No. 17-374
IN THE

Supreme Court of the United States
KATHERINE F. LEGGETT, INDIVIDUALLY AND
AS EXECUTRIX OF THE ESTATE OF PATRICK D.
LEGGETT; GEORGE D. MCKAIN, BY HIS
ATTORNEY IN FACT, ANITA KATHRYN MCKAIN
GREER; AND ADELE S. MCDOUGAL,
Petitioners,
v.
EQT PRODUCTION COMPANY,
A PENNSYLVANIA CORPORATION, ET AL.,
Respondents.
On Petition for a Writ of Certiorari to the
Supreme Court of Appeals of West Virginia
OPPOSITION TO PETITION FOR
A WRIT OF CERTIORARI
JOHN KEVIN WEST
Counsel of Record
Steptoe & Johnson PLLC
41 S. High Street
Suite 2200
Columbus, OH 43215
(614) 458-9889
kevin.west@steptoejohnson.com

DAVID K.
HENDRICKSON
Hendrickson &
Long, PLLC
PO Box 11070
Charleston, WV 25339
(304) 346-5500
daveh@handl.com

October 12, 2017

LEGAL PRINTERS

LLC,

Washington DC ! 202-747-2400 ! legalprinters.com

 i
QUESTION PRESENTED
The question presented is whether the Due
Process Clause of the Fourteenth Amendment should
be expanded beyond prior rulings of this Court to
require recusal by a judge where her spouse had a
speculative, unsubstantiated interest in the subject
matter of a pending case, but divested himself of the
purported speculative, unsubstantiated interest prior
to the judge participating in a decision on the merits
of the case.

 ii
RULE 29.6 STATEMENT
Pursuant to Rule 29.6 of the Supreme Court
Rules, Respondents make the following disclosure:
EQT Production Company, EQT Energy, LLC, EQT
Investments Holdings, LLC and EQT Gathering, LLC
are direct or indirect subsidiaries of EQT Corporation,
which is a publicly traded company and directly or
indirectly owns 10% or more of each subsidiary’s
stock. EQT Midstream Partners, LP is a publicly
traded limited partnership, more than 10% of which
is owned by EQT GP Holdings, LP, another publicly
traded limited partnership, more than 10% of which
is owned by EQT Gathering Holdings, LLC, which is
owned 100% by EQT Production Company, which is
owned 100% by EQT Investments Holdings, LLC,
which is owned 100% by EQT Corporation, a publicly
traded company.

 iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..................................... i
RULE 29.6 STATEMENT........................................ ii
TABLE OF AUTHORITIES .................................... v
INTRODUCTION .................................................... 1
STATEMENT OF CASE .......................................... 3
REASONS FOR DENYING THE PETITION
FOR WRIT OF CERTIORARI .............................. 9
I. THIS COURT HAS AN OBJECTIVE
STANDARD FOR DETERMINING
WHETHER THE DUE PROCESS
CLAUSE OF THE FOURTEENTH
AMENDMENT REQUIRES RECUSAL,
AND JUSTICE WALKER’S
PARTICIPATION IN THE
UNDERLYING CASE FULLY COMPORTS
WITH THAT STANDARD ............................ 10
A. The Court Has Articulated an
Objective Standard for Determining
Whether The Constitution Requires
Recusal ........................................................ 10

 iv
B. Justice Walker’s Participation Fully
Comports With This Court’s Due Process
Jurisprudence ............................................ 17
C. The West Virginia Supreme Court Did
Not Misapply this Court’s Due Process
Precedent .................................................... 25
II. THE PETITION FOR WRIT OF CERTIORARI
SHOULD BE DENIED BECAUSE JUSTICE
WALKER’S DECISION COMPORTS WITH
THE DECISIONS OF OTHER STATE AND
FEDERAL COURTS .................................... 30
CONCLUSION ..................................................... 34
APPENDIX
Respondent’s Petition for Rehearing (W. Va. Filed
December 19, 2016) .............................................. 1a

 v
TABLE OF AUTHORITIES
Cases
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813
(1986) .............................................................. passim
Bracy v. Gramley, 520 U.S. 899 (1997) ................... 27
Caperton v. A.T. Massey Coal Co., 556 U.S. 868
(2009) ............................................................. passim
City of Edgerton v. Gen. Cas. Co. of Wisconsin, 190
Wis. 2d 510, 527 N.W.2d 305 (1995) .................... 30
County of Sacramento v. Lewis, 523 U.S. 833
(1998) .................................................................... 18
Edgerton Sand & Gravel, Inc. v. Gen. Cas. Co. of
Wisconsin, 515 U.S. 1161 (1995) .......................... 31
Estate of Tawney v. Columbia Natural Res., LLC.,
219 W. Va. 266, 633 S.E.2d 22 (2006) .............. 4, 24
FTC v. Cement Institute, 333 U.S. 683 (1948) ........ 17
Gas Utilities Co. of Alabama v. S. Nat. Gas Co., 996
F.2d 282 (11th Cir. 1993) ..................................... 31
In re Placid Oil Co., 802 F.2d 783 (5th Cir.
1986) ................................................................ 31, 32
Leggett v. EQT Prod. Co., No. 1:13CV4, 2016 WL
297714 (N.D. W. Va. Jan. 22, 2016) ....................... 3
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ... 15
The Kay Company, et al v. EQT Production, U.S.
Dist. Ct., S.D. W. Va., Civil Action No.
2:06-0612 .............................................................. 25
Tumey v. Ohio, 273 U.S. 510 (1927) ................. passim
Ward v. Monroeville, 409 U.S. 57 (1972) .......... passim
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) .. 16
Withrow v. Larkin, 421 U.S. 35 (1975) ...................... 2

 vi
Statutes
Canon 2, Rule 2.11 of the Code of Judicial
Conduct ...............................................7, 8, 20, 26, 27
West Virginia Code § 22-6-8 ............................. passim
Rules
U.S. Sup. Ct. R. 10 ..................................................... 9
W. Va. R. App. P. 26 ............................................... 5, 6
W. Va. R. App. P. 33 ................................27, 28, 29, 30
Other Authorities
Financial Disclosure Statement of Justice Elizabeth
Walker (January 25, 2016), available at
http://www.ethics.wv.gov/Financial%20Disclosure/
2016/Walker,%20Elizabeth%202016%20Supreme
%20Court.pdf; ................................................... 7, 23
Financial Disclosure Statement of Justice Elizabeth
Walker (January 26, 2017), available at
http://www.ethics.wv.gov/Financial%20Disclosure/
2017/Walker,%20Elizabeth%202016.pdf ......... 7, 23

 1
BRIEF IN OPPOSITION TO PETITION FOR
WRIT OF CERTIORARI
Respondents EQT Production Company (“EQT
Production”), EQT Corporation, EQT Energy, LLC,
EQT Investment Holdings, LLC, EQT Gathering,
LLC, and EQT Midstream Partners, LP (collectively,
“Respondents”) respectfully submit this brief in
opposition to the petition for writ of certiorari of
Petitioners regarding the judgment of the Supreme
Court of Appeals of West Virginia (“West Virginia
Supreme Court”).
INTRODUCTION
Petitioners overstate the underlying facts of
this case in an attempt to convince the Court that it
is the type of “extreme case” that requires judicial
intervention. Review of the record demonstrates that
Justice Walker’s participation in the underlying West
Virginia Supreme Court case fully comported with
this Court’s due process jurisprudence. Quite simply,
this matter does not warrant review on a writ of
certiorari.
As Petitioners correctly assert, it is well
established that “‘a judge must recuse himself when
he has ‘a direct, personal, substantial, pecuniary
interest’ in a case.” (Pet. for Writ of Certiorari, p. 1)
(quoting Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 876 (2009) (internal citations omitted)). In
contrast, Petitioners incorrectly assert that this Court
has not “given any guidance on what sorts of
pecuniary interests give rise to a constitutional
disqualification requirement in more than three
decades.” (Pet. for Writ of Certiorari, p. 1). This Court

 2
recently set forth “objective standards that require
recusal when ‘the probability of actual bias on the
part of the judge or decisionmaker is too high to be
constitutionally tolerable.’” Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 872 (2009) (quoting Withrow
v. Larkin, 421 U.S. 35 (1975)). In Caperton, this
Court also made clear that it only reviews judicial
disqualification matters in extreme cases, and that
most matters do not rise to a constitutional level. See
Caperton, 556 U.S. at 876, 886-88.
Here, no evidence exists in the record to
suggest that Justice Walker had any financial
interest in the outcome of the underlying case, let
alone a substantial pecuniary interest. Given the
paucity of evidence supporting Petitioners’ claim that
Justice Walker had a “substantial pecuniary interest”
in the outcome of the case, this is not the type of
“extreme case” that requires judicial intervention.
See Id. Moreover, the record fails to show a
“probability of actual bias” on the part of Justice
Walker, much less bias that is “too high to be
constitutionally tolerable.” Id., at 872.
Petitioners also fail to point out any
appreciable conflict between Justice Walker’s
decision in the underlying case and the due process
jurisprudence of this Court, or any other state or
federal court. Accordingly, no compelling basis exists
for this Court’s review, and the petition for writ of
certiorari should be denied.

 3
STATEMENT OF THE CASE
Petitioners are owners of a 75% undivided
interest of the gas estate in a 2,000 acre tract in
Doddridge County, West Virginia. The owners of the
remaining 25% undivided interest did not join the
underlying lawsuit. Originally, the Respondents in
the underlying case were EQT Production Company
(“EQT Production”), EQT Corporation, EQT Energy,
LLC, EQT Investment Holdings, LLC, EQT
Gathering, LLC, and EQT Midstream Partners, LP.
EQT Production holds the leases on the subject
property. The claims against all Respondents, except
EQT Production, were dismissed by the United States
District Court for the Northern District of West
Virginia (the “District Court”). See Leggett v. EQT
Prod. Co., No. 1:13CV4, 2016 WL 297714, at *14 (N.D.
W. Va. Jan. 22, 2016) (granting EQT Corporation,
EQT Energy, LLC, EQT Gathering, LLC, and EQT
Investments Holdings, LLC’s motion for summary
judgment in its entirety).
The underlying case was originally filed in
Doddridge County Circuit Court, and was removed by
Respondents to the District Court. The case involves
a lease dated October 31, 1906 (“Lease”), which
provides for a flat-rate royalty of $300 per gas well per
year.
Petitioners claimed that they were due
additional payments under the flat-rate lease statute,
West Virginia Code § 22-6-8,1 for wells that have been
1 West Virginia Code § 22-6-8 allows permits for new wells or
reworked wells if the owner of the working interest agrees to pay
the owner of the gas “not less than one eighth of the total amount
paid to or received by or allowed to the owner of the working
interest at the wellhead . . .” W. Va. Code § 22-6-8(e).

 4
drilled or reworked on the property since the statute
was enacted. More specifically, Petitioners alleged
that EQT Production wrongfully took deductions2
from the price on which the statutory payments were
made.
Respondents moved the District Court for
summary judgment on the ground that deductions are
allowed under West Virginia Code § 22-6-8 because
payments are required to be based on the proceeds at
the wellhead, not the interstate pipeline or some other
downstream location.
Petitioners opposed the
motion, contending that the West Virginia Supreme
Court’s decision in Estate of Tawney v. Columbia
Natural Res., LLC., 219 W. Va. 266, 633 S.E.2d 22
(2006), requires EQT Production to make payments
on the downstream price with no deductions for the
costs of getting the gas there. After considering the
parties’ arguments, the District Court certified two
questions to the West Virginia Supreme Court. (Pet.
for Writ of Certiorari App., at 95a-100a). The District
Court deferred ruling on Respondents’ Motion for
Summary Judgment and stayed the case pending a
decision by the West Virginia Supreme Court on the
certified questions. (Id.).
On November 17, 2016, the West Virginia
Supreme Court rendered an Opinion on the certified
questions. (Nov. 17, 2016 Opinion, Pet. for Writ of
Certiorari App., at 65a-94a); (but see May 26, 2017
Opinion on Rehearing, Id., at 10a) (“Upon re-hearing,
with all due regard to the previous majority’s
consideration of the admittedly complex and
2 The deductions were for a portion of the costs of gathering and
transporting the gas from the wells to the interstate pipeline.

 5
subversively entangled issues implicated in this case,
we conclude that it did, in fact, misapprehend the
applicability of certain common law principles and
exceeded its charge in its interpretation of the subject
statute.”). The November 17, 2016 Opinion never
became the judgment of the Court because no
mandate was issued. See W. Va. R. App. P. 26(a) (“an
opinion of the Court or memorandum decision of the
Court considering the merits of a case is not final until
the mandate has been issued.”).
On December 19, 2016, Respondents filed a
Petition for Rehearing. (Respondents’ Appendix, p.
1a).
The West Virginia Oil and Natural Gas
Association filed an amicus brief in support of the
petition for rehearing. On December 22, 2016,
Petitioners filed a Motion for Extension of Time to
File a Response to the Petition for Rehearing, which
was granted by the West Virginia Supreme Court.
Petitioners filed their Response to Petition for
Rehearing on January 13, 2017. On January 25,
2017, the West Virginia Supreme Court entered a 3-2
Order granting Respondents’ Petition for Rehearing
and ordering that the matter be re-briefed. (Pet. for
Writ of Certiorari App., at 63a-64a). The January 25,
2017 Order granting the petition to rehear did not
decide the case; it simply ordered additional briefing
and argument.
On April 24, 2017, after the case had been fully
briefed and just a week before the case was scheduled
for oral argument, Petitioners filed a motion styled
“Petitioners’ Motion to: (1) Cancel the May 2, 2017
Argument; (2) Vacate Justice Elizabeth D. Walker’s
Vote to Grant the Rehearing, Resulting in the Denial
of the Rehearing Petition; and (3) Issue the Mandate

 6
from the Decision Reached by a Majority of this Court
on November 17, 2016” (hereinafter referred to as
“Motion for Disqualification”). (Id., at 101a-119a). In
the Motion for Disqualification, Petitioners argued
that they “recently discovered facts which from an
objective perspective establish [Justice Walker]
should not have participated in the rehearing vote. .
.” (Id., at 105a). They asserted that her failure to
disqualify herself resulted in a violation of their Due
Process rights under the Fourteenth Amendment to
the United States Constitution. Id.
In support of their Motion for Disqualification,
Petitioners claimed that Justice Walker’s husband (1)
made loans totaling $525,000.000 to her campaign,
which helped her get elected, and (2) owns stock “in
several different natural gas producing and related
energy companies, including Chevron Corporation,
Columbia Pipeline Group, Conoco Phillips, Dominion
Resources, Duke Energy Corporation, General
Electric Corporation, Portland General Electric,
Royal Dutch Shell, BP (British Petroleum) PLC, and
ExxonMobil Corporation (“ExxonMobil”).” (Id., at
105a-106a). Petitioners argued that Justice Walker’s
husband had “an economic interest in the subject
matter in controversy,” due to his “ownership interest
in multiple gas and energy companies, which stand to
benefit from a ruling that would allow the gas
industry to deduct post-production costs from the
royalties owed to West Virginia gas owners . . .” (Id.,
at 114a). Petitioners do not allege that Justice
Walker’s husband owned stock in any oil and gas
company that has operations in West Virginia.
Instead, they point to his stock in ExxonMobil and
claim that ExxonMobil’s subsidiary, XTO Energy, Inc.

 7
(“XTO”), has operations in West Virginia and could
benefit from a ruling in the case. Significantly,
Petitioners did not allege that XTO, the subsidiary of
ExxonMobil, had any flat-rate leases governed by
West Virginia Code § 22-6-8. Furthermore, the record
does not identify the amount of stock Justice Walker’s
husband held in ExxonMobil, or any other oil and gas
company. Her financial disclosures only show that
her husband had a diverse stock portfolio, with
investments in many different industries.3
On April 26, 2017, Justice Walker issued a
Memorandum and Order stating that she had
“carefully reviewed” the Motion for Disqualification,
and “found no basis for [her] disqualification under
Canon 2, Rule 2.11 of the Code of Judicial Conduct”
because neither she nor her husband “has an
economic interest in the subject matter in
controversy.” (Pet. for Writ of Certiorari App., at 62a).
The Motion for Disqualification was denied as moot.
(Id., at 61a).
On May 1, 2017, Justice Walker supplemented
her decision not to disqualify herself and stated that
“out of an abundance of caution,” her husband
divested himself of “ownership of shares of stock of
any company engaged in the business of producing
See Financial Disclosure Statement of Justice Elizabeth
Walker
(January
25,
2016),
available
at
http://www.ethics.wv.gov/Financial%20Disclosure/2016/Walker,
%20Elizabeth%202016%20Supreme%20Court.pdf;
see
also
Financial Disclosure Statement of Justice Elizabeth Walker
(January
26,
2017),
available
at
http://www.ethics.wv.gov/Financial%20Disclosure/2017/Walker,
%20Elizabeth%202016.pdf.
3

 8
coal, oil and gas, wind or solar energy.” (Id., at 60a).
This occurred before the case was submitted to the
Court on the arguments and briefs, and before the
Court’s May 26, 2017 decision on the merits.
Petitioners nevertheless argue that the decision
should be vacated because Justice Walker had a
purported “financial interest” in the outcome of the
case when she voted to allow rehearing.
On May 26, 2017, the West Virginia Supreme
Court entered an Opinion answering the certified
questions on rehearing. (Id., at 1a-58a). The West
Virginia Supreme Court found:
[U]pon careful review of the briefs on
rehearing, the appendix record, the
arguments of the parties and amici
curiae, and the applicable legal
authority, [ ] that both the legislative
intent and language utilized in West
Virginia Code § 22-6-8 permits
allocation or deduction of reasonable
post-production
expenses
actually
incurred by the lessee and more
specifically permits use of the “net-back”
or “work-back” method of royalty
calculation.
(Id., at 4a) (footnote omitted). The West Virginia
Supreme Court reformulated the certified questions
as follows:
Are royalty payments pursuant to an oil
or gas lease governed by West Virginia
Code § 22-6-8(e) (1994) subject to prorata deduction or allocation of postproduction expenses by the lessee?

 9

May an oil or gas lessee utilize the “netback” or “work-back” method to calculate
royalties owed to a lessor pursuant to a
lease governed by West Virginia Code §
22-6-8?
(Id., at 40a). Both questions were answered in the
affirmative in a 4-1 decision. (Id., at 40a, 1a). Justice
Walker was not the deciding vote. On June 26, 2017,
the West Virginia Supreme Court issued a Mandate
making its judgment final. Petitioners subsequently
filed the instant petition for writ of certiorari.
REASONS FOR DENYING THE PETITION
FOR WRIT OF CERTIORARI
“Review on a writ of certiorari is not a matter
of right, but of judicial discretion.” U.S. Sup. Ct. R.
10. A petition will only be granted for compelling
reasons. Id. Circumstances in which the Court might
grant a petition for writ of certiorari include (1) when
“a state court of last resort has decided an important
federal question in a way that conflicts with the
decision of another state court of last resort or of a
United States court of appeals,” and (2) when “a state
court or a United States court of appeals has decided
an important question of federal law that has not
been, but should be, settled by this Court, or has
decided an important federal question in a way that
conflicts with relevant decisions of this Court.” Id.
Further, “[a] petition for a writ of certiorari is rarely
granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly
stated rule of law.” Id.

 10
I.
This Court Has Articulated an Objective
Standard for Determining Whether the Due
Process Clause of the Fourteenth Amendment
Requires Recusal, and Justice Walker’s
Participation in the Underlying Case Fully
Comports with That Standard.
Justice Walker’s participation in the
underlying case was consistent with this Court’s due
process decisions. The petition for writ of certiorari
should therefore be denied.
A.
The Court Has Articulated an
Objective Standard for Determining
Whether the Constitution Requires
Recusal.
“There is a ‘presumption of honesty and
integrity in those serving as adjudicators.’” Caperton
v. A.T. Massey Coal Co., 556 U.S. 868, 891 (2009)
(Roberts, J., dissenting) (quoting Withrow v.
Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712
(1975)). This Court has set forth an objective
framework to determine when the Constitution
requires a judge to recuse herself due to a financial
interest in the outcome of a case. See Tumey v. Ohio,
273 U.S. 510 (1927); Ward v. Monroeville, 409 U.S. 57
(1972) Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813
(1986); and Caperton, 556 U.S. 868.
Before this Court’s recent decision in
Caperton,4 it only addressed two scenarios in which
In Caperton, this Court found that the Due Process Clause of
the Fourteenth Amendment required a justice of the West
Virginia Supreme Court to recuse himself from proceedings
where he had received campaign contributions of over $3 million
from the board chairman and the principal officer of a
4

 11
due process required recusal.5 The first scenario—
which is the only scenario alleged in this case—
involves circumstances where a judge has a pecuniary
interest in the outcome of a case. Caperton, 556 U.S.
at 877. The Court initially addressed this issue in
Tumey. In that case, the mayor received a salary
supplement for his service on the court only when he
convicted a defendant. Tumey, 273 U.S. at 520. The
Court found that such a system deprived a defendant
of due process of law and explained that “[e]very
procedure which would offer a possible temptation to
the average man as a judge to forget the burden of
proof . . ., or which might lead him not to hold the
balance nice, clear, and true . . . denies the
[defendant] due process of law.” Id., at 532. The
Court held that a judge deprives a defendant due
process where he “has a direct, personal, substantial
corporation seeking redress from the West Virginia Supreme
Court. Caperton, 556 U.S. at 872-75.
In his dissenting opinion in Caperton, Chief Justice Roberts
noted:
Until today, we have recognized exactly two
situations in which the Federal Due Process
Clause requires disqualification of a judge: when
the judge has a financial interest in the outcome
of the case, and when the judge is trying a
defendant for certain criminal contempts.
Vaguer notions of bias or the appearance of bias
were never a basis for disqualification, either at
common law or under our constitutional
precedents. Those issues were instead addressed
by legislation or court rules.
Id., at 890 (Roberts, J., dissenting).
5

 12
pecuniary interest in reaching a conclusion against
[the defendant] in his case.” Id., at 523. The Tumey
Court made clear that not all questions of judicial
disqualification “involve constitutional validity,” and
that “matters of kinship, personal bias, state policy,
remoteness of interest would seem generally to be
matters merely of legislative discretion.” Id., at 523.
This Court addressed similar issues in Ward v.
Monroeville, and reiterated that:
the test is whether the mayor’s situation
is one “which would offer a possible
temptation to the average man as a
judge to forget the burden of proof
required to convict the defendant, or
which might lead him not to hold the
balance nice, clear, and true between the
state and the accused . . . .”
Ward, 409 U.S. at 60 (citing Tumey, 273 U.S. at 532)
(internal citations omitted).
In Aetna Life Insurance Co. v. Lavoie, the Court
further clarified when a judge’s financial interest in
the outcome of a case requires recusal. In Lavoie,
Justice Embry of the Alabama Supreme Court cast a
deciding vote and authored an opinion against an
insurance company to uphold punitive damages for a
bad-faith refusal to pay claim. 475 U.S. at 817-19,
822. At the time of the decision, Justice Embry had
two nearly identical claims pending against insurance
companies in Alabama’s lower courts. Id., at 817.
Both lawsuits alleged bad-faith failure to pay a claim
and sought punitive damages. Id. Justice Embry
brought one of the two lawsuits on “behalf of himself
and as a representative of a class of all other Alabama

 13
state employees insured under a group plan by Blue
Cross-Blue Shield of Alabama (including, apparently,
all justices of the Alabama Supreme Court)” and
alleged a “willful and intentional plan to withhold
payment on valid claims.” Id. When the appellant
discovered Justice Embry’s pending lawsuits, it filed
recusal motions challenging Justice Embry’s
participation in the decision, and also argued that “all
justices on the court should recuse themselves
because of their interests as potential class members
in Justice Embry’s suit against Blue Cross.” Id. The
Alabama Court unanimously denied the recusal
motions. Id., at 817-18.
This Court reviewed the decisions and found
that due process concerns required Justice Embry to
recuse because his “opinion for the Alabama Supreme
Court had the clear and immediate effect of
enhancing both the legal status and the settlement
value of his own case.” Id., at 823-24. The Court
found that Justice Embry acted as a “‘judge in his own
case.’” Id., at 824 (citations omitted). It further held
that Justice Embry’s interest was “‘direct, personal,
substantial, [and] pecuniary.’” Id. (citations omitted).
The Court concluded that “[b]ecause of Justice
Embry’s leading role in the decision under review,”
(he authored the opinion and cast the deciding vote)
the “appearance of justice” would “best be served by
vacating the decision and remanding for further
proceedings.” Id., at 828.
The appellant also challenged the participation
of the other Alabama Supreme Court justices,
claiming that they, too, had a disqualifying interest
as potential class members in Justice Embry’s class

 14
action against Blue Cross. Id., at 825. Significantly,
this Court disagreed and explained:
. . . [W]hile these justices might
conceivably have had a slight pecuniary
interest, we
find
it
impossible
to characterize that interest as
“‘direct, personal, substantial, [and]
pecuniary.’” Ward, supra, 409 U.S., at
60, 93 S.Ct., at 83 (quoting Tumey,
supra, 273 U.S., at 523, 47 S.Ct., at
441). Appellant concedes that nothing in
the record even suggests that these
justices had any knowledge of the class
action before the court issued a decision
on the merits. Thus, at most only the
decision to deny rehearing was even
plausibly affected. Any interest that
they might have had when they passed
on the rehearing motion was clearly
highly speculative and contingent.
At the time, the trial court had not even
certified a class, let alone awarded any
class relief of a pecuniary nature. With
the proliferation of class actions
involving broadly defined classes, the
application
of
the
constitutional
requirement of disqualification must be
carefully
limited.
Otherwise
constitutional
disqualification
arguments could quickly become a
standard
feature
of
class-action
litigation. . . . Charges of disqualification
should not be made lightly. See Rooker
v. Fidelity Trust Co., 263 U.S. 413, 44

 15
S.Ct. 149, 68 L.Ed. 362 (1923). We hold
that there is no basis for concluding
these justices were disqualified under
the Due Process Clause.
Id., at 825–27 (emphasis added).
Recently, in Caperton, this Court again
reiterated the narrow holdings in Tumey, Ward, and
Lavoie. In Caperton, Justice Benjamin of the West
Virginia Supreme Court did not recuse himself from
proceedings where he had received campaign
contributions of over $3 million from the board
chairman and the principal officer of a corporation
seeking redress. Caperton, 556 U.S. at 872-73. The
West Virginia Supreme Court reversed a trial court
judgment that entered a jury verdict of $50 million
against the corporation. Id.
This Court granted certiorari and concluded
that, under the extraordinary circumstances of the
case, due process required Justice Benjamin to
recuse. Id., at 872. The Court concluded that there
was
[A] serious risk of actual bias—based on
objective and reasonable perceptions—
when a person with a personal stake in
a particular case had a significant and
disproportionate influence in placing the
judge on the case by raising funds or
directing the judge’s election campaign
when the case was pending or imminent.
Id., at 884.
In so deciding, the Court surveyed its due
process precedent, and concluded that recusal is
required when “‘the probability of actual bias on the

 16
part of the judge or decisionmaker is too high to be
constitutionally tolerable.’” Id., at 877 (quoting
Withrow, 421 U.S. at 47); see also Williams v.
Pennsylvania, 136 S. Ct. 1899, 1903 (2016) (“This
Court’s precedents set forth an objective standard
that requires recusal when the likelihood of bias on
the part of the judge ‘is too high to be constitutionally
tolerable.’”) (citations omitted). The Caperton Court
explained that it “asks not whether the judge is
actually, subjectively biased, but whether the average
judge in his position is ‘likely’ to be neutral, or
whether there is an unconstitutional ‘potential for
bias.’” Caperton, 556 U.S. at 881 (citations omitted).
This inquiry involves consideration of “whether,
‘under a realistic appraisal of psychological
tendencies and human weakness,’ the interest ‘poses
such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due
process
is
to
be
adequately
implemented.’” Id., at 883–884
(quoting
Withrow, 421 U.S. at 47). The Court emphasized that
the objective analysis requires consideration of the
specific circumstances of a case, and that “not every
attack on a judge . . . disqualifies him from sitting.”
Caperton, 556 U.S. at 881, 887-88.
The foregoing precedent sets forth an objective
framework that lower courts can ably use to
determine if recusal is constitutionally required in a
certain case. Still, Petitioners ask this Court to clarify
and/or provide additional guidance regarding when
due process requires judicial disqualification. Given
the fact intensive inquiry involved in determining
whether a judge should recuse, additional
constitutional jurisprudence would only serve to

 17
confuse rather than clarify this Court’s standards
with respect to recusal. Id., at 898 (Roberts, J.,
dissenting) (stating that “[t]he Court’s inability to
formulate a ‘judicially discernible and manageable
standard’ strongly counsels against the recognition of
a novel constitutional right.”) (citations omitted).
Furthermore, Justice Walker’s participation in the
underlying case fully comports with the due process
jurisprudence of this Court.
B.
Justice Walker’s Participation Fully
Comports with this Court’s Due
Process Jurisprudence.
While a “‘fair trial in a fair tribunal is a basic
requirement of due process,’” Caperton, 556 U.S. at
876 (citations omitted), “‘most matters relating to
judicial disqualification [do] not rise to a
constitutional level,’” id. (citing FTC v. Cement
Institute, 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed.
1010 (1948)); see also Lavoie, 475 U.S. at 825–826
(finding that some pecuniary interests are “too remote
and insubstantial” to rise to a due process violation).
Indeed, this Court only intervenes in those
cases in which “extraordinary circumstances” exist,
because those cases are more likely to cross
constitutional limits. See, supra, Tumey, Ward,
Lavoie, and Caperton. As this Court explained in
Caperton:
It is true that extreme cases often
test the bounds of established legal
principles,
and
sometimes
no
administrable
standard
may
be
available to address the perceived
wrong. But it is also true that extreme

 18
cases are more likely to cross
constitutional limits, requiring this
Court’s intervention and formulation of
objective standards. This is particularly
true when due process is violated.
See, e.g., County of Sacramento v.
Lewis, 523 U.S. 833, 846–847, 118 S.Ct.
1708, 140 L.Ed.2d 1043 (1998)
(reiterating the due process prohibition
on “executive abuse of power ... which
shocks the conscience”); id., at 858, 118
S.Ct. 1708 (KENNEDY, J., concurring)
(explaining
that
“objective
considerations, including history and
precedent, are the controlling principle”
of this due process standard).
This Court’s recusal cases are
illustrative. In each case the Court dealt
with extreme facts that created an
unconstitutional probability of bias that
“‘cannot
be
defined
with
precision.’” Lavoie, supra, at 822, 106
S.Ct. 1580 (quoting Murchison, supra,
at 136, 75 S.Ct. 623). Yet the Court
articulated an objective standard to
protect the parties’ basic right to a fair
trial in a fair tribunal. The Court was
careful to distinguish the extreme facts
of the cases before it from those interests
that would not rise to a constitutional
level. See, e.g., Lavoie, supra, at 825–
826, 106 S.Ct. 1580; Mayberry, 400 U.S.,
at 465–466, 91 S.Ct. 499; Murchison,
supra, at 137, 75 S.Ct. 623; . . . In this

 19
case we do nothing more than what the
Court has done before.
Caperton, 556 U.S. at 887–88.
In Lavoie, for example, the Court distinguished
pecuniary interests that rise to a constitutional level
from those that do not. Lavoie, 475 U.S. at 822, 82526. The Court found that Justice Embry (who “cast
the deciding vote and authored the court’s opinion,
[when] he had pending at least one very similar badfaith-refusal-to-pay lawsuit against Blue Cross in
another Alabama court,” id., at 822) had a direct,
personal, and substantial pecuniary interest in the
outcome of the case such that it raised a constitutional
concern. Id., at 822, 824. With regard to the other
justices (who were members of the potential class in
Justice Embry’s lawsuit), this Court held that “while
these justices might conceivably have had a slight
pecuniary interest,” it was “impossible to characterize
that interest as ‘direct, personal, substantial, [and]
pecuniary.’” Id., at 825-26 (internal citations omitted).
The Court found that their interest was “highly
speculative and contingent,” and “‘too remote and
insubstantial
to
violate
the
constitutional
constraints.’” Id., at 826 (citations omitted).
This is not the type of “extreme case” that
“test[s] the bounds of established legal principles” and
requires judicial intervention. As an initial and
important matter, the record below is insufficient to
demonstrate that Justice Walker’s spouse had any
interest in the outcome of the case, let alone a direct,
substantial, and pecuniary interest.6 Justice Walker
The fact that the record below is underdeveloped on the recusal
issue is another reason why the petition should be denied.
6

 20
“carefully reviewed” Petitioners’ Motion for
Disqualification, and “found no basis for [her]
disqualification under Canon 2, Rule 2.11 of the Code
of Judicial Conduct” because neither she nor her
husband “has an economic interest in the subject
matter in controversy.” (Pet. for Writ of Certiorari
App., at 62a). Notably, before the West Virginia
Supreme Court’s May 26, 2017 decision on the merits,
Justice Walker supplemented her response to
Petitioners’ Motion for Disqualification, and stated
that her husband, “out of an abundance of caution,”
divested himself of “ownership of shares of stock of
any company engaged in the business of producing
coal, oil and gas, wind or solar energy.” (Id., at 60a).
Thus, her husband had no interest in an oil and gas
production company at the time of the Court’s
decision on the merits. Petitioners nevertheless argue
that the underlying decision should be vacated
because, on January 25, 2017, at the time Justice
Walker voted to grant Respondents’ petition for
rehearing, her husband had a “financial interest” in
the outcome of the case.7
Petitioners overstate and spin the underlying
facts in an attempt to support their argument. First,
Petitioners overstate the breadth and impact of the
underlying May 26, 2017 decision on the merits. On
Whether disqualification was required is a fact-based inquiry.
Here, the factual record does not support Petitioner’s
disqualification claim.
Significantly, the January 25, 2017 Order granting the petition
to rehear did not decide the case. It simply ordered additional
briefing and argument.

7

 21
rehearing, the West Virginia Supreme Court
reformulated and answered the following certified
questions:
Are royalty payments pursuant to an oil
or gas lease governed by West Virginia
Code § 22-6-8(e) (1994) subject to prorata deduction or allocation of postproduction expenses by the lessee?
May an oil or gas lessee utilize the “netback” or “work-back” method to calculate
royalties owed to a lessor pursuant to a
lease governed by West Virginia Code §
22-6-8?
(Id., at 40a). The Court answered these questions in
the affirmative in a 4-1 decision—Justice Walker was
not the deciding vote. (Id., at 40a, 1a). In answering
the certified questions, the Court interpreted the
plain language of West Virginia Code § 22-6-8(e), and
concluded that royalty payments made pursuant to
flat-rate oil and gas leases governed by § 22-6-8(e)
may be subject to pro-rata deductions or allocation of
post-production costs. (Id. at 30a-40a). The Court
further held that the lessee may utilize the “net-back”
method to calculate those royalty payments. (Id.).
Thus, contrary to Petitioners’ assertions regarding
the national impact of the underlying decision, it
primarily addressed interpretation of a West Virginia
statute that governs royalty payments for flat-rate oil
and gas leases.
Petitioners similarly overstate the available
facts regarding Justice Walker’s husband’s purported
stock in oil and gas companies. They claim that “even

 22
though Justice Walker and her spouse had no interest
in respondent or the specific lease in question, they
had an economic interest in the rule of law that would
be established in this case.” (Pet. for Writ of
Certiorari, at 18). Petitioners’ arguments in this
regard are wholly unsupported and speculative.
Even before her husband divested himself of
his stock in oil and gas production companies, no
evidence supported Petitioners’ allegation that
Justice Walker had a substantial financial interest in
the outcome of the case. To support their allegation,
Petitioners point to her husband’s ownership of stock
in ExxonMobil, the parent company of XTO, a
production company that has oil and gas wells in West
Virginia. However, Justice Walker’s husband never
had a direct interest in XTO, and review of Justice
Walker’s financial disclosures demonstrate that any
stock her husband held in oil and gas companies was
part of a diverse stock portfolio.8 The record also does
not reveal how much stock Justice Walker’s husband
owned in oil and gas companies—it could have been
one share.
Further, Petitioners have not demonstrated
that XTO holds flat-rate leases subject to West
Virginia Code § 22-6-8—which are the only leases
directly impacted by the Court’s ruling. Petitioners
8 See Financial Disclosure Statement of Justice Elizabeth
Walker
(January
25,
2016),
available
at
http://www.ethics.wv.gov/Financial%20Disclosure/2016/Walker,
%20Elizabeth%202016%20Supreme%20Court.pdf;
see
also
Financial Disclosure Statement of Justice Elizabeth Walker
(January
26,
2017),
available
at
http://www.ethics.wv.gov/Financial%20Disclosure/2017/Walker,
%20Elizabeth%202016.pdf.

 23
only claim that XTO would be affected by the West
Virginia Supreme Court’s decision because it has
pending royalty litigation in other jurisdictions.
Those cases, however, do not concern flat-rate leases
such as the ones at issue in this case. Thus,
Petitioners have not alleged the existence of any
pending lawsuits involving XTO that concern the
precise legal issues that were before the West Virginia
Supreme Court. Petitioners’ arguments are highly
speculative at best. The record below does not contain
any evidence that should cause this Court to second
guess Justice Walker’s determination that she did not
have any economic interest in the subject matter of
the underlying controversy. Indeed, none of the West
Virginia Supreme Court justices, including Justice
Davis who wrote a scathing dissent, questioned or
challenged Justice Walker’s decision not to recuse.
It is not enough to claim Justice Walker had a
financial interest in the outcome of the case simply
because her husband owned stock in oil and gas
companies. This Court’s “objective standards [ ]
require recusal when ‘the probability of actual bias on
the part of the judge or decisionmaker is too high to
be constitutionally tolerable.’” Caperton, 556 U.S. at
877. Here, there is no probability of actual bias on the
part of Justice Walker. Justice Walker’s spouse’s
purported financial interest in the outcome of the case
is nothing like the interest of Justice Embry in Lavoie.
Instead, it is more like the other justices in Lavoie—
“too remote and insubstantial” to violate the Due
Process Clause of the Fourteenth Amendment. The
pecuniary interest of Justice Walker’s spouse in the
outcome of the case was so speculative, contingent,

 24
and remote that no one could reasonably conclude
that Justice Walker was actually biased.
If Petitioners’ argument is accepted by this
Court, then West Virginia Supreme Court Justice
Robin Davis (and any other judge who has a spouse
as a practicing attorney) would effectively be
prohibited from presiding in any litigation involving
her spouses’ practice areas, including this case,
because her spouse would have an interest in the
outcome. In fact, Justice Davis’ husband, Scott Segal,
was lead co-counsel for Plaintiffs in Tawney, a royalty
case that that resulted in a $400 million verdict, and
resulted in a substantial financial windfall to Justice
Davis and her family. He was also counsel in a prior
royalty litigation class action filed against EQT
Production in the matter of The Kay Company, et al v.
EQT Production, U.S. Dist. Ct., S.D. W. Va., Civil
Action No. 2:06-0612. In addition to the fact that
Justice Davis’ husband has represented mineral
owners in a number of class action oil and gas royalty
matters involving leases like the ones at issue in this
case, Attorney Segal also advertises for the following
primary practice areas: Aviation Accidents; Coal
Mine Accidents; Defective Drugs; Electrical
Accidents; Hospital Negligence; Insurance Bad Faith;
Mesothelioma; Railroad Injuries; Train Derailments;
Workplace Injuries; Class Action Lawsuits;
Consumer Litigation; Defective Medical Devices;
FELA Cases; Industrial Accidents; Jones Act Cases;
Personal injury; Toxic Chemical Exposure; and Truck
Accidents.
See
www.segal-law.com.
Surely,
Petitioners would not suggest that Justice Davis
should be recused from this case or any other
litigation matter involving Attorney Segal’s practice

 25
areas. Likewise, the facts presented in this is case as
to Justice Walker are simply not the type of
extraordinary facts that rise to a constitutional
violation.
C.
The West Virginia Supreme Court
did not Misapply this Court’s Due
Process Precedent.
Petitioners briefly argue that Justice Walker
“viewed her recusal obligations as limited to a
scenario in which either she or her husband had a
direct interest either in a party to the case or in the
mineral rights or lease at issue.” (Pet. for Writ of
Certiorari, at 17). No evidence exists in the record to
support Petitioners’ conclusory claim. In fact, Justice
Walker stated that she “found no basis for [her]
disqualification under Canon 2, Rule 2.11 of the Code
of Judicial Conduct” because neither she nor her
husband “has an economic interest in the subject
matter in controversy.” (Pet. for Writ of Certiorari
App., p. 62a). Pursuant to West Virginia Code of
Judicial Conduct, Canon 2, Rule 2.11,
(A) A judge shall disqualify himself or
herself in any proceeding in which the
judge’s impartiality might reasonably be
questioned, including but not limited to
the following circumstances:
* * *
(2) The judge knows9 that the judge, the
judge's spouse or domestic partner, or a
9 “‘Knowingly,’ ‘knowledge,’ ‘known,’ and ‘knows’ mean
actual knowledge of the fact in question. A person's knowledge
may be inferred from circumstances.” W. Va. CJC, Terminology.

 26
person within the third degree of
relationship to either of them, or the
spouse or domestic partner of such a
person is: . . . (c) a person who has more
than a de minimis10 interest that could
be substantially affected by the
proceeding. . .
W. Va. CJC, Canon 2, Rule 2.11 (footnotes added).
Thus, Justice Walker’s citation to Canon 2, Rule 2.11
demonstrates that she considered whether she or her
husband had “more than a de minimis interest that
could be substantially affected by the proceeding.” Id.
She also considered whether her “impartiality might
reasonably be questioned.” Id. These objective
standards fully comport with the Court’s due process
requirements, and do not suggest that Justice
Walker’s inquiry was limited to the specific parties or
transactions at issue.
Furthermore, this Court has explained, “‘The
Due Process Clause demarks only the outer
boundaries of judicial disqualifications. Congress and
the states, of course, remain free to impose more
rigorous standards for judicial disqualification . . .’” .
Caperton, 556 U.S. at 888–90 (quoting Lavoie, 475
U.S., at 828). “Because the codes of judicial conduct
provide more protection than due process requires,
most disputes over disqualification will be resolved
without resort to the Constitution.” Id. Other than
“‘De minimis,’ in the context of interests pertaining to
disqualification of a judge, means an insignificant interest that
could not raise a reasonable question regarding the judge's
impartiality. See Rule 2.11.” W. Va. CJC, Terminology.

10

 27
the few extreme cases addressed by this Court,
“questions of judicial recusal are regulated by
‘common law, statute, or the professional standards of
the bench and bar.’” Id., at 892 (Roberts, J.,
dissenting) (quoting Bracy v. Gramley, 520 U.S. 899,
904 (1997)).
Thus, whether the purported interest in this
case requires recusal should be left to the judgment of
the State of West Virginia. As stated above, West
Virginia has enacted a Code of Judicial Conduct to
eliminate the appearance of impropriety. See W. Va.
CJC, Canon 2, Rule 2.11. Additionally, pursuant to
West Virginia Rule of Appellate Procedure 33(c),
A party to a proceeding in th[e] Court
may file a written motion for
disqualification of a Justice within thirty
days after discovering the ground for
disqualification and not less than seven
days prior to any scheduled proceedings
in the matter. If a motion for
disqualification is not timely filed, such
delay may be a factor in deciding
whether the motion should be granted.
W. Va. R. App. P. 33(c). Following a motion for
disqualification, “the Justice sought to be disqualified
shall notify the Clerk of his or her decision on the
motion for disqualification and the Clerk shall
promptly notify the other Justices and the parties of
such decision.” W. Va. R. App. P. 33(g). If a Justice
is disqualified, the Chief Justice “may, in his or her
discretion, assign a senior justice, senior judge, or

 28
circuit judge to service for the disqualified Justice.”11
W. Va. R. App. P. 33(h).
Justice Walker considered these standards and
determined that recusal was not required. Notably,
Petitioners failed to comply with West Virginia
Appellate Rule 33 when they filed their April 24, 2017
Motion for Disqualification. Petitioners claimed that
they learned that Justice Walker’s husband owned
stock in oil and gas companies in April, 2017. (Pet. For
Writ of Certiorari App. at 106a). However, Justice
Walker filed financial disclosures while she was a
candidate for the West Virginia Supreme Court, on
January, 25, 2016, and again when she was on the
Petitioners suggest that if Justice Walker’s vote on
Respondents’ petition for rehearing is vacated, the November 16,
2016 decision of the West Virginia Supreme Court would become
final. Such a claim is unfounded. Pursuant to the West Virginia
Constitution, “The supreme court of appeals shall consist of five
justices. A majority of the justices of the court shall constitute a
quorum for the transaction of business.” W. Va. Const. art. VIII,
§ 2. “When any justice is temporarily disqualified or unable to
serve, the chief justice may assign a judge of a circuit court or of
an intermediate appellate court to serve from time to time in his
stead.” Id. West Virginia Rule of Appellate Procedure 33(h) also
permits the chief justice to assign a justice or judge to serve in
the place of the disqualified justice. If the underlying decision is
vacated, the chief justice could replace Justice Walker for a vote
on the petition for rehearing. Thus, Petitioners claim that an
order vacating the rehearing vote would result in the resurgence
of the original November 17, 2016 order—which never became a
final judgment—is mistaken. Moreover, the May 26, 2017
decision of the West Virginia Supreme Court was the correct one,
and there is absolutely no evidence that Petitioners’ due process
rights were violated with regard to that decision. Justice
Walker’s husband had divested his stock in oil and gas
production companies before the decision was rendered.
11

 29
bench, on January 26, 2017. Petitioners could have
and should have been aware of Justice Walker’s
disclosures before she participated in the underlying
case. Nevertheless, they waited three months after
the West Virginia Supreme Court granted the
petition for rehearing—once the case had been fully
re-briefed and just a week before the case was
scheduled for oral argument—to raise the issue.
Petitioners delay was improper under West Virginia
Appellate Rule 33(c) and constitutes waiver. W. Va.
R. App. P. 33(c). For this additional reason, the Court
should deny the petition for writ of certiorari.
II.
The Petition for Writ of Certiorari Should
Be Denied Because Justice Walker’s Decision
Comports With The Decisions of Other State
and Federal Courts.
Petitioners contend that “no clear standard
exists regarding ‘the kind and degree of pecuniary
interest that would be sufficient to warrant
disqualifying a judge from sitting on a particular
case.’” (Pet. for Writ of Certiorari, at 20) (citations
omitted). In this regard, Petitioners claim that some
courts look broadly at whether the outcome of a case
will have an effect on a judge’s financial interests,
while other courts look more narrowly at whether the
judge has a pecuniary interest in the specific parties
or transactions at issue. Id. This Court, however, has
already resolved any question in this respect—
multiple times. See Section I, supra. After Lavoie and
Caperton, there is no doubt that courts must consider
whether a judge has a pecuniary interest in the

 30
outcome of the case, not just in the specific parties or
transaction at issue.
Still, Petitioners attempt to create confusion
where it does not exist by claiming courts “vary
widely” in their approach to determining when a
pecuniary interest is sufficiently substantial to
require recusal. However, the cases Petitioners cite
do not actually demonstrate conflict. For example, in
City of Edgerton v. Gen. Cas. Co. of Wisconsin, 190
Wis. 2d 510, 515–16, 527 N.W.2d 305, 307 (1995), the
Wisconsin Supreme Court denied the disqualification
motion because the movant waived the issue. Id. The
Court dismissed the motion on the basis of waiver
“but . . . point[ed] out that, even if the disqualification
issue had been raised timely on reconsideration, it
would have been determined to be without merit.” Id.
at 516, 527 N.W.2d at 307. Furthermore, this Court
denied certiorari in that case. See Edgerton Sand &
Gravel, Inc. v. Gen. Cas. Co. of Wisconsin, 515 U.S.
1161, 115 S. Ct. 2615, 132 L. Ed. 2d 858 (1995).
Certiorari must similarly be denied in this case.
Petitioners cite to two other inapposite cases in
an attempt to support their argument that some
courts look only at whether the judge has a pecuniary
interest in the specific parties or transactions at issue.
In Gas Utilities Co. of Alabama v. S. Nat. Gas Co., 996
F.2d 282, 283 (11th Cir. 1993), the Eleventh Circuit
found:
The trial judge’s wife and father-in-law
have proprietary interests in land leased
to oil and gas interests but not to
companies involved in the present
action. The question is whether the

 31
alleged potential industry-wide impact
of this case might so affect their
interests as to require recusal. The Fifth
Circuit rejected this theory in In re
Placid Oil Co., 802 F.2d 783 (5th
Cir.1986). In that case, petitioners
brought suit against twenty-three banks
that made loans to petitioners.
Petitioners argued that a ruling adverse
to the banks would have an industrywide impact and that the judge should
have recused himself because he held an
investment in an investment bank. The
Placid court stated that it was
“unwilling to adopt a rule requiring
recusal in every case in which a judge
owns stock of a company in the same
industry as one of the parties to the
case.” Placid, 802 F.2d at 786. The court
felt that because petitioners showed
“only an indirect and speculative
interest,” recusal was not justified. The
court concluded that “[a] remote,
contingent, and speculative interest is
not a financial interest within the
meaning of the recusal statute ... nor
does it create a situation in which a
judge’s impartiality might reasonably be
questioned.” We agree with the
reasoning of that case. The plaintiffs
have not alleged how the outcome of this
case could even speculatively affect the
interests of the judge’s relatives. The

 32
district judge was not shown to be
disqualified from hearing this case.
Id. (discussing In re Placid Oil Co., 802 F.2d 783 (5th
Cir.1986)). Thus, in Gas Utilities Co. of Alabama and
In re Placid Oil Co., the courts appropriately
considered whether the pecuniary interests of the
judges would be affected by the outcome of the case.
Both courts concluded that the judges’ interests were
too remote, contingent, and speculative to require
recusal.
Justice Walker’s husband’s purported
interest was similarly remote, contingent, and
speculative.
In short, the cases cited by Petitioners do not
show confusion regarding the applicable standard of
law. In the cited cases, the courts considered whether
a pecuniary interest in the outcome of a case creates
a situation where a judge’s impartiality might
reasonably be questioned. The Petitioners have not
identified any conflict between the instant case and
Supreme Court precedent, or any other state or
federal court decision.12
Finally, this case is not the proper vehicle to
address disqualification issues. Here—under either a
broad or narrow interpretation of the Court’s
rulings—no due process violation occurred. First,
Justice Walker’s decision on the Motion for
Disqualification does not suggest that she only
Petitioners also cite to a series of decisions in which state
courts applied federal and state due process principles to
determine whether car dealers should be disqualified from
participating on boards that adjudicate franchise disputes
between car dealers and manufacturers. These cases are not
analogous to the instant matter.

12

 33
considered whether she had a direct, substantial,
pecuniary interest in the specific parties or
transaction. She stated that she had “no economic
interest in the subject matter of the controversy.”
Second, the evidence in the record does not suggest
that Justice Walker had any appearance of bias that
would rise to a constitutional level, as there is no
evidence that her husband’s finances would have been
affected in any way by the outcome of the case, and
Justice Walker’s husband divested himself of any
interest before the case was decided. Accordingly,
this case is improper for review by this Court.

 34
CONCLUSION
For the foregoing reasons, the petition for writ
of certiorari should be denied.

Respectfully Submitted,
_____________________________
JOHN KEVIN WEST
Counsel of Record
STEPTOE & JOHNSON PLLC
41 S. High St., Suite 2200
Columbus, Ohio 43215
614-458-9889
kevin.west@steptoe-johnson.com

October 12, 2017

 1a
IN THE
SUPREME COURT OF APPEALS OF WEST
VIRGINIA
__________
Docket No. 16-0136
__________
PATRICK D. LEGGETT, et al.,
Plaintiffs/Petitioners,
v.
EQT PRODUCTION COMPANY, et al.,
Defendants/Respondents.
__________
Upon Certified Questions from the United States
District Court
for the Northern District of West Virginia
Case No. 1:13-cv-00004-FPS
__________
RESPONDENT’S PETITION FOR REHEARING
__________
[Filed: Dec. 19, 2016]
[Counsel Information Omitted]

 2a
Pursuant to W. Va. R. App. P. 25, respondent,
EQT Production Company (“EQT”), respectfully
submits this Petition for Rehearing in response to the
Opinion of the Court delivered by Justice Benjamin
on November 17, 2016 (“Opinion”), from which Justice
Loughry and Chief Justice Ketchum dissented.
I.

INTRODUCTION

Under Rule 25, petitions for rehearing are
reserved for exceptional cases. This is an exceptional
case. As explained in this Petition, the majority
misapprehended several critical points of law and
fact:




There is no basis for a court to extend
a statute under the guise of
interpreting it.
Contrary to the
Opinion, “at the wellhead” as used in
§ 22-6-8 is not ambiguous. “At the
wellhead” means at the wellhead, not
some
distant
location
miles
downstream. The Court should have
simply applied the plain language of
the statute, not extended it to include
benefits that the Legislature did not
provide.
This Court’s decision in Tawney v.
Columbia Natural Res., L.L.C., 219
W. Va. 266, 633 S.E.2d 22 (2006),
does not govern the interpretation of
the flat-rate lease statute. Tawney
involved percentage leases with an
implied duty to market. The case did

 3a





not involve flat-rate leases with no
implied duty to market. Decided in
2006, Tawney could not have possibly
informed the Legislature when it
enacted the flat-rate lease statute
some 24 years earlier.
By making statutory payments on
proceeds “at the wellhead” as the
statute requires, operators are not
depriving landowners of “adequate
compensation,” as the majority
concluded. Opinion at 12. When the
statute was enacted, most gas was
sold at the wellhead, and that is
where royalties were generally paid.
Landowners were not paid on an
enhanced downstream price. The
Legislature set one-eighth of the
proceeds at the wellhead as the
required statutory payment. The
Legislature determined that amount
was “adequate,” and it was not the
Court’s function to increase it.
In its Opinion, the majority strayed
far beyond the certified question and
decided several issues that were not
submitted to it for decision and that
were not adequately briefed or
argued. For example, the Court held
that while the operator must pay on
the price at the downstream
marketplace, it must pay on the
upstream volume at the wellhead.
Because most leases only require the

 4a
operator to pay on the proceeds of gas
that is sold (and not on gas that is lost
or used as fuel for compression), the
majority’s ruling confers a special
benefit on flat-rate landowners that
most other landowners do not have
and that is inconsistent with caselaw.
II.

ARGUMENT
A.

THE STATUTE MUST
BE INTERPRETED AS
WRITTEN

“This Court does not sit as a superlegislature
. . . .” Boyd v. Merritt, 177 W. Va. 472, 474, 354 S.E.2d
106, 108 (1986). The Court’s duty is “to interpret the
statute, not to expand or enlarge upon it.” State ex
rel. Riffle v. Ranson, 195 W. Va. 121, 126, 464 S.E.2d
763, 768 (1995). The Court may not rewrite a statute
“under the guise of interpretation.” State v. Gen.
Daniel Morgan Post No. 548, 144 W. Va. 137, 145, 107
S.E.2d 353, 358 (1959).
“It is basic in our law and universally accepted
that where the language of a statute is free from
ambiguity, its plain meaning is to be accepted and
applied without resort to interpretation.” Crockett v.
Andrews, 153 W. Va. 714, 718, 172 S.E.2d 384, 386
(1970). “[T]his Court is obligated to enforce the
statute in accordance with its plain meaning.” State
ex rel. Biafore v. Tomblin, 236 W. Va. 528, 534, 782
S.E.2d 223, 229 (2016). Rules of liberal or strict
construction do not apply “where the language under

 5a
consideration carries a plain meaning.” Raynes v.
Nitro Pencil Co., 132 W. Va. 417, 419, 52 S.E.2d 248,
249 (1949). “[J]udicial interpretation of a statute is
warranted only where the statute is ambiguous.”
State ex rel. Biafore, 236 W. Va. at 533, 782 S.E.2d at
228 (emphasis in original).
B.

THE STATUTE IS
NOT AMBIGUOUS

Section 22-6-8(e) bases payments on the
amount received by the operator “at the wellhead.” In
its Opinion, the majority did not explain why it
thought this language is ambiguous. Instead, the
Court simply said that the words “at the wellhead”
are “as ambiguous in the flat-rate statute as they are
in a lease.” Opinion at 11.
As both the Dissenting Opinion and the
authors of one of leading treatises on oil and gas law
have pointed out, however, there is nothing
ambiguous about the words “at the wellhead.”
Dissenting Opinion at 5; 3 Patrick H. Martin & Bruce
M. Kramer, Williams & Meyers Oil & Gas Law
§ 645.2 at 614.12(14) (2016). “If anything, the term
‘wellhead’ is very precise and definite because it is a
clearly recognizable place which even laypersons can
understand.” Id.
Indeed, during the drafting process, the
Legislature inserted “at the wellhead” into the statute
to make it clear where proceeds are to be determined.
JA at 376, 382, 390. The Legislature would not have
specifically added this language if it intended for
proceeds to be determined at the interstate pipeline

 6a
or some other location miles downstream. This
language was erroneously disregarded and left
unexplained by the majority, which instead simply
assumed that the Legislature must have intended
that no deductions would be taken because the policy
portion of the statute was so “passionately” written.
Opinion at 12.
Passion cannot displace plain
language, however, and the plain language of the
statute clearly sets the point of valuation—at the
wellhead.
C.

TAWNEY DOES NOT
APPLY

In support of its conclusion that the statute is
ambiguous, the Court cited Tawney, but Tawney
involved leases that based royalties on a percentage
of proceeds and that included an implied covenant to
market. 219 W. Va. at 271, 633 S.E.2d at 27.
Royalties under flat-rate leases are based on the
number of wells drilled, and they do not have an
implied duty to market. Bruen v. Columbia Gas
Transmission Corp., 188 W. Va. 730, 732, 426 S.E.2d
522, 524 (1992). Thus, Tawney provides no support
for the Court’s conclusion that “at the wellhead” is
ambiguous as used in the statute.
In its Opinion, the Court acknowledged that
Tawney was based on an implied duty to market. The
Court agreed that there is no implied duty to market
in flat-rate leases. The Court also acknowledged that
flat-rate leases “have remained strictly effective with
respect to the wells permitted prior to the enactment
of the flat-rate statute.” Opinion at 13. The Court

 7a
concluded, however, that the statute has
“unquestionably altered the basis of the parties’
bargain going forward.” Id. According to the Court,
an “implied covenant to market” now exists under
flat-rate leases, and payments must be made on the
“volume of gas produced.” Id. In other words, the
Court concluded that the Legislature rewrote flatrate leases going forward.
This conclusion violates the stated purpose of
the statute. The Legislature did not impose a duty to
market under flat-rate leases. The statute itself
states that its purpose is “to discourage as far as
constitutionally possible the production and
marketing of oil and gas” under flat-rate leases. § 226-8(a)(4). The Legislature’s goal was “to prevent the
extraction, production or marketing” under flat-rate
leases—with one exception. If the operator under a
flat-rate lease agrees to pay the statutory amount to
the gas owner, the operator may obtain a permit for a
new well. Otherwise, there can be no new wells on
flat-rate leases.
In enacting the statute, the Legislature did not
impose any duty to market, and the majority had no
basis for implying one. The Court’s duty was to apply
the statute as written, not to expand the statute to
meet its own policy preferences.1
D. THE COURT
MISAPPREHENDED
1.

EQT reserves all constitutional arguments against the
flat-rate lease statute as written, as applied, and as interpreted
by the Court.

 9a
THE PURPOSE OF
THE STATUTE
In its Opinion, the Court said the statute was
enacted “to right past wrongs.” Opinion at 12.
According to the Court, the “wrong” that the
Legislature intended to address was future
development under flat-rate leases. Id. But the Court
did not stop there. The Court went on to attribute a
broader purpose to the statute: to prevent “the
exploitation of mineral resources without adequate
compensation.” Id. Given this broader purpose, the
Court said the Legislature would not have provided “a
mechanism of royalty valuation specifically designed
to curtail that compensation.” Id. at 13. Therefore,
the Court said that payments under the statute may
not be “diluted by costs and losses incurred
downstream from the wellhead before a marketable
product is rendered.” Id. This conclusion fails with
its premise.
First, had the Legislature intended for
payments to be based on proceeds downstream of the
wellhead, it would have simply said so. Instead, the
Legislature tied payments to the “total amount paid
to or received by or allowed to the owner of the
working interest at the wellhead.” § 22-6-8(e).
Second, the flat-rate lease statute was
designed to address flat-rate leases. The Legislature
was not addressing the adequacy or fairness of all oil
and gas leases, only one particular type of lease. The
Legislature defined that type of lease as one in which
the royalty is “not inherently related to the volume of

 10a
oil and gas produced or marketed.” § 22-6-8(a)(1).
The statute does not apply to all leases.
Suppose, for example, a lease provides for a
one-sixteenth royalty instead of a one-eighth royalty
or provides for a set amount per barrel of oil or
thousand cubic feet of gas. These leases base royalties
on the volume of oil or gas produced, so they are not
flat-rate under the statute. § 22-6-8(a)(1). Depending
on the rates specified in the leases, however, they
could be just as “unfair” as flat-rate leases, yet the
statute does not apply to such leases because they are
not flat-rate.
The point is this: The Legislature did not
attempt to address the adequacy of royalties under all
leases. The Legislature instead enacted a statute
dealing only with flat-rate leases and providing a
specific formula for the payments that are required
under such leases. In order to drill a new well, the
operator must agree to pay one-eighth of the proceeds
at the wellhead. The majority had no basis to imply
a broader legislative purpose of preventing any
perceived inadequacy in leases and thus no basis to
declare that a payment “at the wellhead” does not
meet the statute’s purpose.
As the Dissenting Opinion explained, calling a
statute “remedial” does not allow the Court to ignore
the plain language of the statute. Dissenting Opinion
at 10; see Raynes, 132 W. Va. at 419, 52 S.E.2d at 249.
And it certainly does not permit the Court to attribute
to the statute whatever reach it wishes. Henthorn v.

 11a
Collins, 146 W. Va. 108, 111, 118 S.E.2d 358, 360
(1961).
E.

PAYMENTS BASED
ON PROCEEDS AT
THE WELLHEAD ARE
NOT INADEQUATE
OR UNFAIR

The biggest misconception in the Opinion is the
majority’s conclusion that payments at the wellhead
are somehow inadequate or unfair and that they are
the result of “facile downward manipulation” by
operators. Opinion at 15. The “facile downward
manipulation” referred to by the Court is the widely
recognized netback method of reaching a wellhead
price based on a downstream sale—a method in use
across the country and approved by dozens of courts,
both state and federal. See Respondent’s Brief at 8-9.
While statutes must be interpreted according to their
plain language, and not according to what the Court
thinks is fair or unfair, the majority’s conclusion that
wellhead payments are inadequate is plainly wrong.
Before
deregulation,
landowners
were
traditionally paid a percentage of the sales price
received by operators, but the sales generally took
place at the wellhead. Appalachian Land Co. v. EQT
Prod. Co., 468 S.W.3d 841, 853 n.5 (Ky. 2015); Kilmer
v. Elexco Land Servs., Inc., 990 A.2d 1147, 1155 (Pa.
2010); Clough v. Williams Prod. RMT Co., 179 P.3d
32, 35-36 (Colo. App. 2007). Following deregulation,
the sales point moved downstream, typically to the
interstate pipeline. Appalachian Land Co., 468

 12a
S.W.3d at 853 n.5; Kilmer, 990 A.2d at 1155; Clough,
179 P.3d at 35-36. As a result, operators received an
enhanced price for the gas, but they also incurred
significant additional expenses in the process.
Clough, 179 P.3d at 36; Patricia Proctor, J. Kevin
West & Gregory P. Neil, Moving Through the Rocky
Legal Terrain to Find a “Safe” Royalty Clause or a
“New” Market at the Well, 19 Tex. Wesleyan L. Rev.
145, 150-51 (2012). To reach a price at the wellhead—
which is the location where most leases and the
statute require payment—operators deducted postproduction expenses from the downstream price.
Baker v. Magnum Hunter Prod., Inc., 473 S.W.3d 588,
592-93 (Ky. 2015); Kilmer, 990 A.2d at 1149.
Both Tawney and the Opinion in this case
failed to recognize that post-production deductions do
not change the wellhead price that landowners have
traditionally been paid—they simply attempt to
duplicate it. Williams & Meyers Oil and Gas Law §
645.2 at 614.12(13) to (14); John W. Broomes, Waste
Not, Want Not: The Marketable Product Rule Violates
Public Policy Against Waste of Natural Resources, 63
U. Kan. L. Rev. 149, 173-74 (2014); David E. Pierce,
Royalty Jurisprudence: A Tale of Two States, 49
Washburn L.J. 347, 367-68 (2010). And, EQT is not
asking landowners to become its “business partner,”
as the majority erroneously declared. Opinion at 15.
Landowners do not share in any business risks. Brian
S. Wheeler, Deducting Post-Production Costs When
Calculating Royalty: What Does the Lease Provide? 8
Appalachian J.L. 1, 4-5 (2008); Gary L. Field, PostProduction Costs: Who Bears the Burden? 78 Mich.
B.J. 144, 145 (1999); Scott Lansdown, The Marketable

 13a
Condition Rule, 44 S. Tex. L. Rev. 667, 670 (2003).
Under the netback method, landowners simply
receive the same royalty they would have received if
the gas had been sold at the wellhead. If for some
reason they do not, they have a claim for breach.
When the Legislature enacted § 22-6-8,
proceeds were generally determined at the wellhead,
and that is where the Legislature declared that
proceeds should be determined under the statute. As
a result, landowners like the Leggetts, have
received—and will continue to receive—millions of
dollars more than they would under their flat-rate
leases. Landowners under flat-rate leases are not
being short-changed by being paid on proceeds “at the
wellhead.” Rather, they are enjoying a legislative
windfall that their leases do not afford them. The
Court should not multiply that windfall by mandating
the use of an enhanced downstream price that is
beyond what the statute requires.
F.

THE COURT HAS
ERRONEOUSLY
ANSWERED
QUESTIONS THAT
WERE NOT ASKED

The certified question was whether a case
decided 24 years after the statute was enacted should
determine the intent and scope of the statute. After
answering this question in the affirmative, the Court
proceeded to answer other questions that were not
asked, including how volume should be calculated
under the statute.

 14a
While this Court has the power to reformulate
a question “to fully address the law which is involved
in the question,” Kincaid v. Mangum, 189 W. Va. 404,
413, 432 S.E.2d 74, 83 (1993), the Court should avoid
answering questions that were not asked. Bower v.
Westinghouse Elec. Corp., 206 W. Va. 133, 137, 522
S.E.2d 424, 428 (1999) (quoting Unif. Certified
Questions of Law Act § 4 cmt., 12 U.L.A. 74 (1996)).
In reformulating the question, the Court should strive
to retain “‘the specific terms and concepts of the
question.’” Id.; see also Barefield v. DPIC Companies,
Inc., 215 W. Va. 544, 572, 600 S.E.2d 256, 284 (2004)
(“Although this Court has the authority to
reformulate questions properly certified, we do not
have the liberty to expound on any concern which we
anticipate may arise in relation to the question.”)
(Albright, J., concurring).
In its Opinion, the Court stated that payments
under the statute should not be “diluted by costs and
losses incurred downstream from the wellhead” and
that the operator may not deduct “any sums
attributable to a loss or beneficial use of volume
beyond that initially measured.” Syl. Pts. 2 and 3.
The volume issue was only discussed in passing by the
parties; it was not fully briefed or argued.
The value of gas goes up as it moves
downstream, but the volume of gas goes down. While
operators try to maintain as much volume as possible,
some gas is always lost during transportation, and
some gas is used as fuel for compressors that move the
gas.

 15a
In several cases, the question has arisen how
volume should be calculated for the purpose of paying
royalties. Should royalties be calculated on the
volume of gas produced or on the volume of gas sold?
Many leases base royalties on the proceeds
received by the operator, and many leases contain
“free use” clauses allowing the operator to use gas free
of charge. As a result, most cases allow the operator
to pay royalties on the volume of gas sold, instead of
the volume of gas produced. Hall v. CNX Gas Co.,
LLC, 137 A.3d 597, 604 (Pa. Super. Ct. 2016) (stating
that “[g]as lost or used on the way to the point of sale
is simply not part of the royalty computation”);
Pollock v. Energy Corp. of America, Civ. A. 10-1553,
2011 WL 3667289, at *5 (W.D. Pa. June 27, 2011)
(recommending dismissal of claim for royalties on
volumes of gas unaccounted for before point of sale),
report and recommendation adopted, 2011 WL
3667385 (W.D. Pa. Aug. 22, 2011); Dynegy Midstream
Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d 164,
170 (Tex. 2009) (holding that claim for gas lost
between wellhead and tailgate failed as a matter of
law); Atlantic Richfield Co. v. Holbein, 672 S.W.2d
507, 515-16 (Tex. App. 1984) (holding that no royalty
was required for unsold gas because industrywide
practice was to deduct fuel gas before computing
royalty), writ refused NRE (July 18, 1984); Anderson
Living Trust v. Energen Res. Corp., 161 F. Supp. 3d
1055, 1062-63 (D.N.M. 2016) (holding that gas used in
processing was not “sold” or “marketed” and,
therefore, no royalties were owed); ConocoPhillips Co.
v. Lyons, 299 P.3d 844, 856 (N.M. 2012) (holding that
gas used for development and production was not sold

 16a
or saved by lessee and, therefore, no royalties were
owed); Amoco Prod. Co. v. Andrus, 527 F. Supp. 790
(E.D. La. 1981) (holding that, under federal law,
royalty is owed for gas that is “removed or sold,”
which does not include lost or used gas); Marathon Oil
Co. v. Andrus, 452 F. Supp. 548, 553 (D. Wyo. 1978)
(same); but see Roberts Ranch Co. v. Exxon Corp., 43
F. Supp. 2d 1252, 1256-57 (W.D. Okla. 1997)
(requiring payment of royalty for gas that was used to
operate a treatment plant off the leased premises).
In his recommended lease forms, Judge Donley
includes a free use clause. Robert T. Donley, The Law
of Coal, Oil and Gas in West Virginia and Virginia,
Oil and Gas Forms at 319, 323-24 (1951). Where
there is a free use clause, it is generally held that the
gas used for the lessee’s operations is excluded in
calculating royalty. 3A Nancy Saint-Paul, Summers
Oil & Gas § 33:12 at 160 (2008).
While the opinion in Tawney refers to “volume
deductions,” the actual holding in the case does not
state how volume should be determined. 219 W. Va.
at 269, 633 S.E.2d at 25. Syllabus Point 10 in Tawney
only addresses the costs of marketing and
transportation, as does the body of the opinion in
Tawney. 219 W. Va. at 270-74, 633 S.E.2d at 26-30.
Judge Goodwin recently examined this volume
issue at length in W.W. McDonald Land Co. v. EQT
Prod. Co., 983 F. Supp. 2d 790 (S.D. W. Va. 2014). The
Judge concluded that “requiring lessees to pay
royalties on unsold gas is illogical and inequitable.”
Id. at 802. As the Judge explained, “[v]olume losses

 17a
are not ‘deductions’ of costs in the same sense as
marketing or transportation costs.” Id. In claiming
the value at the downstream market and the volume
at the wellhead, “the plaintiffs want to have their
cake and eat it too.” Id. at 803. Judge Goodwin held
that nothing in Tawney requires “such a perverse
result.” Id.
In its Opinion in this case, the Court decided
the volume issue with no discussion or analysis. The
Court simply declared that statutory payments may
not be diluted by “costs and losses incurred
downstream from the wellhead” and that the operator
not deduct any sums “attributable to a loss or
beneficial use of volume beyond that initially
measured.” Syl. Pts. 2 and 3. The Court did not say
what it meant by the volume “initially measured.”
Nor did the Court explain why the operator should
pay on more gas that it actually sells when the statute
specifies “one eighth of the total amount paid to or
received by or allowed to” the operator. § 22-6-8(e).
The flat-rate lease at issue in this case does not
address line loss or the free use of gas. There was no
reason for it to. The operator was required to pay
royalties on the number of wells drilled, not the
volume of gas sold. Most percentage leases, however,
state that royalties are based on the gas sold and
many allow free use of gas. As a result, these lessors
are only paid on gas sold.
Ironically, in rewriting the statute in an
attempt to ensure that landowners with flat-rate
leases receive the same as landowners with

 18a
percentage leases, the Opinion actually ensures that
landowners with flat-rate leases receive more because
operators under flat-rate leases must now pay not
only on gas sold but on gas lost or used as fuel for
compression.
If, notwithstanding the limited scope of the
certified question, the Court intends to address how
volume should be calculated under the statute, it
should do so only after full briefing and argument.
G.

SYLLABUS POINT 3
IS BEYOND THE
CERTIFIED
QUESTION AND THE
LAW OF ANY STATE

As with the volume issue, Syllabus Point 3 is
beyond the certified question. It is also beyond the
law of any state.
In Syllabus Point 3, the Court held that the
statute prohibits the operator from deducting any
post-production costs. Even under Tawney, this
Syllabus Point is mistaken because it contains no
reference to the market or to a marketable product.
Under Tawney and similar cases, deductions are
permitted after the gas is marketable. Rogers v.
Westerman Farm Co., 29 P.3d 887, 903, 906 (Colo.
2001) (en banc) (holding that, after a marketable
product is obtained, the lessor can deduct reasonable
transportation costs and costs that enhance the value
of the gas and increase the royalty paid); Mittelstaedt
v. Santa Fe Minerals, Inc., 954 P.2d 1203, 1208 (Okla.
1998) (holding that, after a marketable product is

 19a
obtained, the lessor can deduct costs that enhance the
value of the gas, are reasonable in amount, and
increase the royalty paid); Sternberger v. Marathon
Oil Co., 894 P.2d 788, 791 (Kan. 1995) (holding that,
after a marketable product is obtained, the lessor can
deduct reasonable costs to transport or enhance the
value of the gas). Again, if the Court intends to decide
this issue in this case, it should do so only after
further briefing and argument.
III. CONCLUSION
The Court should grant EQT’s Petition for
Rehearing, and thereby withdraw the Opinion of
November 17, 2016, set the case down for such further
briefing and argument as the Court may desire, and
issue a new opinion answering the first certified
question in the negative.

EQT PRODUCTION COMPANY,
By Counsel.
/s/ David K. Hendrickson
David K. Hendrickson, Esquire (#1678)
Counsel of Record
Carl L. Fletcher, Jr. (#1225)
HENDRICKSON & LONG, PLLC
P.O. Box 11070
Charleston, West Virginia 25339

 20a

Telephone: 304/346-5500
Facsimile: 304/346-5515
daveh@hand1.com