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{-Old-io 

EFiled: Oct 11 2016 03:56PM EDT
Transaction 10 59683172

IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA
IN RE: MARCELLUS SHALE LITIGATION

CNIL ACTION NO. 14-C-3000

THIS DOCUMENT APPLIES TO:

HARRISON COUNTY CHERRY CAMP TRIAL GROUP
ROBERT ANDREWS, et a1. v. Antero, et a1.
RODNEY ASHCRAFT, et al. v. Antero, et a1.
LINDSEY FEATHERS v. Antero, et a1.
ROBERT GOLDEN, et a1. v. Antero, et al.
DANIEL KINNEY, et a1. v. Antero, et al.
CHARLES A. MAZER v. Antero, et a1.
CHARLES T. MAZER v. Antero, et aI.
DOUGLAS MAZER, et a1. v. Antero; et a1.
SHAWN MAZER v. Antero, et a1.
SUSAN MAZER v. Antero, et a1.
GREGG MCWILLIAMS, et al. v. Antero, et al.
DAVID NUIT v. Antero, et al.
ROBERT SIDERS, et a1. v. Antero, et al.

13-C-434 HRR ANDREWS RL
13-C-434 HRR ASHCRAFf 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 NUTI DS
13-C-434 HRR SIDERS R

FINAL ORDER GRANTING
DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The Court has reviewed and maturely considered Antero Resources Corporation's
Motion for Summary Judgment and Hall Drilling, LLC's Motion for Full or Partial Summary
Judgment (Transaction IDs 58437476 and 58439674), Plaintiffs' Response in Opposition to
Defendants Antero Resources Corporation's and Hall Drilling, LLC's Motions for Summary
Judgment (Transaction ID 58498603), the Reply in Support ofAntero Resources Corporation's
Motion for Summary Judgment (Transaction ID 58530421), and Hall Drilling, LLC's Reply in
Support of Its Motion for Full or Partial Summary Judgment (Transaction ID 58531784). The

Court has further reviewed extensive and voluminous memoranda and exhibits, and the
arguments of counsel. Having conferred with one another to insure uniformity of their decision,
as contemplated by Rule 26.07(a) of the West Virginia Trial Court Rules, the Presiding Judges

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unanimously GRANT Defendants' motions for summary judgment.l
The Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1.

"This is an action by residents andlor owners of property in Harrison County, West

Virginia for private temporary continuing abatable nuisance and negligence/recklessness against
Defendants Antero Resources Corporation, Antero Resources Bluestone, LLC, and Hall Drilling.
LLC for damages arising from Defendants' oil andlor natural gas drilling, exploration,
_extraction. pipeline construction, water processing, and related acts andlor omissions.. , ,"
Complaint, 'JI 1. Plaintiffs allege they "are no longer able to enjoy their lives and use and enjoy
their homes and properties in the way they previously enjoyed prior to Defendants' acts and/or
omissions .. , ." Id., ')12.
2.

Plaintiffs claim that, "[s]ince living in Harrison County, the Plaintiffs had come to expect

and enjoy the quiet, fresh air, fresh water, privacy, darkness of night, and overall peacefulness of
the area." ld., i 23. However, "[a]8 a result of Defendants' natural gas exploration, extraction,
transportation and associated activities in close proximity to their properties, Plaintiffs -have
suffered and continue to suffer significant damages to their rights to the use and enjoyment of
their property ...." Id., '1I 24
1 On April 13,2016, nearly (10) weeks after the deadline for dispositive motions and over six (6) weeks after the
Court had conducted its hearing on dispositive motions, Plaintiffs filed a motion for leave to file a supplemental
resp<1nse. - ~ Motion to Supplement Response in Opposition to Defendants Antero Resources Corporation's and
Hall Drilling. LLC's Motions for Summary Judgment (Transaction ID 58857554). On April 15,2016, Defendants
filed. a motion for leave to file a supplemental reply. ~ Joint Resp01l8e. in Opposition to Plaintiffs' Motton to
Supplement Response in Opposition to Defendants' MOtiOlts for Summary Judgment or, in the Alternative. Motion
for Leave to File Supplemental Reply to Plaintifft' Supplemental Response in Opposition to Defendants' Motions for
Summary Judgment (Transaction ID 58872071). The Court denied both Plaintiffs' motion for leave to file a
supplemental response and Defendants' motion for leave to file a supplemental reply as untimely filed. See Order
(Transaction ID 58876663). Upon being advised mediation would be reconvened on October 6-7.2016, the Court
ordered its detailed, fmai order granting summary judgment in favor of Defendants in the Harrison County Cherry
Camp Trial Group cases held in abeyance, pending the outcome of the mediation. See Order (Transaction ID
59259366). Having been advised that mediation conducted on October 6-7, 2016, was unsuccessful, the Court now
enters its final order pursuant to Rule 54(b) of the West Virginia Rules of Civil Procedure.

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3.

The activity at issue in this complaint is horizontal well drilling and hydro-fracturing as

part of the development of the Marcellus Shale in West Virginia. Traditional oil and gas wells in
West Virginia are vertical wells, with smaller drill rigs and fairly small well pads, located on
one-third to one-half of an acre of land. A well road is built, the well pad is built. and the drill
rig drills the vertical well several thousands of feet deep. After the well is drilled, a steel casing
is put in the well, the drill rig leaves. and a hydro-fracturing company comes in to fracture the
well. After the well is fractured and flow-back occurs, production starts and pipelines carry the
natural gas from the well head to a larger transmission line for transport to market.

See

December 22.2014 Hearing Transcript, pp. 37-39.
4.

With the development of the Marcellus Shale, horizontal drilling is used to recover

natural gas. Horizontal drilling requires a vertical well to be drilled, then the drill bit is turned
and runs underground in a horizontal direction, extending anywhere from 2,000 to 10,000 feet
away from the vertical well site. [d.. pp. 39-40. Several underground, horizontal wells are
drilled away from the vertical well sites, much like a spider web design.

Because of the

horizontal drilling, more wells can be located on one well pad. Consequently, the well pads are
usually larger, there are more hydro-fracturing zones, hydro-fracturing takes a longer period of
time, and it takes more sand and water. Id., pp. 40-41.
5.

Counsel for Plaintiffs describes this drilling process, along with the infrastructure

required once the wells are built as "more of an industrialization of rural West Virginia" causing
Plaintiffs to complain of "traffic, noise, dust, diesel emissions, pollution, erosion, and water well
contamination" creating a nuisance. [d., pp. 43-44.
6.

Defendant Antero Resources Corporation ("Antero") is the owner of horizontal Marcellus­

Shale wells located on numerous well pads in Doddridge, Harrison, and Ritchie Counties, among

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others. Antero is the successor in interest to Bluestone Energy Partners by merger and mesne
conveyances.
7.

Antero contracted with third parties, including Hall Drilling, LLC ("Hall Drilling"), for

construction of the well pads and roads, well drilling, and completion and operation of the wells
and gathering lines.
8.

Antero negotiated and was granted the right to use the surface property of the Plaintiffs to

develop the underlying minerals pursuant to several agreements. Thus, the Court concludes Hall
Drilling is entitled to the benefit of these various agreements to the same extent as Antero when
Hall Drilling is performing work or services for or on behalf of Antero.
9.

Antero has leasehold rights to develop the oil and gas underlying the properties that are

the subject of Plaintiffs' complaint. Those development rights were retained by the oil and gas
mineral owners in the severance deeds separating the surface estates from the mineral estates.
Some of the tenus of the severance deeds and mineral leases are as follows:
Deborah Andrews
Rights retained by the mineral owner in the July 22, 1905 severance deed (Deed Book
(''DB'') 150, Page (''P'') 231) include:
[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[.]
Express rights granted to Antero by the August 17. 1984 mineral lease (DB 1146, P 190)
include:
[E]xclusive possession and use for the purposes of exploring and operating for,
producing, and marketing oil, gas, natural gasoline, casing-head gas, condensate,
related hydro-carbons, jUld all products produced therewith or therefrom by
methods now known or hereafter discovered, of injecting. storing, and
withdrawing any kind of gas regardless of the source, of protecting stored gas, of
injecting gas, air, water, and other fluids into sands and formations for the purpose
of recovering and producing said minerals or for the purpose of disposing of
waste fluids ... [along with] all other rights and privileges necessary, incident to,
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and convenient for the economical operation of said land alone and conjointly
with other lands for the production and transportation of said minerals[.]

Rodney and Katherine Ashcraft
Rights retained by the mineral owner in the July 22, 1905 severance deed (DB
150, P 231) inclu4e:
[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[.]
Express rights granted to Antero by the August 17. 1984 mineral lease (DB 1146, P 190)
include:
[E]xclusive possession and use for the purposes of ex.ploring and operating for.
producing, and marketing oil, gas, natural gasoline, casing-head gas, condensate.
related hydro-carbons, and all products produced therewith or therefrom by
methods now known or hereafter discovered, of injecting. storing, and
withdrawing any kind of gas regardless of the source, of protecting stored gas, of
injecting gas, air, water, and other fluids into sands and formations for the purpose
of recovering and producing said minerals or for the purpose of disposing of
waste fluids ... [along with] all other rights and privileges necessary, incident to.
and convenient for the economical operation of said land alone and conjointly
with other lands for the production and transportation of said minerals[.]
Mary Mikowski and Gregg McWilliams
Rights retained by the mineral owner in the July 22, 1905 severance deed. (DB 150, P
231) include:
[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[.J
Express rights granted to Antero by the August 17, 1984 mineral lease (DB 1146, P 190)
include:
[E]xc1usive possession and use for the purposes of exploring and operating for,
producing, and marketing oil, gas, natural gasoline, casing-head gas, condensate.
related hydro-carbons, and all products produced therewith or therefrom by
methods now known or hereafter discovered, of injecting, storing, and
withdrawing any kind of gas regardless of the source, of protecting stored gas, of
injecting gas, air, water, and other fluids into sands and formations for the purpose
of recovering and producing said minerals or for the purpose of disposing of
waste fluids ... [along with] all other rights and privileges necessary, incident to,
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 "

and convenient for the economical operation of said land alone and conjointly
with other lands for the production and transportation of said minerals[.]

Daniel and Sharon Kinney
Rights retained by the mineral owner in the June 20. 1921 and April 24. 1946 severance
deeds (DB 320, P 350; DB 604, P 362) include:
[AlII oil, gas and water rights of way[,]
[A]ll of the oil and natural gas in and underlying said two tracts of land[,]
Express rights granted to Antero by the February 10. 1988 mineral lease (DB 1183, P
276) include:
[P]rospecting, exploring by geophysical and other methods. drilling, 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[.]
Clyde Kinney, .Jr. (Robert and April Golden)
Rights retained by the mineral owner in the June 20. 1921 and April 24. 1946 severance
deeds (DB 320, P 350; DB 604, P 362) include:
[A]ll oil, gas and water rights of way[.]
[A]lI of the oil and natural gas in and underlying said two tracts of land[,]
Express rights granted to Antero by the February 10. 1988 mineral lease (DB 1183, P
276) include:
[P]rospecting, exploring by geophysical and other methods, drilling, 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 corivenient for the
economic operation of the lands, alone or conjointly with neighboring lands[.]

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Charles T. Mazer and Susan Mazer
Rights retained by the mineral owner in the March 1. 1904 and October 14. 1905
severance deeds (DB 140, P 265; DB 152, P 39) include:
[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[.]

[A]U of the oil and gas, in and under said land, with the right to operate for same,
such rights being the same as are usually granted in an oil and gas lease[.]
Express rights granted to Antero by the August 11. 1902 mineral lease (DB 133, P 107)
include:
[Use of the property] for the sole and only purpose of mining and operating for oil
and gas and of laying pipe lines, and of building tanks, stations and structures
thereon, to take care of said products(.]

Douglas and Catherine Mazer
Rights retained by the mineral owner in the July 3, 1915 and February 27. 1917
severance deeds (DB 255, P 377; DB 265 P277) include:
[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.
Express rights granted to Antero by the July 14. 2008. June 18.2009. and May 28.2009
mineral leases (DB 1425, P 761; DB 1434, P 302; DB 1436, P 339) include:
[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.
[EJxploring by geological and geophysical and other methods, (inclUding, but not
limited to, conducting seismic surveys), drilling either veltically 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
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 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[.]

Robert and Betty Siders
Rights retained by the mineral owner in the February 4, 1903 severance deed (DB 136, P
321) include:
[A]ll the oil and gas underlying the land herein conveyed together with the
privilege of operating for and Marketing same.
Express rights granted to Antero by the April 3. 2001 mineral lease (DB 1330, P 545)
include:
[E1xploring and operating for, producing and marketing oil and gas, natural
gasoline, casing-head gas, condensate, related hydrocarbons, and all other related
-products, including the building of roads, laying pipelines and installing
equipment thereon to take care of such products [along with] the privilege of
using sufficient water and gas from said premises to run all machinery necessary
for drilling and operating thereon, and all right of way necessary to develop the
premises or remove equipment, and related items[.]
10.

In addition to the foregoing leases and severance deeds, Antero executed various other

agreements with several Plaintiffs, or the owners of the properties on which Plaintiffs reside,
entitling Antero to use Plaintiffs' properties in the course of its mineral development. These
various agreements include right of way agreements, an oil and gas lease, road use agreements,
surface use agreements, tank pad agreements, and pipeline easements.2

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 GrantIRight 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 SUIface 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,
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 11.

The agreements entered into by Plaintiffs Douglas and Catherine Mazer. expressly

authorized the activities relating to the O. Rice well pad and expressly waived all damages
arising out of the operations on the O. Rice well pad.
12.

Antero has obtained permits from the West Virginia Department of Environmental

Protection (''WVDEP'') for its gas wells on the six Cherry Camp well pads.
13.

Plaintiffs filed their complaint on October 11, 2013. alleging "private temporary

continuing abatable nuisance and negligence/recklessness" arising from Defendants' "natural gas
exploration, extraction. transportation and associated activities in close proximity to their
properties" in Harrison County, West Virginia Complaint. Paragraphs 1,22 and 24.
14.

Plaintiffs voluntarily withdrew their negligence claims in their response to Defendants'

motions for summary judgment. See Transaction ID 58498603 at page 2. Accordingly, the

2013. between Daniel L. Kinney. Attorney-in-Fact for Clyde Kimey Ir.• and Antero Resources
Corporation recorded on December 3, 2013, in Book 1523, Page 834; Tank Pad Agreement dated Iuly 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; 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 on 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.
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 Court makes no findings of fact or conclusions of law in this Order regarding Plaintiffs'
negligence claims.
15.

Among other things, Plaintiffs complained of excessive heavy equipment and truck

traffic, excessive diesel fumes and other emissions from the trucks, vibrations, removal of andlor
damage to trees, plants and vegetation, excessive lights, excessive noise, excessive dust,
excessive emissions, and harassment andlor menacing, intimidating. disrespectful, arrogant, and
obnoxious behavior towards Plaintiffs, resulting in Plaintiffs' loss of use and enjoyment of their
properties, including annoyance, inconvenience, and discomfort. See Complaint, Paragraphs 32

and 34 generally.

16.

The noise, traffic, dust, lights and odors of which Plaintiffs complain are reasonable and

necessarily incident to Antero's development of the underlying minerals.
17.

Although Plaintiffs' counsel initially asserted Plaintiffs had property damage claims, 3

since then they have repeatedly admitted Plaintiffs' have no property damage claims or personal

injury claims, and have offered no evidence establishing such claims.
MR. MAJESTRO: We have clients who are worried about
what's in their soil, so they're getting things tested and figuring
those issues out.
CHAIRMAN JUDGE MOATS: But have you made claims
for soil contamination?
MR.. MAJESTRO: Not apart from just "This is a
nuisance." They're not property damageJUDGE HUMMEL: Is that based on fracking or what?
MR. MAJESTRO: The fracking chemicals. I mean, it's a
- it is not a - we don' t have a cl ai m for property damage in these

Complaints. They're nuisance clai ms.
THE COURT: But how would soil contamination be a
nuisance claim? .
MR. h1AJESTRO: I think what you have in the nature of
these chemicals is that you know, a lot of people worried about
what they're being - and not - one of the advantages of living out
3'OWe have sOlne property damage claims; emissions; dust, odor; improper waste disposal; erosion; issues with
livestock and pets; and vibration." December 22,2014 Hearing Transcrip~ 45:3-5.

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 in the country is presumably you are away from urban pollution.
urban things. and you have peace of mind of being in nature and
that's being taken away from these people.
June 26, 2015 Hearing Transcript at 36:2-37:2 (emphasis added).

JUDGE MOATS: Now it's my understanding - or our
understanding from all of your briefs that nobody's claiming any
property damage.
Is that correct Mr. Majestro? 

MR. MAJESTRO: Yes, Your Honor. 

JUDGE MOATS: Nobody's claiming any persona1.injury? 

MR. MAJESTRO: Yes, Your Honor. 

February 26,2016, Hearing Transcript, 40:21-41 :4.
18.

Plaintiffs have not offered any admissible evidence of record to establish that

Defendants' use of Plaintiffs' property has exceeded the scope of Antero's agreements with
Plaintiffs, or what is reasonable and necessary to develop the underlying minerals, other than
self-serving assertions that Defendants' activities, although within the scope of the agreements,
are excessive.
JUDGE MOATS: . . . is there anything that the gas
company is doing or that the Defendants are doing that would not
be implied with the rights to explore or drill or produce?
I mean, No.1, would it be an implied use to go on the
surface of some property and use dozers to grade off a well?
MR. MAJES'IRO: Sure. That would be approved. That
would be within the scope of JUDGE MOATS: Would it be implied that they would
have to have heavy machinery on there that makes noise?
MR. MAJES'IRO: To a certain extent, I think, but the
question is: If it's necessary - if the activities are necessary for the
development, yes, it would be implied.

***
JUDGE MOATS: ... I'll just get straight to the bottom
line. Is there anything that they are doing that would not be
viewed ·as an implied right necessary to development? In other
words, running trucks on the road, hauling water in, having lights
up on their well site, having machinery going that's going to cause
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 noise; is there anything they're doing that would not be considered
an implied right?
Now you may view it as excessive, but is there anything
they're doing that's not implied, necessary to take place m
developing of these - MR.. MAJESTRO: Not as I'm sitting here today.
JUDGE MOATS: It just comes down to the question of
quantity, times or things of that nature; is that accurate?
MR.. MAJESTRO: Well, it's simple things like how and
where they're pointing their lights.
February 26,2016, Hearing Transcript, 15:10-16:2; 16:11-17:6.

CONCLUSIONS OF LAW
19.

Summary judgment must be granted if the ''pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, 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 SyI. Pt. 2, Angelucci v. Fairmont Gen. Hosp., Inc.,
217 W. Va. 364, 618 S.E.2d 373 (2005); and SyI. Pt. 2, Harrison v. Town of Eleanor, 191 W.
Va. 611,447 S.E.2d 546 (1994).
20.

"A motion for summary judgment should be granted only 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." Syl. Pt. 1, Williams v. Precision Coil, Inc., 194 W. Va. 52,459 S.E.2d
329 (1995)(citations and internal quotation marks omitted). Thus,
[s]ummary 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.
Id' 1 SyI. Pt. 2.
21.

"A party seeking summary judgment bears the initial burden of showing that no genuine

issue of material fact exists.

Once the movant makes this showing, the nonmovant must

contradict the showing by pointing to specific facts demonstrating that there is, indeed, a
12 


 trial worthy issue" to avoid summary judgment. Syl. Pt. 2, Gentry v. Mangum, 195 W. Va. 512,
466 S.E.2d 171 (1995). ''To be specific, 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).
22.

Although a trial court considering a summary judgment motion must view the underlying

facts and all 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.lO.
Moreover, the nonmoving party "cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another." Id. at 61 n.14, 459 S.E.2d at 338
n.14, citing Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985).
23.

"[T]he mere existence of some alleged factual dispute between the parties will not defeat

an otherwise properly s~pported motion for summary judgment; the requirement is that there be
no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-248, 106
S. Ct. 2505,2510 (1986)(emphasis in original).
24.

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as

to any material fact,' since a complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett,
477 U.S. 317, 322-323 (1986). This includes suits alleging nuisance. See Acord v. Colane Co.,
228 W. Va. 291, 719 S.E.2d 761 (2011) (affirming summary judgment in public nuisance case);

13

 Browning v. Halle, 219 W. Va. 89, 632 S.E.2d 29 (2005) (afflrming summary judgment in
private nuisance case); Booker v. Foose, 216 W. Va. 727, 613 S.E.2d 94 (2005) (affmning
summary judgment in private nuisance case).
25.

West Virginia law requires that "[w]hen the language of a written instrument is plain and

free from ambiguity, a court must give effect to the intent of the parties as expressed in the
language employed and in such circumstances resort may not be had to rules ofconstruction."

Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 490, 128 S.E.2d 626, 631(1962).
The terms of the written instrument must be enforced as written: "It is not the right or province
of a court to alter, pervert or destroy the clear meaning and intent of the parties as plainly
expressed in their written contract or to make a new and different contract for them" Id. at 493,
128 S.E.2d at 633. Rather, "[a] valid written instrwnent 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." Id. at Syl. Pt. 1.

26.

The parties to the agreement, and their successors-in-interest, are bound by the terms of

the agreement Id. at 491, 128 S.E.2d at 632. Antero and Plaintiffs, or the owners of the
properties on which Plaintiffs reside or their predecessors in title, have entered into unambiguous
agreements granting Antero the right to use Plaintiffs' properties in the course of its mineral
development. These agreements include mineral severance deeds, oil and gas leases, right of
way agreements, road use agreements, surface use agreements, tank pad agreements, and
pipeline easements. AB lessee of the minerals underlying Plaintiffs' properties, Antero has the
full benefit of express surface use rights for mineral development and extraction. See SyI. Pt. 1,

Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90, 91 (1924) ( ''The owner of the mineral
underlying land possesses, as incident to this ownership, the right to use the surface in such

14

 .' 


manner and with such means as would be fairly necessary for the enjoyment of the mineral
estate.") and Montgomery v. Economy Fuel Co., 61" W. Va. 620, 57 S.B. 137, 138 (1907) ("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.")
27.

"The actions or inactions of the owner of an easement, which otherwise meet the legal

defmition 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." SyI. p. 5, Quintain Development

LLC v. Columbia Nat. Res. Inc., 210 W. Va. 128,556 S.E.2d 95 (2001). Detennining whether
an owner of a property right has exceeded his rights is a question of law for the Court. Id. at 136,
103 (citing Westchester Associates, Inc. v. Boston Edison Co., 712 N.E.2d 1145, 1149 (Mass.
App. Ct. 1999) (Court of Appeals concluded Edison had not created a nuisance because its use of
easement was of same amount and character as authorized, agreeing with Superior Court that
Edison's use of easement was reasonable as a matter oflaw).
28.

Because the Court resolves summary judgment based upon Antero's contractual and

property rights, it does not address the.issues to which common law private nuisance principles
would be applied. The Court, therefore, reaches no conclusion regarding whether Antero's
actions or its employees' or contractors' actions would "otherwise meet the legal definition of a
nuisance."
29.

Defendants Antero and Hall were operating within the scope of Antero's leasehold rights

to develop oil and gas lIDderlying the properties that are the subject of Plaintiffs' complaint, as

well as various subsurface-use and right-of-way agreements Antero executed with several
Plaintiffs (or the owners of the properties on which Plaintiffs reside), which agreements entitled

l5

 Defendants to conduct their oil and gas-related activities. See Syl. Pt. 5, Quintain, 210 W. Va.
128,556 S.E.2d 95 (2001).
30.

The very noise, traffic, dust, lights, and odors of which Plaintiffs complain are reasonable

and necessarily incident to mineral development. The unambiguous terms of the leases and
agreements between Antero and Plaintiffs or their predecessors-in-interest grant Defendants
express rights to use Plaintiffs' properties in the course of their mineral development, and the
terms of those agreements must be applied in accordance with their plain language. Application
of these agreements completely resolves this litigation as a matter oflaw in Defendants' favor.
31.

In addition to its express contractual rights, Antero, as lessee, has the implied right of

reasonable and necessary use of Plaintiffs' properties as a matter of law. Under West Virginia
law, a surface owner does not have "an unrestricted right to enjoyment in their property." Martin

v. Hamblet,' 230 W. Va. 183, 191, 737 S.E.2d 80, 88 (2012) "A mineral owner generally has the
right to utilize the surface for 'purposes reasonably necessary for the 'extraction of minerals.'"
Id., quoting Buffalo Mining Co. v. Martin, 165 W.Va. 10,14,267 S.E.2d 721, 723 (1980).
32.

Plaintiffs are only entitled to recover damages for Antero's use of their surface that goes

above and beyond what is "reasonably necessary" to enjoy its mineral estate; i.e. only to the
extent Defendants' conduct went beyond what was reasonably necessary to extract the minerals.
33.

The issue of reasonable use is to be determined by the court. Adkins v. United Fuel Gas

Co., 134 W. Va. 719, 724, 61 S.E.2d633, 636 (1950) (emphasis added):
It may be said at this point that we do not think that whether the plaintiff's rights
have been invaded, or whether the defendant has exceeded its rights are questions
of fact for the determination of the jury. In a case where there is a dispute of fact,
the jury should fmd the facts, and from such finding of facts by the jury it is the
duty of the court to determine whether the use of the sUrface by the owner of the
minerals has exceeded the fairly necessary use thereof, and whether the owner of
the minerals has invaded the rights of the surface owner, and thus exceeded the
rights possessed by the owner ofsuch minerals.
l6

 34.

This rule is one of state property law. Justice v. Pennzoil, 598 F.2d 1339, 1342 (4th Cir.

1979)(construing West Virginia law). That is:
Unreasonable use of land by a mineral owner is not measured by the tort standard
of the ordinary reasonable man; rather, it is measured by concrete legal standards
rooted in the common law. It is not a matter readily susceptible of jury
determination. [This rule] .assures the continuity of those substantive rights and
obligations of the parties which were defined generations ago.
Id. at 1342-43 (internal citations omitted).
35.

West Virginia precedent makes clear that the noise, traffic, vibrations, dust, lights, and

odors of which Plaintiffs complain are well within the bounds of what is reasonable and
necessary use to develop minerals. See Adkins, 134 W. Va. at 725, 61 S.E.2d at 636 (holding
that an oil and gas developer did not act unreasonably or unnecessarily where it constructed a
road to bring machinery to drill the gas well, laid pipeline over the surface of the land,
constructed an open ditch for drainage of sand, water, and other refuse from the well, and caused
the plaintiff to suffer damages that were damnum absque injuria because the plaintiff's
acquisition of the land was "subject to

~e

rights of the owner of the minerals, who by virtue of

owning such minerals also possessed the rights necessary to produce and transport the same as
an incident to such ownership''). See also Adams v. Cabot Oil & Gas Corp., No. 13-1299,2014
WL 6634396

CW.

Va. Nov. 24, 2014) (holding that a mineral owner's construction of a new

access road over a surface owner's property was reasonable); Coffindaffer v. Hope Nat. Gas Co.,
74 W. Va. 107, 81 S.E. 966 (1914) (holding that the building of a road was necessary to enable
the operator to haul material for its rig and tools and machinery for drilling); Teel v. Chesapeake
Appalachia, LLC, 906 F. Supp. 2d 519 (N.D. W. Va. 2012), affd. 542 F. App'x 255 (4th Cir.

2013) (holding that defendant's depositing of drilling waste and other materials in pits on
plaintiffs' property was reasonable and therefore not trespass).

Because the operations of

Antero, and its contractors, were reasonable and necessary to its mineral development,
17

 Defendants are entitled to summary judgment as a matter of law.
36.

Antero's development of the minerals underlying Plaintiffs' properties through horizontal

wells rather than vertical wells does not diminish its rights to use Plaintiffs' surface property in
the course of that development.

Under West Virginia law, parties to contracts are held to

contemplate advancements in technology, absent specific language to the contrary. Phillips v.

Fox, 193 W. Va. 657,662,458 S.E.2d 327,332 (1995); Bassell v. W Va. Central Gas Co., 86
W. Va. 198, 103 S.E. 116 (1920); Armstrong v. Md. Coal Co., 67 W. Va. 589, 69 S.E. 195,203
(1910); Squires v. Lafferty, 95 W. Va. 307,121 S.E. 90, 91 (1924).

37.

Defendants are entitled to make use of reasonable and necessary methods to develop the

minerals underlying Plaintiffs' properties. Only where those methods have been shown to be
wholly incompatible with the surface estate due to total destruction may those methods be found
to be beyond the contemplation of the parties. See Quintain Dev., UC v. Columbia Nat. Res.,
Inc., 210 W. Va. 128, 133,556 S.E.2d 95, 100 (2001); Buffalo Mining Co. v. Martin, 267 S.E.2d
721, 725, 165 W. Va. 10, 15 (1980).
38.

There is no evidence in the record indicating Antero's methods are "materially different"

from the extraction methods contemplated at the time the minerals were severed or acquired, or
are incompatible or destructive to the surface estate.
39.

Business activity related to development of the Marcellus Shale. including horizontal

wen drilling and its related infrastructure, is encouraged and supported by the West Virginia
Legislature. See Marcellus Gas and Manufacturing Development Act, W.Va. Code § 5B-2H-l,
et seg. (effective July I, 2011)("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 of this

i8

 state'" W.Va. Code § SB-2H-2(b»; Horizontal Well Act, West Virginia Code § 22-6A-I. et seg.
(effective December 14, 2011 )("advancement of new and existing technologies and drilling
practices have created the opportunity for the efficient development of natural gas contained in
underground shales" W. Va. Code § 22-6A-2(a)(1»" In fact, the Legislature'has even stated 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." W.Va. Code § 5B­
2H-2(a)(3).
40.

The Legislature expressly acknowledged the use of a single surface location to develop

minerals on a unit basis in the Horizontal Well Act: U[t]hese practices have resulted in a new
type and scale of natural gas development that utilize horizontal drilling techniques, allow the

development of multiple wells from a single surface location, and may involve fracturing
processes that use and produce large amounts of water." (emphasis added) W. Va. Code § 22­
6A-2(a) (2).
41.

The Horizontal Well Act is also consistent with case law from the United States District

Court for the Northern District of West Virginia. See Miller v. N.R.M. Petroleum Corp., 570 F.
Supp. 28. 30 (N.D. W. Va 1983) (holding that "[i]t seems only reasonable that the surface area
of each tract in a pool should be available for use in connection with the construction and
operation of a well, as long as the use is reasonably necessary'').
42.

In addition to Antero's express and implied rights to utilize Plaintiffs' properties, two

Plaintiffs-Douglas Mazer and Catherine Mazer-have expressly waived liability for damages
to their properties relating to mineral development.

Plaintiffs Lindsey Feathers, Charles A.

Mazer, and Shawn T. Mazer also reside upon property owned by Plaintiffs Douglas Mazer and
Catherine Mazer and are bound by these agreements.

L9

 43.

The conveyance of the surface to Plaintiffs Douglas Mazer's and Catherine Mazer's

predecessor in interest contains an express release of the mineral owner from any and all liability
related to its oil and gas operations. The language of that conveyance specifically states:
[Alll 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.
Rights retained by the mineral owner in the July 3. 1915 and February 27. 1917
severance deeds (DB 255, P 377; DB 265 P277).
44.

As held in Stamp v. Windsor Power House Coal Co., 154 W. Va. 578,582,177 S.E.2d

146, 148 (1970) (citations omitted), "[t]he law is well settled in this State that a party to a valid
contract may in advance limit his liability for acts of negligence whether the subsequent action
be based on contract or tort." 4
45.

A grantor in such a contract cannot later attempt to recover damages for the very liability

that was limited. Id. at 583, 177 S.E.2d at 149 ("A grantor cannot specifically sell a right and
then recover damages of his grantee for using the very right sold; nor can a grantee recover
damages of his grantor for employing a right when the grantee has agreed to the unrestricted
reservation of a right. ") (citations omitted).
46.

M a matter of law, Plaintiffs Douglas Mazer, Catherine Mazer, Lindsey Feathers,

Charles A. Mazer, and Shawn T. Mazer cannot be allowed to recover damages from Antero

The Legislature has declared that "compensation and damages provided in this article for surface owners may not
be diminished in a deed, lease or other contract of conveyance entered into after December 31, 2011," and has
provided for the, "constitutionally permissible protection and compensation to surface owners of lands on which
horizontal wells are drilled from the burden resulting from drilling operations commenced after January 1, 2012."
~ W. Va. Code § 22-6B-l(b) and (c). However, the conveyance of the surface to Plaintiffs Douglas Mazer's and
Catherine Mazer's predecessor in interest was well before December 31. 20 11. See Paragraph 43. Moreover. the
well pads and wells at issue were all constructed prior to January 1,2012. See Defendants Memorandum ofLaw in
Support of Antero Resources Corporations' Motion for Summary Judgment (fransaction ID 58437703) at p. 6.
Therefore, the Oil IUld Gas Horizontal Well Compensation provisions in W.Va. Code § 22-6B-l. ~.• do not
apply.
4

20

 when they are bound by the terms of a severance deed, which releases Antero from all liability.
47.

Based on its review of the record, the Court concludes there are no disputed issues of

material fact and Defendants Antero and Hall are entitled to summary judgment as a matter of
law. Antero, as the owner of the mineral estate, and its contractors have the right to use the
Plaintiffs' surface estates for the production of its mineral rights. The Court further copcludes
that Antero and its contractors have the legal right to develop the mineral estate. The Court finds
that the activities complained of were reasonably necessary to the production of the mineral
estate and did not exceed the fairly necessary use thereof or invade the rights of the surface
owner under the standards outlined in Adkins v. United Fuel Gas Co., 134 W. Va. 719,61 S.E.2d
633 (1950).
It is therefore ORDERED that Antero Resources Corporation's Motion for Summary
Judgment and Hall Drilling, LLC's Motion for Summary Judgment are GRANTED.

The

Parties' exceptions and objections are noted and preserved for the record
The Court FINDS upon EXPRESS DETERMINATION that this is a final order
available for the proper application of the appellate process pursuant to Rule 54(b) of the Rules
of Civil Procedure and the Rules of Appellate Procedure. Accordingly, this order is subject to
immediate appellate review. The parties are hereby advised: (1) that this is a final order; (2) that
any party aggrieved by this order may file an appeal directly to the Supreme Court of Appeals of
West Virginia; and (3) that a notice of appeal and the attachments required in the notice of
appeal must be flled within thirty (30) days after the entry of this Order, as required by Rule 5(b)
of the West Virginia Rules of Appellate Procedure.

2l

 ,

.

The Clerk is directed to close this case, and place it among the cases ended. A copy of
this order is this day served on the parties of record via File & ServeXpress.
It is so ORDERED.
lsi Alan D. Moats
Lead Presiding Judge
Marcellus Shale Litigation

ENTER: October II, 2016.

22 


 EFiled: Jan 11 2017 04:27PM EST
TransElcUon 10 60058827

IN THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA 

IN RE:

MA..~CELLUS

SHALE LmGATION

Civil Action No. 14-C-3000 


TlDS DOCUMENT APPLIES TO: 


ROBERT L. ANDREWS, et ai, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. I3-C-434 HRR ANDREWS R L

RODNEY ASHCRAFf, et al, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. I3-C-434 HRR ASHCRAFT R

LINDSEY N. FEATHERS v. 

ANTERO RESOURCES CORP., et aI. 


Civil Action No. I3-C-434 HRR FEATHERS L N

ROBERT GOLDEN, et aI, v. 

ANTE~O RESOURCES CORP.,. et al. 


Civil Action No. 13-C-434 HRR GOLDEN R

DANIEL L. KINNEY, et aI, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. 13-C-434 HRR KINNEY D L

CHARLES A. MAZER, et aI, v. 

ANTERO RESOURCES CORP., et aI. 


Civil Action No. 13-C434 HRR MAZER C A

DOUGLAS A. MAZER, et aI, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. 13-C-434 HRR MAZER D A

SHAWN A. MAZER, et aI, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. 13-C-434 HRR MAZER S A

SUSAN J. MAZER, et ai, v. 

ANTERO RESOURCES CORP., et aI. 


Civil Action No. 13-C-434 HRR MAZER S J

GREG G. MCWILLIAMS, et aI, v. 

ANTERO RESOURCES CORP., et aI. 


Civil Action No. 13-C-434 HRR MCWrr..LIAMS

DAVID SCOTT NUTT v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. 13-C-434 HRR NUTT D S

ROBERT SIDERS, et al, v. 

ANTERO RESOURCES CORP., et al. 


Civil Action No. 13-C-434 HRR SIDERS R

CHARLEST. MAZER v. 

ANTERO RESOURCES CORP., et aI. 


Civil Action No. 13-C-434 HRR MAZER C T

1


 ORDER

The Presiding Judges assigned to the Marcellus Shale Litigation have reviewed and
considered Plaintiffs' Motion to Amend or Alter Final Order Granting Defendants' Motions for

Summary Judgment, or in the Alternative, to Reargue Defendants' Motions for Summary
Judgment (Transaction ID 59744226) filed in the above~caption.ed cases (sometimes coUectively

referred

to

as the "Harrison County Cherry Camp Trial Group").

I

The Presiding Judges have

also reviewed and considered Defendants Antero Resources COtporation's and Hall Drilling,
LLC's Joint Response in Opposition (Transaction II> 59809399), and Plaintiffs' Reply
(Transaction ID 59863549). Having conferred with one another to insure uniformity of their
decision, as contemplated by Rule 26.07(a) of the West Virginia Trial Court Rules. the Presiding
Judges unanimously DENY Plaintiffs' motion to amend, alter or reargue for the reasons that
follow.
PROCEDURAL IHSTORY

The Harrison County Cherry Camp Trial Group are actions "by residents andlor owners
of property in Harrison County, West Virginia for private temporary continuing abatable
nuisance and negligence/recklessness against Defendants Antero Resources Corporation, Antero
Resources Bluestone, LLC, and Hall Drilling. LLC for damages arising from Defendants' oil
and/or natural gas drilling, exploration. extraction, pipeline construction, water processing. and
related acts and/or omissions...." Complaint, ~ 1. Plaintiffs allege their quality of life has been
negatively impacted and they sCare no longer able to enjoy their lives and use and enjoy their
I The Honorable David W. HummeL, Jr. was assigned as a Presiding Judge in the Marcellus Shale Litigation on
November 13,2014. See Order Assigning Judges and Scheduling StalUS Conference. Judge Hummel resigned from
the Mass Litigation Panel on October 7, 2016. On October Ll. 2016. the Supreme Court appointed the Honomble
Jack Alsop to serve on the Mass Litigation Panel for the duration of Judge Hummel's unexpired tenD. On October
26.2016. Judge Alsop was assigned to serve as a Presiding Judge in the Marcellus Shale Litigation. ~ Second
Order Assigning Judges (Tmnsaction ID 59751111).

2

 homes and properties in the way they previously enjoyed prior to Defendants' acts andlor
omissions ...." ld., ':I[ 2.
After reviewing extensive briefing, including voluminous memoranda and exhibits from
all parties, the Presiding Judges heard Antero Resources Corporation's Motion for Summary

Judgment and Hall Drilling, LLC's Motions for Full or Partial Summary Judgment filed in the
Harrison County Cherry Camp Trial Group cases on February 26, 2016 (Transaction IDs

58437476 and 58439674).2 At the conclusion of the hearing, the Court agreed to withhold its
rulings on these motions in order to give the parties time to engage in a second round of
mediation with the Resolution Judges to try and resolve these cases. 3 See February 26, 2016 Hearing Trans., pp. 57-59. On Febru~y 29. 2016, Lead Resolution Judge Booker T. Stephens
entered an order reconvening mediation on April 7 and 8. 2016. See Order Reconvening

Mediation (Transaction ID 58643558). The mediation did not result in settlement.
On April 13. 2016, over ten (to) weeks after the January 29.2016. deadline for responses

to dispositive motions, and over six (6) weeks after the Court had conducted its February 26,
2016, hearing on dispositive motions, Plaintiffs filed a Motion to Supplement Response in

Opposition to Defendants Antero Resources Corporation's and Hall Drilling, LLC's Motions for
Summary Judgment (Transaction ID 58857554). Two days later, Defendants Antero Resources
("Antero") and Hall Drilling, LLC ("Hall") file~ a Joint Response in Opposition to Plaintiffs

I

lThroughout briefing of dispositive motions. the parties repeatedly filed motions requesting leave to exceed the
twenty page limit on their supporting memoranda. All of their motions were granted. See December 28. 2015.
Order Granting Antero Resources Corporation's Motion to Exceed Page Umit (Transaction ID 58346294); January
11.2016. Order Granting Hall Drilling, LLC's Motion to Exceed the Page Limitfor its Memorandum of Law in
Support of its Motion. for Summary Judgment (Transaction ID 58409238); January ·28, 2016. Order Granting
Plaintfffs' Motion to Exceed Page Limit (Transaction ID 58492543); February 02. 2016. Order Granting Antero
RMources Corporation's Motion to Exceed Page Limit (Transaction ID 58507048); and February 02. 2016. Order
Granting Hall Drilling, LLC's Mollon to Exceed the Page Limit for its Reply in Support ofits Motion jor Summary
Judgment (Transaction ID 58514362).
J The H8trison County Cherry Camp Trial Group cases were first mediated by the Resolution Judges on August 26, 

27 and 28. 2015. See Order Governing Mediation and Mediation Statements (Transaction ID 57113741). 


3

 .1

Motion to Supplement Respanse in Opposition to Defendants' Motions for Summary Judgment
or, in the Alternative, Motionfor Leave to File Supplemental Reply to Plaintiffs' Supplemental
Response in Opposition to Defendants.' Motionsfor Summary Judgment (Transaction ID
58872071).

On April 18, 2016, the Presiding Judges denied both parties' motions as untimely filed,
and unanimously granted Defendants' motions for summary judgment "on the ground that
Defendants ~ere operating within the scope ofAntero's leasehold rights to develop oil and gas
underlying the properties that are the subject ofPlaintiffs' complaint, as well as various surface­
use and right of way agreements Antero executed with several Plaintiffs, or the owners of the
properties on which Plaintiffs reside. which agreements entitled Antero to conduct oil and gas­
related activities on Plaintiffs' properties." See Order entered April 18, 2016 (Transaction ID
58876663). The Court ordered Defendants Antero and Hall to prepare a proposed order,

including detailed findings of fact and conclusions of law, for submission to the Court on or
before May 2,2016. ld.
By separate order entered on April 20, 2016, the Court notified the parties that its April
18 order was to advise the parties of die Court's ruling on the dispositive motions, but was not
intended to be a fmaljudgment pursuant to Rule S4(b) of the West Virginia Rules of Civil
Procedure, as a final judgment order for appellate purposes, with findings of fact and conclusions
oflaw, would be forthcoming. See Order (Transaction ID 58890543).
On May 2,2016, Defendants Antero and Hall filed a joint proposed final order with

fmdings of fact and conclusions of law{Transaction ID 58941616). On May 4.2016, Plaintiffs'
filed. a notice of objections to Defendants' proposed final order, as well as their own proposed

final order, including findings of fact and conclusions of law (Transaction ID 58955799). On

4


 May 6, 201.6, Defendants Antero and Hall filed a joint response to Plaintiffs' notice and
proposed order (Transaction ID ~8967116). The Presiding Judges reviewed and carefully
considered each of the parties' proposed final orders, as well as the objections and response.
On July 11, 2016, Lead Resolution Judge BookerT. Stephens entered an order

reconvening mediation in all Marcellus Shale Litigation cases, except those cases filed against
Defendant Williams Ohio Valley Midstream, LLC, on October 6 and 7. 2016. See Order

Reconvening Mediation (Transaction ID 59259111). Having been advised that the Resolution
Judges were reconvening mediation, Lead Presiding Judge Alan D. Moats ordered the Court's
final order granting summary judgment in favor of Defendants in the Harrison County Cherry

Camp Trial Group cases held in abeyance pending the outcome of mediation. The Court also
ordered all deadlines for the Oxford Road Trial Group and the Halls Run Road Trial Group
stayed pending the outcome of mediation. See, July 11, 2016 Order (Transaction ID 59259366).
Upon being advised that the third round of mediation was unsuccessful, the Court entered
its Final Order Granting Defendants' Motions for Summary Judgment on October 11, 2016
(Transaction ID 59683172)("Final Order,,).4 The Court found, among other things, that:
Antero has leasehold rights to develop the oil and gas underlying the
properties that are the subject of Plaintiffs' complaint. Those development rights
were retained by the oil and gas mineral owners in the severance deeds separating
the surface estates from the mineral estates.
Final Order 'lI 9

In addition to the foregoing leases and severance deeds, Antero executed
various· other agreements with several Plaintiffs. or the owners of the properties
on which Plaintiffs reside, entitling Antero to use Plaintiffs' properties in the
course of its mineral development. These various agreements include right of
way agreements, an oil and gas lease, road use agreements, surface use
agreements, tank pad agreements, and pipeline easements.
4

By October 7. 2016. the three Resolution Judges assigned to the Marcellus Shale Litigation had conducted seven

days of mediation regarding the Harrison County Cherry Camp Trial G[OUP cases. as well as other cases pending

against Defendants Amero and Hall.

5

 Final Order 'II 10
Plaintiffs have not offered any admissible evidence of record to establish
that Defendants' use of Plaintiffs' property has exceeded the scope of Antero's
agreements with Plaintiffs, or what is reasonable and necessary to develop the
underlying minerals, other than self-serving assertions that Defendants' activities,
although within the scope of the agreements, are excessive.
Final Order 'II 18
Based on its review of the record, the Court concluded,among other things. that:
Antero and Plaintiffs, or the owners of the properties on which Plaintiffs
reside or their predecessors in title, have entered into unambiguous agreements
granting Antero the right to use Plaintiffs' properties in the course of its mineral
development. These agreements include mineral severance deeds, oil and gas
leases, right of way agreements. road use agreements. surface use agreements,
tank pad agreements, and pipeline easements. As lessee of the minerals
underlying Plaintiffs' properties, Antero has the full benefit ofexpress surface use
rights for mineral development and extraction. See Syl. Pt. 1, Squires v. Lafferty,
95 W. Va. 307, 121 S.E. 90, 91 (1924) ("The owner of the mineral underlying
land possesses, 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.") and Montgomery v. Economy Fuel Co., 61 W. Va. 620, 57
S.B. 137, 138 (1907) ("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.")
Final Order ~ 26
Defendants Antero and Hal1 were operating within the scope of Antero's
leasehold rights to develop oil and gas undedyingthe properties that are the
subject of Plaintiffs' complaint, as well as various subsurface-use and right-of­
way agreements Antero executed with several Plaintiffs (or the owners of the
properties on which Plaintiffs reside), which agreements entitled Defendants to
conduct their oil and gas-related activities. See Syl. Pt. 5, Ouintain, 210 W. Va.
128, 556 S.E.2d 95 (2001).
Final Order CJ[ 29
Antero, as the owner of the mineral estate, and its contractors have the
right to use the Plaintiffs' surface estates for the production of its mineral rights.
The Court further concludes that Antero and its contractors have the legal right to
develop the mineral estate. The Court finds that the activities complained of were
reasonably necessary to the production of the mineral estate and did not exceed
the fairly necessary use thereof or invade the rights of the surface owner under the
6


 standards outlined in Adkins v. United Fuel Gas Co., 134 W. Va 719,61 S.E.2d
633 (1950).
Final Order Cj[ 47.
Thereafter, instead of appealing the Court's Final Order, Plaintiffs filed the instant

Motion to Amend or Alter Final Order Granting Defendants 'Motionslor Summary Judgment, or
in the A.lternative, to Reargue Defendants' Motionslor Summary Judgment (Transaction ill
59744226) on October 25, 2016.

Rule S2(b) Does Not Apply To Plaintiff~ Motion
Plaintiffs have filed their motion to amend or alter the Court's Final Order or, in the
alternative, to reargue Defendants' motions for summary judgment pursuant to Rule 52(b) of the
West Virginia Rules of Civil Procedure. However, Rule 52 applies oruy to "actions tried upon

the facts without a jury or with an advisory jury" W. Va. R.C.P., 52 (a).
In James M.B. v. Carolyn M., 193 W.Va. 289,293-294,456 S.E.2d 16,20-21 (1995), the
Supreme Court of Appeals of West "virginia discussed the various post-trial or post-judgment
motions authorized by the West Virginia Rules of Civil Procedure, and concluded that "Rule
59(e) is applicable to situations where a party seeks to alter, amend, or revise a judgment that
was entered as a result of a pretrial motion. More specifically, Rule 59(e) provides the procedure
for a party who seeks to change or revise a judgment entered as a result of a motion to dismiss or

a motion for summary judgment." Accordingly,
A motion to amend or alter judgment, even though it is incorrectly denominated

as a motion to 'reconsider" 'vacate', 'set aside', or 'reargue' is a Rule 59(e)
motion if filed and served within ten days C?f entry of judgment

Id., Syllabus Point 2. See also, Syllabus Point 1, Lieving v. Hadley, 188 W.Va 197,423 S.E.2d
600 (1992).

7

 Commentators have also recognized that, ''Rule 52(b) was intended to apply only to cases
in which a trial court issues factual findings following a trial on the merits. The rule was not

intended to apply to a mal court's ruling on dispositive motions such as summary judgment."
Franklin D. Cleckley, Robin J. Davis and Louis J. Palmer, Jr., Litigation Handbook on West
Virginia Rules o/Civil Procedure, § 52(b)[2] at 1147 (4th ed. 2012). Because Plaintiffs' motion
to alter, amend or reargue was filed within 10 days of entry ofthe Court's Final Order Granting

Defendants' Motions for Summary Judgment, the Court will treat Plaintiffs' erroneously filed
Rule 52(b) motion as a Rule 59(e) motion to alter or amend ajudgment.

Plaintiffs' Motion Fails Under Rule59(e)
"A motion under Rule 59(e) of the West Virginia Rules of Civil Procedure should be
granted where: (1) there is an intervening change in controlling law; (2) new evidence not
previously available comes to light; (3) it becomes necessary to remedy a clear error of law or
(4) to prevent obvious injustice." Syllabus Point 2, Mey v. Pep Boys-Manny, Moe & Jack, 228
W.Va. 48, 717 S.E.2d 235 (2011). See also Litigation Handbook on West Virginia Rules of Civil
Procedure, § 59(e)[2] at 1285.' However, a Rule 59(e) motion "is not appropriate for presenting
new legal arguments, factual contentions, or claims that could have previously been argued."
Mey, 228 W.Va. at 56, 717 S.E. 2d at 243, citing numerous cases, including: Freeman v. Busch,
349 F.3d 582 (8 th Cir. 2003)(arguments or evidence that could have been raised at an earlier time
cannot be presented in Rule 59(e) motion); Holland v. Big River Minerals Corp., 181 F.3d 597,
605-606 (4th Cir. 1999)(issue presented for first time in Rule 59(e) motion is not timely raised);
Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(Rule
59(e) motion cannot raise arguments not raised prior to judgment); and Santiago v. Canon

8


 "

U.S.A, Inc., 138 F.3d 1,3-4 (lst Cir. 1998)(new legal theory as to liability may not be raised in

motion for reconsideration).
Plaintiffs' motion fails because Plaintiffs do not argue that any new evidence previously
not available to them has come to light. Instead. Plaintiffs rely on evidence that was readily
available to them to argue for the first time that,
... Defendants do not have the legal or, contractual right to use the surface of
Plaintiffs' properties, or to burden same, througb activities undertaken by
Defendants to enjoy mineral estates beyond the 1>oundaries of the leases
encompassing Plaintiffs' properties. *** Therefore, even if Plaintiffs are not able
to bring nuisance claims related to Defendants' activities in developing natural
gas underlying their surface estate, which Plaintiffs' dispute, Plaintiffs should
certainly be able to maintain the portions of their nuisance claims that related to
Defendants' activities in developing natural gas underlying other properties,
which comprise the \'ast majority ofPlamtiffs' claims.
Motion, pp. 2-3. This argument could have been made by Plaintiffs during the extensive briefing
and argument of dispositive motions, yet Plaintiffs chose not to make it. As amply demonstrated
in the authorities cited above, argument or evidence that could and should have been presented

cannot be raised for the first time in a Rule 59(e) motion.
Plaintiffs' argue that "the effect of the Court's order was tantamount to ratifying a taking
of Plaintiffs' private property for private use." Motion p. 15. HOy.'ever, their reliance on
Mountain Valley Pipeline, UC v. McCurdy, No. 15-0919 (W.Va. Nov. 15, 2016) is wholly

inapposite. The Mountain Valley opinion addresses the public use requirement in the context of
a taking under West Virginia's eminent domain statutes, i.e., that a private corporation must
establish a prospective taking is for a "public use" in order to avail itself of West Virginia's
eminent domain laws. 5 Neither eminent domain, nor the public use requirement is at issue in
these cases.

Syllabus Point 1 of McCurdy states, "Pursuant to W.Va. Code § 54-1-3 (1923)(Repl. Vol. 2016), a company may
enter private land it desires to appropriate for the purpose of surveying said property only when that company is

5

9

 For the foregoing reasons, Plaintiffs' motion is DENIED. Syllabus Point 7 of James

MB. v. CarolynM., 193 W.Va. 289, 293-294, 456 S.E.2d 16,20-21 (1995) provides that:
A motion for reconsideration filed within ten days of judgment being entered
suspends the finality of the judgment and makes the judgment unripe for appeal.
When the time for appeal is so extended, its full length begins to run from the date
of entry of the order disposing of the motion.
Having ruled on Plaintiffs' Motion to Amend or Alter Final Order Granting Defendants'

Motions for Summary Judgment, or in the Alternative, to Reargue Defendants' Motions for
Summary Judgment (Transaction ID 59744226), the parties are hereby advised that: (1) this is a
fmal order; (2) any party aggrieved by this order may file an appeal directly to the Supreme
Court of Appeals of West Virginia; and (3) a notipe of appeal and the attachments required in the
notice of appeal must be filed within thirty (30) days after the entry of this Order, as required by
Rule 5(b) of the West Virginia Rules of Appellate Procedure.
It is so ORDERED.
lsi Alan D. Moats
Lead Presiding Judge
Marcellus Shale Litigation

ENTER: January 11, 2017.

invested with the power of eminent domain." Likewise, Syllabus Point 2provides, "Under W. Va. Code § 54.1-1
(1931) (Rep/. Vol. 2016), a company is invested with the power of eminent domain only when: (1) it is organized
under the laws of. or is authorized to transact business in, West Virginia, and (2) the purpose for which said
company desires to appropriate land is for a public use as authorized by W.Va. Code § 54·1-2 (2006) (Rept Vol.
2016)." (emphasis in original)

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