’ Land Is Reasonable Because The Balancing Test Weighs In Favor of Antero As West Virginia’s Public Policy Supports Mineral Development. ..................................26 b. Antero’s Use of Plaintiffs’ Land is Reasonable Because It Has The Right To Develop Its Minerals Through Reasonable Use Of the Surface. ..............................................................................................30 i D. c. Antero’s Use of Plaintiffs’ Land Is Reasonable Because It Has Express Contractual Rights To Conduct Activities on Plaintiffs’ Property. ............................................................................................33 d. Any Interference By Antero Has Not Been Substantial. ...................38 3. Alleged Use Of Vulgar Language Or Gestures Cannot Form The Basis of A Private Nuisance Claim. .............................................................................48 4. Antero’s Activities on the Public Roads Cannot Form The Basis For A Private Nuisance Claim..................................................................................49 5. Fear of Possible Future Conditions Is Not A Compensable Claim. ..............53 Antero Is Not Liable For Acts Or Omissions Of Its Independent Contractors. .........55 1. Antero Hired Independent Contractors To Perform Trucking and Drilling Operations And Did Not Control Their Activities. ........................................56 2. The Work Antero Employed the Independent Contractors To Perform Could Not Foreseeably Result In A Nuisance. ..............................................57 E. IV. Plaintiffs’ Punitive Damages Claim Fails As A Matter of Law. ...............................59 CONCLUSION ......................................................................................................................60 ii Table of Authorities West Virginia Cases Angelucci v. Fairmont Gen. Hosp., Inc., 217 W. Va. 364, 618 S.E.2d 373 (2005) ..................................................................................... 7 Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012) ............................................................................. 24, 49 Booker v. Foose, 216 W. Va. 727, 613 S.E.2d 94 (2005) ............................................................................... 24, 49 Carter v. Monsanto Co., 212 W. Va. 732, 575 S.E.2d 342 (2002) ................................................................. 24, 38, 53, 54 Cookman Realty Grp., Inc. v. Taylor, 211 W. Va. 407, 566 S.E.2d 294 (2002) ................................................................................... 23 Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962) ................................................................................... 33 Duff v. Morgantown Energy Assoc. (M.E.A.), 187 W. Va. 712, 421 S.E.2d 253 (1992) ............................................................................. 25, 50 Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991) ................................................................................... 59 Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995) ..................................................................................... 8 Guinn v. Ohio River R. Co., 46 W. Va. 151, 33 S.E. 87 (1899) ....................................................................................... 20, 21 Guthrie v. Nw. Mut. Life Ins. Co., 158 W. Va. 1, 208 S.E.2d 60 (1974) ........................................................................................... 8 Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 34 S.E.2d 348 (1945) ..................................................................................... 49 Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994) ..................................................................................... 7 Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992) ................................................................................... 18 Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989) .............................................................................. passim Huffman v. Criner, 218 W. Va. 197, 624 S.E.2d 544 (2005) ..................................................................................... 9 Johnson v. Mays, 191 W. Va. 628, 447 S.E.2d 563 (1994) ..................................................................................... 9 Johnson v. W. Va. Univ. Hosp., Inc., 186 W. Va. 648, 413 S.E.2d 889 (1991) ................................................................................... 18 Keene v. City of Huntington, 79 W. Va. 713, 92 S.E. 119 (1917) ........................................................................................... 20 Keesecker v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997) ..................................................................................... 9 Law v. Phillips, 136 W. Va. 761, 68 S.E.2d 452 (1952) ..................................................................................... 55 Martin v. Hamblet, 230 W. Va. 183, 737 S.E.2d 80 (2012) .................................................................................... 31 iii Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895) ............................................................................................. 60 McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (1965) ................................................................................... 10 McCullough Oil, Inc. v. Rezek, 176 W. Va. 638, 346 S.E.2d 788 (1986) ............................................................................. 31, 33 McGregor v. Camden, 47 W. Va. 193, 34 S.E. 936 (1899) ..................................................................................... 26, 28 Monteleone v. Co-Operative Transit Co., 128 W Va. 340, 36 S.E.2d 475 (1945) ...................................................................................... 18 Montgomery v. Economy Fuel Co., 61 W. Va. 620, 57 S.E. 137 (1907) ........................................................................................... 30 Myers v. Workmen’s Compensation Commissioner, 150 W. Va. 563, 148 S.E.2d 664 (1966) ................................................................................... 56 Oresta v. Romano Bros., Inc., 137 W. Va. 633, 73 S.E.2d 622 (1952) ..................................................................................... 18 Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990) ................................................................................... 56 Peneschi v. Nat’l Steel Corp., 170 W. Va. 511, 295 S.E.2d 1 (1982) ....................................................................................... 55 Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010) ................................................................................... 59 Pope v. Bridgewater Gas Co., 52 W. Va. 252, 43 S.E. 87, 88 (1903) ....................................................................................... 26 Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804, 12 S.E. 1085 (1891) ......................................................................................... 40 Quintain Dev., LLC v. Columbia Nat. Res., Inc., 210 W. Va. 128, 556 S.E.2d 95 (2001) ..................................................................................... 38 Sanders v. Roselawn Mem’l Gardens, Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968) ............................................................................... 24, 26 Severt v. Beckley Coals, Inc., 153 W. Va. 600, 170 S.E.2d 577 (1969) ................................................................................... 20 Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999) ............................................................................. 55, 56 Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924) ........................................................................................... 30 State v. Philippi, 136 W. Va. 120, 65 S.E.2d 713 (1951) ..................................................................................... 40 Strahin v. Cleavenger, 216 W. Va. 175, 603 S.E.2d 197 (2004) ..................................................................................... 8 Tanner v. Rite Aid, Inc., 194 W. Va. 643, 461 S.E.2d 149 (1995) ................................................................................... 10 Taylor v. Culloden Pub. Serv. Dist., 214 W. Va. 639, 591 S.E.2d 197 (2003) ................................................................................... 20 Thomson v. McGinnis, 195 W. Va. 465, 465 S.E.2d 922 (1995) ................................................................................... 55 iv Tolley v. ACF Indus., Inc., 212 W. Va. 548, 575 S.E.2d 158 (2002) ......................................................................... 9, 10, 11 West v. Nat’l Mines Corp., 168 W. Va. 578, 285 S.E.2d 670 (1981) ............................................................................ passim Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995) ................................................................................... 7, 8 Federal Cases Adams v. Star Enterp., 51 F.3d 417 (4th Cir. 1995) ...................................................................................................... 53 Baker v. Chevron U.S.A., Inc., 533 Fed. Appx. 509 (6th Cir. 2013) .......................................................................................... 10 Darney v. Dragon Products Co., LLC, 771 F. Supp. 2d 91 (D. Me. 2011) ...................................................................................... 40, 46 Ely v. Cabot Oil Corp., 38 F. Supp. 3d 518, 529 (M.D. Pa. 2014) ................................................................................. 23 Gunther v. E.I. du Pont de Nemours & Co., 157 F. Supp. 25, 32 (N.D. W. Va. 1975) .................................................................................. 24 Hagy v. Equitable Prod. Co., No. 2:10-CV-01372, 2012 WL 2562856 (S.D. W. Va. June 29, 2012)............................. passim Justice v. Pennzoil Co., 598 F.2d 1339 (4th Cir. 1979) .................................................................................................. 31 Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-CV-1425, 2015 WL 1345235 (M.D. Pa. Mar. 25, 2015) .................................... 45, 58 Magers v. Chesapeake Appalachia, Civ. A. No. 5:12CV49, 2014 WL 4352084 (N.D. W. Va. Sept. 2, 2014) ............................ 9, 10 Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015) .................................................................................................... 53 Teel v. Chesapeake Appalachia, LLC, 906 F. Supp. 2d 519 (N.D. W. Va. Oct. 25, 2012) .................................................................. 31 White v. Dow Chem. Co., 321 Fed. Appx. 266 (4th Cir. 2009) ............................................................................................ 9 State Cases Banford v. Aldrich Chemical Co., Inc., 932 N.E.2d 313 (Ohio 2010)............................................................................................... 18, 53 Campbell v. Anderson, 866 S.W.2d 139, 143 (Mo. Ct. App. 1993)............................................................................... 20 Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 2014) ..................................................................................................... 20 Herring v. Wilton, 55 S.E. 546, 547 (Va. 1906)...................................................................................................... 40 Karpiak v. Russo, 676 A.2d 270 (Pa. 1996) ........................................................................................................... 45 National Energy Corp. v. O’Quinn, 286 S.E.2d 181, 182 (Va. 1982)................................................................................................ 24 Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 816 (Ca. 1993) ................................................................................................... 18 v Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) ..................................................................................................... 20 Totorella v. H. Traiser & Co., 188 N.E. 254, 256 (1933).......................................................................................................... 40 Valley Estates, Ltd. Partnership v. Pangle, 448 S.W.3d 235, 238 (Ark. App. 2014) .................................................................................... 20 Statutes W. Va. Code § 22-6 ...................................................................................................................... 32 W. Va. Code § 22-6A ............................................................................................................. 27, 32 W. Va. Code § 22-6B .................................................................................................................... 27 W. Va. Code § 55-12A-1 .............................................................................................................. 27 W. Va. Code § 5B-2H-2 ............................................................................................................... 27 Rules W. Va. R. Civ. P. 56(c) ................................................................................................................... 7 W. Va. R. Evid. 702(a) ................................................................................................................. 10 W. Va. Trial Court R. 6.04.............................................................................................................. 8 Other Sources 56 Am. Jur. Trials 369 (Originally published in 1995)................................................................. 18 58 Am. Jur. 2d Nuisances § 69 ..................................................................................................... 53 Restatement (Second) of Torts § 427B (1965) ............................................................................. 57 Restatement (Second) of Torts § 821F(c) (1979) ................................................................... 24, 38 Restatement (Second) of Torts § 827 (1979) .......................................................................... 25, 30 Restatement (Second) of Torts § 828 (1979) ................................................................................ 25 vi Defendant Antero Resources Corporation (“Antero”), by and through its counsel, pursuant to West Virginia Rule of Civil Procedure 56 and the Court’s Case Management Order, moves this Honorable Court for summary judgment in its favor. I. INTRODUCTION Plaintiffs have alleged negligence and private temporary nuisance against Antero arising from Antero’s oil and gas operations involving six (6) well pads in Harrison County, West Virginia. Summary judgment on both of these claims should be granted in favor of Antero because the undisputed evidence negates essential elements in each of Plaintiffs’ claims. In regard to Plaintiffs’ negligence claim, Plaintiffs cannot establish causation or requisite damages. Expert testimony is required to prove causation. Plaintiffs’ experts are unable to establish that Antero’s oil and gas activities caused water, soil, or air contamination nor can they link these activities to any alleged adverse impacts to Plaintiffs. Additionally, Plaintiffs do not claim either property damages or personal injury damages including medical conditions. Likewise, Plaintiffs’ private temporary nuisance claim fails as a matter of law. Plaintiffs’ claim is improperly pled as a temporary nuisance. Plaintiffs’ claims are properly characterized as an alleged permanent nuisance because Antero’s wells are permanent structures and will operate indefinitely. The statute of limitations for a permanent nuisance begins to run when the activity allegedly causing the nuisance began. In this case, the beginning event was the construction of each of the six well pads, the latest of which occurred more than two years prior to the filing of Plaintiffs’ Complaint. Therefore, all of Plaintiffs’ claims are barred by the statute of limitations as a matter of law. Even if the Court does not characterize Plaintiffs’ nuisance claims as an alleged permanent nuisance barred by the statute of limitations, Plaintiffs’ nuisance claims fail as a 1 matter of law because Antero has not substantially and unreasonably interfered with Plaintiffs’ use and enjoyment of their properties. First, West Virginia law requires that a balancing test be conducted to weigh the harm allegedly suffered by a plaintiff against the social value of the activity allegedly creating a nuisance. This balancing test weighs in favor of Antero because West Virginia’s public policy supports mineral development. Marcellus Shale development has brought significant benefits to West Virginia, and Antero’s operations in particular have benefited not only West Virginia, but Harrison County as well. Second, as a lessee of the minerals underlying Plaintiffs’ properties, Antero has the right to reasonable and necessary use of Plaintiffs’ properties to develop the underlying minerals. West Virginia law recognizes that a surface owner’s rights are subject to the mineral owner’s rights and that the surface owner does not have an unrestricted right to enjoyment of his property. Plaintiffs offer no expert testimony to show that Antero’s use of Plaintiffs’ surface property has exceeded what is reasonable and necessary to develop the minerals, or that less intrusive means exist. Antero has obtained and complied with applicable permits, and the State’s granting of, and Antero’s compliance with, these permits show that Antero’s use of Plaintiffs’ surface estates is necessary and reasonable to the development of Antero’s minerals. Therefore, pursuant to its status as lessee of the minerals underlying Plaintiffs’ properties and West Virginia law, Antero is entitled to the reasonable and necessary use of Plaintiffs’ property to develop its mineral estate, including the presence of noise, traffic, vibrations, dust, lights, and odors on or around Plaintiffs’ land. Third, Antero has executed various agreements with several Plaintiffs, or the owners of the properties on which Plaintiffs reside, entitling Antero to conduct activities upon Plaintiffs’ properties. These contracts include right of way agreements, road use agreements, oil 2 and gas leases, surface use agreements, tank pad agreements, and pipeline easements. Therefore, Antero has express contractual rights to utilize Plaintiffs’ properties, and no Plaintiffs have alleged that Antero has exceeded the scope of the rights granted pursuant to these contracts. Fourth, any interference by Antero has not been substantial or unreasonable. Plaintiffs’ primary complaints are about noise, traffic, vibrations, dust, lights, and odors. To constitute a private nuisance, any interference must rise above a slight inconvenience or a petty annoyance; it must be a real and appreciable invasion of their interests and substantially, unreasonably, and materially interfere with their enjoyment of their properties. Plaintiffs’ deposition testimonies reveal that any interference by Antero does not substantially, unreasonably, and materially interfere with their enjoyment of their properties or constitute a real and appreciable invasion of their interests. Fifth, any complaints regarding activities taking place on public roads cannot form the basis of a private nuisance claim. Plaintiffs complain of traffic delays, speeding, road damage, or being crowded off the road by passing trucks. These claims are an alleged public nuisance and are not properly brought by private plaintiffs unless a special injury can be shown. Plaintiffs make no such showing. Sixth, Antero is entitled to summary judgment on any nuisance claims based on alleged harassment, menacing, intimidating, disrespectful, arrogant, or obnoxious behavior. West Virginia law has clearly held that offensive language or behavior cannot form the basis of a nuisance claim. Seventh, Plaintiffs claim they fear future adverse effects as a result of Antero’s operations. This claim is not recognized by West Virginia law. Eighth, Antero is not liable for acts or omissions of its independent contractors. Antero did not possess the requisite control 3 over its independent contractors’ work to impute liability to Antero for any alleged negligent act or omission. Similarly, for the reasons summarized above, Antero did not know and reasonably would not have expected its independent contractors’ work to create the alleged nuisance. Therefore, Antero cannot be held liable for acts or omissions of its independent contractors. Finally, Plaintiffs’ punitive damages claim fails as a matter of law because Plaintiffs have no evidence that Antero acted with the requisite conduct necessary to support this claim or allow it to proceed to a jury. II. STATEMENT OF MATERIAL FACTS AND PROCEDURAL HISTORY A. Statement of Material Facts Antero is the owner of horizontal Marcellus Shale wells located on numerous well pads in Doddridge, Harrison, and Ritchie Counties, among others. Antero contracted with third parties, including Hall Drilling, LLC, for construction of the well pads and roads, well drilling, and completion and operation of the wells and gathering lines. Antero obtained and acted in accordance with valid permits and standard industry practices. Plaintiffs are a varied lot. Some plaintiffs entered into agreements with Antero allowing for surface use, road widening, or pipeline installation. See Section III.C.2.c, infra. Even though those Plaintiffs welcomed Antero’s activities, they now complain. Some Plaintiffs own their own properties, while others reside on family members’ properties. None of the Plaintiffs own the oil and gas underlying their property. Antero has leasehold rights to develop the oil and gas underlying the properties that are the subject of Plaintiffs’ complaint. See Section III.C.2.b, infra. Many Plaintiffs are related (i.e., family members). Before and after Plaintiffs filed suit, Antero responded to requests and complaints by Plaintiffs and conducted a variety of activities to address the complaints received. Many 4 Plaintiffs conceded during their depositions that when they complained about property damages or dusty roads, Antero addressed the complaints and remedied the issue. Antero made payments to some Plaintiffs for claims including alleged damages to real and personal property. Some Plaintiffs previously executed releases for problems they attributed to drilling activities for which Antero made payments. In some instances, Antero made payments for claimed damages that were clearly not caused by Antero’s activities. Plaintiffs admit they have no property damage claims or physical injury claims. See Section III.B.2, infra. Plaintiffs’ primary claims relate to noise, traffic, vibrations, dust, lights, and odors. Plaintiffs offer no expert witness testimony establishing causation for any alleged injuries. Plaintiffs allege they are “afraid” of future effects of Antero’s oil and gas operations. Not only is this claim not recognized by West Virginia law, Plaintiffs offer no reasonable or scientific basis for such a claim and offer no expert testimony to support this claim. See Section III.C.5, infra. Plaintiffs’ own actions on their properties have created a number of the conditions they allege affect them and their neighbors. For example, several Plaintiffs discharge raw sewage onto their own property. See Report of Tarek Saba, Ph.D., August 18, 2015, at 4-17 the relevant portions of which are attached hereto as “Exhibit A” (stating that the presence of coliform and E. coli (fecal) bacteria were found in the water wells of many Cherry Camp Plaintiffs due to Plaintiffs generating and disposing of inorganic and organic compounds on their properties).1 The existence of this raw sewage on their property is reflected in Plaintiffs’ own expert witness’s testimony, where he admits that water from all Plaintiffs’ water wells is safe to 1 Saba visited Plaintiffs’ properties and observed that Plaintiffs have dump areas, trash pits, burn pits, and other potential chemical sources. Saba Report (Ex. A) at 2-4. 5 drink and that the biological contaminants present in Plaintiffs’ well water were unreleated to oil and gas operations. See Section III.B.1.a, infra. Additionally, several Plaintiffs have petroleum products present on their property, which cause or contribute to property contamination.2 See Saba Report (Ex. A) at 4-10, 11 (stating that soil samples from a burn pit on Plaintiff Doug Mazer’s property revealed the presence of gasoline, diesel, and oil); 4-13, 14 (stating that soil samples obtained from a burn barrel on the Goldens’ property revealed petroleum); 4-15, 16, 5-23, 24 (stating that samples taken from the creek and spring water and household drinking water on the Kinney property contain the same chemicals and show that the water has been contaminated with chemicals used in burning sources, which likely came from household burn and trash areas on the property that contained diesel oils, containers of antifreeze, containers of bleach, spray cans, tires, and trash). The six well pads relevant to this litigation are listed below along with the construction start date for each well pad. These well pads and their associated wells are permanent structures, and Antero will be operating them indefinitely. Plaintiffs’ complaints begin with the start of construction for the various well pads: Well Pad Hill Pad Hustead Pad Johnson Pad Date Pad Construction Began 5/15/2009 3/19/2010 9/10/2009 Well Pad Mary Post Pad Matthey Pad O. Rice Pad Date Pad Construction Began 2/24/2010 11/6/2009 6/29/2010 Plaintiffs waited over four (4) years from the construction of the first well pad to file their Complaint. 2 Saba also noted that many Plaintiffs do not have filters connected to their water wells to remove particulates. Saba Report (Ex. A) at 4-12, 13. 6 B. Procedural History Plaintiffs filed their complaint against Antero and Hall Drilling, LLC, on October 11, 2013. Written discovery has been exchanged between the parties. The Court’s Case Management Order dated January 16, 2015, set a fact witness discovery deadline on September 30, 2015, and an expert witness deadline on October 30, 2015. The case is set for trial on July 11, 2016. III. LEGAL ANALYSIS A. Summary Judgment Is Proper Where There Exists No Genuine Issue Of Material Fact Triable To A Jury. Summary judgment must be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with [any] affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” W. Va. R. Civ. P. 56(c). See also Syl. Pt. 2, Angelucci v. Fairmont Gen. Hosp., Inc., 217 W. Va. 364, 618 S.E.2d 373 (2005) (per curiam); Syl. Pt. 1, in part, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459 S.E.2d 329 (1995) (holding that a motion for summary judgment should be granted “when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law”) (citations and internal quotation marks omitted); Syl. Pt. 2, Harrison v. Town of Eleanor, 191 W. Va. 611, 447 S.E.2d 546 (1994). Accordingly, Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove. Syl. Pt. 2, Williams, 194 W. Va. 52, 459 S.E.2d 329. 7 While the movant bears the initial burden of showing the absence of a genuine issue of material fact, once this threshold burden is met, the non-movant must present specific evidence that there is a material, trial-worthy issue to avoid summary judgment against him. See id. at 60, 459 S.E.2d at 337; Syl. Pt. 2, Gentry v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995); Syl. Pt. 2, Guthrie v. Nw. Mut. Life Ins. Co., 158 W. Va. 1, 208 S.E.2d 60 (1974). Specifically, “the party opposing summary judgment must satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams, 194 W. Va. at 60, 459 S.E.2d at 337 (citation omitted). Although a trial court considering a summary judgment motion must view inferences in the light most favorable to the party opposing summary judgment, the trial court should consider only “reasonable inferences.” Id. at 60 & n.10, 459 S.E.2d at 337 & n.10. Moreover, the non-movant cannot create a genuine issue of material fact by “mere speculation or the building of one inference upon another.” Id. at 61 n.14, 459 S.E.2d at 338 n.14. B. Plaintiffs’ Negligence Claim Fails As A Matter Of Law. To prevail on a negligence claim under West Virginia law, “‘the plaintiff must prove by a preponderance of the evidence that the defendant owed a legal duty to the plaintiff and that by breaching that duty the defendant proximately caused the injuries of the plaintiff.’” Hagy v. Equitable Prod. Co., No. 2:10-CV-01372, 2012 WL 2562856, at *2 (S.D. W. Va. June 29, 2012) (quoting Strahin v. Cleavenger, 216 W. Va. 175, 603 S.E.2d 197, 205 (2004)), aff’d, 541 F. App’x 316 (4th Cir. 2013).3 Plaintiffs cannot establish causation or damages—two 3 Pursuant to West Virginia Trial Court Rule 6.04, Antero is providing copies of authorities that are not reported in United States Reports, West Virginia Reports, or South Eastern Reporter to the panel and to opposing counsel. See Exhibit B. 8 essential elements of a negligence claim.4 Therefore, Plaintiffs’ negligence claim fails as a matter of law, and summary judgment on this claim should be granted in Antero’s favor. 1. Plaintiffs Cannot Establish Causation. Expert testimony is required to establish that Antero’s operations are the proximate cause of Plaintiffs’ alleged injuries. See Magers v. Chesapeake Appalachia, Civ. A. No. 5:12CV49, 2014 WL 4352084 (N.D. W. Va. Sept. 2, 2014) (granting summary judgment to defendant because plaintiff’s expert’s opinion that showed only “‘mere possibility of causation’” was insufficient) (quoting Tolley v. ACF Indus., Inc., 212 W. Va. 548, 558, 575 S.E.2d 158, 168 (2002)). “Proximate cause is a cause ‘which in actual sequence, unbroken by any independent cause, produces the event and without which the event would not have occurred.’” Hagy, 2012 WL 2562856, at * 2 (quoting Johnson v. Mays, 191 W. Va. 628, 633, 447 S.E.2d 563, 568 (1994) (internal quotation marks omitted)). Specifically in the context of summary judgment, “‘[i]n toxic exposure cases, providing adequate evidence of exposure is required to prove the element of causation and survive a motion for summary judgment.’” Id. (quoting White v. Dow Chem. Co., 321 Fed. Appx. 266, 273 (4th Cir. 2009) (unpublished opinion) (citing Tolley, 212 W. Va. 548, 575 4 Additionally, Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers do not have standing to bring a negligence claim against Antero for alleged water, soil, and air contamination because they do not have sufficient possessory interests in the land on which they reside. See Keesecker v. Bird, 200 W. Va. 667, 678, 490 S.E.2d 754, 765 (1997) (stating that, because the plaintiff was “the owner of the remainder interest in the life estate,” he had “a sufficient interest in the litigation and [was] entitled under the substantive law to recover for damages to his remainder interest”). See also Huffman v. Criner, 218 W. Va. 197, 201, 624 S.E.2d 544, 548 (2005) (per curiam) (affirming the trial court’s decision to dismiss the complaint because the plaintiff, who was the sole shareholder of a corporation that owned rental property, “had no standing to proceed individually” in seeking damages for destruction of the rental property). The land upon which Plaintiffs April Heather Golden, Robert Golden, and M.G. (a minor) reside is owned by Clyde Kinney. The land upon which plaintiffs Charles A. Mazer and Lindsey Feathers reside is owned by Plaintiffs Douglas Mazer and Catherine Mazer. Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers reside in separate dwellings on that land and do not pay rent or have any other legal title or possessory interest in the land. Therefore, the negligence claims of Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers fail as a matter of law for lack of standing. 9 S.E.2d 158)). To establish causation in tort liability where a plaintiff claims to have suffered harm from an industrial operation such as an oil and gas well, expert testimony is required to establish that the defendant caused the harm alleged by the plaintiff. Rule 702(a) of the West Virginia Rules of Evidence provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. In interpreting this rule, the Supreme Court of Appeals of West Virginia held that “[w]hen prima facie proof of the fact of injury or causes involves matters beyond the competency of ordinary lay persons, expert witnesses must be employed.” Tanner v. Rite Aid, Inc., 194 W. Va. 643, 654, 461 S.E.2d 149, 160 (1995) (emphasis added) (citation omitted). “The operation of fracturing an oil or gas well is a highly specialized type of work[.]” McCoy v. Cohen, 149 W. Va. 197, 204, 140 S.E.2d 427, 432 (1965). Through expert testimony, a plaintiff must demonstrate more than a mere possibility that the defendant’s activities caused the alleged injuries. See Magers, 2014 WL 4352084, at *7 (granting summary judgment to defendant because plaintiff’s expert’s opinion that showed only “‘mere possibility of causation’” was insufficient) (quoting Tolley, 212 W. Va. at 558, 575 S.E.2d at 168)); Hagy, 2012 WL 2562856, at *2, *5 (granting summary judgment to defendant because plaintiffs’ expert witnesses failed to establish anything more than “mere possibility” of causation and connect the defendant to harm plaintiffs claimed to have suffered); Baker v. Chevron U.S.A., Inc., 533 Fed. Appx. 509 (6th Cir. 2013) (granting summary judgment to defendants because plaintiffs’ expert witnesses failed to establish that a crude oil refinery caused any damage to plaintiffs or their soil, water, or properties). 10 To avoid summary judgment, Plaintiffs must identify through expert testimony the chemicals to which Plaintiffs were allegedly exposed and the dose or exposure amount and the duration of the exposure. Hagy, 2012 WL 2562856, at *5. See also Tolley, 212 W. Va. at 559, 575 S.E.2d at 169 (requiring that the expert witness identify the dose or exposure amount and duration). Plaintiffs’ expert witnesses must also “directly connect any action or inaction on the part of [Antero] to the harm [Plaintiffs] claim to have suffered.” Id. Where the experts are not able to meet these requirements, there is insufficient evidence to preclude summary judgment. Id. In Hagy, the plaintiff landowners resided “in close proximity to natural gas wells owned by Equitable Production Company (“EQT”)” and alleged that EQT’s operations had contaminated their water. Id. at *1. The district court granted summary judgment to the defendant when the plaintiffs’ expert witnesses could not identify the chemical to which the plaintiffs allegedly were exposed, identify evidence of the dose or the exposure amount and duration, and “directly connect any action or inaction on the part of [the defendant] to the harm the plaintiffs claim to have suffered.” Id. at *5. Instead, the experts offered only “general opinions that may connect hydraulic fracturing activities . . . on one of the wells located near [the plaintiffs’] property to their reported symptoms.” Id. The district court found this evidence to be insufficient. Id. In this litigation, Plaintiffs and their counsel have alleged that Antero’s acts or omissions in its oil and gas operations have caused water, soil, and air contamination. Antero has filed motions in limine to exclude each of Plaintiffs’ proffered expert witnesses on the basis 11 that they are unqualified.5 Should this Court grant those motions in limine, Plaintiffs’ negligence claim fails as a matter of law. However, even if this Court does not grant Antero’s motions in limine to exclude Plaintiffs’ expert witnesses, Plaintiffs’ contamination claims fail as a matter of law because Plaintiffs’ and their expert witnesses cannot identify either the specific acts or omissions that caused the alleged contamination or the chemicals, dosages, exposure amount, or duration that allegedly caused the contamination. a. Plaintiffs’ Expert Contamination. Witnesses Cannot Establish Water Plaintiffs’ expert witnesses’ opinions regarding water contamination are based on speculation and conjecture. One of Plaintiffs’ expert witnesses admitted that Plaintiffs’ water is not contaminated, that it is safe to drink, and that he would drink it. Glass Dep. 150:22-152:05, July 9, 2015, the relevant portions of which are attached hereto as “Exhibit C.” The utter lack of proffered evidence by Plaintiffs’ expert witnesses showing contamination of Plaintiffs’ water wells as a result of Antero’s operations defeats Plaintiffs’ claims for water contamination. Hagy, 2012 WL 2562856, at *5. First, the report and deposition testimony of Plaintiffs’ proffered expert Anthony R. Ingraffea, Ph.D., P.E. (“Ingraffea”) consisted only of speculation and conjecture.6 Ingraffea See Antero Resources Corp.’s Mot. in Limine No. 24 (Transaction ID 58230497); Antero Resources Corp.’s Mot. in Limine No. 25 (Transaction ID 58230677); Antero Resources Corp.’s Mot. in Limine No. 26 (Transaction ID 58230751); Antero Resources Corp.’s Mot. in Limine No. 27 (Transaction ID 58230836); Antero Resources Corp.’s Mot. in Limine No. 28 (Transaction ID 58230916); Antero Resources Corp.’s Mot. in Limine No. 29 (Transaction ID 58230994). 5 6 Initially, Plaintiffs had also proffered the testimony of Regina McIntyre, Paul E. Rosenfeld, Ph.D., and Michael K. Schultz, Ph.D. but withdrew these experts in response to Antero Resources Corporation’s Motions in Limine seeking to exclude their testimonies and reports. See Notice of Withdrawal of Pls.’ Expert Regina McIntyre (Transaction ID 58303367); Notice of Withdrawal of Pls.’ Expert Dr. Paul Rosenfeld (Transaction ID 58303457); Notice of Withdrawal of Pls.’ Expert Dr. Michael Schultz (Transaction ID 58303410). 12 opined generally that water contamination is a “specific expected impact” associated with shale gas and oil operations, which means that it is a condition that generally affects people residing near a “shale gas/oil heavy industrial zone.” See Report of Anthony R. Ingraffea, Ph.D., June 8, 2015, the relevant portions of which are attached hereto as “Exhibit D.” However, Ingraffea was unable to identify any concrete or quantitative data to specifically link Plaintiffs to these possible adverse impacts. See Ingraffea Report (Ex. D) at 3. Ingraffea admitted in his deposition that he has no specific information concerning contamination of any water well as a consequence of a spill or leakage of fracturing chemicals or flowback in the Cherry Camp area. Ingraffea Dep. 70:04-72:07, June 12, 2015, the relevant portions of which are attached hereto as “Exhibit E.” The only specific incident of which he is aware is a spill that occurred at the Hill well pad in 2013, but he admitted that he has no evidence that the spill contaminated water in the Cherry Camp area. Id. He also admitted that he cannot identify what chemicals may have been involved in the spill. Id. Although Ingraffea further speculated that Antero’s activities could have caused water contamination, he failed to collect, analyze, or examine well water testing data from the Cherry Camp area to support his speculation. Id. 80:17-83:05. Ingraffea also speculated that a cement bond failure, casing failure, or fracture propagation in a casing surrounding the well bore of a natural gas well could contribute to contamination of drinking water supplies drawn from proximate aquifers. Id. 136:03-137:19. But Ingrafffea does not have any evidence that an Antero casing or cementing failure contaminated Plaintiffs’ water wells. Id. Significantly, Ingraffea conceded that although casing or cement failure could generally cause water contamination, he cannot opine that it specifically caused water well contamination for Plaintiffs. Id. 82:04-82:13. Upon examination of Ingraffea’s deposition and report, it is evident that 13 Ingraffea is unable to establish beyond mere possibility that Antero’s activities caused any alleged contamination of Plaintiffs’ water. See id. 222:14-222:24 (admitting that he has no knowledge of a cement failure in Cherry Camp and that the bubbling in the cellar of a well on the Hustead well pad could “possibly” be the result of a cement failure); 78:13-79:4 (admitting that he cannot state “with any degree of engineering certainty that any integrity problem on any well on any of those six pads has specifically impacted someone’s private water well”); 82:0483:15 (admitting that he cannot state that casing or cement failure caused water contamination in Cherry Camp). Finally, Plaintiffs’ proffered expert witness Marc Glass admitted that Plaintiffs’ water is safe to drink. Glass Dep. (Ex. C) 150:22-152:05. In fact, Glass admitted that the biological contaminants present in Plaintiffs’ drinking water are unrelated to oil and gas operations. Id.7 Glass concedes that significant uncertainty remains and that the fate and transport of compounds cannot be described with any reasonable degree of scientific precision at this time. Id. 119:03-120:16. In sum, none of Plaintiffs’ expert witnesses are able to identify any specific act or omission by Antero that has caused the alleged water contamination or identify the chemical(s), dosage, exposure amount, or duration that allegedly caused the contamination. Plaintiffs’ expert witnesses also failed to show that any alleged contamination adversely impacted Plaintiffs. Therefore, Plaintiffs’ water contamination claims fail as a matter of law for lack of causation. 7 Additionally, although Glass claims that the groundwater at the Mary Post well pad was impacted by glycols, hexavalent chromium, and methylene blue active substances, neither glycols nor chromium were detected in any of his water well samples, and Glass did not analyze the water samples for methylene blue active substances. Importantly, Glass concedes that, with regard to each of those substances, he has made no determination that the substances coming from any of Defendants’ activities have impacted the groundwater underlying the property of any Plaintiff in this case. Glass Dep. (Ex. C) 71:05-71:09, 140:14-142:15. 14 b. Plaintiffs’ Expert Contamination. Witnesses Cannot Establish Soil The only expert witness that Plaintiffs proffered to support their soil contamination claim was Michael K. Schultz, Ph.D. Plaintiffs withdrew Schultz as an expert in response to Antero’s motion in limine to exclude his testimony. See Notice of Withdrawal of Pls.’ Expert Dr. Michael Schultz (Transaction ID 58303410). Therefore, Plaintiffs’ soil contamination claims fail as a matter of law for lack of causation. c. Plaintiffs’ Expert Contamination. Witnesses Cannot Establish Air First, as with his opinions regarding water contamination, Ingraffea’s opinions regarding air contamination are nothing but speculation and conjecture.8 Ingraffea opined generally that air contamination is a “specific expected impact” associated with shale gas and oil operations, which means that it is a condition that generally affects people residing near a “shale gas/oil heavy industrial zone.” See Ingraffea Report (Ex. D) at 3. However, Ingraffea is unable to identify any concrete or quantitative data to specifically link Plaintiffs to these possible adverse impacts. Id. Ingraffea lists the following sources of air contamination: Contaminated air from the [volatile organic compounds] and fine particulate matter exhausted from diesel engines powering trucks, construction/excavation equipment, drilling engines, and fracking pumps; [c]ontaminated air from methane and [volatile organic compounds] exhausted from condensate tanks, compressor stations, and processing plants; [and] [c]ontaminated air from emissions of methane and of [volatile organic compounds] from open flowback waste pits . . . . Id. However, Ingraffea admits that, in formulating his opinions regarding volatile organic compounds and particulate matter from diesel exhaust, he neither conducted air sampling nor reviewed any environmental data such as air monitoring computation of emissions. Ingraffea 8 Antero has also filed a motion in limine asserting that Ingraffea is not qualified to provide expert testimony regarding air quality. 15 Dep. (Ex. E) 51:15-52:20.9 He also admits that he does not know if any of the Cherry Camp facilities are emitting gas in excess of permitted quantities. Id. 223:15–23. Ingraffea concedes that he did not examine meteorological data relating to any of the Cherry Camp well pads. Id. 56:16-57:04. In sum, Ingraffea identifies volatile organic compounds and particulate matter from diesel exhaust as contaminants, but he performed no studies and reviewed no data to show that these contaminants exist in Cherry Camp or have adversely affected Plaintiffs. Second, the opinions of Plaintiffs’ proffered expert witness Nicholas P. Cheremisinoff, Ph.D., are similarly not based on sound scientific principles. Cheremisinoff opines that Antero’s well extraction sites create significant levels of air pollution and do not adhere to reasonable and best industry practices. Report of Nicholas P. Cheremisinoff, Ph.D., June 5, 2015, the relevant portions of which are attached hereto as “Exhibit F,” at 2. However, Cheremisinoff fails to establish causation: Cheremisinoff does not establish how the alleged air pollution and alleged failure to adhere to reasonable and best industry practices have been the proximate cause of harm to Plaintiffs. Furthermore, Cheremisinoff’s methodology is faulty and imprecise for many reasons and, as such, Antero has moved to have him disqualified as an expert witness. See Antero Resources Corp.’s Mot. in Limine No. 24 (Transaction ID 58230497).10 Aside from these imprecise methodologies, Cheremisinoff relies heavily upon unscientific, 9 Ingraffea states that there are specific condensate tanks that he observed and implicated in the volatile organic compounds emission in the Cherry Camp area, but he cannot remember which ones they were. Ingraffea Dep. (Ex. E) 53:03-54:11. For example, Cheremisinoff’s testimony is so fraught with imprecision that results are inherently unreliable. According to Cheremisinoff’s report and testimony, “The quantification of mass air discharges as [potential to emit] has been performed as a bounding analysis, meaning that a lower and upper bound estimate has been prepared for each site. Actual emissions are concluded to lie somewhere between the upper and lower bound.” Cheremisinoff Report (Ex. F) at 16. Tables 1 and 3 of Cheremisinoff’s report indicate a range of emission estimates for the well pads and the Salem Compressor Station. See id. at 23, 42. In numerous instances, the lower bound and upper bound estimates differ markedly. Cheremisinoff cannot state to a reasonable degree of scientific certainty where between the boundary limits the actual number for discharges lies. Cheremisinoff Dep. 33:11-34:14, 35:20-36:17, June 18, 2015, the relevant portions of which are attached hereto as “Exhibit G.” 10 16 anecdotal evidence regarding diminished air quality. Cheremisinoff Dep. (Ex. G) 101:17- 102:16, 104:23-105:06. Significantly, Cheremisinoff does not identify the specific chemicals to which he claims Plaintiffs have been exposed as a result of Antero’s activities or the dosage, exposure amount, or duration of these chemicals. See Cheremisinoff Dep. (Ex. G) 25:16-26:11 (noting that Cheremisinoff has not speciated individual chemicals nor provided measurement of the concentrations of potentially health-hazardous volatile organic compounds); 26:17-27:07, 29:12– 15 (noting that Mr. Cheremisinoff has not performed actual measurements of concentrations of non-methane volatile organic compounds for Antero’s well pads but rather estimated fugitive emissions based on calculations). He admits that he has insufficient information to identify individual chemicals. Id. 30:06–13. Notably, although his report pertains to air quality and emissions of volatile organic compounds and he states that toxicity of these chemicals to an individual depends on the frequency, duration, intensity, and temporal patterns of that individual’s exposure, Cheremisinoff specifically states that dosage is beyond his purview. Id. 106:10-108:16. He has offered no evidence of specific exposure with regard to any one individual or Plaintiff. Id. In sum, none of Plaintiffs’ expert witnesses are able to identify any specific act or omission by Antero that has caused the alleged air contamination or identify the chemical(s), dosage, exposure amount, or duration that allegedly caused the contamination. Plaintiffs’ expert witnesses also fail to link any alleged contamination to adverse impacts on Plaintiffs. Therefore, Plaintiffs’ air contamination claims fail as a matter of law for lack of causation. 17 2. Plaintiffs Do Not Claim Any Recoverable Damages. To recover damages for negligence, Plaintiffs must prove that they have suffered injuries to either person or property. To prove the damages element in a negligent operations claim, Plaintiffs must establish either a decrease in property value or a specific cost to repair the property. Oresta v. Romano Bros., Inc., 137 W. Va. 633, 650, 73 S.E.2d 622, 631 (1952). Damages for emotional or mental troubles are not recoverable where there are no “ascertainable physical injuries arising therefrom . . . through the simple negligence of the defendant[.]” Johnson v. W. Va. Univ. Hosp., Inc., 186 W. Va. 648, 651, 413 S.E.2d 889, 892 (1991) (quoting Syl. Pt. 1, in part, Monteleone v. Co-Operative Transit Co., 128 W. Va. 340, 36 S.E.2d 475 (1945)), overruled on other grounds by Syl. Pt. 1, Heldreth v. Marrs, 188 W. Va. 481, 425 S.E.2d 157 (1992) (allowing recovery of damages for emotional distress where plaintiff witnessed loved one suffer critical injury or death as a result of defendant’s negligence).11 Plaintiffs’ counsel has stated affirmatively on the record that Plaintiffs “don’t have a claim for property damage[.]” Tr. from June 26, 2015 Hr’g at 36:14–16, the relevant portions of which are attached hereto as “Exhibit H.”12 Additionally, Plaintiffs have not made 11 Other courts that have considered this issue have held that a plaintiff who seeks recovery for fear of contamination must prove that the contamination is not only the result of the defendant’s breach of duty to the plaintiff but also establish by expert testimony that a contamination actually occurred and that a future disease is more likely than not to manifest. See Potter v. Firestone Tire & Rubber Co., 863 P.2d 795, 816 (Ca. 1993) (where the court held that damages for fear of contracting disease can be recovered absent physical injury or illness only where plaintiff proves that the exposure occurred as a result of defendant’s negligence and proves by expert testimony that this exposure is more likely than not to cause the disease); Banford v. Aldrich Chem. Co., 932 N.E.2d 313, 315 (Ohio 2010) (where court held that “to recover damages for annoyance and discomfort in a nuisance claim, a plaintiff must establish that the nuisance caused physical discomfort”). See also 56 Am. Jur. Trials 369 (Originally published in 1995) (recovery of damages based on fear of contracting some future disease is unlikely to be sustainable without proof that “the fear stems from a knowledge which is corroborated by reasonable medical and scientific opinion that it is more likely than not that cancer will develop in the future due to the toxic exposure”). Plaintiffs’ counsel has repeatedly stated during depositions that Plaintiffs stipulate that Plaintiffs have no property damage claims. See e.g., Tr. from June 26, 2015 Hr’g (Ex. H) at 36:14–16 (confirming that 12 18 any health claims. Plaintiffs submitted a Plaintiff Fact Sheet that asked each Plaintiff to “[d]escribe each medical condition you suffer or was aggravated as a result of defendants’ activities[.]” Every Plaintiff but one responded: “None.” The remaining Plaintiff, Betty Siders, responded as follows: “See Plaintiffs’ previous discovery responses and deposition testimony on this subject, which Plaintiff incorporates as if set forth fully herein.” Significantly, however, this question was again posed to Plaintiff Siders in her deposition, and she responded that she was making no health claims. B. Siders Dep. 134:09–11, Mar. 12, 2015, the relevant portions of which are attached hereto as “Exhibit K.” It is undisputed that Plaintiff Siders has not offered any documents or expert testimony to establish that she suffers from any medical condition as a result of Antero’s activities. Finally, Plaintiffs’ counsel has represented to this Court that Plaintiffs are not seeking medical monitoring in this case, Tr. from June 26, 2015 Hr’g (Ex. H) at 39:24-40:04, and Plaintiffs have not retained a medical professional to provide expert testimony.13 In sum, because Plaintiffs do not allege any recoverable damages, their negligence claim fails as a matter of law and summary judgment on this claim should be granted in Antero’s favor. “[Plaintiffs] don’t have a claim for property damage in these Complaints. They’re nuisance claims.”). Counsel also elicited testimony from Plaintiffs confirming the same. See, e.g., D. Kinney Dep. 153:17– 22, Mar. 3, 2015, the relevant portions of which are attached hereto as “Exhibit I” (stating that he cannot claim any damages to real or personal property); R. Ashcraft Dep. 129:18-130:02, Mar. 13, 2015, the relevant portions of which are attached hereto as “Exhibit J” (stating that he is not making any property damage claims or monetary damage claims). See Pls.’ Disclosure of Expert Witnesses (Transaction ID 56876858) (showing that no medical expert witnesses were disclosed). Plaintiffs’ expert witnesses all concede that they are not medical experts or experts in toxicology or epidemiology. See, e.g., Ingraffea Report (Ex. D) 4, Figure 1; Ingraffea Dep. (Ex. E) 161:05-161:15 (conceding that he is not a medical expert). See also, e.g., Ingraffea Dep. (Ex. E) 36:05-36:13 (conceding that he is not an expert in toxicology or epidemiology); Glass Dep. (Ex. C) 28:23-29:03 (same). 13 19 C. Plaintiffs’ Nuisance Claim Fails As A Matter Of Law. 1. As a Matter of Law, the Alleged Nuisance of Which Plaintiffs Complain Is A Permanent Nuisance—Not a Temporary Nuisance— and Plaintiffs’ Claims Are Barred By the Statute of Limitations. Plaintiffs have mischaracterized their nuisance claim as a temporary and abatable nuisance when, under West Virginia law, the nuisance Plaintiffs allege is properly characterized as a permanent nuisance. See Guinn v. Ohio River R. Co., 46 W. Va. 151, 33 S.E. 87 (1899) (classifying the construction of a railroad as a permanent nuisance because the railroad was authorized by the municipal authority and was a permanent structure); Keene v. City of Huntington, 79 W. Va. 713, 92 S.E. 119 (1917) (classifying an incinerator plant as a permanent nuisance because it would be operated indefinitely and would produce the injury complained of while operating in an ordinary and proper way); Severt v. Beckley Coals, Inc., 153 W. Va. 600, 170 S.E.2d 577 (1969) (classifying the operation of a coal mine, including mining and trucking, as a permanent nuisance because the coal mining facility was a permanent structure with “continuous and uninterrupted” operations that would continue indefinitely).14 Determining whether an alleged nuisance is properly characterized as permanent or temporary is a question of law for the Court. Valley Estates, Ltd. Partnership v. Pangle, 448 S.W.3d 235, 238 (Ark. App. 2014) (“The question of whether a nuisance is permanent or temporary is a question of law.”).15 14 Should the Court find the alleged nuisance to be temporary in character, then Plaintiffs’ recovery, if any, is limited to damages going back two years from the filing of the Complaint on October 9, 2013. Taylor v. Culloden Pub. Serv. Dist., 214 W. Va. 639, 644, 591 S.E.2d 197, 202 (2003). 15 See also Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264, 281–82 (Tex. 2004) (disapproving of “statements in a few cases that suggest nuisance claimants may elect whether to assert a temporary and permanent nuisance”) holding modified by Gilbert Wheeler, Inc. v. Enbridge Pipelines (E. Texas), L.P., 449 S.W.3d 474 (Tex. 2014) (extending the holding in Schneider to apply to damages stemming from a breach of contract in addition to torts); Campbell v. Anderson, 866 S.W.2d 139, 143 (Mo. Ct. App. 1993) (“It is a question of law, rather than of fact, whether a nuisance is permanent or temporary.”). 20 The statute of limitations for a permanent nuisance begins to run on the date of construction where the plaintiffs complain of the construction of the utility causing the alleged nuisance. See Guinn, 46 W. Va. 151, 33 S.E. 87 (classifying the construction of a railroad as a permanent nuisance because the railroad was authorized by the municipal authority and was a permanent structure). The six well pads and corresponding wells constructed by Antero in Cherry Camp are permanent structures that will be operated for at least the next twenty-five years. Antero will operate these wells until production is no longer viable; currently, there is no projected end date but continued production is anticipated for at least the next twenty-five to thirty-five years.16 See Severt, 153 W. Va. 600, 170 S.E.2d 577 (classifying an operating coal mine as a permanent nuisance because the coal mining would continue until all coal was removed). While production continues, Antero and its agents will enter the well pad property to conduct maintenance and other necessary business operations. Therefore, Antero will continue to utilize the public roads in the area in the course of its mineral development. Additionally, Plaintiffs have testified that they view Antero’s presence and changes in the area as permanent, including a permanent reduction in value of their properties. See, e.g., D. Mazer Dep. 131:23-132:07, 133:01–03, Mar. 4, 2015, the relevant portions of which are attached hereto as “Exhibit L” (stating that he used to want to leave his farm to his children but his property is now trashed and unusable); G. McWilliams Dep. 110:19-111:04, Mar. 10, 2015, the relevant portions of which are attached hereto as “Exhibit M” (discussing a note dated March 21, 2013, that indicates that his home is now valueless because the well is not useable). Therefore, Antero’s operations are properly classified as an alleged permanent nuisance. 16 See “Affidavit of Alvyn A. Schopp,” Section III.C.2.b, infra. 21 In regard to the statute of limitations, Plaintiffs have testified that the conditions of which they complain started when the construction on the well pads began. See, e.g., R. Golden Dep. 21:09-22:01, Mar. 11, 2015, the relevant portions of which are attached hereto as “Exhibit N” (stating the heavy truck traffic began in 2009).17 There are six (6) well pads in Cherry Camp; the construction at these well pads began on the following dates: Well Pad Hill Pad Hustead Pad Johnson Pad Date Pad Construction Began 5/15/2009 3/19/2010 9/10/2009 Well Pad Mary Post Pad Matthey Pad O. Rice Pad Date Pad Construction Began 2/24/2010 11/6/2009 6/29/2010 Therefore, the statute of limitations for each well began to run as of the date construction began, placing all of Plaintiffs’ claims outside the two-year statute of limitations as Plaintiffs did not file their Complaint until October 9, 2013. In sum, all of Plaintiffs’ claims are outside the statute of limitations and are barred as a matter of law. Other Plaintiffs’ allegations are substantively similar. See A. Golden Dep. 32:12–21, Mar. 11, 2015, the relevant portions of which are attached hereto as “Exhibit O” (alleging that she began experiencing problems related to drilling—including truck traffic, dust, noise, lights, and flaggers—in late 2008 and the first part of 2009); K. Ashcraft Dep. 47:14-49:7, Mar. 13, 2015, the relevant portions of which are attached hereto as “Exhibit P” (alleging that she began experiencing constant traffic during fall of 2009 and dust during the summer of 2010); R. Golden Dep. (Ex. N) 37:04–07, 35:01–12 (alleging that he began experiencing noise in 2009 when preparation work began at the Mary Post pad and lights during drilling in 2010 and now during maintenance of the well); Catherine Mazer Dep. 25:09-26:13, Mar. 5, 2015, the relevant portions of which are attached hereto as “Exhibit Q” (alleging that she began experiencing problems when she moved in, which was probably in 2010); Susan Mazer Dep. 66:18–22, Mar. 4, 2015, the relevant portions of which are attached hereto as “Exhibit R” (alleging that she noticed the noise as soon as drilling started on November 29, 2010); G. McWilliams Dep. (Ex. M) 15:23-16:03 (alleging that events began in late spring of 2009 when Antero first began preparing the Hill well pad); M. Mikowski Dep. 44:01–02, 50:05, 60:03–06, Mar. 20, 2015, the relevant portions of which are attached hereto as “Exhibit S” (alleging that there were bright lights in front of her home between 2009 and 2013, that the noise began in 2010, and that traffic was at an all-time high in 2010). 17 22 2. Antero Has Not Substantially and Unreasonably Interfered With Plaintiffs’ Use And Enjoyment Of The Land. West Virginia law defines “a private nuisance as a substantial and unreasonable interference with the private use and enjoyment of another’s land.” Hendricks v. Stalnaker, 181 W. Va. 31, 33, 380 S.E.2d 198, 200 (1989).18 This definition includes conduct that is “intentional and unreasonable, negligent or reckless, or that results in an abnormally dangerous conditions [sic] or activities in an inappropriate place.” Id. at 34, 380 S.E.2d at 201. Plaintiffs have alleged that Antero has acted intentionally and unreasonably or negligently and recklessly. However, as set forth in Section III.B, supra, Plaintiffs’ negligence claim fails as a matter of law for lack of causation and damages.19 Therefore, the only claim upon which Plaintiffs can proceed is an intentional private nuisance claim. For the reasons set forth in this section, this claim also fails as a matter of law.20 18 Additionally, Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers do not have standing to bring a private nuisance claim against Antero because they do not have sufficient possessory interests in the land on which they reside. See Hendricks, 181 W. Va. at 34, 380 S.E.2d at 201 (citation omitted) (limiting “[r]ecovery for a private nuisance . . . to plaintiffs who have suffered a significant harm to their property rights or privileges caused by the interference”). The land upon which Plaintiffs April Heather Golden, Robert Golden, and M.G. (a minor) reside is owned by Clyde Kinney. The land upon which plaintiffs Charles A. Mazer and Lindsey Feathers reside is owned by Plaintiffs Douglas Mazer and Catherine Mazer. Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers reside in separate dwellings on that land and do not pay rent or have any other legal title or possessory interest in the land. Therefore, the private nuisance claims of Plaintiffs April Heather Golden, Robert Golden, M.G. (a minor), Charles A. Mazer, and Lindsey Feathers fail as a matter of law for lack of standing. Plaintiffs have not advanced the claim that Antero’s activities are abnormally dangerous. However, even if they had, oil and gas activities are not presumed to be abnormally dangerous. Ely v. Cabot Oil Corp., 38 F. Supp. 3d 518, 529 (M.D. Pa. 2014) (holding that hydraulic fracturing is not abnormally dangerous). 19 Additionally, many of Plaintiffs’ complaints center on the Salem Compressor Station, which is also located in Cherry Camp and owned and operated by Crestwood Midstream Partners LP. Antero is entitled to summary judgment as a matter of law on all claims asserted against Antero related to the Salem Compressor Station because Antero does not own or operate the Salem Compressor Station. See, e.g., Cookman Realty Grp., Inc. v. Taylor, 211 W. Va. 407, 412, 566 S.E.2d 294, 299 (2002) (holding in the context of groundwater contamination that a landowner who did not control or engage in the activity that 20 23 To prevail on an intentional private nuisance claim, a claimant must not only show interference, but must also show that such interference was both substantial and unreasonable. Id. For conduct to be substantial or significant enough to rise to the level of nuisance, it must “involve more than a slight inconvenience or petty annoyance[,] . . . there must be a real and appreciable invasion of the plaintiff’s interest.” Carter v. Monsanto Co., 212 W. Va. 732, 737, 575 S.E.2d 342, 347 (2002) (quoting Restatement (Second) of Torts § 821F(c) (1979)). See also Hendricks, 181 W. Va. at 34, 380 S.E.2d at 201 (“Recovery for a private nuisance is limited to plaintiffs who have suffered a significant harm to their property rights or privileges caused by the interference”) (emphasis added). The test of whether land use is unreasonable is the “crux of a nuisance case.” Booker v. Foose, 216 W. Va. 727, 730, 613 S.E.2d 94, 97 (2005). See also Sanders v. Roselawn Mem’l Gardens, Inc., 152 W. Va. 91, 113, 159 S.E.2d 784, 798 (1968) (“In general, a fair test as to whether a business lawful in itself, or a particular use of property, constitutes a nuisance is the reasonableness or unreasonableness of conducting the business or making the use of the property complained of in the particular locality and in the manner and under the circumstances of the case . . . .”) (citation and internal quotation marks omitted). Indeed, the unreasonable analysis has also been described as “pivotal” in the determination of whether a private nuisance has occurred. Bansbach v. Harbin, 229 W. Va. 287, 291, 728 S.E.2d 533, 537 (2012). “Whether a particular activity constitutes a nuisance depends on its effect on a person of ordinary sensibilities, not the effect on a particular individual.” Gunther v. E.I. du Pont de Nemours & Co., 157 F. Supp. 25, 32 (N.D. W. Va. 1975). See also National Energy Corp. v. O’Quinn, 286 caused the contamination cannot be held liable and that “passive land ownership” does not impute liability and a subsequent duty to remediate). 24 S.E.2d 181, 182 (Va. 1982) (“[E]very trifling or imaginary annoyance that may offend the sensibilities of a fastidious person is not actionable.”). In determining whether an action is unreasonable, the Court has adopted a balancing test, whereby “[a]n 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.” Duff v. Morgantown Energy Assoc. (M.E.A.), 187 W. Va. 712, 716, 421 S.E.2d 253, 257 (1992) (quoting Syl. Pt. 2, Hendricks, 181 W. Va. 31, 380 S.E.2d 198). Factors that can be considered in determining the gravity of the harm include “[t]he extent of the harm involved,” “the character of the harm involved,” “the social value that the law attaches to the type of use or enjoyment invaded,” “the suitability of the particular use or enjoyment invaded to the character of the locality,” and “the burden on the person harmed of avoiding the harm.” Hendricks, 181 W. Va. at 35 n.6, 380 S.E.2d at 203 n.6 (citing the Restatement (Second) of Torts § 827 (1979)). Factors that can be considered when determining the “utility of conduct” include the “social value that the law attaches to the primary purpose of the conduct,” the “suitability of the conduct to the character of the locality,” and “the impracticability of preventing or avoiding the invasion.” Id. (citing Restatement (Second) of Torts § 828 (1979)). These factors are addressed throughout this Section. In sum, any use of Plaintiffs’ land by Antero has not been substantial or unreasonable because West Virginia’s public policy supports mineral development, Antero has rights to the reasonably necessary use of Plaintiffs’ properties by virtue of its ownership of the minerals underlying Plaintiffs’ properties, Antero has express contractual rights to use certain Plaintiffs’ properties in the course of mineral development, and any use or interference by Antero has not been substantial. 25 a. Antero’s Use of Plaintiffs’ Land Is Reasonable Because The Balancing Test Weighs In Favor of Antero As West Virginia’s Public Policy Supports Mineral Development. Antero’s operations are reasonable because the social value of its oil and gas operations outweigh the “gravity of the harm” of the actions of which Plaintiffs complain. Any harm allegedly suffered by Plaintiffs must be balanced against the social value of the activity in which Antero was engaged: mineral development. See Syl. Pt. 2, Hendricks, 181 W. Va. at 33, 380 S.E.2d at 200. When analyzing this balancing test, several factors weigh in favor of oil and gas exploration and production companies. A legitimate business, properly conducted, is presumed not to be a nuisance. Syl. Pt. 3, Duff, 187 W. Va. 712, 421 S.E.2d 253. The Court has held that oil and gas related operations are not a nuisance per se. See Pope v. Bridgewater Gas Co., 52 W. Va. 252, 43 S.E. 87, 88 (1903). And “[t]he drilling of oil and gas wells is not only a legitimate business, but public policy upholds it, as being for the general welfare.” McGregor v. Camden, 47 W. Va. 193, 197, 34 S.E. 936, 937 (1899). In Pope, the Court applied the presumption “that a person entering into a legitimate business will conduct it in a proper way, so that it will not constitute a nuisance” and held that drilling related activities are a legitimate business and are “lawful in its character,” and as such, these acts cannot be enjoined unless the circumstances under which they are performed are such as to amount to a nuisance. Pope, 52 W. Va. 252, 43 S.E. at 88. See also Sanders, 152 W. Va. at 113, 159 S.E.2d at 798 (“[O]rdinarily, where the use made of the property or the conduct of the business is reasonable, no actionable nuisance is created . . . .”). West Virginia law clearly attaches significant social value to mineral development as its stated public policy is to support and facilitate mineral development. “It is the intent of the 26 Legislature, in empowering the circuit courts of the state … to facilitate development of coal, oil, gas and other minerals, as part of the public policy of this state, by removing certain barriers to such development . . . .” W. Va. Code § 55-12A-1. The Legislature declared in the Marcellus Gas and Manufacturing Development Act that “facilitating the development of business activity directly and indirectly related to development of the Marcellus shale serves the public interest of the citizens of this state by promoting economic development and improving economic opportunities for the citizens of this state.” W. Va. Code § 5B-2H-2(b). See also id. § 5B-2H2(a)(2) (“With development of the Marcellus shale comes the opportunity for economic development in related areas of the economy including, but not limited to, manufacturing, transmission of natural gas and related products and the transportation of manufactured products.”); § 22-6A-2(a)(8) (“Allowing the responsible development of our state’s natural gas resources will enhance the economy of our state and the quality of life for our citizens while assuring the long term protection of the environment.”). The Legislature has also declared that “[i]t is in the interest of national security to encourage post-production uses of natural gas and its various components as a replacement for oil imported from other countries.” Id. § 5B-2H2(a)(3). Therefore, West Virginia recognizes the importance of mineral development on a state and national level. Likewise, the Court has also recognized this policy in favor of mineral development: “The drilling of oil and gas wells is not only a legitimate business, but public policy upholds it, as being for the general welfare.” McGregor, 47 W. Va. 193, 34 S.E. at 937. See also W. Va. Code §§ 22-6A-1 et seq. and 22-6B-2 et seq. (“Natural Gas Horizontal Well Control Act”). As explained in this subsection, development of the Marcellus Shale has brought significant social benefits to West Virginia and its residents, and Antero’s development of the 27 Marcellus Shale alone has directly benefited West Virginia and its residents—including Plaintiffs. West Virginia And Its Residents Have Benefited From Shale Gas Development. “Marcellus Shale development had generated $2.35 billion in business volume and approximately $1.16 billion in total value had been added to West Virginia’s economy.” Tom Witt, Ph.D., Report at 11, October 2015, the relevant portions of which are attached hereto as “Exhibit T.” Additionally, “economic activities associated with the Marcellus Shale development created approximately 7,600 jobs and $297.9 million in employee compensation.” Id. at 11. State taxes, including sales, use, personal income, corporate net income, and business franchise taxes totaled $14.5 million. Id. Marcellus Shale development has only become more active since 2009, particularly in Harrison County, among others. See id. at 14, Table 3. From 2010 to 2015, there were considerable tax revenue increases in Doddridge, Harrison, Tyler, and Ritchie Counties, permitting “these counties to provide more public services to their residents.” Id. at 14. As a result of the “oil and gas boom” increasing county tax revenues, the Doddridge County Board of Education has been able to set aside money for several years and now, with additional funding from the West Virginia School Building Authority, is able to construct a $2.8 million addition to the local high school. See DC BOE Announces $800,000 Funding from SBA, The Doddridge Independent, Dec. 18, 2015, at A1, a copy of which is attached hereto as “Exhibit U.” Additionally, “[t]he Doddridge County Commission recently received $1 million from drilling on property where it retained mineral rights” and allocated $500,000 for a its rainy-day fund and $500,000 for a proposed courthouse annex. Witt Report (Ex. T) at 14–15. Also during this timeframe, severance tax revenues increased from $66.8 million to $198.3 million. See id. at 15, Table 6. From 2010 to 2014, several counties, 28 including the county in which Plaintiffs reside, similarly saw significant increases in severance tax revenues: Doddridge County increased from $294,350 to $1.26 million (a 326% increase); Harrison County increased from $349,650 to $1.9 million (a 456% increase); Ritchie County increased from $204,779 to $345,537 (a 93% increase); and Tyler County increased from $83,886 to $345,437 (a 312% increase). See id. at 16, Table 7. Antero’s Oil and Gas Operations Directly Benefit West Virginia and Its Residents. In addition to the social utility from shale gas development generally, Antero’s presence and development in West Virginia has benefited the State. Antero’s capital expenditures in West Virginia in 2014 were $2.2 billion, and its planned capital expenditures for 2015 are $1.1 billion. Id. at 21. Antero has provided 130 miles of road upgrades and improvements. Id. at 22. Antero plans to build a $275 wastewater treatment complex in Doddridge County, creating 250 construction jobs and 30 to 40 permanent jobs. Id. at 21–22. From 2010 to May 2015, the number of Antero employees in West Virginia increased from 4 to 184, and wages increased from $178,000 to $6.58 million. See id. at 22, Table 8. Also in this timeframe, Antero’s West Virginia tax withholdings increased from $9,000 to $373,000. See id. In addition to employees, Antero also has hundreds of contractors working in West Virginia, and these contractors have thousands of employees; “[t]hus, the magnitude of employment associated with Antero’s operation goes well beyond the number of Antero specific employees.” Id. at 22–23. Several counties, including the county in which Plaintiffs reside, have directly benefited financially. In the last three years, Antero and its employees have paid $24.9 million in real and personal property taxes to Doddridge, Harrison, Ritchie, and Tyler Counties. Id. at 23. West Virginia minerals owners have also directly benefited financially. In 2014, Antero 29 paid $162 million and $57 million in royalties to Marcellus and Utica mineral owners, respectively, and Antero paid $219 million in lease bonuses. Id. Finally, Antero has donated $982,010 in charitable contributions and raised another $153,000 in partnership with other companies for charities. Id. at 24. In sum, shale gas development in West Virginia—and specifically Antero’s development of shale gas—has significantly benefited West Virginia and its residents. Plaintiffs’ evidence shows that they have experienced nothing which rises to the level of nuisance or outweighs the social benefits of Antero’s activities. See Section III.C.2.d, infra. b. Antero’s Use of Plaintiffs’ Land is Reasonable Because It Has The Right To Develop Its Minerals Through Reasonable Use Of the Surface. Antero has leased the minerals underlying Plaintiffs’ land and therefore has the right to develop its minerals through the reasonable use of the surface; therefore, the “character of the [alleged] harm involved” and the “suitability of the particular use or enjoyment invaded to the character of the locality” support the argument that Antero’s alleged use of Plaintiffs’ property is reasonable. See Hendricks, 181 W. Va. at 35 n.6, 380 S.E.2d at 203 n.6 (citing Restatement (Second) of Torts § 827 (1979)). The right to reasonable use of the surface for mineral extraction arises in Squires v. Lafferty and its progeny. Syl. Pt. 1, Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90, 91 (1924) (holding that “as incident to this ownership, the right to use the surface in such manner and with such means as would be fairly necessary for the enjoyment of the mineral estate”). A mineral owner possesses the right of reasonable use of the surface to develop his minerals. Once a mineral owner leases his minerals to a developer, that right passes to the lessee by virtue of the lease agreement. Montgomery v. Economy Fuel Co., 61 W. Va. 620, 57 S.E. 137, 138 (1907) 30 (“A lease granting minerals carries with it, by necessary implication, the right to enter upon the property and do all things necessary for the purpose of acquiring and enjoying the estate granted.”). Whether an implied right meets the reasonably necessary standard is a question of law. See Justice v. Pennzoil Co., 598 F.2d 1339 (4th Cir. 1979). In West Virginia, “[a]n oil and gas lease (or other mineral lease) is both a conveyance and a contract. It is designed to accomplish the main purpose of the owner of the land and of the lessee (or its assignee) as operator of the oil and gas interests: securing production of oil or gas or both in paying quantities, quickly and for as long as production in paying quantities is obtainable.” Syl. Pt. 1, McCullough Oil, Inc. v. Rezek, 176 W. Va. 638, 640, 346 S.E.2d 788, 790 (1986). The owners of the minerals underlying Plaintiffs’ properties have conveyed their rights to reasonable use of the surface properties to Antero by virtue of their lease agreements. West Virginia law recognizes that a surface owner does not have an “unrestricted right to enjoyment in their property” but rather that “[a] surface owner’s rights [ ] are subject to the mineral owner’s rights.” Martin v. Hamblet, 230 W. Va. 183, 191, 737 S.E.2d 80, 88 (2012). A “legally binding lease that grants [an operator] explicit rights of access to the oil and gas underlying [a surface owner’s] property [is] a contractual obligation burdening [the surface owner’s] surface estate that deprives him of an unrestricted right to enjoyment of his property.” Id. Plaintiffs offer no expert testimony to show that Antero’s use of Plaintiffs’ surface property has exceeded what is reasonable and necessary to develop the minerals or that less intrusive means exist. Antero’s use of Plaintiffs’ land is also protected by having obtained and complied with applicable well permits. See Teel v. Chesapeake Appalachia, LLC, 906 F. Supp. 2d 519, 525–26 (N.D. W. Va. Oct. 25, 2012) (Memorandum Opinion) (where surface owners complained 31 of natural gas operator’s use of the surface for pits to hold drill cuttings, the court found that the operator’s decision “to fill the pits . . . was an act contemplated by West Virginia law” and the use was “necessary and reasonable”). The granting of, and Antero’s compliance with, its well permits demonstrates that its use of Plaintiffs’ surface estates is reasonable and contemplated by West Virginia law.21 Horizontal wells minimize the disruption of the surface, risks of contamination due to casing defects and wells, and expenses required for well support and maintenance because fewer wells are needed with horizontal drilling than with the conventional vertical well. See Report of Robert W. Chase, Ph.D., Aug. 17, 2015, at 12–13, the relevant portions of which are attached hereto as “Exhibit V.” Therefore, the impact of Antero’s operations in the course of mineral development is in fact significantly less than it would be were conventional vertical wells still used. In the present matter, Antero has leased the minerals in the Marcellus Shale formation underlying Plaintiffs’ properties. See “Affidavit of Alvyn A. Schopp,” a copy of which is attached hereto as “Exhibit W.” The Marcellus Shale formation underlying Plaintiffs’ properties can best be developed through the use of horizontal drilling. See Chase Report (Ex. V) 12–13 (explaining that horizontal drilling minimizes the disruption of the surface, risks of contamination due to casing defects in wells, and expenses required for well support and 21 Moreover, Antero entered into surface use agreements and other land use agreements with surface estate owners, including Plaintiffs, to provide compensation for its activities on their land prior to being required to by West Virginia law. When Antero began preparations to drill the Cherry Camp wells, the Horizontal Well Act, codified at West Virginia Code § 22-6A-1 et seq., had not yet been enacted. The Horizontal Well Act became effective on January 1, 2012. When Antero began preparations to drill the Cherry Camp wells, West Virginia law required that an operator provide notice to surface estate owners that it would be drilling a well and/or utilizing the property for roads in the course of mineral development. See W. Va. Code § 22-6-9(a)(1)–(2). Operators were not required to offer compensation for any surface estate disturbance or use. It was not until the Horizontal Well Act was enacted in 2012 that West Virginia law required that an operator provide a surface owner with an “offer of compensation for damages to the surface affected by oil and gas operations.” See W. Va. Code § 22-6A-16. Desiring to have good relations with its neighbors, Antero entered into surface use agreements providing compensation to surface estate owners, including Plaintiffs, prior to 2012. See footnotes 22 and 23, infra. 32 maintenance because fewer wells are needed with horizontal drilling than with a conventional vertical well). Development of the minerals through horizontal drilling includes the preparation, drilling, operation, and maintenance of well pads and the associated wells. These stages of development require the use of trucks to transport materials and water to and from the well pads, drilling equipment, lights, and pits. Noise, traffic, vibrations, dust, lights, and odors are the natural result of these necessary development tools. Antero has made efforts to reduce the impact of these effects on Plaintiffs. See footnote 27, infra. However, Antero is entitled to the reasonable and necessary use of Plaintiffs’ property to develop its mineral estate, including the presence of noise, traffic, vibrations, dust, lights, and odors on or around Plaintiffs’ land. c. Antero’s Use of Plaintiffs’ Land Is Reasonable Because It Has Express Contractual Rights To Conduct Activities on Plaintiffs’ Property. Under West Virginia law, “[a] valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). Contracts related to mineral development such as an oil and gas mineral lease “[are] designed to accomplish the main purpose of the owner of the land and of the lessee (or its assignee) as operator of the oil and gas interests: securing production of oil or gas or both in paying quantities, quickly and for as long as production in paying quantities is obtainable.” Syl. Pt. 1, McCullough Oil, Inc., 176 W. Va. at 640, 346 S.E.2d at 790. Antero and Plaintiffs, or the owners of the properties on which Plaintiffs reside or their predecessors in title, have entered into various agreements granting Antero the right to use Plaintiffs’ properties in the course of its mineral development. These agreements include 33 mineral severance deeds, oil and gas leases, right of way agreements, road use agreements, surface use agreements, tank pad agreements, and pipeline easements.22 As mineral owner, Antero has express rights for use of Plaintiffs’ surface properties for mineral development and extraction. Those development rights were retained by the oil and gas mineral owners in the severance deeds separating the surface and mineral estates. As lessee, Antero has full benefit of those express surface use rights including: Deborah Andrews [T]he right to drill, bore and operate for [oil and gas] at any time, also the right to use water from said land for the purpose of said drilling, boring and operating, and the right at any time to remove all necessary machinery used for the last named purposes, upon or off said land[.] Schopp Aff. (Ex. W), ¶ 15. The agreements expressly granting Antero the right to use Plaintiffs’ land at issue in this matter in the course of its mineral development are as follows: Right of Way Agreement dated January 19, 2009, between Deborah Andrews and Robert Andrews and Bluestone Energy Partners recorded on February 23, 2009, in Book 1427, Page 1112; Right of Way Agreement dated November 25, 2008, between Clyde Kinney, Jr., and Bluestone Energy Partners recorded on December 30, 2008, in Book 1426, Page 357; Road Grant/Right of Way Agreement dated October 15, 2009, between Clyde Kinney, Jr., and Bluestone Energy Partners recorded on November 20, 2009, in Book 1439, Page 221; Oil and Gas Lease dated March 23, 2010, between Clyde Kinney and Bluestone Energy Partners recorded on June 15, 2010, in Book 1449, Page 69; Memorandum of Surface Use Agreement dated July 17, 2009, between Clyde Kinney, Jr. and Antero Resources Appalachian Corporation recorded on July 27, 2009, in Book 1434, Page 1285; Tank Pad Agreement dated October 1, 2013, between Daniel L. Kinney, Attorney-in-Fact for Clyde Kinney Jr., and Antero Resources Corporation; Memorandum of Tank Agreement dated July 9, 2013, between Daniel L. Kinney, Attorney-in-Fact for Clyde Kinney Jr., and Antero Resources Corporation recorded on December 3, 2013, in Book 1523, Page 834; Tank Pad Agreement dated July 12, 2013, between Daniel L. Kinney, Attorney-in-Fact for Clyde Kinney, Jr., and Antero Resources Corporation; Letter of Agreement dated March 8, 2013, between Daniel L. Kinney, Attorney-in-Fact for Clyde Kinney Jr., and Antero Resources Appalachian Corporation; Memorandum of Tank Pad Agreement dated July 9, 2013, between Daniel L. Kinney, Attorney-in-Fact for Clyde Kinney Jr., and Antero Resources Corporation recorded on September 9, 2013, in Book 1517, Page 1023. Copies of these agreements, with redactions of confidential payment terms and social security numbers from nonrecorded documents, are attached hereto as “Exhibit X.” 22 34 Rodney and Katherine Ashcraft [T]he right to drill, bore and operate for [oil and gas] at any time, also the right to use water from said land for the purpose of said drilling, boring and operating, and the right at any time to remove all necessary machinery used for the last named purposes, upon or off said land[.] Schopp Aff. (Ex. W), ¶¶ 15, 19. Mary Mikowski and Gregg McWilliams [T]he right to drill, bore and operate for [oil and gas] at any time, also the right to use water from said land for the purpose of said drilling, boring and operating, and the right at any time to remove all necessary machinery used for the last named purposes, upon or off said land[.] Schopp Aff. (Ex. W), ¶¶ 15, 23. Daniel and Sharon Kinney [D]rilling, operating for, producing oil or gas, or both, together with the right and easement to construct, operate, repair, maintain and remove pipelines, telephones, power and electric lines, tanks, ponds, roadways, plants, equipment and structures thereon to produce, save, store and take care of such substances, and the exclusive right to inject air, gas, water, brine and other fluids into the subsurface strata and any and all other rights and privileges necessary, incident to, or convenient for the economic operation of the lands, alone or conjointly with neighboring lands[.] Schopp Aff. (Ex. W), ¶¶ 30, 34. Clyde Kinney, Jr. (Robert and April Golden) [D]rilling, operating for, producing oil or gas, or both, together with the right and easement to construct, operate, repair, maintain and remove pipelines, telephones, power and electric lines, tanks, ponds, roadways, plants, equipment and structures thereon to produce, save, store and take care of such substances, and the exclusive right to inject air, gas, water, brine and other fluids into the subsurface strata and any and all other rights and privileges necessary, incident to, or convenient for the economic operation of the lands, alone or conjointly with neighboring lands[.] Schopp Aff. (Ex. W), ¶¶ 30, 34. 35 Charles T. Mazer and Susan Mazer [T]he oil and gas in and under said land with the right to operate for same, as usually granted in oil and gas lease[.] Schopp Aff. (Ex. W), ¶ 40. Douglas and Catherine Mazer [A]ll the coal, oil and natural gas within and underlying said tract of land with all the rights necessary and convenient to mine, operate for and remove all of said coal, oil and natural gas without being liable to the grantee herein for any damages occasioned by such operations. Schopp Aff. (Ex. W), ¶ 47. [E]xploring by geological and geophysical and other methods, (including, but not limited to, conducting seismic surveys), drilling either vertically or horizontally, operating for, producing oil or gas or both, including methane gas present in or associated with any formations, horizons, strata or zones [along with] the right and easement to construct, operate, repair, maintain, resize and remove pipelines, telephone, power and electric lines, tanks, ponds, roadways, plant, equipment and structures thereon to produce, save, store and take care of such substances, and the exclusive right to inject air, gas, water, brine or other fluids into the subsurface strata and any and all other rights and privileges necessary, incident to, or convenient for the economical operation of the lands, alone or conjointly with neighboring lands[.] Schopp Aff. (Ex. W), ¶ 49. [E]xplore for, develop, produce and sell the Oil and Gas including, but not limited to: (a) conducting geological, geophysical and other exploratory work; seismic drilling (either vertically, horizontally or directionally); (b) gathering, transporting, storing, compressing and the right to construct and remove roads, electric power and telephone facilities, tanks, structures and pipelines including meters that Lessee may need for the transportation of Oil and Gas from the Premises to other lands; (c) injecting under pressure air, gas, water, brine and other fluids for the enhanced recovery of Oil and Gas and withdrawing the same therefrom; and (d) exercising all other rights that may be necessary or incident to the purposes set out above. Schopp Aff. (Ex. W), ¶ 50. 36 Robert and Betty Siders [A]ll the oil and gas underlying the land herein conveyed together with the privilege of operating for and Marketing same. Schopp Aff. (Ex. W), ¶ 53. Therefore, in light of the express rights arising under severance deeds and leases whereby Antero had the right to use their properties in the course of development, Plaintiffs cannot recover for nuisance. Additionally, Antero is entitled to summary judgment on all nuisance claims filed against Antero by the Mazer Plaintiffs as well as Plaintiff Lindsey Feathers because Plaintiffs Doug and Catherine Mazer executed several agreements expressly granting Antero the right to utilize their property for mineral development. These agreements include surface use agreements, pipeline easements, and right of way agreements.23 Plaintiffs Doug Mazer and Catherine Mazer do not allege that Antero exceeded its rights under these agreements. Use of land in accordance with an agreement granting such rights cannot constitute a nuisance as a 23 See Memorandum of Surface Use Agreement dated July 29, 2010, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Bluestone Energy Partners recorded on August 25, 2010, in Book 1453, Page 1204; Memorandum of Amended and Restated Surface Use Agreement dated October 11, 2011, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Antero Resources Appalachian Corporation recorded October 13, 2011, in Book 1478, Page 125; Pipelines Easement and Right of Way Agreement dated January 27, 2011, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Antero Resources Appalachian Corporation; Memorandum of Pipeline Easement and Right of Way Agreement dated January 27, 2011, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Antero Resources Appalachian Corporation recorded on January 28, 2011, in Book 1462, Page 517; Surface Use Agreement dated July 29, 2010, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Bluestone Energy Partners; Amended and Restated Surface Use Agreement dated October 11, 2011, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Antero Resources Appalachian Corporation; Surface Use Agreement dated May 17, 2010, between Douglas A. Mazer and Catherine S. Mazer, husband and wife, and Bluestone Energy Partners; Right of Way Agreement dated July 27, 2010, between Douglas A. Mazer and Catherine S. Mazer, and Bluestone Energy Partners; Agreement sent via email between Kevin Kilstrom and Douglas Mazer regarding the O. Rice Pad dated September 27, 2011; and Option Agreement dated May 7, 2010, between Doug and Cathy Mazer and Bluestone Energy Partners. Copies of these agreements, with redactions of confidential payment terms and social security numbers from non-recorded documents, are attached hereto as “Exhibit Y.” 37 matter of law without a showing that the actions or inactions of the defendant have exceeded the scope of the rights granted. See Quintain Dev., LLC v. Columbia Nat. Res., Inc., 210 W. Va. 128, 136–37, 556 S.E.2d 95, 103–04 (2001) (holding that “the actions or inactions of the owner of an easement, which otherwise meet the legal definition of a nuisance, do not create a nuisance as to the estate servient to the easement unless those actions or inactions exceed the scope of the easement”). d. Any Interference By Antero Has Not Been Substantial. Plaintiffs cannot meet their burden to show that the noise, traffic, vibrations, dust, lights, and odors they allege exist as a result of Antero’s oil and gas operations rise above a “slight inconvenience or a petty annoyance” to be “a real and appreciable invasion of [their] interest[s].” Carter, 212 W. Va. at 737, 575 S.E.2d at 347 (quoting Restatement (Second) of Torts § 821F(c) (1979)). Plaintiffs complain about noise, traffic, vibrations, dust, lights, and odors. These complaints are centered on the trucking operations as the trucks would travel to and from the well pad locations to prepare the well pads for drilling and transport water and other necessary materials. Although Plaintiffs make very general allegations that they could no longer enjoy their homes,24 Plaintiffs are unable to provide specific examples of how this alleged interference was substantial, unreasonable, or materially impaired their physical comforts. Plaintiffs have not sought any counseling or treatment for anxiety, depression, or any other mental or emotional condition due to the oil and gas activities. See Catherine Mazer Dep. (Ex. Q) 63:24, 64:17 (stating that none of the plaintiffs, including herself and her family, have sought counseling or L. Feathers Dep. 99:01–08, Mar. 6, 2015, the relevant portions of which are attached hereto as “Exhibit Z” (alleging that her life has changed because she cannot go out on her front porch “and enjoy that peace and quiet”); D. Kinney Dep. (Ex. I) 71:16–24 (alleging that he cannot enjoy his home or farm anymore due to the proximity of the well pad). 24 38 other treatment for depression, anxiety, or anything else). Plaintiffs do not allege they left their homes to avoid any of the conditions of which they complain.25 Many Plaintiffs did not even make reasonable efforts within their homes—such as purchasing and installing window coverings—to avoid the conditions of which they complain.26 Furthermore, Antero made good faith efforts to correct or resolve any issues brought to its attention by Plaintiffs. See D. Andrews Dep. 108:21–22, 121:11–13, Mar. 10, 2015, the relevant portions of which are attached hereto as “Exhibit AA” (stating that Antero fixed problems every time she reported them and that her contact with Antero always tried his best to help her).27 Many Plaintiffs admit that they 25 See R. Golden Dep. (Ex. N) 81:23- 82:1–6 (admitting he never left home to get away from the noise). 26 See R. Ashcraft Dep. (Ex. J) 59:05–17, 104:22-105:18 (stating that truck lights shine through his bedroom windows but admitting that there are no blinds to block the light and that the trucks do not use any more light than is necessary); M. Mikowski Dep. (Ex. S) 43:24-47:01 (alleging that lights from the pond and truck traffic were issues from 2009-2013 but the pond lights were removed when the pond was finished and admitting that the truck lights are still bothersome but they do not have blinds in their bedroom windows and the trucks do not use more light than is necessary). 27 See also A. Golden 27:02–12 (Ex. O) (alleging that her car mirror was damaged but admitting that it was repaired to satisfaction); D. Kinney Dep. (Ex. I) 73:20-75:01, 105:01–05 (stating that Antero’s response time for a road treatment request was 20 minutes and that an Antero representative was “always very responsive” to his complaints); D. Mazer Dep. (Ex. L) 38:24–39:24, 231:22-232:4, 240:17-241:13 (stating that the water trucks would use his gravel lot as a staging area but quit doing so when he asked them to stop and that representative Brad Davis is responsive to his complaints); Susan Mazer Dep. (Ex. R) 63:17-64:12 (stating that the lights at the well pad were turned down after she went to the pad and made the request; they are no longer shining in her house); G. McWilliams Dep. (Ex. M) 60:13–24 (stating that he complained to Antero about the dusty roads and Antero would respond by sending a truck to perform water treatments on the road); 101:5-102:4 (stating that he complained to Antero regarding speeding and truckers’ use of his private driveway to turn around and Antero responded by installing speed limits signs on Plaintiff McWilliams’ road and a sign on his driveway to prevent people from turning around); 117:01–14 (stating that he complained to Antero representative about his damaged mailbox, and a crew was sent to remedy the situation); R. Siders Dep. 68:03–21, Mar. 12, 2015, the relevant portions of which are attached hereto as “Exhibit BB” (stating that he called Antero about his fence being knocked down and Antero sent employees to fix the fence); 70:20-71:11 (stating that he complained to Antero about the road being messy and Antero would fix the road); 118:05-119:04 (stating that Antero promised to fix the culverts after he complained about the culverts being clogged); 171:09–13 (stating that Antero began watering the roads after he complained about the dust); B. Siders Dep. (Ex. K) 60:07–24 (stating that Antero responded to her husband’s complaints about dust with a water truck). 39 never reported issues of which they now complain.28 Noise, Traffic, and Odors Whether noise constitutes a nuisance will depend upon the time, locality, and degree. Only noise that materially interferes with and impairs ordinary physical comforts may constitute a nuisance. Syl. Pt. 1, Powell v. Bentley & Gerwig Furniture Co., 34 W. Va. 804, 12 S.E. 1085 (1891); accord Herring v. Wilton, 55 S.E. 546, 547 (Va. 1906) (for noise to constitute a nuisance, it must be shown that the noise causes physical discomfort to a person of ordinarily sensibilities and is unreasonable and unnecessary). The fact that some noises and odors that are “obnoxious” to some individuals result from a business’s conduct is insufficient to constitute a business nuisance per se. State v. Philippi, 136 W. Va. 120, 125, 65 S.E.2d 713, 715 (1951). See Darney v. Dragon Products Co., LLC, 771 F. Supp. 2d 91 (D. Me. 2011) (where homeowners alleged nuisance against cement manufacturer for noise caused by trucks early in the morning and constant humming from the cement plant at night, the court found that even if any damage from vibrations or noise were shown to be the result of defendant’s operations such damage constitutes nothing more than a slight inconvenience or petty annoyance and thus are not “substantial”); Totorella v. H. Traiser & Co., 188 N.E. 254, 256 (Mass. 1933) (where a resident living near a factory brought a nuisance claim against that factory for noise allegedly causing irritability and headaches, the court found that the plaintiff could not recover because the alleged invasion was not so injurious as to be unreasonable). 28 K. Ashcraft Dep. (Ex. P) 44:12-45:18, 54:17-55:2 (admitting that she never reported her complaints regarding the traffic, noise, or lights from the trucks); R. Golden Dep. (Ex. N) 30:12–24 (admitting that he never complained about the vibrations); A. Golden Dep. (Ex. O) 144:18–22 (admitting she never complained about the dust or requested that the roads be watered); D. Kinney Dep. (Ex. I) 149:05–10 (admitting he never complained about noise); B. Siders Dep. (Ex. K) 64:12–22; 65:24-66:05; 67:02–07 (admitting that even though alleged diesel fumes and natural gas odors allegedly caused irritation, she never reported her concerns over either odor). 40 Plaintiffs’ complaints center on the trucking activities. Although the Cherry Camp area is a rural area much like many other communities in Harrison County, the presence of large trucks is not unusual due to other businesses that operate locally. In fact, the Mazer Plaintiffs own and operate Mazer’s Hauling and Dozer Services LLC from the same area. None of Plaintiffs’ complaints regarding noise rise to the level of “a real and appreciable invasion of [their] interests” to materially interfere with and impair ordinary physical comfort.29 One See D. Andrews Dep. (Ex. AA) 65:16–22, 110:18-111:07 (alleging that she has “heard noises several times” and that she can sometimes hear the trucks using jake brakes at night, which sometime wakes her up so she sleeps with a fan to muffle the noise and keeps the window closed, but admitting that sleeping difficulties are inconsistent); K. Ashcraft Dep. (Ex. P) 22:07–16, 44:04-47:13 (stating there is nonstop noise from trucks driving past and that the trucks have loud engines and the wheels clank on the road but that she never complained to anyone about the noise); A. Golden Dep. (Ex. O) 65:21-66:24 (alleging that a “flaring noise” can be heard for days at a time and that she can hear truck and brake noises from the Mary Post and Hustead well pads during day and night); D. Mazer Dep. (Ex. L) 95:10-96:08, 109:12111:02, 149:10-11 (stating that (1) he complained to Antero about noise on his property, and Antero installed a noise monitoring device; (2) he could not sit on the porch on summer evenings because of the noise from the truck traffic and drilling although he did not lose sleep due to noise); Shawn Mazer Dep. 34:12–24; 35:01–08, 47:04–24; 48:01, Mar. 6, 2015, the relevant portions of which are attached hereto as “Exhibit CC” (stating that he once heard an explosion at the Hustead well pad while at his home, which is 2 miles away, and that he no longer cooks outside with his family due to truck noise); L. Feathers Dep. (Ex. Z) 23:06–08; 51:17–19 (stating that she experienced noise when the water, sand, and rock trucks would travel to the O. Rice well pad and that noise occurs in her house every day when a truck goes past); G. McWilliams Dep. (Ex. M) 56:15–20, 57:01–07, 24, 58:01–04, 107:02–08 (stating that noise was the big issue but it has been intermittent since the drilling stopped); M. Mikowski Dep. (Ex. S) 48:19-52:04 (stating that she can hear a soft humming noise from the pump station when she is outside but cannot hear it inside her home and that there is noticeable truck noise such as jake brakes and back-up alarms at night); R. Siders Dep. (Ex. BB) 53:13–18, 76:07–11 (stating that noise and lights from the road kept him awake “all hours of the night” and that a “roaring equipment noise” from the pad at different times, especially at night, was heard); B. Siders Dep. (Ex. K) 41:22-42:08 (alleging that there was noise from machinery running and truck convoys while the well pad was being constructed and then later the noise came from drilling, clanging, and roaring; the noise from the well pads was intermittent, but the noise from the trucks was constant; and truck convoys passed the house 2 to 3 times a day for a couple of minutes each time; but she has complained only to her husband about the noise); D. Kinney Dep. (Ex. I) 160:17-161:08 (alleging that he has had trouble sleeping throughout the night due to activities at the well pads); D. Nutt Dep. 60:02–18, 64:02–20, 73:09-74:02, Mar. 9, 2015, the relevant portions of which are attached hereto as “Exhibit DD” (alleging that he initially heard continuous noise from the road and well pad but it lessened to be mostly traffic and equipment running; that the noise can be heard with the doors and windows closed; the drilling activity used to keep him awake but he would just put a pillow over his head; and that he did not request a sound barrier from Antero; and that he could hear noise from equipment driving to the well pad, drilling, and trucks and describing it has 10-15 trains running continuously); R. Golden Dep. (Ex. N) 35:22-41:10 (stating he has heard noise while inside his house from dozers and compressors at the Mary Post well pad “off and on” since 2009 but has never complained about it). 29 41 Plaintiff was only able to describe the traffic as “very annoying.” D. Andrews Dep. (Ex. AA) 36:17–20 (describing the truck traffic as being only “very annoying”). Another Plaintiff stated that she can no longer get dressed in the morning in front of her bedroom windows—which are not covered by any curtains or blinds—because of the morning truck traffic. M. Mikowski Dep. (Ex. S) 43:24-47:03, 55:21-57:5 (stating that she can no longer dress in the mornings in front of her coverless windows because of the early morning truck traffic and that there was a “horrendous” amount of traffic, although it has decreased in the past year). Other complaints regarding traffic are simply that Plaintiffs must depart their homes a few minutes earlier to account for increased traffic on public roads;30 this issue is no different than any other driver faces and is not grounds for a private nuisance, see Section III.C.4 infra, or a material impairment of physical discomfort. Similarly, the only odors of which the majority of Plaintiffs complain are diesel fumes, but Plaintiffs only smell these odors when the trucks pass their homes while they are outside.31 Only one plaintiff, Betty Siders, specifically described the frequency of L. Feathers (Ex. Z) 97:16–20; 22:06–20 (alleging that traffic was “horrible” and that she has been late for work twice but admitting that she cannot remember when that occurred); B. Siders Dep. (Ex. K) 132:10–18 (alleging that she had to begin leaving her home a half an hour early to be on time due to the traffic); D. Kinney Dep. (Ex. I) 142:15–21 (alleging that they would have to leave early for an appointment to ensure they were on time). 30 31 R. Ashcraft Dep. (Ex. J) 70:18–29, 115:01–06, 14–15 (alleging that he can smell diesel fumes from the trucks when they pass and when they sit and wait while roads are blocked); K. Ashcraft (Ex. P) 49:17–20 (stating that she can smell diesel fumes when there are a lot of trucks passing at one time); R. Golden (Ex. N) 32:04–07, 33:04-34:10 (stating that he could smell diesel fumes for two days in 2013 and thinks they were from the activities at the Mary Post well pad); A. Golden Dep. (Ex. O) 97:15–20; 98:04–24, 100:03– 18, 132:14-133:08 (stating that she believed there are odors coming from the pit area and diesel fumes but that she recently has not noticed odors from the pit area anymore and only smells diesel fumes when the trucks are running); R. Siders Dep. (Ex. BB) 60:14–61:06, 61:09–15 (alleging that he has smelled diesel fumes outside after the truck convoy passed and that he smelled crude oil outside when the hydraulic fracturing was going on but admitting he has not smelled odors inside his house); B. Siders Dep. (Ex. K) 62:02–11; 54:12–22 (alleging that she could smell diesel and natural gas when she was outside); G. McWilliams Dep. (Ex. M) 84:24-85:11 (alleging that he could smell diesel fumes for a “number of weeks” after a truck had fallen over on the road); D. Andrews Dep. (Ex. AA) 104:19–22 (alleging that she could smell diesel fumes when the trucks are waiting on roads for traffic); D. Kinney Dep. (Ex. I) 82:02– 23 (alleging that he could smell diesel fumes while sitting outside and that during the summer he could 42 the trucking: she testified that the trucks would only pass the Sider house two to three times a day, and the passing of the trucks would last only a couple of minutes. B. Siders Dep. (Ex. K) 52:10-53:18. Any noise, traffic, or odors have not materially impaired ordinary physical comforts. At most, two plaintiffs complained that they would not sit on their porches as a result of traffic and noise,32 but one of these plaintiffs also testified that he had not lost sleep as a result of the noise. See D. Mazer Dep. (Ex. L) 109:12-111:02 (alleging that his family “went in the house occasionally because of the noise” rather than sit on the front porch during the evening); 149:10–13 (admitting he has not had any problems sleeping). Plaintiff Shawn Mazer stated that his family no longer cooks outside to avoid truck noise. Shawn Mazer Dep. (Ex. CC) 47:04–20 (alleging that his family cooked out two or three times a week before drilling activities began on the O. Rice well pad and cooked out less afterwards due to the noise from truck traffic). No details were provided as to how often these Plaintiffs would sit or cook outside prior to the alleged noise and how the alleged noise decrease their abilities to take part in those activities. Finally, only a few Plaintiffs alleged they lost sleep due to Defendants’ activities, and these Plaintiffs did not provide any details to show that the loss of sleep was a material impairment or an appreciable invasion; only vague, general, and conclusory statements were given. 33 smell the pit and it smelled like sulfur). Not all Plaintiffs have experienced gas odors. See e.g., G. McWilliams Dep. (Ex. M) 63:16–21 (stating that he has never smelled gas from the gas well); D. Andrews Dep. (Ex. AA) 106:12–19 (admitting that she experiences no odors other than diesel fumes from trucks that have had to sit and wait on the road). 32 See L. Feathers Dep. (Ex. Z) 99:01–08 (alleging that her life has changed because she cannot go out on her front porch “and enjoy that peace and quiet”); D. Mazer Dep. (Ex. L) 109:12-111:02 (alleging that his family “went in the house occasionally because of the noise” rather than sit on the front porch during the evening); 149:10–13 (admitting he has not had any problems sleeping). 33 D. Mazer Dep. (Ex. L) 149:10-11 (stating that he has not lost any sleep); Charles A. Mazer Dep. 38:16– 23, 39:11–13, Mar. 6, 2015, the relevant portions of which are attached hereto as “Exhibit EE” (stating that he has woken in the night hearing trucks blowing their air horns but just goes back to sleep); G. 43 In sum, the traffic, noise, or odors do not rise to the level of an appreciable invasion of interest or material impairment of physical comfort. Dust Plaintiffs’ complaints about dust do not rise above annoyance to an appreciable invasion of interest or a material impairment of physical comfort.34 In West v. Nat’l Mines Corp., 168 W. Va. 578, 581, 285 S.E.2d 670, 673 (1981), the Court found that dust could be a McWilliams Dep. (Ex. M) 56:05–09 (stating he has had some sleep issues due to traffic lights and pad construction); R. Ashcraft Dep. (Ex. J) 74:05-14 (has had trouble sleeping due to oil and gas activities only within the last year [3/14 – 3/15]). 34 See D. Andrews Dep. (Ex. AA) 127:12–22 (stating that dust has settled over the house and that it is minimal at times and worse at other times); R. Ashcraft Dep. (Ex. J) 60:07-61:14 (alleging that the trucks create clouds of dust when conditions are dry and they drive up the road but admitting that Antero’s water trucks help alleviate the dust); K. Ashcraft Dep. (Ex. P) 22:07–16, 37:11-39:06, 47:14-49:07 (alleging that the trucks cause dust to fly up and that Antero would send out water trucks to treat the roads, but she thinks the water trucks should have treated the roads more often and that she is unable to sit outside anymore due to the dust); R. Golden Dep. (Ex. N) 41:11–24 (alleging when conditions were dry while work was being performed at the Mary Post well pad, his vehicle would be covered in dust); A. Golden Dep. (Ex. O) 68:08–24 (alleging that the dust has increased from “minimal” before the oil and gas activities to the point that it covers their vehicles and she no longer wants to walk outside for exercise); D. Kinney Dep. (Ex. I) 71:21; 72:01–11 (alleging that the dust was bad while he bailed hay and he requested water treatment, but the treatment only brought relief for 10 minutes); Catherine Mazer Dep. (Ex. Q) 56:21-57:21 (alleging that dust and dirt were dragged from the road but the water trucks watered the road every day or sometimes two to three times a day); Shawn Mazer Dep. (Ex. CC) 32:17-33:13 (alleging that the trucks cause dust in the summertime, and he must wash his vehicles two or three times a month rather than the prior once per month); L. Feathers Dep. (Ex. Z) 23:21–23, 97:08–11 (alleging that the dust is “excessive” during the summer and spring time when conditions are dry; the dust covers vehicles and “everyone’s stuff” and she “doesn’t enjoy rolling up the car windows to drive by where [she] lives” because of the dust that “rolls” in the air); G. McWilliams Dep. (Ex. M) 60:03–22 (alleging that conditions are often dusty due to truck traffic, but he reports it to Antero representative Tim Rains and water trucks come to water the road); M. Mikowski Dep. (Ex. S) 77:23-79:10 (alleging that the truck traffic in front of her house created a lot of dust for 1-2 years, and they would have to move from the front porch to the back to avoid the dust, clean the house and porch often and request that Antero have the roads watered); R. Siders Dep. (Ex. BB) 58:15-59:05 (alleging that his car is constantly caked in mud and must be washed often); B. Siders Dep. (Ex. K) 59:11–15 (alleging that the dust settled on the house, windows, and porch furniture and that the house windows could not be kept open during the summer due to dust and fumes); D. Nutt Dep. (Ex. DD) 65:08-66:08 (alleging that dust was present from the time the well pad was prepared through the drilling and hydraulic fracturing activity and that his vehicle was always covered in dust); D. Mazer Dep. (Ex. L) 107:03-109:11 (alleging that the dust on vehicles requires him to wash the vehicles once a month rather than once every two or three months, and he has not had to stay inside because of the dust). 44 private nuisance where the evidence presented was that the dust was thick “‘like a cloud hanging down there all day long way up into the night’” and that plaintiffs had to wear masks while outside. The Court described the dust as “ubiquitous.” Id. The Court further stated: [The dust] permeates the house even with the doors and windows closed. The evidence shows that the dust is oily and greasy, black looking and hard to clean. It interferes with breathing. It spoils the food raised by the appellants in their garden. It fouls the water, and prevents the appellants from sleeping soundly. Id. There are no such complaints or allegations in this litigation. There are also no allegations that the dust is anything more that common roadside dust. See Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-CV-1425, 2015 WL 1345235 (M.D. Pa. Mar. 25, 2015) (“mere roadside noise and dust do not constitute a private nuisance”); Karpiak v. Russo, 676 A.2d 270, 272–74 (Pa. 1996) (where homeowners sued landscaping supply business alleging nuisance due to noise and dust arising from the landscaping business, the court found that the dust arose from benign natural substances and did not constitute a private nuisance). Plaintiffs complain that the trucks cause dust when they drive by their homes that settles on vehicles or homes, but Antero regularly watered the road and sent water trucks upon request to provide extra water. See, e.g., D. Kinney Dep. (Ex. I) 105:01–05 (stating that he requested that Antero send water trucks to treat the roads and that Antero would respond). According to Plaintiffs, the dust is at its worst during the hot, dry summer months. See footnote 34, supra. But at most, Plaintiffs keep the windows closed and wash their cars more frequently. Id. Two Plaintiffs have alleged that they do not want to sit outside anymore due to the dust, but one Plaintiff who runs for exercise states that she still runs outside, M. Mikowski Dep. (Ex. S) 49:21-50:02, 57:12–17, 177:16–22, and another Plaintiff admits that he is able to enjoy as much time outdoors as he did before Antero’s activities began. G. McWilliams Dep. (Ex. M) 59:13–18 (admitting that he is able to enjoy as much time outdoors as he did before drilling began). 45 Unlike the facts in West, there are no allegations that the dust permeates houses even with doors or windows closed; that it is anything more than common roadside dust that is easy to clean; that it interferes with breathing or that face masks must be worn; that it has spoiled food; or that it has interfered with sleep. Only Plaintiff Robert Siders alleges that his garden has been affected,35 but soil testing reveals that a burn pit may have impacted his garden. Saba Report (Ex. A) 4-14 (stating that the Siders have a recreational burn pit and a garden and that he took a soil sample from the garden and that the results of the soil sample showed that household activities were contaminating the soil). Other Plaintiffs admit that they continued to maintain and eat produce from their gardens.36 In sum, Plaintiffs’ allegations show that any dust caused by Antero’s oil and gas development does not rise to the level of an appreciable invasion of interest or material impairment of physical comfort. Lights and Vibrations Finally, Plaintiffs complain about lights and vibrations from the trucks and lights from the well pads. Again, these complaints show that there is no appreciable invasion of interest or material impairment of physical comfort. Darney, 771 F. Supp. 2d 91, 117 (where homeowners alleged nuisance against cement manufacturer for noise caused by trucks early in the morning and constant humming from the cement plant at night, the court found that even if 35 R. Siders Dep. (Ex. BB) 127:04–10 (alleging that his garden seemed to die overnight). 36 R. Ashcraft Dep. (Ex. J) 120:08-121:21 (admitting that neither the oil and gas activity nor trucking activity has affected his garden); K. Ashcraft Dep. (Ex. P) 81:11-13 (admitting that she continues to put up produce from her garden and use it in cooking and eating); D. Kinney Dep. (Ex. I) 98:09-99:21 (admitting that he did not throw away his canned goods even though he alleges that the water was contaminated); Susan Mazer Dep. (Ex. R) 89:08–13 (stating that she continued to have both a vegetable garden and a flower garden until she moved away); G. McWilliams Dep. (Ex. M) 59:13–18 (admitting that he is able to enjoy as much time outdoors as he did before drilling began). 46 any damage from vibrations or noise were shown to be the result of defendant’s operations such damage constitutes nothing more than a slight inconvenience or petty annoyance and thus are not “substantial”). At most, Plaintiffs allege that the truck lights shine into their homes occasionally as the trucks drive past or that they can see flares—when they occur on occasion—at the well pads, but many Plaintiffs also admit that they do not have blinds or curtains on their windows to block light.37 Therefore, light from any other traffic will also enter their homes. Additionally, several Plaintiffs admit they can neither see nor hear any well pads from their homes.38 Some 37 See D. Andrews Dep. (Ex. AA) 98:08–10 (stating that lights from the trucks as they travel up and down the hill shine into the house); R. Ashcraft Dep. (Ex. J) 59:5–17, 104:22-105:18 (stating that truck lights shine through his bedroom windows but admitting that there are no blinds to block the light and that the trucks do not use any more light than is necessary); K. Ashcraft Dep. (Ex. P) 40:02-42:10 (stating that the truck headlights would shine into her bedroom at night for a few seconds as the trucks drove by and would wake her up); A. Golden (Ex. O) 53:18–21; 57:10-58:03 (stating she can see flaring from the Hustead well pad through her bedroom window, and this caused sleep issues during summer of 2014); S. Kinney Dep. 58:06–14, Mar. 3, 2015, the relevant portions of which are attached hereto as “Exhibit FF” (admitting that the lights were not problematic once the door and drapes were shut); D. Kinney Dep. (Ex. I) 113:14-114:14 (alleging that the lights lit up his bedroom even with the blinds were shut); Charles A. Mazer Dep. (Ex. EE) 46:01–13 (alleging that he can see the glow of the lights from his house only if his curtains are open); M. Mikowski Dep. (Ex. S) 43:24-47:01 (alleging that lights from the pond and truck traffic were issues from 2009-2013 but the pond lights were removed when the pond was finished and admitting that the truck lights are still bothersome but they do not have blinds in their bedroom windows and the trucks do not use more light than is necessary); G. McWilliams Dep. (Ex. M) 54:15-56:13 (alleging concern about the lights from the building of the pond and the pad and claiming loss of sleep); R. Siders Dep. (Ex. BB) 53:13–18, 75:22 (alleging that noise and lights from the road kept him awake “all hours of the night” and that the lights on the rig flashed constantly); B. Siders Dep. (Ex. K) 38:2339:07; 40:02–8 (alleging that the excessive lights started when the well pad was being prepared and that the truck traffic causes lights at night but admitting closing the shades helps with the lights at night); D. Nutt Dep. (Ex. DD) 56:12-57:02, 58:15-59:24 (alleging that the place was lit up like Mountaineer Field on a Saturday night even with the blinds closed but stating that the brightness of the lights decreased once the well pad turned into a staging area); D. Mazer Dep. (Ex. L) 35:11–15, 104:24-105:17 (alleging that he can see lights on the Johnson well pad but cannot estimate the distance from his house to the well pad but admitting the lights do not keep him awake at night). 38 See D. Andrews Dep. (Ex. AA) 37:04–07, 65:01–02 (admitting that none of the wells are visible from her home); K. Ashcraft Dep. (Ex. P) 76:21-78:03 (admitting that she cannot see Hill Pad or O. Rice Pad from her house); R. Golden Dep. (Ex. N) 32:11–16 (admitting that he cannot see the Mary Post lights from his home); A. Golden Dep. (Ex. O) 62:02-63:22 (admitting she cannot see the Hustead well pad from her home). 47 Plaintiffs complain that they can feel vibrations as trucks pass their homes, which one Plaintiff estimates occurs two to three times a day and lasts for a couple minutes each time. 39 Plaintiffs do not allege that their sleep has been materially impaired. See footnote 33, supra. In sum, Plaintiffs’ complaints regarding lights or vibrations affecting the enjoyment of their properties do not support a claim for private nuisance: their claims do not show that there has been an appreciable invasion of their interests, a material interference with the enjoyment of their properties, or that Antero has acted substantially or unreasonably. 3. Alleged Use Of Vulgar Language Or Gestures Cannot Form The Basis of A Private Nuisance Claim. In the course of this litigation, Plaintiffs have referred to the alleged use of vulgar language and/or gestures by employees or agents of Antero. See Compl. ¶¶ 32(l) (alleging “harassment and/or menacing, intimidating, disrespectful, arrogant, and obnoxious behavior”), 34(h) (same), 40(p) (alleging a “hostile and harassing environment”). Such language and gestures are irrelevant to this action because, under West Virginia case law, offensive language 39 D. Andrews Dep. (Ex. AA) 93:11-94:04 (alleging that she feels vibrations from the constant flow of truck traffic in front of her house); D. Kinney Dep. (Ex. I) 109:20-112:22 (alleging that there are vibrations that cause his windows and kitchenware to rattle); S. Kinney Dep. (Ex. FF) 53:06-54:01 (alleging that vibrations kept her and Plaintiff Daniel Kinney awake at night and that the pots and pans in the kitchen would rattle); R. Ashcraft Dep. (Ex. J) 72:16-73:16 (alleging that vibrations from the truck turn his touch lamps on or off and that he has not been able to use these lamps in two years as a result); K. Ashcraft 42:13-43:13 (Ex. P) (same); R. Golden Dep. (Ex. N) 29:02–20, 30:02–05, 31:10–24 (stating that he felt vibrations for one week in 2010 and one week in 2013 and that he lost sleep for two nights until he adjusted to and was able to fall asleep and stay asleep); A. Golden Dep. (Ex. O) 54:11–21 (alleging that vibrations have caused sleep issues); D. Mazer Dep. (Ex. L) 103:11-104:23 (stating that he experienced constant vibrations in his former house but does not experience them at his current residence); L. Feathers Dep. (Ex. Z) 43:15, 44:07–09 (stating that vibrations from truck operations occur daily as the trucks drive past); R. Siders Dep. (Ex. BB) 58:02–09 (stating that his house is near the road and that he could feel shaking and hear noise); B. Siders Dep. (Ex. K) 52:10-53:18 (stating that the convoys of large trucks that passed her house caused vibrations; this happened 2-3 times a day and would last a couple of minutes each time); D. Nutt Dep. (Ex. DD) 24:12-25:06, 54:13-24 (alleging that he felt intermittent vibrations caused the windows to vibrate or the house to rattle and shake but admitting that he did not document the occurrences and was at work during the day). Not all Plaintiffs experienced vibrations. See, e.g., Susan Mazer Dep. (Ex. R) 62:23–24 (stating she has never noticed vibrations at her house); G. McWilliams Dep. (Ex. M) 52:02 (stating that vibrations are not an issue). 48 or behavior cannot form the basis of a nuisance claim. See Bansbach, 229 W. Va. 287, 728 S.E.2d 533 (holding that the defendants’ posting of offensive signs, name calling, and other outward gestures of disapproval, while unwelcome and annoying, were “simply not what nuisance laws are aimed at remedying”); Booker, 216 W. Va. 727, 613 S.E.2d 94 (affirming summary judgment in favor of the defendant because defendant’s disruptive conduct, which included posting antagonizing signs, making false reports against the plaintiffs to the police and Child Protective Services, and video recording the activity of the plaintiffs, did not constitute unreasonable land use that substantially impaired the plaintiffs’ rights to use and enjoy their property). Therefore, Antero is entitled to summary judgment as a matter of law on any allegations or private nuisance based on vulgar language, gestures, or other “harassing” or “hostile” interactions. 4. Antero’s Activities on the Public Roads Cannot Form The Basis For A Private Nuisance Claim. West Virginia law defines private nuisance as a “substantial and unreasonable interference with the private use and enjoyment of another’s land.” Syl. Pt. 1, Hendricks, 181 W. Va. 31, 380 S.E.2d 198. A public nuisance affects the general public whereas a private nuisance injures only one person or a limited number of people. Hark v. Mountain Fork Lumber Co., 127 W. Va. 586, 595–96, 34 S.E.2d 348, 354 (1945). A private individual may not sue for relief from a public nuisance without showing that he has suffered a “special injury” that is “different in both kind and degree from the public.” Duff, 187 W. Va. at 716, 421 S.E.2d at 257. Recovery for private nuisance “‘is limited to plaintiffs who have suffered a significant harm to their property rights or privileges caused by the interference.’” Id. (quoting Hendricks, 181 W. Va. at 34, 380 S.E.2d at 201). 49 Specifically in the context of commercial trucks utilizing public roads, the Court has held that use of a public road can only constitute an actionable private nuisance if the use is (1) “unreasonable, negligent, or unlawful,” and (2) “materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein.” Syl. Pt. 1, West, 168 W. Va. 578, 285 S.E.2d 670. See also Duff, 187 W. Va. at 717–20, 421 S.E.2d at 258–61 (where testimony regarding road damage, traffic congestion and delays, accidents, noise, and diesel fumes was considered for a public nuisance claim and plaintiffs had to show how their business and homes were directly affected to bring a private nuisance claim). In other words, the use must be unreasonable and must directly affect the plaintiff’s property. Therefore, complaints that Plaintiffs have made regarding traffic or other road usage that has not affected their use and enjoyment of their property are not actionable as private nuisances and must be dismissed. Plaintiffs have complained about the following activities on public roads: traffic delays,40 speeding trucks,41 surface damage to the roads,42 traffic 40 See G. McWilliams Dep. (Ex. M) 22:24-23:14 (stating that at normal driving speed it takes 6 minutes to reach Route 50 but with a delay it could take 20 minutes or longer); A. Golden Dep. (Ex. O) 34:08–18 (stating that she cannot recall the number of times she has been delayed a half hour and never told anyone about the delays); D. Andrews Dep. (Ex. AA) 92:01–20 (stating that she has been delayed traveling to or from activities more than a dozen times and the delay usually lasts between 20 and 40 minutes); K. Ashcraft Dep. (Ex. P) 72:09-73:18, 86:14-22 (stating that she was delayed approximately three times for 10 minutes by flaggers directing truck traffic and once for approximately two hours due to a truck breaking down); M. Mikowski Dep. (Ex. S) 101:23-102:22 (stating that there used to be a daily delay with the longest delay being 10 minutes and now there are only occasional delays); R. Ashcraft Dep. (Ex. J) 46:02–48:11 (stating that he was delayed a few times due to trucks being “hung up” and blocking roads and that he called the sheriff to report the blocked roads). 41 See K. Ashcraft Dep. (Ex. P) 68:04–22 (stating that she thought the large trucks were speeding but never reported any speeding to the law enforcement community); M. Mikowski Dep. (Ex. S) 103:19105:15 (states that the trucks were exceeding the 15-miles-per-hour speed limit by 15 or 25 miles per hour); G. McWilliams Dep. (Ex. M) 101:03–19 (stating that he complained about truck traffic and speeding to Antero, and Antero provided him with speed limit signs and a sign for his driveway). 50 blockages,43 and having to move to the sides of the road to allow the large trucks to pass.44 Significantly, Plaintiffs have not alleged that any of these activities have interfered with the use and enjoyment of their property or that they have suffered special injuries different in kind and degree from the public. See, e.g., K. Ashcraft Dep. (Ex. P) 80:18-81:05 (admitting that she experienced only the same sort of traffic delays as everyone else driving on the public road); M. 42 See D. Andrews Dep. (Ex. AA) 65:18–22, 87:02–08 (stating that (1) although road conditions were initially poor, they have improved “100%” since Antero had asphalt laid and that (2) when there are potholes in the road they are filled intermittently but not regularly); D. Nutt Dep. (Ex. DD) 48:10-49:07 (stating that the heavy trucks caused potholes in the road, but the road has been repaired and Antero did a good job repairing it); D. Mazer Dep. (Ex. L) 100:05-101:14 (stating that although roads were damaged, they were repaired and are now comparable to what they used to be and agreeing efforts were made to keep the roads in good condition); R. Ashcraft Dep. (Ex. J) 50:12–24 (stating that Antero put truckloads of gravel down on Stillhouse Road to fix the damage done to the road as a result of drilling-related activities); K. Ashcraft Dep. (Ex. P) 55:08-58:18 (stating that truck traffic caused the paved road to crack, but Antero performed road repairs and the road surface is good); A. Golden Dep. (Ex. O) 50:19–24; 51:01–10 (stating that the road was repaved after it had gravel and potholes); Catherine Mazer Dep. (Ex. Q) 43:07–24; 44:01–24; 45:01; 161:09–24; 162:01–15 (stating that (1) after the road was repaved, it was returned to its original condition; and (2) she would call Hall’s Trucking when road repairs needed to be made, and Hall’s Trucking would make those repairs within two days—a “reasonable time”); Charles A. Mazer Dep. (Ex. EE) 35:07 (stating that roads are comparable as to the conditions prior to drilling activities); Susan Mazer Dep. (Ex. R) 55:19–24; 56:01–11 (same); M. Mikowski Dep. (Ex. S) 95:1197:08 (same); G. McWilliams Dep. (Ex. M) 53:03–07 (stating that roads are now in a better condition than before drilling activities). 43 See R. Ashcraft Dep. (Ex. J) 44:09–45:21 (stating that although there was a tractor trailer stuck in and blocking the road for 24 hours, Antero fixed the road damage and he also never called to complain about the truck blocking the road); D. Kinney Dep. (Ex. I) 100:05-101:14 (stating that there have been times where the roads were blocked for three to four hours because a truck was stuck in a ditch and waiting to be towed out). 44 See R. Ashcraft Dep. (Ex. J) 52:11–21 (stating that he is forced to move to the side of the road near the ditch when he meets a large truck in a turn); D. Kinney Dep. (Ex. I) 88:12–21 (stating that he once had to drive into the ditch to drive around two or three trucks that were loading and unloading); Susan Mazer Dep. (Ex. R) 61:21-62: 07 (stating that she was never forced off the road but would drive off of the road to avoid large trucks); S. Kinney Dep. (Ex. FF) 54:16–18 (stating she once almost drove into a ditch because she was blinded by truck lights); D. Mazer Dep. (Ex. L) 146:24-147:08 (stating that he has been crowded off the road and has had to stop to allow the truck to pass); Catherine Mazer Dep. (Ex. Q) 45:06– 22 (stating that she was once crowded into a ditch when a large water truck came down the hill); L. Feathers Dep. (Ex. Z) 25:12–15, 19–21, 26:01–03 (stating that she has been run off of the road and into a ditch); M. Mikowski Dep. (Ex. S) 110:08-111:14 (stating that she has pulled over to avoid the trucks but has never been forced off the road or into a ditch); R. Siders Dep. (Ex. BB) 105:22–24 (stating that he has backed up 300 yards to allow trucks to pass). 51 Mikowski Dep. (Ex. S) 173:20-174:16 (same). Therefore, none of these complaints can be used to establish a private nuisance. Furthermore, Plaintiffs have also admitted that Antero has resolved some of these issues “100%.” See D. Andrews Dep. (Ex. AA) 65:18–22 (stating that although roads conditions were bad when Antero first began operations, the conditions have improved 100% since Antero had the road paved with asphalt).45 Other claims, such as speeding, cannot be substantiated because Plaintiffs cannot objectively measure the speed. See id. 147:23-148:11 (admitting that she is unable to judge the speed of the trucks). Additionally, many Plaintiffs admit that they never complained to Antero, while other Plaintiffs admit that if they did complain, Antero addressed their complaint. Plaintiffs never called again when additional repairs were needed.46 Finally, none of the Plaintiffs, other than Catherine Mazer, allege they have suffered any kind of damages such as lost wages or other fines due to tardiness or missed appointments caused by traffic issues.47 Plaintiffs also do not claim any property damages. 45 See also footnotes 27 and 42, supra. 46 See K. Ashcraft Dep. (Ex. P) 55:08-58:18 (admitting that (1) Antero filled the ditches with gravel— even though it was a public road—after her daughter called and complained about the deep ditches, but that (2) after a storm washed some of the gravel away, she did not call Antero to request additional gravel); R. Golden Dep. (Ex. N) 23:09–21 (admitting that he never reported surface damage to the road); B. Siders Dep. (Ex. K) 54:21-58:01 (admitting that she never reported the hole by the road or dead trees). 47 See R. Ashcraft Dep. (Ex. J) 52:11–16 (admitting that neither he nor his wife, Plaintiff Katherine Ashcraft, have been late for an appointment due to traffic); K. Ashcraft Dep. (Ex. P) 64:11–13 (admitting that she had never been late to bowling due to drilling activities); R. Golden Dep. (Ex. N) 50:21–24 (stating he was never late going places); D. Kinney Dep. (Ex. I) 17:17–20, 142:15–21 (admitting that he has never missed an appointment even though he is uncertain what time to depart his home when calculating a delay due to truck traffic); Susan Mazer Dep. (Ex. R) 55:19–24; 56:01–11 (admitting she has never missed any appointments due to traffic delays); D. Mazer Dep. (Ex. L) 122:18–21 (admitting that he never missed any appointments and is not aware of anyone else missing any appointments due to traffic delays); Shawn Mazer Dep. (Ex. CC) 45:03–46:22 (admitting he has not been late for appointments or school activities but has been late for school once or twice but was never reprimanded); L. Feathers Dep. (Ex. Z) 22:06–09, 12–14 (stating that she has been late for a work a couple of times but cannot remember when); R. Siders Dep. (Ex. BB) 62:13-22 (stating that he has been late for appointments but providing no information regarding any damages resulting from the tardiness); Catherine Mazer Dep. 52 In sum, any complaints that Plaintiffs have made regarding traffic or other road usage that has not affected their use and enjoyment of their property are not actionable as private nuisances and must be dismissed. 5. Fear of Possible Future Conditions Is Not A Compensable Claim. Plaintiffs cannot recover for their fear of future ramifications as a result of their proximity or exposure to Antero’s operations. Under West Virginia law, fear is not a compensable claim. Carter, 212 W. Va. at 737, 575 S.E.2d at 347 (“It is well-settled, however, that under private nuisance, fear alone is not a sufficient basis for recovery.”). West Virginia is not alone in this rule of law as many other jurisdictions have held likewise. See Adams v. Star Enterp., 51 F.3d 417, 423 (4th Cir. 1995) (applying Virginia law and holding that plaintiffs cannot recover for claims of fear under nuisance or negligence); Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015) (holding that plaintiffs’ fear of environmental contamination of their property is “not a sufficient injury to support a claim for common law nuisance” and noting that the “contemporary consensus” among courts is to hold likewise); Banford v. Aldrich Chemical Co., Inc., 932 N.E.2d 313, 315 (Ohio 2010) (where plaintiffs who were residents in an area where a chemical factory had an explosion sued the factory owner for fear of future harm, nuisance, and negligence, the court held that “fear alone [is not] an independent item of damages”); 58 Am. Jur. 2d Nuisances § 69 (“To constitute a nuisance, the intrusion must generally result in physical harm, as opposed to an unfounded fear of harm, which must be proven to be certain, substantial, and beyond speculation and conjecture.”). (Ex. Q) 50:19–24; 51:01–52:01 (stating that in the beginning she was fifteen minutes late for work a couple of times and her pay was docked but she adjusted her departure time by fifteen minutes but not providing any information regarding how much was docked or alleging a lost wages claim). Plaintiffs did not allege a lost wages claim in this lawsuit. 53 In Carter, the plaintiff alleged a well-founded fear of dioxin contamination of his property from upstream landfills. 212 W. Va. at 736, 575 S.E.2d at 346. The Court commented that plaintiff’s “argument is very original and creative, but it misconstrues nuisance law and would result in a fairly fundamental change in the manner in which nuisance litigation has been historically conducted in our courts.” Id.48 The Court found that this fear of contamination was insufficient for recovery on a private nuisance theory. Id. at 737, 575 S.E.2d at 347. Plaintiffs have admitted that they seek neither property damages nor medical damages.49 Rather, Plaintiffs and their counsel have often alleged that Plaintiffs seek damages based on generalized and unsubstantiated fears. See Tr. of June 26, 2015 Hr’g (Ex. H) at 36–51. See also D. Andrews Dep. (Ex. AA) 95:04–15, 96:05–06, 103:21–24, 104:01–07, 110:23–24, 111:01–05, 113:10–23, 114:12–16, 122:07–10 (alleging fear of dust, the unknown, trucks, and contamination); K. Ashcraft Dep. (Ex. P) 56:04–16 (alleging fear of personal vehicle being damaged); L. Feathers Dep. (Ex. Z) 55:02–06, 96:10–24, 97:01–98:24 (alleging fear of air and water contamination, the future, and trucks).50 Specifically, plaintiff argued that he “should be allowed to present evidence to a jury concerning [plaintiff’s] ‘well-founded fear’ of property contamination . . . [and] if the jury believes [plaintiff’s] ‘wellfounded fear’ is justified, then the burden shifts and Monsanto and the landfill owners must pay for sampling and testing to determine if [plaintiff’s] property is contamination with dioxin.” 212 W. Va. at 736, 575 S.E.2d at 346. The Court’s rejection of this expansion of nuisance law also shows that the burden to prove contamination rests upon the plaintiff alleging the contamination. The defendant is not responsible for conducting tests. The Court later noted that “the burden is on the plaintiff to prove the elements [of a tort] and to first suffer the expenditure of costs incurred to gather and put on the proof.” Id. at 737, 347. 48 49 See Section III.B.2, supra. 50 Allegations of fear from other Plaintiffs are substantively similar to these allegations. See, e.g., A. Golden Dep. (Ex. O) 33:05–12, 45:07–09, 51:03–05, 69:09–16, 78:17–21; 84:01–18 (alleging fear of delay when driving, water contamination, future potential health problems, explosions, and exposure); R. Golden Dep. (Ex. N) 99:03–11, 99:14–20, 100:01–11 (alleging fear of explosions, traffic, and health); D. Kinney Dep. (Ex. I) 14:01–08; 76:07–14, 77:18–21, 131:08–18, 141:22–24, 142:01–03, 154:06–09, 157:22–158:01, 162:06–09, 250:19–21, 98:22–99:21, 106:05–12 (alleging fear of hydraulic fracturing, teenagers being around an allegedly unsecured well pad, the future, trucks, the road being blocked during 54 D. Antero Is Not Liable For Acts Or Omissions Of Its Independent Contractors. As a general rule, the employer of an independent contractor is not liable for harm caused by an act or omission of a contractor or its employees. Peneschi v. Nat’l Steel Corp., 170 W. Va. 511, 521, 295 S.E.2d 1, 11 (1982). There are exceptions to this rule, but the only exception relevant to Plaintiffs’ claims—negligence and nuisance—are whether Antero had requisite control over the independent contractors’ activities to defeat this defense or whether Antero contracted with its independent contractors to have work performed that foreseeably could result in a nuisance. See Shaffer v. Acme Limestone Co., 206 W. Va. 333, 524 S.E.2d 688 (1999) (regarding control of work); West, 168 W. Va. at 588, 285 S.E.2d at 677 (regarding nuisance).51 Plaintiffs allege that Antero’s “natural gas exploration, extraction, transportation, and associated activities” have created a nuisance. See Compl. ¶ 24. Antero does not perform these activities but rather employs independent contractors, many of whom are local an emergency, health effects, the unknown, contamination, damage to personal property); S. Kinney Dep. (Ex. FF) 13:05–18, 15:05–16, 23:17–24, 24:07–16, 46:02–10 (alleging fear of drilling, the future, contamination, and future health effects for grandchildren); Charles A. Mazer Dep. (Ex. EE) 33:05–08, 41:3–6, 41:12–15, 47:22–24, 60:21–23, 64:11–14 (alleging fear of contamination, traffic, and explosions); D. Mazer Dep. (Ex. L) 17:09–18, 138:01–06, 141:01–04 (alleging fear of the unknown, spills, and explosions); Catherine Mazer Dep. (Ex. Q) 47:08–14, 183:18–24, 184:01–04, 186:07–09, 186:19–22 (alleging fear of driving, contamination, and the future); Shawn Mazer Dep. (Ex. CC) 58:13– 16 (alleging fear of the unknown, future health effects, and “wak[ing] up one morning glowing green”); G. McWilliams Dep. (Ex. M) 92:1–4 (alleging fear that Defendants will never leave and fear for when his grandchildren visit); M. Mikowski Dep. (Ex. S) 63:01–07, 71:16–19, 82:07–20, 118:18–22 (alleging fear of delay due to traffic, the unknown, and contamination); D. Nutt Dep. (Ex. DD) 83:01–07, 83:13–16 (alleging fear of contamination and fear of future health effects to family members); B. Siders Dep. (Ex. K) 18:10–11, 55:03–09, 72:14–18, 133:21–24, 134:01 (alleging fear in general, of a tree falling on a family member, of invasion of privacy, and future health problems). 51 There are other exceptions that are not applicable here. An employer may also be found liable for an independent contractor’s work if the employer negligently hires an independent contractor resulting in harm, knows and sanctions illegal activity, contracts to complete inherently dangerous work, or contracts to complete work that could foreseeably result in a loss of lateral support for adjoining lots. See Thomson v. McGinnis, 195 W. Va. 465, 472, 465 S.E.2d 922, 929 (1995) (regarding negligent hiring); Shaffer, 206 W. Va. at 346, 524 S.E.2d at 701 (regarding illegal activity and inherently dangerous work); Law v. Phillips, 136 W. Va. 761, 772, 68 S.E.2d 452, 459 (1952) (regarding loss of lateral support for adjoining lots). Plaintiffs have not advanced any allegations relating to negligent hiring, illegal activity, or inherently dangerous work. 55 companies.52 Antero is not liable for any acts or omissions of these independent contractors because Antero did not control their work. Furthermore, because Antero has a legal and contractual right to develop its minerals and to the reasonably necessary use of Plaintiffs’ surface properties in the course of that development, Antero would have not known or had any reason to know that its independent contractors’ activities could create the alleged nuisance. 1. Antero Hired Independent Contractors To Perform Trucking and Drilling Operations And Did Not Control Their Activities. The Court has established a four-factor test to determine the existence of an independent contractor relationship: (1) selection and engagement of the servant; (2) payment of compensation; (3) power of dismissal; and (4) power of control. Syl. Pt. 5, Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990). The Paxton four-factor test is analyzed on a case-bycase basis, and the facts of each case are considered together to determine whether a worker is considered an employee or an independent contractor. Shaffer, 206 W. Va. at 340, 524 S.E.2d at 695 (citing Syl. Pt. 1, Myers v. Workmen’s Compensation Commissioner, 150 W. Va. 563, 148 S.E.2d 664 (1966)). However, the first three factors are nonessential; it is the fourth factor— power of control—that is determinative. Syl. Pt. 5, Paxton, 400 S.E.2d 245, 400 S.E.2d 245. The first three factors are easily satisfied: Antero did not have hiring or firing power over its independent contractors’ employees, and Antero was not responsible for paying the employees’ salaries. This authority and responsibility belonged to the independent contractors. In regard to the fourth factor—power of control—West Virginia law provides the employer “broad general power of supervision and control” without incurring liability. See Shaffer, 206 W. Va. at 341-42, 524 S.E.2d at 696 (stating that “we follow the lead of numerous 52 Interestingly, although Plaintiffs are well aware of the fact that Antero hires independent contractors to perform the drilling, trucking, and other activities of which Plaintiffs complain, see Compl. ¶ 25 (acknowledging that Antero hired companies to perform drilling activities), the only two companies that Plaintiffs filed suit against are Antero and one independent contractor: Hall Drilling, LLC. 56 other courts in holding that an owner . . . may retain broad power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract–including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work–without changing the relationship from that of owner and independent contractor”) (citations omitted). Antero did not control the “means and methods” of the independent contractors’ trucking and drilling activities. 2. The Work Antero Employed the Independent Contractors To Perform Could Not Foreseeably Result In A Nuisance. Under West Virginia law, an employer may be held liable for its independent contractors’ actions that constitute a nuisance only if the employer “knows or has reason to know” that the work the independent contractor to perform was “likely to involve the creation of a public or private nuisance.” West, 168 W. Va. at 588–90, 285 S.E.2d at 677–78 (citing Restatement (Second) of Torts § 427B (1965)). West Virginia law defines “a private nuisance as a substantial and unreasonable interference with the private use and enjoyment of another’s land.” Hendricks, 181 W. Va. at 33, 380 S.E.2d at 200. Therefore, the question is whether Antero knew or had reason to know that its subcontractors’ activities would cause a substantial and unreasonable interference with Plaintiffs’ use and enjoyment of their land. In West, plaintiffs sued a coal operator for nuisance, alleging that the trucking operations performed by the operator’s subcontractors on a public road near the plaintiffs’ home constituted a nuisance. The coal was hauled in large trucks that ran six days a week and sometimes through the night. Id. at 579, 285 S.E.2d at 673. The plaintiffs presented evidence that dust from the trucking operation permeated their homes even with the doors and windows closed. Id. at 581, 285 S.E.2d at 673. The dust interfered with breathing, spoiled the vegetation in gardens, fouled the water, and prevented the appellants from sleeping soundly. Id. The 57 defendant presented no evidence to counter Plaintiffs’ evidence. Id. at 581, 285 S.E.2d at 674. Based on “the allegations in the [plaintiffs’] complaint and the evidence adduced at the hearing [on plaintiffs’ motion for preliminary injunction],” the Court concluded that the haulage of coal amounted to a nuisance and that the coal company “had reason to believe that haulage of coal along [the public road] would result in the creation of the nuisance.” Id. at 590, 285 S.E.2d at 678. Rather than enjoining the activities, the Court ordered abatement techniques to be employed.53 Id. at 592, 285 S.E.2d at 679. The facts in West are very different from the facts at issue in the instant litigation. First, in regard to Plaintiffs’ complaints about the trucks on the public road, many large trucks already utilized the roads in question as they traveled to and from other local businesses, including a lumber business. Second, Antero is engaged in the business of oil and gas development—not coal mining—so the trucks generally haul water to and from the well pads; there is no greasy black dust settling on anyone’s property. Any dust that is rising and allegedly settling on Plaintiffs’ property is common roadside dust. See Kamuck, 2015 WL 1345235, at *18 (“[M]ere roadside noise and dust do not constitute a private nuisance.”). Third, Antero has also employed abatement techniques such as re-paving the road,54 laying gravel,55 and performing water treatments to reduce dust.56 Therefore, Antero 53 The abatement techniques included watering or treating the road, paving the road, using tarps to cover the trucks, implementing speed limits, and requiring spacing intervals between trucks. 54 D. Andrews Dep. (Ex. AA) 65:18–22, 87:02–08 (stating that (1) although road conditions were initially poor, they have improved “100%” since Antero had asphalt laid and that (2) when there are potholes in the road they are filled intermittently but not regularly); D. Nutt Dep. (Ex. DD) 48:10-49:07 (stating that the heavy trucks caused potholes in the road, but the road has been repaired and Antero did a good job repairing it); D. Mazer Dep. (Ex. L) 100:05-101:14 (stating that although roads were damaged, they were repaired and are now comparable to what they used to be and agreeing efforts were made to keep the roads in good condition); K. Ashcraft Dep. (Ex. P) 55:08-58:18 (stating that truck traffic caused the paved road to crack, but Antero performed road repairs and the road surface is good); A. Golden Dep. (Ex. O) 50:19–51: 10 (stating that the road was repaved after it had gravel and potholes); Charles A. Mazer Dep. (Ex. EE) 35:7 (stating that roads are comparable as to the conditions prior to drilling activities); Susan 58 could not have reasonably anticipated that its contractors’ activities could create an alleged nuisance. Fourth, not all Plaintiffs reside close enough to the road for any activities on the road to affect them. Finally, in regard to both the traffic complaints and the drilling operation complaints, Antero—by virtue of its leasehold—owns the minerals underlying all of the property upon which Plaintiffs reside. Antero’s express and implied mineral interests entitle it to use Plaintiffs’ surface property to develop its minerals. See Section III.C.2.b. Additionally, Antero has executed various land use contracts with certain Plaintiffs that entitled Antero to additional specific rights to utilize those Plaintiffs’ land. See Section III.C.2.c. Given its legal and contractual rights to use Plaintiffs’ land in the course of its mineral development, Antero would have no reason to believe that its activities would constitute the alleged nuisance. E. Plaintiffs’ Punitive Damages Claim Fails As A Matter of Law. In West Virginia, the threshold question for a punitive damages claim is “whether the conduct of an actor toward another person entitles that person to a punitive damage award under Mayer v. Frobe, 40 W. Va. 246, 22 S.E. 58 (1895).” Perrine v. E.I. du Pont de Nemours & Co., 225 W. Va. 482, 694 S.E.2d 815 (2010). If so, then “a review is mandated to determine if the punitive damage award is excessive under Garnes.” Id. (citing Garnes v. Fleming Landfill, Inc., 186 W. Va. 656, 413 S.E.2d 897 (1991)). Under Mayer, punitive damages can only be Mazer Dep. (Ex. R) 55:19–56:11 (same); M. Mikowski Dep. (Ex. S) 95:11-97:08 (same); G. McWilliams Dep. (Ex. M) 53:03–07 (stating that roads are now in a better condition than before drilling activities). 55 R. Ashcraft Dep. (Ex. J) 50:12–24 (stating that Antero put truckloads of gravel down on Stillhouse Road to fix the damage done to the road as a result of drilling-related activities); K. Ashcraft Dep. (Ex. P) 55:08-58:18 (admitting that (1) Antero filled the ditches with gravel—even though it was a public road— after her daughter called and complained about the deep ditches, but that (2) after a storm washed some of the gravel away, she did not call Antero to request additional gravel). 56 See, e.g., D. Kinney Dep. (Ex. I) 105:01–05 (stating that he requested that Antero send water trucks to treat the roads and that Antero would respond); G. McWilliams Dep. (Ex. M) 60:13–24 (stating that he complained to Antero about the dusty roads and Antero would respond by sending a truck to perform water treatments on the road); R. Siders Dep. (Ex. BB) 171:09–13 (stating that Antero began watering the roads after he complained about the dust). 59 awarded where the evidence shows that the wrongdoer acted with “gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it[.]” Syl. Pt. 4, Mayer, 40 W. Va. 246, 22 S.E. 58. Plaintiffs cannot offer any evidence that Antero engaged in the requisite behavior to allow a jury to consider a punitive damages claim. Plaintiffs’ negligence claim fails as a matter of law. See Section III.B, supra. Additionally, Plaintiffs’ own deposition testimony shows that Antero has taken extensive efforts to respond to Plaintiffs’ complaints related to its oil and gas development and resolve any issues. See D. Andrews Dep. (Ex. AA) 108:21–22, 121:11–13 (stating that Antero fixed problems every time she reported them and that her contact with Antero always tried his best to help her). See also footnotes 27 and 42, supra. Therefore, Plaintiffs’ claim for punitive damages fails as a matter of law. IV. CONCLUSION WHEREFORE, Defendant Antero Resources Corporation prays that the Court grant summary judgment in Antero’s favor on Plaintiffs’ claims. /s/ W. Henry Lawrence W. Henry Lawrence, W. Va. Bar #2156 Richard M. Yurko, Jr., W. Va. Bar #4180 Lauren K. Turner, W. Va. Bar #11942 400 White Oaks Boulevard Bridgeport, WV 26330 (304) 933-8000 STEPTOE & JOHNSON PLLC Of Counsel Donald C. Sinclair II, W. Va. Bar #4295 1233 Main Street, Suite 3000 Wheeling, WV 26003 (304) 233-0000 Attorneys for Defendant Antero Resources Corporation 60 CERTIFICATE OF SERVICE I hereby certify that on the 15th day of January 2016, I electronically filed and served the foregoing “Memorandum of Law in Support of Defendant Antero Resources Corporation’s Motion for Summary Judgment” with the Mass Litigation Panel using the File & ServeXpress system, which will send notification of such filing to all counsel of record. /s/ W. Henry Lawrence 7083148 61