IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA ~ DOCKET NO. 17-0126 Deborah Andrews, et aI., Plaintiffs Below, Petitioners, 0 r1 JUL 272017 RORY L PERRY n, CLERK SUPREME COURT OF APPEAlS OF WEST VIRGINIA v. Antero Resources Corporation, et aI., Defendants Below, Respondents. BRIEF OF RESPONDENT ANTERO RESOURCES CORPORATION W. Henry Lawrence, W. Va. Bar#2156 Richard M. Yurko, Jr., W. Va. Bar #4180 Lauren K. Turner, W. Va. Bar # 11942 Amber M. Moore, W. Va. Bar#12341 Jason W. Turner, W. Va. Bar #12862 Steptoe & Johnson PLLC 400 White Oaks Boulevard Bridgeport, WV 26330 (304) 933-8000 hank.lawrence@steptoe-johnson.com richard.yurko@steptoe-johnson.com lauren.turner@steptoe-johnson.com amber.moore@steptoe-johnson.com jason.turner@steptoe-johnson.com ~ Ancil G. Ramey, W. Va. Bar #3013 Steptoe & Johnson PLLC P.O. Box 2195 Huntington, WV 25722-2195 (304) 522-8290 ancil.ramey@steptoe-johnson.com Donald C. Sinclair II, W. Va. Bar #4295 Steptoe & Johnson PLLC 1233 Main Street, Suite 3000 Wheeling, WV 26003 (304) 233-0000 donald.sinclair@steptoe-johnson.com Counsel }or Respondent Antero Resources Corporation - ~i Table of Contents Table of Authorities ....................................................................................................................... iii I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF THE CASE ........................................................................................... 3 A. FACTUAL BACKGROUND •••••••••••••.•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 3 B. PROCEDURAL HISTORY •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 7 III. STANDARD OF REVIEW ................................................................................................ 9 IV. SUMMARY OF ARGUMENT .......................................................................................... 9 V. STATEMENT REGARDING ORAL ARGUMENT AND DECISION ......................... 13 VI. ARGUMENT.................................................................................................................... 13 A. THE PANEL DID NOT ABUSE ITS DISCRETION By HOLDING THAT PETITIONERS FAILED To SHOW THEY ARE ENTITLED To RELIEF UNDER RULE 59 OF THE WEST VIRGINIA RULES OF CIVIL PROCEDURE....................................................... 13 B. THE PANEL ApPLIED THE CORRECf LEGAL STANDARDS RESPECTING MINERAL OWNERS' AND SURFACE OWNERS' RIGHTS UNDER WEST VIRGINIA LAW ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.••••••••••.•..•••.•.•••• 1. 2. 14 The Panel Correctly Held That Antero Holds An Easement To Use Petitioners' Surface Estates To The Extent Reasonable And Necessary To Develop Its Mineral Leasehold .......................................... 14 a. Ouintain Is Not Limited To Express Easements........................... 15 b. The Panel's Application ofOuintain Is Consistent With West Virginia Jurisprudence Balancing Surface Owners' And Mineral Owners' Rights........................................................ 17 The Panel Correctly Analyzed Whether Antero's Use of Petitioners' Surface Estates Is Reasonably Necessary To Develop Its Minerals......... 18 a. Absent Agreements To The Contrary, Parties To Contracts Contemplate Modifications OfTheir Contractual Relations By The Development Of New Methods In Technology ............... J9 C. D. b. Horizontal Drilling And Hydraulic Fracturing Are Neither Materially Different From The Extraction Methods Contemplated At The Time The Minerals Were Severed Or Acquired Nor Incompatible With Or Destructive To Petitioners' Surface Estates ........................................................... 21 c. Antero's Evidence And The Law Corroborate That Hydraulic Fracturing And Horizontal Drilling And The Attendant Circumstances Are Reasonable And Necessary For Antero To Develop Its Minerals ............................................................... 26 d. The Burdens Imposed Upon The Surface Owner By Hydraulic Fracturing, Horizontal Drilling, And Their Attendant Circumstances Do Not Exceed Those Contemplated By The Parties And Are Therefore Permissible ........................................ 28 AN OWNER OF MINERAL RIGHTS MAY USE ANY SURFACE WITHIN A POOL To DEVELOP MINERALS WITHIN THAT POOL WITHOUT EXCEEDING THE SCOPE OF ITS SURFACE USE EASEMENT ................................................................................ 31 PETITIONERS HAVE FAILED To IDENTIFY ANY PUBLIC POLICY OR OTHER LA W THAT SUPPORTS ABROGATING ANTERO'S PROPERTY RIGHTS ...................... 34 VII. CONCLUSION ................................................................................................................. 36 ii Table of Authorities Cases Adkins v. United Fuel Gas Co., 134 W. Va. 719, 61 S.E.2d 633 (1950) ........................................................................ 10,18,23 Armstrong v. Md. Coal Co., 67 W. Va. 589, 69 S.E. 195 (1910) ........................................................................................... 20 Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012) ..................................................................................... 2 Bassell v. W. Va. Cent. Gas Co.. 86W. Va. 198, 103 S.E.116(1920) ......................................................................... 5, 11,20,21 Booker v. Foose, 216 W. Va. 727, 613 S.E.2d 94 (2005) ....................................................................................... 2 Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998) ............................................................................................. 2 Brown v. Crozer Coal & Land Co., 144 W. Va. 296, 107 S.E.2d 777 (1959) ............................................................................. 23,24 Buffalo Mining Co. v. Martin, 165 W. Va. 10, 267 S.E.2d 721 (1980) .............................................................................. passim Buffington & Sullivan v. Birdwell, 395 P.2d 795 (Okla. 1964) ........................................................................................................ 25 Cain v. XTO Energy. Inc., No. I:II-CV-Ill, 2012 WL 1068199 (N.D. W. Va. Mar. 29, 2012) ...................................... 32 Carter v. Monsanto Co., 212 W. Va. 732, 575 S.E.2d 342 (2002) ..................................................................................... I Crocker v. Humble Oil & Ref. Co., 419 P.2d 265 (Okla. 1965) ........................................................................................................ 27 Crown Indus .. Inc. v. Arch Coal. Inc., No. 3-C-336. 2005 WL 6239540 (W. Va. Cir. Ct. Oct. 11,2005) ........................................... 16 CSA Dev .. LLC v. Bryant, No. 14A708650. 2015 WL 4698927 (Nev. Dist. Ct. June 12,2015) ....................................... 16 Davis v. Jefferson Cty. Tel. Co., 82 W. Va. 357, 95 S.E. 1042 (1918) ................................................................................... 27, 28 Drayton v. City of Lincoln City, 260 P.3d 642 (Or. Ct. App. 2011 ) ............................................................................................. 15 Duffv. Morgantown Energy Assoc. (M.E.A.l, 187 W. Va. 712, 421 S.E.2d 253 (1992) ..................................................................................... 2 Edgcomb v. Lower Valley Power & Light. Inc., 922 P.2d 850 (Wyo. 1996) ........................................................................................................ 15 Entek GRB. LLC v. Stull Ranches. LLC, 763 F.3d 1252 (10th Cir. 2014) ................................................................................................ 31 Gastar Expl .. Inc. v. Contraguerro, _ W. Va. _,800 S.E.2d 891 (2017) ...................................................................... 11,32,33 Gulf Oil Corp. v. Deese, 153 So. 2d 614 (Ala. 1963) ....................................................................................................... 32 Humberston v. Chevron U.S.A .. Inc., 75 A.3d 504 (Pa. Super. Ct. 2013) ...................................................................................... 27, 32 iii Jeffrey v. Mingo Logan Coal Co., No. 02-C-255, 2005 WL 6239531 (W. Va. Cir. Ct. June 7, 2005) ........................................... 16 Justice v. Pennzoil Co., 598F.2d 1339 (4th Cir.1979) ................................................................................................... 18 Kell v. Aopalachian Power Co .• 170W. Va. 14,289 S.E.2d 450 (1982) ..................................................................................... 22 Key Operating & Eguip .. Inc. v. Hegar, 435 S.W.3d 794 (Tex. Ct. App. 2014) ...................................................................................... 31 Krenz v. XTO Energy, Inc., 890 N.W.2d 222 (N.D. 2017) ................................................................................................... 31 Kyser v. Amoco Prod. Co., 93 P.3d 1272 (N.M. 2004) .................................................................................................. 31, 32 M & D. Inc. v. McConkey. 573 N.W.2d 281 (Mich. App. 1997) ......................................................................................... 15 M & D. Inc. v. W.B. McConkey, 585 N.W.2d 33 (Mich. App. 1998) ........................................................................................... 16 Martin v. Hamblet, 230 W. Va. 183,737 S.E.2d 80 (2012) ......................................................................... 17,33,36 McCoy v. Cohen, 149 W. Va. 197, 140 S.E. 427 (1965) ................................................................................. 22, 25 McGregor v. Camden, 47 W. Va. 193,34 S.E. 936 (1899) ........................................................................................... 18 Mey v. Pep Boys-Manny, Moe & Jack, 228 W. Va. 48, 717 S.E.2d 235 (2011) ............................................................................... 13, 14 Miller v. N.R.M. Petroleum Com.• 570 F. Supp. 28 (N.D. W. Va. 1983) ........................................................................................ 31 Montgomery v. Economy Fuel Co .. 61 W. Va. 620, 57 S.E. 137(1907) ..................................................................................... 33,34 Mountain Valley Pipeline. LLC v. McCurdy. 238 W. Va. 200, 793 S.E.2d 850 (2016) ................................................................................... 14 Nelson v. Texaco Inc" 525 P.2d 1263 (Okla. Civ. App. 1974) ..................................................................................... 32 Oberly v. H.C. Frick Coke Co., 104 A. 864 (Pa. 1918) ............................................................................................................... 27 Oresta v. Romano Bros.. Inc.. 137 W. Va. 633, 73 S.E.2d 622 (1952) ................................................................... 22,23,24,29 Pa. R. Co. v. Kerns. 48 N.E.2d 1012 (Ohio Ct. App. 1943) ...................................................................................... 15 Painter v. Peavy, 192 W. Va. 189,451 S.E.2d 755 (1994) ..................................................................................... 9 Par. Fork Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583,42 S.E. 655 (1902) ........................................................................................... 19 Phillips v. Fox, 193 W. Va. 657, 458 S.E.2d 327 (1995) ....................................................................... 22, 23,24 Ouintain Dev .. LLC v. Columbia Nat. Res .. Inc., 210 W. Va. 128,556 S.E.2d 95 (2001) .............................................................................. passim iv Reimer v. Gulf Oil Com., 664 S. W.2d 456 (Ark. 1984) ..................................................................................................... 32 Squires v. Lafferty, 95 W. Va. 307, 121 S.E. 90 (1924) ..................................................................................... 20, 23 Tanner v. Rite Aid. Inc., 194 W. Va. 643,461 S.E.2d 149 (1995) ................................................................................... 18 Taylor v. Buffalo Collieries Co., 72 W. Va. 353, 79 S.E. 27 (1913) ............................................................................................. 19 Totah Drilling Co. v. Abraham, 328 P.2d 1083 (N.M. 1958) ...................................................................................................... 25 Tri-State Truck Ins .. Ltd. v. First Nat'l Bank of Wamego, No. 09-415 8-SAC, 2011 WL 4691933 (D. Kan. Oct. 6, 2011) ................................................ 13 Tyler v. Dowell. Inc., 274 F.2d 890 (10th Cir. 1960) .................................................................................................. 25 W. Va. Dep't of Transp. v. Veach, _ W. Va. _ , 799 S.E.2d 78 (2017) .................................................................................... 19 West v. Nat'l Mines Com., 168 W. Va. 578,285 S.E.2d 670 (1981) ..................................................................................... 2 West Virginia-Pittsburgh Coal Co. v. Strong, 129 W. Va. 832,42 S.E.2d 46 (1947) ................................................................................. 23, 24 Westchester Assocs .. Inc. v. Bos. Edison Co., 712 N.E.2d 1145 (Mass. App. Ct. 1999) .................................................................................. 16 Whiteman v. Chesapeake Appalachia. L.L.C., 729 F.3d 381 (4th Cir. 2013) .................................................................................................... 18 Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998) ..................................................................................... 9 Statutes W. Va. Code § 22-6A-I ................................................................................................................ 35 W. Va. Code § 22-6A-2(a)(2) ....................................................................................................... 31 W. Va. Code § 22-6B-I ................................................................................................................ 35 W. Va. Code § 22-6B-3(a) ............................................................................................................ 35 W. Va. Code § 22-7-1 ................................................................................................................... 35 Rules R. App. P. 18(a) ............................................................................................................................ 13 W. Va. R. Civ. P. 52 ................................................................................................................. 8, 13 W. Va. R. Civ. P. 59(e) ....................................................................................................... 9, 13, 14 W. Va. R. Evid. 703 ...................................................................................................................... 30 Other Authorities Black's Law Dictionary 527 (7th ed. 1999).................................................................................. 15 Franklin D. Cleckley, Robin J. Davis and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 59(e)[2] (4th ed. 2012) ....................................................................................................................... 9, 13 Joshua P. Fershee & S. Alex Shay, Horizontal Drilling. Vertical Problems: Property Law Challenges From The Marcellus Shale Boom, 49 J. Marshall L. Rev. 413, 427 (2015) ........................... 24,25,27,35 v David E. Pierce, Oil and Gas Easements, 33 Energy & Min. L. Inst. 9 at 318, 324 (2012) ........................................................... 15, 20, 27 Restatement (Third) of Prop.: Servitudes § 4.1(1) (2000) ............................................................ 19 4 Nancy Saint-Paul, Summers Oil and Gas § 56:2 (3d ed. 2009) ........................................... 32, 33 U.S. Energy Info. Admin., Drilling Sideways-A Review of Horizontal Drilling Well Technology and Its Domestic Applications (April 1993)............................ 25,26 II Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2002) ........................................................... 13 vi I. INTRODUCTION From the time Petitioners initiated this lawsuit, the legal issues presented and damages sought have been moving targets. Petitioners' shifting narrative and lack of evidence are apparent from the facts and procedural history. Petitioners initially alleged negligence and private nuisance, claiming that Antero Resources Corporation's and Hall Drilling, LLC's ("Respondents") oil and gas activities had contaminated their air, soil, and water 1 and otherwise interfered with the use and enjoyment oftheir properties. 2 Before the Mass Litigation Panel ("Panel") granted summary judgment, Petitioners had withdrawn their negligence claim in response to Respondents' motions for summary judgment; withdrawn three (3) of their expert witnesses in response to Respondents' motions in limine; and admitted on the record on multiple occasions that they have no claims for property damages or personal injuries. From what began as a toxic contamination case, Petitioners now only claim annoyance, discomfort, and inconvenience caused by noise, traffic on public roads, odors, dust, lights, and vibrations (collectively, "conditions") allegedly resulting from horizontal drilling activities located in the vicinity of Petitioners' surface estates. 3 I Petitioners failed to provide any evidence of contamination. Indeed. one of their experts admitted that not only was their water not impacted by Respondents' activities but that he would drink it himself. A.R. at 000206; 000208; 000493-000495. Accordingly, Petitioners' "concerns about well water safety" are indisputably unfounded. See Pet'rs' Br. 6. See also A.R. at 00248. Moreover, this Court has held that fear as a basis for a private nuisance claim is not compensable. See Carter v. Monsanto Co., 212 W. Va. 732, 737. 575 S.E.2d 342, 347 (2002) ("It is well-settled, however, that under private nuisance. fear alone is not a sufficient basis for recovery."). 2 Petitioners also alleged that Respondents' employees engaged in "obnoxious behavior" and that Petitioners also experienced fear of future adverse effects as a result of Antero's operations. See A.R. at 000242-000243; 001839-001840; 000247-000248; 001843-001846. These claims fail as a matter of law. See note 3, infra. 3 Respondents also made several allegations that are not compensable as private nuisance claims. The Panel did not reach those issues in its Final Order. First, Petitioners complained of traffic delays, There are no well pads on Petitioners' surface estates. The conditions of which Petitioners complain are necessarily incident to mineral development that is occurring one (1) mile or less from Petitioners' properties. 4 Antero Resources Corporation ("Antero") holds active and valid leases for mineral estates that include minerals beneath Petitioners' properties. These express contractual rights and implied property rights grant Antero an easement to use Petitioners' properties to the extent reasonable and necessary to develop its mineral leasehold. As Antero has not exceeded the scope of that easement, it is not liable as a matter of law for the interference with the use and enjoyment of properties of which Petitioners complain. speeding, road damage, or being crowded off the road by passing trucks. See Pet'rs' Sr. 6. See also A.R. at 000243-000247. Such complaints cannot form the basis of a private nuisance claim; the use must be unreasonable and must directly affect a complainant's property. See Syl. Pt. 1, West v. Nat'l Mines Corp.. 168 W. Va. 578,285 S.E.2d 670 (1981) (use of a public road can only constitute an actionable private nuisance if the use is (1) "unreasonable, negligent, or unlawful," and (2) "materially impairs the right of another to the enjoyment of his house and infringes upon the well-being, comfort, repose, and enjoyment of the regular, natural person residing therein"). Petitioners' claims are an alleged public nuisance and are not properly brought by private plaintiffs unless a special injury is shown. Duff v. Morgantown Energy Assoc. (M.E.A.), 187 W. Va. 712, 717-20, 421 S.E.2d 253, 258-61 (1992) (considering testimony regarding road damage, traffic congestion and delays, accidents, noise, and diesel fumes in the context of a public nuisance claim and holding that plaintiffs had to show how their business and homes were directly affected to bring a private nuisance claim or such claims would otherwise be public nuisance claims). Petitioners made no such showing. Second, Petitioners alleged that Respondents' employees engaged in "harassment and/or menacing, intimidating, disrespectful, arrogant, and obnoxious behavior." A.R. at 000008. See also Pet'rs' Sr. 6; A.R. at 000010; 000242-000243; 001839-001840. This Court has held that offensive language or behavior cannot form the basis of a nuisance claim. Bansbach v. Harbin, 229 W. Va. 287, 293, 728 S.E.2d 533, 539 (2012) ("We do not doubt that Petitioners found the actions of Respondent with regard to name calling, sign posting, and other outward gestures of disapproval as both unwelcome and annoying. . .. The bottom line, however, is that this type of conduct, as discussed in Booker, is simply not what nuisance laws are aimed at remedying."); Booker v. Foose, 216 W. Va. 727, 730, 613 S.E.2d 94, 97 (2005) ("This Court understands that the appellants may have been inconvenienced and even outraged by the actions of [defendant]. However, as the cases discussed above illustrate, '[t]he crux of a nuisance case is unreasonable land use."') (citation omitted). Thus, Petitioners' private nuisance claims based on such behavior fail as a matter oflaw in the instant matter. 4 See Pet'rs' Br. 4-5. With respect to the remaining Petitioners, there are five (5) well pads located within one (I) mile of their residences: (I) Hill Pad; (2) Johnson Pad; (3) Mary Post Pad; (4) Matthey Pad; and (5) O. Rice Pad. The Hustead well pad is located more than one (I) mile from the remaining Petitioners' residences. 2 In sum, the Panel did not abuse its discretion by granting summary judgment in favor of Respondents and, accordingly, Antero requests that this Court affirm the Panel's judgment. ll. A. STATEMENT OF THE CASE FACTUAL BACKGROUND Antero is engaged in the development of the Marcellus Shale in West Virginia and owns horizontal Marcellus Shale wells located on numerous well pads in Harrison County, among others, and is the most active operator in the Appalachian Basin. A.R. at 000198; 000857. Antero contracted with third parties, including Respondent Hall Drilling, LLC ("Hall Drilling"), for the construction of well pads and roads, well drilling and completion, and operation of wells and gathering lines. A.R. at 000198. Marcellus Shale development provides significant benefits to the State's economy; it has generated $2.35 billion in business volume and added "approximately $1.16 billion in total value to West Virginia's economy." A.R. at 000853. Additionally, "economic activities associated with the Marcellus Shale development created approximately 7,600 jobs and $297.9 million in employee compensation." A.R. at 000853. State taxes, including sales, use, personal income, corporate net income, and business franchise taxes totaled $14.5 million. A.R. at 000853. 5 Petitioners reside in Harrison County. There are no well pads located on any of Petitioners' surface estates. 6 Petitioners do not own the oil and gas beneath their surface estates. S In addition to the social utility from Marcellus Shale development generally, Antero's presence and development in West Virginia has benefited the State and its residents. A.R. at 000223-000224. From 2010 to 2015, there were considerable tax revenue increases in Doddridge, Harrison, Tyler, and Ritchie Counties, permitting "these counties to provide more public services to their residents." A.R. at 000854. Moreover, Antero had donated $982,010 in charitable contributions and raised another $153,000 in partnership with other companies for West Virginia charities as ofOctober 2015. A.R. at 000860. 6 Douglas and Catherine Mazer entered into surface use agreements with Antero. See A.R. at 000231-000232; 000938-000974. Apparently, to avoid the legal infirmities associated with the surface use agreements, Petitioners' counsel withdrew the Mazers' appeal along with the appeal of the Mazers' 3 It is undisputed that Antero holds valid and active leases for the mineral estates that include the minerals beneath Petitioners' surface estates. A.R. at 001422. Antero has leased the minerals beneath the surface estates owned by Petitioners Deborah Andrews, Rodney and Katherine Ashcraft, Mary Mikowski and Gregg McWilliams pursuant to the Moran Lease. 7 A.R. at 000228-000229. Antero has leased the minerals beneath the surface estates owned by Petitioners Robert and Loretta Siders pursuant to the Bland Lease. 8 A.R. at 000231. Antero also holds a children, Douglas Mazer's deceased father and his companion, and the former girlfriend of the Mazers' son. The withdrawal occurred after depositions of each of these individuals, except for the deceased father, and site inspections on the Mazers' properties, including water, air, soil, and sound testing. 7 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 .... [along with] the right to lease said land at any time for the purpose of boring, drilling and operating for said oil, gas and other minerals[.] SeeA.R.at000228-000229;000874;002314-002316. Express rights granted to Antero by the August 17, 1984 mineral lease (DB 1146, P 190) ("Moran Lease") 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, 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, and of pooling with other lands for such purposes ... [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[.] See A.R. at 000874; 002317-002320. 8 Rights retained by the mineral owner in the February 4, 1903 severance deed (DB 136, P 321) include: "[A]11 the oil and gas underlying the land herein conveyed together with the privilege of operating for and Marketing same." A.R. at 000231; 000882-000883; 002344-002345. Express rights granted to Antero by the April 3,2001 mineral lease (DB 1330, P 545) ("Bland Lease") include: 4 right of way agreement signed by Petitioner Deborah Andrews. See A.R. at 000228 n.22; 000915-000916. Petitioners have repeatedly admitted that they have no claims for property damages or personal injuries. A.R. at 000122-000123; 002272-002273; 002494-002495. 9 Petitioners' counsel has also admitted that Petitioners have "just nuisance" claims. A.R. at 00122-00123; 002494. 10 Petitioners claim that certain conditions - specifically noise, traffic on public roads, odors, dust, lights, and vibrations - associated with Antero's mineral development have created a substantial and unreasonable interference with the use and enjoyment of their properties. See Pet'rs' Br. 6-9; A.R. at 000009-000010; 000232-000247. There are no well pads on Petitioners' surface estates. Rather, Petitioners claimed that the above-mentioned conditions arise from operations at five (5) well pads and a compressor station 11 located a minimum of 0.42 miles from their homes and from traffic on public roads. Pet'rs' Br. 4-5. [E]xploring 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[.] A.R. at 000882-000883; 002346-002347. 9 Again showing the moving target Respondents have been chasing since the beginning of this case, Petitioners' admissions that they have no property damage or personal injury claims contrast with their original assertions on the record during the hearing on December 22,2014: "We have some property damage claims; emissions; dust; odor; improper waste disposal; erosion; issues with livestock and pets; and vibration." A.R. at 000061-000062; 002494-002495. 10 This admission contrasts with Petitioners' original complaint and Petitioners' counsel's characterization of the claims at the December 22, 2014 hearing, which included claims of toxic contamination ofthe air, soil, and water. See A.R. at 000006-0000 \0; 000061-000062. II Antero does not own or operate the compressor station. Petitioners provided no legal authority to support their claim that Antero should be held liable for the activities of a facility that it neither owns nor operates. West Virginia law recognizes that the construction, operation and maintenance of a compressor station are reasonable and necessary parts of mineral development. See Bassell v. W. Va. 5 Significantly, however, Petitioners' counsel admitted that aU of Respondents' activities are within Antero's implied rights necessary for development. A.R. at 002266-002267; 002495-002496. Antero presented the unchallenged expert opinion of Robert Chase, Ph.D.,12 establishing that its development methods are reasonable and necessary to develop its mineral leasehold as the Marcellus Shale cannot be economicaUy and viably accessed absent hydraulic fracturing and horizontal drilling. See A.R. at 000226-000227. Petitioners provided the expert testimony of Anthony R. Ingraffea, Ph.D., and Nicholas Cheremisinoff, Ph.D. 13 Petitioners offered no evidence that Antero exceeded the scope of its property and contractual rights by impacting Petitioners' surface estates beyond what is reasonable and necessary to develop its mineral leasehold. See Pet'rs' Br. 9-12; 000520; 003025-003078; 003352. 14- Neither Ingraffea nor Cheremisinoff opined that Antero used more trucks, lights, water, etc., than was reasonably necessary to develop the mineral estate. See A.R. at 000496-000520; 003025-003078; 003352. In fact, as Petitioners quote in their brief, one expert concluded that the impact upon Petitioners is what is to be expected "from 'normal' shale gas operation." Pet'rs' Br. to. Finally, as shown by Petitioners' own testimonies, Antero has made significant efforts to address Petitioners' Central Gas Co., 86 W. Va. 198, 201, 103 S.E. 116, 117-18 (1920) (where a mineral lease does not specifically provide for use of a compressor, West Virginia law finds use of a compressor as a right incident to the right to develop the minerals); see also A.R. at 002317--002320; 002346--002347 (granting the right to acquire, process, and transport gas). 12 Petitioners declined to depose Chase and did not challenge his testimony via motion in limine. 13 Antero challenged the testimony of both expert witnesses via motions in limine. See A.R. at 003237--003394; 003929--004117; 004308--004445; 004560--004739. Antero also addressed some of the deficiencies of their testimonies in its summary judgment briefing. See A.R. at 000206--000211. Antero also noted in its response to Petitioners' Motion to Amend that Ingraffea's report contains no evidence that Antero's methods are "materially different" from the extraction methods used at the time the minerals were severed or acquired. See A.R. at 002653 n.9. For a summary of the unreliable and inapposite nature of their testimonies, see note 61, infra. 14 See also note 61, infra. 6 complaints and to reduce the effect of the conditions of which they complain. See A.R. at 000233-00234; 000245 n.42; 000246. B. PROCEDURAL HISTORY Petitioners correctly stated the procedural history with the exception of the following facts, which Antero now offers to complete the history. On January 15, 2016, Antero and Hall Drilling timely filed their motions for summary judgment arguing, among other things, that (1) Petitioners' negligence claim failed as a matter of law because Petitioners could not establish either causation or damages 15 and (2) Petitioners' private nuisance claim failed as a matter of law because Antero held express contractual and implied property rights to use Petitioners' surface estates in the course of its mineral development and had not exceeded those rights as a matter of law. A.R. at 000182-001396. Petitioners filed their response in opposition to summary judgment on January 29, 2016. A.R. at 001402-001804. Significantly, Petitioners withdrew their negligence claim,16 leaving only their private nuisance claim for consideration by the Panel. A.R. at 001403; 001406. 17 A hearing on the motions for summary judgment was held on February 26, 2016. A.R. at 002262-002287. Immediately following the second mediation, Petitioners moved to supplement 15 Petitioners had also withdrawn three of their expert witnesses the month prior to the deadline tor dispositive motion deadlines in response to Respondents' motions in limine to exclude the testimonies of those expert witnesses. See A.R. at 000176-000181. 16 Specifically in regard to their negligence claim, Petitioners alleged that Respondents' acts or omissions in its oil and gas operations caused water, soil, and air contamination. A.R. at 000006; 000010. Significantly, Petitioners presented no evidence to demonstrate that their properties were impacted by Antero's oil and gas operations, nor did they present any evidence that Antero acted negligently. See A.R. at 000206-000211. Furthermore, one of Petitioners' expert witnesses admitted that their water had not been impacted by Antero's oil and gas operations and that he would, in fact, drink their water himself. A.R.at000206;000493-000495. 17 Antero and Hall Drilling filed their replies in support of their motions for summary judgment on February 5, 2016. A.R. at 003010. 7 their responses in opposition to Respondents' motions for summary judgment. A.R. at 002288-002374. Respondents opposed this motion,18 and the Panel denied it as untimely. 19 AR. at 002407-002409. 20 On October 11,2016, the Panel entered its final order granting Respondents' motions for summary judgment ("Final Order"). AR. at 002485-002506. On October 25, 2016, Petitioners filed their Motion to Amend pursuant to Rule 52(b} of the West Virginia Rules of Civil Procedure. A.R. at 002507-002641. Respondents filed their response on November 8, 2016. AR. at 002642-002754. Petitioners filed a reply on November 21, 2016. A.R. at 002757­ 002901. On January 11,2017, the Panel entered its order denying Petitioners' Motion to Amend ("Denying Order"). A.R. at 002902-002911. Petitioners filed a notice of appeal on February 10, 2017, and perfected the appeal on June 12, 2017. 21 Antero files this response requesting that this Court affirm the Panel's judgment. 18 See A.R. at 002375-002406. 19 Petitioners' filed their Motion to Supplement over ten (10) weeks after the deadline for responses to dispositive motions and over six (6) weeks after the Panel had conducted the hearing on dispositive motions. A.R. at 002904. The Panel also noted it had granted both parties' motions to exceed the page limits on the dispositive motions briefing; therefore, Petitioners had ample opportunity to argue their case. A.R. at 002904; 003014-003015. 20 The Panel also stated that it would grant Respondents' motions for summary judgment and would enter that order after the parties completed a third mediation session, which was scheduled October 6 and 7, 2016. A.R. at 003016. The Final Order was held in abeyance pending the outcome of the mediation. A.R. at 003016. Like the first two sessions, this mediation was unsuccessful in resolving the matter. 21 Petitioners also filed a motion to dismiss all but seven Petitioners. See Appellants' Mot. Voluntary Dismissal. As with the withdrawn claim for negligence, Antero has expended significant litigation costs to defend against those Plaintiffs' claims, including taking depositions and conducting property inspections and testing, only for Plaintiffs to withdraw their claims at the eleventh hour. 8 Ill. STANDARD OF REVIEW2Z This Court reviews a circuit court's entry of summary judgment de novo. Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189,451 S.E.2d 755 (1994). Similarly, "[t]he standard of review applicable to an appeal from a motion to alter or amend ajudgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co .. 204 W. Va. 430,513 S.E.2d 657 (1998). IV. SUMMARY OF ARGUMENT First, the Panel did not abuse its discretion by holding that Petitioners failed to show that they are entitled to relief under West Virginia Rule of Civil Procedure 59(e). In their Motion to Amend, Petitioners argued that the Panel had made a clear error of law by granting summary judgment to Respondents and that an amendment of this judgment was necessary to prevent an obvious injustice. However, Petitioners failed to establish either a ''wholesale disregard, misapplication, or failure to recognize controlling precedent" (i.e., clear error) or an obvious, direct, and observable error (Le., manifest injustice) but rather presented two new arguments: (1) that Respondents exceeded the scope of Antero's contractual and property rights to the extent that Respondents used Petitioners' surface estates to develop minerals located beyond the boundaries of the leases encompassing Petitioners' surface estates; and (2) that the Panel's Final Order constituted a "taking" of Petitioners' properties. However, "Rule 59(e) is not a vehicle for a party to undo his/her own procedural failures or to advance arguments that could and should have been presented to the trial court prior to judgment." Franklin D. Cleckley, Robin J. Davis and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 22 Petitioners failed to address the standards of review in their brief. 9 59(e)[2], at 1285 (4th ed. 2012). Therefore, the Panel did not abuse its discretion by denying relief. Second, the Panel applied the correct legal standards respecting mineral owners' and surface owners' rights under West Virginia law and did not err in holding that Antero had an easement to use Petitioners' surface estates and that Antero had not exceeded the scope of that easement as a matter of law. See Syl. Pt. 5, Ouintain Dev.. LLC v. Columbia Nat. Res .. Inc., 210 w. Va. 128, 556 S.E.2d 95 (2001). As lessor of the mineral estates that include the minerals beneath Petitioners' surface estates, Antero has the right to the reasonably necessary use of Petitioners' surface estates to develop its minerals. Adkins v. United Fuel Gas Co., 134 W. Va. 719, 724-25, 61 S.E.2d 633, 636 (1950). West Virginia law is well-settled that the issue of reasonable surface use is a question of law for the court. Id. at 724, 61 S.E.2d at 636. As this Court recognized in Ouintain and as many other jurisdictions have also recognized, a party operating within a scope of its easement cannot be held liable for nuisance when exercising its rights pursuant to that easement. See Syl. Pt. 5,210 W. Va. 128,556 S.E.2d 95. In recognizing that the implied right to surface use is a type of easement and applying Syllabus Point 5 of Ouintain, the Panel did not err in concluding that Antero has an implied easement to use Petitioners' surface estates to the extent reasonably necessary to develop its minerals. Furthermore, the Panel did not err in holding that Antero's use of Petitioners' surface estates did not exceed that which is reasonable and necessary to develop its pool of Marcellus Shale minerals. The primary purpose of mineral severance deeds and mineral leases is the efficient production of minerals in paying quantities and instruments of conveyance must be applied in that context. Absent agreements to the contrary, parties to such contracts contemplate 10 modifications of their contractual relationships by the development of new methods in technology. Bassell v. W. Va. Cent. Gas Co., 86 W. Va. 198, 103 S.E. 116, 117 (1920). The Marcellus Shale is developed through the use of pooling,23 hydraulic fracturing, and horizontal drilling. Under West Virginia law, use of new technology for mineral extraction, or another permissive use of another person's land, is actionable only where the impact is "materially different from that which the owner contemplated at the time of granting the right" such that the use "virtually destroy[s]" the surface or is "totally incompatible with the rights of the surface owner." Quintain, 210 W. Va. at 133, 556 S.E.2d at 100 (materially different); Buffalo Mining Co. v. Martin. 165 W. Va. 10, 15-16, 267 S.E.2d 721, 724-25 (1980) (virtual destruction and total incompatibility). Likewise, other jurisdictions have already recognized that hydraulic fracturing is an accepted technological advancement that is reasonably necessary to develop mineral leaseholds, without reterence to the date of the underlying instruments. Additionally, it is the majority rule among the states that a mineral lessor may use the surface estate overlying adjacent or adjoining tracts when developing the minerals as a pool. Antero's methods, including pooling, horizontal drilling, and hydraulic fracturing, do not cause a "materially different" impact than that which would have been within the contemplation of the parties at the time the minerals beneath Petitioners' properties were severed or acquired. At that time, the parties would have contemplated the drilling of oil and gas wells, potentially including multiple wells and well pads on the same parcel, creating an interference with the surface owner's use of land that is much greater than any interference caused by horizontal drilling. That the use is not materially different is especially true where, as here, the well pads are 23 This Court recently acknowledged that the terms "pooling" and "unitization" are often used interchangeably although they have different technical meanings in oil and gas operations. See Gastar ExpJ.. Inc. v. Contraguerro, _ W. Va. _,800 S.E.2d 891,893 n.1 (2017). Consistent with this Court's decision to use "pooling," Antero uses the term pooling throughout this brief. See id. II not situated on Petitioners' properties. Therefore, any argument that the interference caused by Antero "materially differs" from that which was contemplated by the parties at the time of conveyance is illogical. Furthermore, Petitioners admit that they have no claims for property damage and that all of Antero's activities were within its implied rights necessary to development. Petitioners' expert witnesses offered no testimony that Antero exceeded the scope of its easement by impacting Petitioners' surface estates beyond what is reasonable and necessary to develop its mineral leasehold. Finally, Petitioners essentially request that this Court abrogate Antero's private property rights, and the rights of mineral and royalty owners, on the basis of a purported public policy argument for the need to protect surface owners' rights but fail to identify any public policy supporting their position. Rather, the very law that Petitioners cite provides strong protections for surface owners while clearly supporting West Virginia's public policy that mineral development is beneficial to the State and national security and should be encouraged. In contrast to Petitioners' assertion, neither the facts presented 24 nor West Virginia law require Petitioners to "disproportionately bear" the burden of Antero's activities. Neither does the Final Order "immunize" Respondents from nuisance liability such that Petitioners are deprived of a common law remedy. Rather, the common law addresses Petitioners' claims and has simply found them wanting. 24 There are no well pads on Petitioners' properties and, thus, no direct impact upon their properties. Petitioners are not required to disproportionately bear the burden of the activities but are rather receiving a benefit because the minerals beneath their surface estates are being developed without a well pad being constructed on their surface estates. 12 V. STATEMENT REGARDING ORAL ARGUMENT AND DECISION In accordance with West Virginia Rule of Appellate Procedure 18(a), oral argument is not necessary on this appeal. The dispositive issue or issues have been authoritatively decided, and oral argument would not significantly aid the decisional process. VI. A. ARGUMENT THE PANEL DID NOT ABUSE ITS DISCRETION BY HOLDING THAT PETITIONERS FAILED TO SHOW THEY ARE ENTITLED TO RELIEF UNDER RULE 59 OF THE WEST VIRGINIA RULES OF CIVIL PROCEDURE.15 Petitioners have failed to establish that the Panel made a "clear error of law,,26 or needed to act "to prevent an obvious injustice" such that Petitioners are entitled to relief. 27 See W. Va. R. Civ. P. 59(e); Syl. Pt. 2, Mey v. Pep Boys-Manny. Moe & Jack, 228 W. Va. 48, 56-57, 717 S.E.2d 235, 243~4 (2011) (requiring the party seeking relief to establish (1) "an intervening change in controlling law"; (2) "new evidence not previously available [that has] come to light"; (3) "a clear error ofJaw"; or (4) an obvious injustice).28 A Rule 59(e) motion is not "appropriate 25 Petitioners erroneously filed their Motion to Amend pursuant to Rule 52. The Panel treated the motion as a Rule 59(e) motion. A.R. at 002902-002911. 26 An error of law is "the wholesale disregard, misapplication, or failure to recognize controlling precedent. This is a high standard that is not demonstrated by the disappointment of the losing party." Franklin D. Cleckley, Robin J. Davis and Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 59(e)[2], at 131 (4th ed. Supp. 2017). 27 An "obvious injustice" is "[a] direct, obvious, and observable error in a trial court" that is "apparent to the point of being indisputable." Tri-State Truck Ins.. Ltd. v. First Nat'l Bank of Wamego, No. 09-4 I 58-SAC, 2011 WL 4691933, at *3 (D. Kan. Oct. 6, 20 I 1) (citations omitted). Examples include "accepting a defendant's gUilty plea that is involuntary or is based on a plea agreement that the prosecution has rescinded,' and dismissing a pro se prisoner's civil rights case based upon procedural errors outside of his control." Id. (citations omitted). Serious misconduct of counsel may also justify relief. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2002). Petitioners failed to identify any such "direct, obvious, and observable" error. 28 In their Motion to Amend, Petitioners summarily claimed that their Motion should be granted to "remedy a clear error of law" or "prevent obvious injustice" without explanation as how either element was satisfied. Petitioners failed to address the remaining two elements (an intervening change in controlling law or new evidence not previously available). See A.R. at 002760-002761. 13 for presenting new legal arguments, factual contentions, or claims that could have previously been argued." Id. at 56, 717 S.E.2d at 243. Petitioners argued for the first time in their Motion to Amend that Respondents exceeded the scope of Antero's contractual and property rights to the extent that Respondents used Petitioners' surface estates to develop minerals located beyond the boundaries of the leases encompassing Petitioners' surface estates. See A.R. at 002510-002528; 002761-002771. 29 Therefore, the Panel did not abuse its discretion when it denied Petitioners' motion on the grounds that Petitioners presented an argument based on evidence that had been readily available prior to dispositive briefing and was therefore inappropriate to be raised for the first time in a Rule 59(e) motion. A.R. at 002910. B. THE PANEL ApPLIED THE CORRECT LEGAL STANDARDS RESPECTING MINERAL OWNERS' AND SURFACE OWNERS' RIGHTS UNDER WEST VIRGINIA LAW. I. The Panel Correctly Held That Antero Holds An Easement To Use Petitioners' Surface Estates To The Extent Reasonable And Necessary To Develop Its Mineral Leasehold. Whether express or implied, a mineral lessee has a right of reasonable use of the surface estate to develop its mineral estate. It is well-recognized that where a severance deed is silent upon express surface use rights that the easement is granted via the implied right to use the surface to the extent that is reasonable and necessary to develop the mineral leasehold. As this Court recognized in Quintain, a holder of an easement - any easement - cannot be liable for a nuisance unless the holder has exceeded the scope of that easement. Syl. Pt. 5, 2 IO W. Va. at 136, 556 S.E.2d at 103. The Panel correctly applied these legal principles in holding that 29 Petitioners also presented the inapposite argument that the Panel's order was ''tantamount to ratifying a taking of [Petitioners'] private property for private use," A.R. at 002771, relying upon Mountain Valley Pipeline. LLC v. McCurdy. 238 W. Va. 200, 793 S.E.2d 850 (2016). Petitioners appear to concede that neither eminent domain nor the public use requirement is at issue in this litigation. Pet'rs' Br.32. 14 Antero's implied rights pursuant to its mineral leases and the underlying severance deeds grant it an easement to reasonable and necessary use of Petitioners' surface estates to develop its mineral leasehold. Petitioners argue for the first time 30 that Ouintain applies only to express easements and that its application to Antero's implied rights is inconsistent with West Virginia law regarding surface owners' rights. See Pet'rs' Br. 19-20. Both arguments fail. a. Ouintain Is Not Limited To Express Easements. Contrary to Petitioners' assertion, Ouintain is not limited in application to express easements. In Ouintain, this Court noted numerous other jurisdictions that had applied this widely recognized rule 31 to various types of easements. 32 See 210 W. Va. at 136, 556 S.E.2d at 103 (citing M & D. Inc. v. McConkey, 573 N.W.2d 281 (Mich. App. (997), vacated by court 30 Petitioners conceded below that Antero has an easement and cannot be liable for nuisance for its use of Petitioners' surface estate to develop the Bland and Moran leaseholds to the extent that the development is for the minerals contained in each leasehold. A.R. at 002510. 31 The Ouintain rule is widely recognized and accepted by legal scholars and other courts. See David E. Pierce, Oil and Gas Easements, 33 Energy & Min. L. Inst. 9 at 318, 324 (2012), http://www.emlf.orglclientuploadsldirectory/whitepaper/pierce_12.pdf (noting that "[t]he classic implied easement arises when the parties to a conveyance create an isolated property interest, such as a mineral interest, and the conveyance document is silent regarding access to the interest" and that this easement is known as an "easement by necessity" and its purpose is ''to permit use of the burdened land for the efficient development of the oil and gas estate"). See also Drayton v. City of Lincoln City, 260 P.3d 642, 646 (Or. Ct. App. 20 II) (holding that adjoining landowner's nuisance claim was barred by virtue of prescriptive easement); Edgcomb v. Lower Valley Power & Light. Inc., 922 P.2d 850, 857--61 (Wyo. 1996) (holding that the utility could not be liable for nuisance based on magnetic field transmissions because the utility had a valid easement for electric transmission and telephone purposes, the scope of the easement had not been exceeded, and the uses for which the easement was being put were not unreasonable, unwarranted, or unlawful); Pa. R. Co. v. Kearns, 48 N.E.2d 1012, 1016 (Ohio Ct. App. 1943) ("An easement may permit an activity on land which otherwise would be a nuisance in relation to other land."). 32 See Ouintain, 210 W. Va. at 135,556 S.E.2d at 102 (quoting Bormann v. Bd. of Supervisors, 584 N. W.2d 309, 3 t 5 (Iowa t998) (recognizing for over one hundred years that "the right to maintain a nuisance is an easement") (emphasis applied in Ouintain); Black's Law Dictionary 527 (7th ed. 1999) (defining an easement as "[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose .... The primary recognized easements are ... (6) a right to do some act that would otherwise amount to a nuisance ....") (emphasis applied in Ouintain». 15 order and reinstated in part by M & D, Inc. v. W.B. McConkev. 585 N.W.2d 33 (Mich. App. 1998) (prescriptive easement); and Westchester Assocs .. Inc. v. Bos. Edison Co., 712 N.E.2d 1145, 1147 (Mass. App. Ct. 1999) (eminent domain». The plain language of Syllabus Point 5 makes clear that Ouintain applies to all easements: The actions or inactions of the owner of an easement, which otherwise meet the legal definition of a nuisance, do not create a nuisance as to the estate servient to the easement unless those actions or inactions exceed the scope of the easement. 210 W. Va. 128, 556 S.E.2d 95 (emphasis added). Furthermore, this Court has recognized that easements can be created by implication. See Buffalo Mining. 165 W. Va. at 14-19, 267 S.E.2d at 723-26 (holding that an 1890 coal severance deed granted the implied right to permit a surface easement for an electric line). Indeed, Ouintain has been applied to implied easements arising from severance deeds and prescriptive easements, and courts have granted summary judgment to defendants on claims of private nuisance based on this application. 33 Therefore, the Panel properly applied Ouintain and concluded that Antero's express and implied rights created an easement for it to use Petitioners' properties to the extent reasonable and necessary to develop its minerals. To now narrow Ouintain's holding to express easements 33 See Jeffrey v. Mingo Logan Coal Co., No. 02-C-2SS, 2005 WL 6239531 (W. Va. Cir. Ct. June 7, 2005) (precluding liability to defendant coal mining company on summary judgment on grounds of nuisance because the severance deed allows the defendant to conduct underground mining unless it created subsidence or violated its permit terms and conditions); Crown Indus.. Inc. v. Arch Coal. Inc., No. 3-C-336, 2005 WL 6239540 (W. Va. Cir. Ct. Oct. II, 2005) (finding that the plaintiff "cannot claim nuisance damages for any portion of the surface estate that is lawfully occupied by the [defendant surface miners] in their [surface] mining activities, to the exclusion of [the plaintifl1" and that the plaintiff can pursue nuisance claims for property damage when it is allowed to occupy the surface); CSA Dev.. LLC v. Bryant, No. 14A708650, 2015 WL 4698927, at *6 (Nev. Dist. Ct. June 12, 2015) (granting defendant summary judgment on nuisance and trespass claims because the defendant proved as a matter of law that it had a prescriptive easement and an affirmative easement precludes nuisance and trespass liability). 16 only would be to overturn sixteen (16) years ofjurisprudence and a widely accepted, mainstream legal principle. 34 b. The Panel's Application Of Ouintain Is Consistent With West Virginia Jurisprudence Balancing Surface Owners' And Mineral Owners'Rights. West Virginia law balances and protects surface owners' rights and mineral owners' rights 35 and, in contrast to Petitioners' argument that the Panel's application of Ouintain is inconsistent with surface owners' rights,36 Ouintain merely recognizes Antero's affirnlative easement to use Petitioners' surface estates to the extent reasonably necessary to develop its mineral estate. Neither Quintain nor the Panel's application of Ouintain confer upon Antero additional rights; each recognizes legal rights and principles that already exist and is consistent with longstanding West Virginia mineral jurisprudence. 37 The Panel's Final Order expressly states that the scope of Antero's easement is defined by what is reasonable and necessary to develop its mineral estate. A.R. at 002500-002502. This holding is consistent with decades of West Virginia jurisprudence, which balances mineral owners' and surface owners' rights; thus, the Panel's application of Ouintain is neither "inconsistent with this Court's precedents" nor "immunizes conduct." See Pet'rs' Sr. 20. 38 34 Petitioners cited no authority limiting Ouintain to express easements. 35 See Section VI.D for a more detailed discussion of this point. 36 See Pet'rs' Br. 20. 37 As discussed in more detail in Section VI.D, West Virginia law examines the correlative rights of surface owners and mineral owners and seeks to balance the rights of both. Clearly, "[a] surface owner's rights, however, are subject to the mineral owner's rights" and a mineral lease is a "contractual obligation [that burdens the] surface estate [and] deprives [the surface owner] of an unrestricted right to enjoyment of his property[.]" Martin v. Hamblet, 230 W. Va. 183, 191, 737 S.E.2d 80, 88 (2012). 38 As the Panel expressly stated, it did not reach the question of whether Antero's actions would meet the legal definition of a nuisance. A.R. at 002499. That analysis was unnecessary as the Panel determined as a matter of law that Antero was operating within its property rights and did not overly 17 2. The Panel Correctly Analyzed Whether Antero's Use of Petitioners' Surface Estates Is Reasonably Necessary To Develop Its Minerals. Under well-settled West Virginia law, Antero is entitled to make reasonable and necessary use of Petitioners' land to develop its mineral estate, and whether a mineral developer's use of the surface estate is reasonably necessary is a question of law for the Court. 39 A plaintiff bears the burden to prove that a mineral developer's use exceeded that which was reasonably necessary. 40 The severance deeds for Petitioners' surface estates do not contain restrictive language; therefore, the parties are presumed to have contemplated use of advanced technological methods to develop the mineral estate. As a result, Antero's methods of mineral extraction (i.e., horizontal drilling and hydraulic fracturing) are reasonable and necessary to develop the minerals and, burden Petitioners' surface estate. Antero, therefore, had not exceeded the scope of its easement. A.R. at 002500-002502. 39 See Adkins. 134 W. Va. at 724, 61 S.E.2d at 636; see also Justice v. Pennzoil Co.,598 F.2d 1339, 1341 (4th Cir.1979)(emphasis added): [W]e 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 determination of the jury. In a case where there is a dispute of fact, the jury should find the facts, and from such finding of facts by the jury it is the duty of the court to determine whether the use of the surface by the owner of the minerals has exceeded the fairly necessary use thereof, and whether the owner of the minerals has invaded the rights of the surface owner, and thus exceeded the rights possessed by the owner of such minerals. Where, as here, the movant accepted all the non-movant's facts as true for purposes of summary judgment, the court shall decide the issues as a matter of law. 40 Whiteman v. Chesapeake Appalachia. L.L.C., 729 F.3d 381, 391-92 (4th Cir. 2013) (concluding that the plaintiff carries the initial burden to prove that the mineral developer's use of the plaintiff's surface estate was not reasonably necessary). The Panel did not reach the issue of whether expert witness testimony is necessary to establish the standard of care relevant to oil and gas operations. See. e.g., Tanner v. Rite Aid. Inc.. 194 W. Va. 643, 654, 461 S.E.2d 149, 160 (1995) (citations omitted) (interpreting West Virginia Rule of Evidence 702 and holding that "[w]hen prima facie proof of the fact of injury or causes involves matters beyond the competency of ordinary lay persons, expert witnesses must be employed"); McGregor v. Camden, 47 W. Va. 193, 197,34 S.E. 936, 937 (1899) (holding that only an expert could opine on whether an oil and gas well could properly be operated in very close proximity to a dwelling house). 18 contrasted with the development methods available during 1903 and 1905 when the severance deeds were executed, do not impose a greater burden on the surface. a. Absent Agreements To The Contrary, Parties To Contracts Contemplate Modifications Of Their Contractual Relations By The Development Of New Methods In Technology. When a property owner creates a separate mineral estate, he contemplates that the owner of those minerals will expend time and resources extracting them and will do so using the most efficient and effective, evolving technology.41 This Court has consistently recognized that an instrument creating a separate mineral estate grants the mineral owner the right to use reasonably necessary means to develop and produce its minerals. 42 As explained below, reasonable and necessary means must include the use of up-to-date technology to accomplish the most efficient and effective development and production of the minerals. Furthermore, when interpreting an agreement, including severance deeds and mineral leases, the primary purpose of the agreement is essential. 43 In sum, the primary purpose of mineral severance deeds and mineral leases is the 41 See W. Va. Dep't of Transp. v. Veach, _ W. Va. _, 799 S.E.2d 78, 96 (2017) (Ketchum, J., concurring) ("Owners convey an interest in land to a recipient knowing that, in a hundred years, the use of the land may change. Surface used for farmland today may be a city office complex tomorrow. Worthless shale too deep underground yesterday can today produce natural gas through hydraulic fracturing"). See id. at 97 ("A conveyance of a mineral estate implicitly carries with it the right of ingress, egress and reasonable surface use, otherwise the mineral conveyance can be rendered wholly worthless by a surface owner who denies access."). 42 43 Taylor v. Buffalo Collieries Co., 72 W. Va. 353, 356, 79 S.E. 27, 28 (1913) ("'When a contract is made for the accomplishment of one main purpose, as is usually the case, it is necessarily the purpose of both parties, the thing on which their minds met, and as to which they are in perfect accord; and every provision of the contract must be read in the light of such purpose. In other words, the whole instrument must be considered in seeking its true meaning. "') (citation omitted). Oil and gas leases are construed by the court so as to promote development and prevent delay and unproductiveness. Syl. Pt. 3, Par. Fork Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583, 42 S.E. 655 (1902); see also Restatement (Third) of Prop.; Servitudes § 4.1 (I) (2000) ("A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument. or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.") (emphasis added). 19 efficient production of minerals in paying quantities,44 and instruments must be applied in that context. Contrary to Petitioners' argument,45 courts do not forever constrain the development and production of minerals to whatever specific antiquated technology existed at the time of severance. The sole question governing whether a mineral owner's method of extraction is within the deed's grant is: Are the means "fairly reasonable and necessary to reach and remove the minerals"? If the answer is "yes," then those means were within the contemplation of the parties, even if the parties did not envision the precise kind of technology involved. 46 That the mineral owner must be expected to employ modem methods of development and production is the only relevant fact that the parties are held to have had "within their contemplation" at the time the mineral estate was created. For example, in Bassell, the plaintiff-lessor complained that the defendant-lessee's use of compressors and pumps to remove gas from the property was prohibited based on "the rule that the intention of the parties to a contract is to be ascertained by consideration of its terms and provisions, in the light of the nature of the subject-matter, the situation and purposes of the 44 See Pierce, supra note 31, at 321 ("The ultimate purpose of any oil and gas easement is to efficiently develop the oil and gas resources found in reservoirs beneath the defined surface boundaries. It is this subsurface reality that guides the scope of the oil and gas easement, whether the activity to accomplish the purpose is taking place above, or below, the land surface."). 45 See Pet'rs' Br. 21-24, 27-30. 46 See Sguires v. Laffertv. 95 W. Va. 307, 309, 121 S.E. 90, 91 (1924) ("[W]hen a thing is granted, all the means to obtain it and all the fruits and effects of it are also granted."); Bassell, 86 W. Va. at 202, 103 S.E. at 117 ("Parties to contracts are held, in the absence of agreements to the contrary, to have contemplated modifications of their relations under their contracts, by the development of improvements and new methods in the progress of science and invention."); Armstrong v. Md. Coal Co., 67 W. Va. 589,608,69 S.E. 195,203 (1910) ("The [mineral] owner is not limited to such appliances as existed at the time of the grant; he may freely employ the means of invention; he may erect all adequate modem machinery for mining and draining."). Contrary to Petitioners' assertions, see Pet'rs' Br. 21, Sguires, Bassell, and Armstrong support Antero's position. In both Bassell and Armstrong, this Court held that mineral owners may take advantage of modem improvements in science and technology to develop mineral estates. 20 parties, and the conditions and circumstances prevailing at the time of the execution thereof." 86 W. Va. at 201, 103 S.E. at 117. Because "[a]t the date of the lease, gas compressors were not used in the neighborhood of his wells, for acceleration of the flow of gas, nor to facilitate transportation thereof through the pipe lines," the plaintiff argued that the use of compressors was never permitted under the lease. Id. This Court, however, rejected this argument, holding that the most important fact within the parties' contemplation at the time of execution of the lease was that it would involve the costly removal of commercially saleable quantities ofgas: Having thus made a contract by which the gas in his land might be connected up with, and made a factor in, the industry, commerce, and domestic life of the country, he may well be deemed to have intended it to be taken out and marketed in conformity with the requirements of industrial, commercial, and domestic life, as other commodities are, except in so far as he may have placed restrictions upon production and delivery for such purposes, by express stipulation. He executed the lease and conferred this right in an age of rapid and startling invention which wrought its wonders and transformations in no department of human activity more suddenly, progressively, and radically than in mining, transportation, and enlargement of enterprises and undertakings. Parties to contracts are held, in the absence of agreements to the contrary, to have contemplated modifications of their relations under their contracts, by the development of improvements and new methods in the progress of science and invention. "The common law is the living science of justice, and adopts the application of fixed principles to changes in the affairs of men." Id. (emphasis added) (citations omitted). In sum, the Panel applied the proper test. b. Horizontal Drilling And Hydraulic Fracturing Are Neither Materially Different From The Extraction Methods Contemplated At The Time The Minerals Were Severed Or Acquired Nor Incompatible With Or Destructive To Petitioners' Surface Estates. As the Panel correctly concluded, use of new technology for mineral extraction, or another permissive use of another person's land, is actionable only where any interference with the servient estate is "materially different from that which the owner contemplated at the time of granting the right" such that the use "virtually destroy[s]" the surface or is "totally incompatible 21 with the rights of the surface owner.,,47 West Virginia law has clearly and consistently emphasized this determinative analysis. 48 Here, the Panel correctly recognized that Antero's use of Petitioners' surface estates patently does not rise to the level of "virtual destruction" or "total incompatibility" and applied the correct test. AR. at 002502. For the first time, Petitioners argue that the inapposite test for the implied right to surface mine articulated in Syllabus Point 1 of Phillips v. Fox, 193 W. Va. 657,458 S.E.2d 327 (1995), should apply and prevent Antero from using hydraulic fracturing and horizontal drilling to develop its minerals because such development methods were not as commonly used 49 when the deeds severing Petitioners' surface estates were executed. See Pet'rs' Br. 20-24. However, the plain language of this test makes clear that it applies only to surface mining. 5o Furthermore, an examination of the line of cases from which that test is drawn makes clear that the Phillips test does not apply here because the virtual destruction of Petitioners' 47 See Buffalo Mining. 165 W. Va. at IS, 267 S.E.2d at 724-25 (reasoning that the only prohibited surface uses are those that "virtually destroy [ ]" the surface or are otherwise "totally incompatible with the rights of the surface owner"). 48 ~ Ouintain, 210 W. Va. at 133,556 S.E.2d at 100 (noting that surface mining has been found to have not been within the contemplation of parties at the time of granting the mining right because it is wholly incompatible with a surface owner's use of the land); Kell v. Appalachian Power Co.. 170 W. Va. 14, 19, 289 S.E.2d 450, 456 (1982) (finding that aerial broadcast spraying of toxins to control foliage growth was not within the parties' contemplation because it would prevent the surface owner from using his land to grow crops); Oresta v. Romano Bros .. Inc., 137 W. Va. 633,642-45. 73 S.E.2d 622, 628-29 (1952) (holding that the coal mining company did not have the right to "destroy, remove, or relocate the surface overlying" the coal to which they had the right to mine and remove because it was the parties' "manifest intention" to "preserve intact the surface of the entire tract"). 49 Furthermore. contrary to Petitioners' assertions, hydraulic fracturing and horizontal drilling are not new processes. See Pet'rs' Br. 27. Hydraulic fracturing has been used for decades. See. e.g., McCoy v. Cohen, 149 W. Va. 197, 215, 140 S.E. 427, 438 (1965) (affirming trial court's directed verdict for defendants where there was no evidence that fracturing operations polluted plaintiffs' water wells). See also A.R. at 002656-002657. Horizontal wells were recorded as early as 1929. See A.R. at 002657. so See Syl. Pt. I, Phillips, 193 W. Va. 657, 458 S.E.2d 327 ("The right to surface mine will only be implied if it is demonstrated that, at the time the deed was executed. surface mining was a known and accepted common practice in the locality where the land is located[.]") (emphasis added). 22 surface is not at issue. This Court first articulated the "known and accepted common practice test" in Syllabus Point 1 of West Virginia-Pittsburgh Coal Co. v. Strong, 129 W. Va. 832, 42 S.E.2d 46 (1947), wherein the Court interpreted the express rights granted in a severance deed and concluded that the parties could not have intended the right to surface mine to be conveyed because the deed contained an option for the plaintiff mining company to pay $100.00 for the "surface 'occupied or used'" and those words "certainly do not contemplate destruction." Id. at 838, 42 S.E.2d at 50. This Court recognized in Buffalo Mining51 that Strong and its progeny do not apply to the instant matter. 52 A.R. at 002661-002662. The Court made clear that these cases - upon which Petitioners rely - are inapplicable when, as in the instant matter, there is no "widespread destruction of the surface,,53 and utilization of the surface "can be inferred as a SI West Virginia jurisprudence governing interpretation of deeds for mineral development and correlative surface use can generally be divided into two lines of cases: (I) West Virginia-Pittsburgh Coal Co. v. Strong and its progeny and (2) SQuires v. Lafferty and its progeny. Although the vast majority of these cases involve coal mining, as explained below, this Court has recognized the differences in the two lines of cases and determined that Strong and its progeny do not apply where, as here, the wholesale destruction of the surface is not at issue. Rather, the correct test is the "reasonable and necessary" test set forth in SQuires, Adkins, and more fully developed in Buffalo Mining (wherein this Court also recognized that Strong and its progeny do not apply). Finally, this Court merged the two tests in Phillips to create a special rule for implied surface mining rights - a test that has not been applied to interpreting mineral development since Phillips and which has not been applied by this Court to oil and gas development. This test does not apply here. See Buffalo Mining, 165 W. Va. at 18,267 S.E.2d at 725-26 (holding that unlike in Strong, 129 W. Va. 832, 42 S.E.2d 46 (1947), which dealt with a grant of express mining easements, for an implied right to be used it must be demonstrated that "the right is reasonably necessary for the extraction of the mineral" and "can be exercised without any substantial burden to the surface owner"). Petitioners cite Brown v. Crozer Coal & Land Co., 144 W. Va. 296, 107 S.E.2d 777 (1959); ~ 137 W. Va. 633, 73 S.E.2d 622; and Strong, 129 W. Va. 832,42 S.E.2d 46, in support of their erroneous argument that the Panel should have applied the test set forth in Phillips. However, this Court recognized in Buffalo Mining that these cases do not apply to implied rights sought "not by virtue of any express language in the mineral severance deed, but by necessary implication as a correlative to those rights expressed in the deed." 165 W. Va. at 15-18,267 S.E.2d at 724-26. S2 S3 See Buffalo Mining, 165 W. Va. at IS, 267 S.E.2d at 724. There is certainly no widespread destruction of the surface here as there are no well pads located on Petitioners' properties and Petitioners concede that they have no claims for property damage. 23 reasonable use within the context ofthe severance deed language."S4 Rather, the Court instructed that the correct test was whether the right was "reasonably necessary for the extraction of the mineral" and did not overly burden the surface owner. Buffalo Mining, 165 W. Va. at 18, 267 S.E.2d at 725-26. The Panel properly applied this test. However, even if Strong (and, by extension Phillips) were applied, the result would be the same. As two commentators have recognized, "[t]he real point of the Strong case was less about the process used and more about the harm reasonably contemplated to the surface" and "Strong would not be appropriately applied to create a blanket prohibition to horizontal drilling and hydraulic fracturing." See Joshua P. Fershee & S. Alex Shay, Horizontal Drilling. Vertical Problems: Property Law Challenges From The Marcellus Shale Boom, 49 J. Marshall L. Rev. 413,427 (2015) (citations omitted). Rather, [a] court applying the Strong decision should still find that horizontal drilling is, in many (if not most) cases, a reasonably necessary use of the surface because its operations do not completely destroy the surface. Though a new extraction process may create a larger temporary disturbance than what might have been expected in 1904 for each well, the disturbance from horizontal drilling and hydraulic fracturing is often substantially less than what might have occurred had multiple wells been drilled on the land in 1904 because new technologies and spacing regulations now limit surface disturbances in comparison to the old drilling methods. Id. at 427 (citations omitted). In short, Petitioners' assertion that the Panel applied the wrong test is based on a misreading of West Virginia law. This point is further supported by the fact that to forbid the application of new technology such as horizontal drilling and hydraulic fracturing to old leases would "deliver absurd results counter to public policy." Id. at 426. Analogizing to coal, it would be absurd to disallow use of "a new technological breakthrough" that permitted coal to be mined and removed in a manner 54 See Buffalo Mining. 165 W. Va. at 14-15,267 S.E.2d at 724 (declining to apply Brown, 144 W. Va. 296, 107 S.E.2d 777; Oresta, 137 W. Va. 633, 73 S.E.2d 622; and Strong. 129 W. Va. 832,42 S.E.2d46). 24 that resulted in no surface damage on "lands with dated leases solely on the ground for being a technological advance" unknown at the time the parties executed the deed where ''the new technology would actually cause less damage to the surface than previous methods." Id. at 426­ 27. Thus, the proper analysis is whether the parties reasonably contemplated the use and the damage to the surface - not whether the technology existed at the time the deeds were executed. Here, Antero's methods, including pooling, horizontal drilling, and hydraulic fracturing, do not cause an interference with Petitioners' surface estates that is "materially different" from what would have been within the contemplation of the parties at the time the minerals beneath Petitioners' properties were severed or acquired. At that time, the parties would have contemplated the drilling of oil and gas wells, potentially including multiple wells and well pads on the same parcel, creating an interference with the surface owner's use of land that is much greater than any interference caused by horizontal drilling. That the use is not materially different is especially true where, as here, the well pads are not situated on the Petitioners' properties. Therefore, any argument that the interference, if any, caused by Antero "materially differs" from that which was contemplated by the parties at the time of conveyance is illogical. ss SS Contrary to Petitioners' assertions, ~ A.R. at 002295, hydraulic fracturing and horizontal drilling are not new processes. Hydraulic fracturing has been used for decades. See. e.g., McCoy. 149 W. Va. at 215, 140 S.E. at 438 (affirming trial court's directed verdict for defendants where there was no evidence that fracturing operations polluted plaintiffs' water wells); Tyler v. Dowell. Inc., 274 F.2d 890 (10th Cir. 1960) (an action by a drilling contractor against a sand fracturing contractor for loss to drilling equipment allegedly caused by the negligent operation of a fracturing operation); Buffington & Sullivan v. Birdwell, 395 P.2d 795 (Okla. 1964) (involving a dispute between a well sand fracking company and a well owner as to which of two fracturing methods should have been used); Totah Drilling Co. v. Abraham, 328 P.2d 1083 (N.M. 1958) (defining "fracking" as an attempt to "break down a gas-producing formation by use of a specific method of penetrating it with some substance at high pressures, thereby causing or making it possible for gas to flow"). Horizontal wells were recorded as early as 1929. The first recorded true horizontal oil well, drilled near Texon, Texas, was completed in 1929. U.S. Energy Info. Admin., Drilling Sideways-A Review of Horizontal Drilling Well Technology and Its Domestic Applications at 7 (April 1993), http://www.eia.gov/pub/oil--..8as/natural--..8as1analysis""pub Ii cations/drilling_sideways_well_technology/pd 25 Furthermore, Petitioners admit that they have no property damages. Any argument that Respondents' extraction methods are incompatible with or totally destructive to Petitioners' surface estates patently fails. c. Antero's Evidence And The Law Corroborate That Hydraulic Fracturing And Horizontal Drilling And The Attendant Circumstances Are Reasonable And Necessary For Antero To Develop Its Minerals. In contrast to Petitioners' claim that Antero did not establish that its activities are reasonably necessary, see Pet'rs' Br. 30, Antero not only provided unchallenged expert opinion 56 establishing that horizontal drilling and hydraulic fracturing are reasonable and necessary to develop Marcellus Shale minerals but, significantly, Petitioners admitted to the Panel that there was nothing Respondents were doing that was not reasonably necessary to develop its mineral estates. See A.R. at 002266-002267; 002495-002496. Furthermore, the law confirms this position. Courts recognize the equally important twin public policies of generally encouraging progress and of specifically encouraging the most efficient and effective discovery and production of a valuable, limited natural resource like natural gas. Calling the principle for allowing use of modern inventions a long-recognized and "ancient" right, this Court explained: Generally where a right of way is granted or reserved without limitations upon its use it may be used for any purpose to which the land accommodated thereby may naturally and reasonably be devoted, and the grantee thereof is entitled to vary his mode of enjoying the same and from time to time avail himself of modern inventions, if by so doing he can more fully exercise and enjoy or carry out the object for which the easement was granted or reserved. f/tr0565.pdf. Another horizontal well was drilled in 1944 in the Franklin Heavy Oil Field, Venango County, Pennsylvania. (d. 56 See A.R. at 000226-000227. 26 Syl. Pt. 1, Davis v. Jefferson Ctv. Tel. Co., 82 W. Va. 357, 95 S.E. 1042 (1918) (emphasis added). To require otherwise, said this Court, "would be to stop to some extent the wheels of progress." Id. at 360, 95 S.E. at 1044. Without the economy of scale provided by horizontal well technology and hydraulic fracturing, the Marcellus Shale that lies beneath Petitioners' severed surface would never be developed. See Fershee & Shay, ~ at 416-17. Petitioners do not dispute that Antero could not economically develop its mineral leasehold without pooling, horizontal drilling, and hydraulic fracturing. A.R. at 000226-000227. Therefore, as the Panel acknowledged, under the reasonable and necessary use doctrine, Antero has an implied right to use horizontal drilling and hydraulic fracturing to develop its mineral estate. Significantly, Petitioners not only did not dispute this fact until now, but Petitioners' counsel actually admitted that all of Antero's activities were within its implied rights necessary for development. A.R. at 002266-002267; 002495-002496. Other jurisdictions have already recognized that hydraulic fracturing is an accepted technological advancement that is reasonably necessary to develop mineral leaseholds, without reference to the date of the underlying instruments. 57 This position is consistent with West Virginia jurisprudence, which holds that parties are presumed to have contemplated 57 See. e.g.. Humberston v. Chevron U.S.A.. Inc., 75 A.3d 504, 511-12 CPa. Super. Ct. 2013) (finding hydraulic fracturing to be an accepted advancement in technology) (citing Oberly v. H.C. Frick Coke Co., 104 A. 864 (Pa. 1918»; Crocker v. Humble Oil & Ref. Co., 419 P.2d 265, 271-74 (Okla. 1965) (discussing hydraulic fracturing or "fracing" as an accepted technology advancement). See also Fershee & Shay, supr~ at 429 (concluding that horizontal drilling operations are a reasonable and necessary use of the surface); Pierce, supra note 31, at 350, 352 (concluding that horizontal drilling and hydraulic fracturing are reasonable uses of the surface estate). 27 advancements in technology to effectuate the purposes of the underlying documents and to hold otherwise would stop the wheels of progress. 58 d. The Burdens Imposed Upon The Surface Owner By Hydraulic Fracturing, Horizontal Drilling, And Their Attendant Circumstances Do Not Exceed Those Contemplated By The Parties And Are Therefore Permissible. To the extent that Petitioners argue that the conditions necessarily incident to horizontal drilling and hydraulic fracturing impose a greater burden upon their surface estate than technology in use at the time the minerals were severed, that argument also patently fails. Antero's methods of extraction are far less burdensome to the surface estate than the drilling of multiple vertical wells on Petitioners' surface estates. See A.R. at 000226-000227 (noting that horizontal wells minimize the disruption of the surface, risks of contamination due to casing defects and wells, and expenses required for well support and maintenance because fewer wells are needed with horizontal drilling than with conventional vertical wells). Even the West Virginia Surface Owners' Rights Organization publicly recognizes the benefits of modern technology, proclaiming horizontal drilling to be the "best thing for everyone" if the Marcellus Shale is to be drilled. 59 The Panel correctly found that Petitioners failed to present any evidence that Antero's use of horizontal drilling and hydraulic fracturing to develop its mineral estate is incompatible or wholly destructive of their surface estates. See A.R. at 002495-002496. Petitioners' express 58 See Davis, 82 W. Va. at 360, 95 S.E. at 1044 (a holder of a right of way is entitled to "avail himself of modem inventions" to "more fully exercise and enjoy the object or carry out the purpose for which the easement was granted" and to require otherwise "would be to stop to some extent the wheels of progress"); see also note 46, supra. 59 The West Virginia Surface Rights Organization ("WVSRO") concedes that horizontal drilling of mUltiple Marcellus Shale Gas wells from centralized well pads benefits surface owners. See A.R. at 002657 (citing "Why Multiple Horizontal Wells from centralized well pads should be used for the Marcellus Shale," W. Va. Surface Owners' Rts. Org., http://www.wvsoro.orglresourceslmarcellus Ihoriz_drilling.html (Aug. 27, 2012». 28 admissions that they have no claims for property damage further support this conclusion. A.R. at 002266-002267; 002494-002495. This utter lack of evidence contrasts sharply with West Virginia case law in which the Court did find mineral development methods to be incompatible and wholly destructive. See, e.g., Oresta, 137 W. Va. at 645, 73 S.E.2d 622 at 629. First, the facts of this case undermine Petitioners' assertion that they are "disproportionately bear[ing]" the burden of Antero's activities. There are no well pads on Petitioners' surface estates. The conditions of which Petitioners complain would be significantly worse if Antero were to drill vertical wells on their surface estates. See page 32, infra. Along with those vertical wells, Antero would be entitled to construct roads, pipelines, and other infrastructure on Petitioners' surface estates to access those vertical wells. Id. Petitioners admit that these activities are permissible surface uses under West Virginia law. See Pet'rs' Br. 30-31. The conditions that Petitioners experience due to the operation and maintenance of well pads located a minimum of .42 miles away from their residences cannot exceed the conditions they would experience if Antero exercised its right to develop minerals on Petitioners' surface estates. 60 Second, as the Panel correctly recognized, Petitioners' two (2) expert witnesses offer no evidence to the contrary. Neither Anthony R. Ingraffea, Ph.D., nor Nicholas Cheremisinoff, Ph.D., opined that Antero had exceeded the scope of its easement by impacting Petitioners' surface estates beyond what is reasonable and necessary to develop its mineral leasehold. See Pet'rs' Br. 9-12; A.R. at 000520; 003025-003080. No analysis was performed as to whether Antero used more trucks, lights, equipment, water, etc., than was reasonably necessary to 60 For purposes of summary judgment, Antero accepted all of Petitioners' factual allegations as true. See A.R. at 001824. 29 develop the mineral estate. 61 See A.R. at 000496-000520; 003025-003080. In fact, as Petitioners quote in their brief, one expert concluded that the impact upon Petitioners is what is to be expected "from 'nonnal' shale gas operation." Pet'rs' Br. 10. Finally, by Petitioners' own testimonies, Antero has made significant efforts to address Petitioners' complaints and to reduce the effect ofthe conditions of which they complain. See A.R. at 000233-000245. Finally, taking Petitioners' arguments to their logical conclusion, Antero would have the right to install oil skimmers and utilize archaic development tools on Petitioners' surface estates because those were in use at the time the severance deeds were executed. Such surface uses would impose a significantly greater burden on Petitioners' use and enjoyment of their surface estates than the simple conditions necessarily incident to Antero's distant mineral development of which Petitioners currently complain. 61 Ingraffea's testimony is inherently unreliable because he conceded that the principal basis for his opinions is conversations with certain Petitioners and his perusal of their depositions. A.R. at 004407-004408; 004411-004413; 004415-004416; 004436-004437. Mere regurgitation of Petitioners' testimony is patently not the type of scientific, technical, or other specialized knowledge that would assist a trier-of-fact to understand the evidence or determine a fact in issue. W. Va. R. Evid. 703. Furthermore, Ingraffea admitted that he did not conduct air quality monitoring or review emissions calculations or air dispersion modeling, A.R. at 004405-004406, that he does not know whether any of the Cherry Camp natural gas extraction and transmission facilities are actually emitting gases in excess of permitted quantities, A.R. at 004445; and that he did not perform any independent studies or review any data demonstrating that health-hazardous concentration of such potential air contaminants exist in Cherry Camp, let alone that they have adversely affected Petitioners. His evaluation of excessive industrial lighting at Antero's facilities is exclusively founded on Petitioners' own vague, conclusory, and self­ serving accounts of "excessive lighting." A.R. at 004412-004413. He conceded that he does not have any specific quantitative data regarding illumination at Antero's facilities, despite the existence of scientific methods to measure exposure. A.R. at 004413-004414. He admitted that he did not conduct any investigation or acquire quantitative data measuring industrial noise levels. A.R. at 004408-004410. Cheremisinoffs opinions on diminished air quality, excessive noise, and excessive dust are admittedly anecdotal, seeded in Petitioners' own vague, conclusory, and self-serving statements. Essentially, Cheremisinoff had oral communications with Petitioners and concluded that air emissions exceeded an undefined "threshold level" predicated on the Appellants' anecdotally self-reported beliefs. A.R. at 003254-003256. Ultimately, Cheremisinoffs data - or dearth of objective, quantitative scientific evidence - are incompetent evidence to establish that Antero exceeded the scope of its easement. 30 C. AN OWNER OF MINERAL RIGHTS MAy USE ANy SURFACE WITIDN A POOL To DEVELOP MINERALS WITIDN THAT POOL WITHOUT EXCEEDING THE SCOPE OF ITS SURFACE USE EASEMENT. 61 Contrary to Petitioners' assertions,63 both Antero and the Panel cited case law recognizing that a mineral owner may use the surface estate overlying adjacent or adjoining tracts when developing the minerals as a pool. See A.R. at 002503. As Judge Maxwell recognized some thirty years ago, "[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." Miller v. N.R.M. Petroleum Corn., 570 F. Supp. 28, 30 (N.D. W. Va. 1983) (emphasis added).64 Indeed, this rule is the majority rule among the states65 as several other jurisdictions have acknowledged the "economy of scale" principle, which recognizes that pooling and unitization promote efficiency and prevent the waste of drilling numerous wells on each tract. 66 62 See A.R. at 002503 (citing W. Va. Code § 22-6A-2(a)(2) and Miller v. N.R.M. Petroleum Corp., 570 F. Supp. 28, 30 (N.D. W. Va. 1983». 63 See Pet'rs' Br. 25 (incorrectly stating that Petitioners are unaware of any authority and that the Panel and Antero did not cite any such authority supporting Antero's right to use Petitioners' surface estates to develop their minerals as a pool). 64 Judge Maxwell was asked to certify a question to this Court: "The question is 'whether or not an oil and gas lessee may use the surface of a particular tract in connection with the operations on other tracts which have been unitized or pooled with the subject tract.'" 570 F. Supp. at 29. Judge Maxwell determined that the answer was "yes," and that this was clear enough not to justify a certified question. Id. at 31. 65 The now-United States Supreme Court Justice Gorusch recognized in Entek ORB. LLC v. Stull Ranches. LLC, 763 F.3d 1252, 1257 n.2 (lOth Cir. 2014), that "the 'majority rule' in the states is the same as it is in federal law, permitting parties to 'pool[ ] ... the right to use the surface of any tract in the drilling unit to produce gas or oil. ...'" (quoting Miller, 570 F. Supp. at 30). 66 See Krenz v. XTO Energy. Inc., 890 N.W.2d 222,239 (N.D. 2017) (holding that the district court "correctly construed the Mendenhall lease to authorize XTO to use the parts of sections 14 and 15 subject to the Mendenhall lease for operations within the Ward Well pooled spacing unit but outside the Mendenhall lease"); Key Operating & Eguip.. Inc. v. Hegar, 435 S.W.3d 794, 798-800 (Tex. 2014), rev'g 403 S.W.3d 318 (Tex. Ct. App. 2013) (operator of pooled unit may use the surface of any lease or unleased acreage within the pooled unit where the lease or leases authorize voluntary pooling); Kyser v. 31 The right to pool is retained by the mineral owner; it does not belong to the surface owner.67 Antero obtained from the mineral owners the right to pool its mineral leaseholds and develop them as a pool. A.R. at 002317-002320; 002346-002347. As discussed above, the right to reasonable and necessary use of the surface to develop the minerals is a long-recognized West Virginia legal principle that logically applies to development of pooled leaseholds. Taking Petitioners' arguments to their logical conclusion produces two absurd results: (I) allowing surface owners to block shale development in West Virginia thereby wrongfully depriving mineral owners of the benefit of their estates, and (2) forcing operators to drill multiple vertical wells (and further disrupt a surface estate) rather than having one consolidated well pad with one access road, etc. 68 First, to require that surface owners must consent before an operator Amoco Prod. Co., 93 P.3d 1272, 1281-82 (N.M. 2004) (holding that the modem law of servitudes is flexible such that the "implied surface right of reasonable ingress and egress to reach a well located inside the production unit that the lessee is operating pursuant to a pooling agreement extends across lease boundaries within the unit to the surface of the entire area subject to the arrangement, regardless of where within the unit production is taking place"); Reimer v. Gulf Oil Com., 664 S.W.2d 456, 457 (Ark. 1984) (holding that mineral lessee could enter into post-severance pooling agreement and finding operator's use reasonable where operator had to cross one surface to access a well on another surface within the unit); Nelson v. Texaco Inc., 525 P.2d 1263, 1266 (Okla. Civ. App. 1974) (holding that a unit operator "has the right to use any surface within the unit for the purpose of efficiently carrying out the approved unit plan, so long as such use is reasonable and not unduly burdensome to any particular surface area"); Gulf Oil Com. v. Deese, 153 So. 2d 614, 618-19 (Ala. 1963) (holding that mineral owner could pool his interest pursuant to Alabama's pooling statute and use surface to drain entire pool even though surface owner took title prior to pooling); Humberston, 75 A.3d at 512 (pooling clause gives lessee the power to use the surface not only for producing from the leasehold acreage, but for producing from any lands that have been pooled by the lessee). 67 See Gastar, _ W. Va. at _,800 S.E.2d at 893 n.16 (noting that there are '''cases holding that the power to lease does comprehend the power to pool. and this view better accords with the realities of the oil and gas industry where pooling powers are always desirable, and sometimes essential, if a property is to be developed"') (quoting 4 Nancy Saint-Paul, Summers Oil and Gas § 56:2 (3d ed. 2009»; Cain v. XTO Energy. Inc., No. I: II-CV-III, 2012 WL 1068199, at *8 (N.D. W. Va. Mar. 29, 2012) (recognizing that there is "no indication that [a 'pooling amendment'] conveyed anything more than a right the mineral owner indisputably held, i.e., the right to permit pooling and unitization of its own property"). 68 Petitioners' argument is particularly illogical given that mUltiple vertical well pads would require multiple access roads and other infrastructure, all of which Petitioners have admitted are reasonable and necessary uses of the surface estate pursuant to West Virginia law. See Pet'rs' Br. 30-31. See also A.R. at 002495-002496. 32 can use their surface to horizontally develop a pool would give surface owners the power to block shale development in West Virginia. To give a surface owner such veto power would contravene West Virginia law. 69 A surface owner would be able to deny all the mineral owners and royalty owners within the pool the value of their estates because the minerals could not be efficiently developed in the absence of the pool. 70 Certainly, this ability would defy public policy, thwart the concept and benefits of pooling, and would inhibit development of the State's natural resources. Second, Petitioners' argument would produce the absurd result of forcing operators to drill multiple vertical wells on multiple pads instead of focusing development on single, albeit larger pads for horizontal wells.71 Petitioners cite Montgomery v. Economy Fuel Co., 61 W. Va. 620, 57 S.E. 137 (1907), for the proposition that Respondents can only use the surface estate precisely overlying the minerals granted under each lease and cannot use "other land not subject to each lease" to develop those minerals. See Pet'rs' Br. 25. Petitioners' misconstrue Montgomery,72 which is 69 See Martin, 230 W. Va. at 191. 737 S.E.2d at 88 (holding that a surface owner does not have standing to challenge a permit and block mineral development). Petitioners argue that the Panel expanded the scope of Antero's rights when. in reality. Petitioners are asking this Court to overrule West Virginia law to give Petitioners more rights than they currently have pursuant to Martin. See Gastar, _ W. Va. at_. 800 S.E.2d at 893 n.16 (noting that "pooling powers are always desirable, and sometimes essential, if a property is to be developed") (quoting Nancy Saint-Paul, Vol. 4. Summers Oil and Gas § 56:2 (3d ed. 2009)). 70 71 Furthermore, Petitioners have in fact received a collateral benefit through Antero developing the minerals beneath Petitioners' surface estate as part of a pooled unit. If Antero were required to develop those minerals by conventional vertical wells, the burden on Petitioners' estate would be significantly greater. By Petitioners' own arguments (i.e., only the surface estate of a single tract can be used to develop the subjacent minerals and that vertical drilling was the contemplated drilling method), the burden on their surface would be substantially greater than any burden imposed by horizontal drilling. Petitioners have failed to offer a scintilla of evidence otherwise. 72 In Montgomery, the Court held that the lessee did not have the right to use a certain portion of the surface to develop its minerals where that portion had been expressly reserved in the mineral lease for burial and cemetery purposes. 61 W. Va. at 625,57 S.E. at 139. This case in no way supports Petitioners' argument that Respondents cannot use Petitioners' surface estate to develop minerals conjointly. 33 clear from the plain language cited by Petitioners: 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. When anything is granted, all the means of obtaining it, and all the fruits or effects of it, are also granted. 61 W. Va. at 624, 57 S.E. at 138 (emphasis added). Here, the "estate granted" is the mineral estate beneath Petitioners' various surface estates. Use of all of those surface estates to develop the minerals is included in "all things necessary for the purpose of acquiring and enjoying the estate granted" and "all the means of obtaining it." Because developing the minerals conjointly is necessary to develop the minerals directly beneath Petitioners' severed tracts, it is not only reasonable but also necessary to use Petitioners' surface estates to develop the entire pool. Petitioners offered no contrary evidence whatsoever. See A.R. at 002495-002496. Thus. Petitioners' argument that Antero's implied right to use their surface estates for development is limited to the use of the surface tract overlying minerals contained within a single lease fails. D. PETITIONERS HAVE FAILED TO IDENTIFY ANY PUBLIC POLICY OR OTHER LAW THAT SUPPORTS ABROGATING ANTERO'S PROPERTY RIGHTS. Petitioners essentially request that this Court abrogate Antero's private property rights on the basis of a purported public policy argument but fail to identify any public policy supporting their position. See Pet'rs' Br. 32-34. The very law that Petitioners cite 73 provides strong protections for surface owners while clearly supporting West Virginia's public policy that mineral development is beneficial to the State and national security and should be encouraged. 74 In contrast to Petitioners' assertion, neither the facts presented nor West Virginia law require 73 74 See Pet'rs' Br. 32-33. The Panel recognized that the State expressly supports mineral development. See A.R. at 002502-002504;002660. 34 Petitioners to "disproportionately bear" the burden of Antero's activities. Rather, the common law addresses Petitioners' claims and has simply found them wanting. As at least two commentators have noted, the very laws Petitioners cite 7S suggest that "[t]he West Virginia Legislature has supported a finding that horizontal drilling is a reasonably necessary use of the surface ... in even decades old mineral leases or severed estates" and that, by passing such laws, "the legislature was acknowledging and approving that horizontal drilling would occur in the Marcellus Region." Fershee & Shay, ~ at 335-41 (citing the Oil and Gas Production Damage Compensation Act,16 the Oil and Gas Horizontal Well Production Damage Compensation Act ("Compensation Act"),77 and Natural Gas Horizontal Well Control Act ("Horizontal Well Act,,».78 These acts seek to provide certain compensation to owners of surface estates upon which the horizontal wells are actually drilled,79 thereby implying that damage to adjoining or adjacent surface estates is neither foreseeable nor requiring statutory protection. Where there is such damage, a surface owner may seek compensation from the courts pursuant to the common law. However, such a petitioner is bound by the common law, and the courts may very well find their claims to lack merit. Contrary to Petitioners' argument, the Panel's grant of summary 75 See Pet'rs' Br. 32. 76 See W. Va. Code § 22-7-1. 77 See W. Va. Code § 22-6B-1. "Ultimately, the statutory scheme of the Compensation Act supports the development of minerals by horizontal drilling. On its face, the statute not only acknowledges that natural gas drilling operations cause surface use problems, but also seeks to mitigate the conflicts through a statutory scheme." Fershee & Shay, supri!, at 437-38. 78 See W. Va. Code § 22-6A-1. "As a whole, the Horizontal Well Act seeks to proactively protect surface owners from damages that could be caused by horizontal drilling operations and simultaneously these rules place limits on surface owner recovery. In doing so, the statute acknowledges that horizontal drilling operations will occur in the Marcellus Shale region[.]" Fershee & Shay, supra, at 440. 79 See. e.g.. W. Va. Code § 22-6B-3(a). 35 judgment does not abrogate or destroy the right to seek a common law remedy. See Pet'rs' Sr. 32-33. 80 Rather, the very legal principles upon which Respondents were granted summary judgment are common law principles: that Antero has express contractual rights and implied property rights to use Petitioners' surface estates to the extent reasonable and necessary to develop its minerals and that Petitioners have failed to produce any evidence to show that Antero has exceeded its rights. See A.R. at 002495-002496; 000520; 003025-003080. Simply because Petitioners are unhappy with that result does not mean that Respondents have been "immunized" from nuisance liability. See Pet'rs' Sr. 33. 81 Therefore, Petitioners are not "living with uncompensated nuisances ... based on fifty to one-hundred-year-old severance deeds." Id. at 33. Rather, when Petitioners obtained their surface estates, they did so with the knowledge that they were burdened. See Martin, 230 W. Va. at 191, 737 S.E.2d at 88. To do as Petitioners ask and allow their nuisance claims to proceed would be to abrogate Antero's private property rights and the rights of mineral owners and royalty owners, thereby undermining decades of established West Virginia jurisprudence. VII. CONCLUSION For the foregoing reasons, Respondent Antero Resources Corporation respectfully requests that this Court affirm the Panel's judgment. 80 Additionally, there has not been a "taking" in violation of any Constitutional rights. Petitioners appear to concede this point. See Pet'rs' Br. 32. 81 Indeed, the Panel clearly acknowledged that the nuisance analysis would be appropriate only had Antero exceeded the scope of its easement. A.R. at 002499. 36 sz;...,~::::=o"'::~~.-I-----..... w. ~..l.. .. 1J: --~~----+-T-------~----/~~~ W. He ry Lawren ,W. Va. Bar #2156 Richard M. Yurko, Jr., W. Va. Bar #4180 Lauren K. Turner, W. Va. Bar # 11942 Amber M. Moore, W. Va. Bar # 1234 1 Jason W. Turner, W. Va. Bar # 12862 400 White Oaks Boulevard Bridgeport, WV 26330 (304) 933-8000 STEPTOE & JOHNSON PLLC Of Counsel Ancil G. Ramey, W. Va. Bar#30I3 P.O. Box 2195 Huntington, WV 25722-2195 (304) 522-8290 Donald C. Sinclair II, W. Va. Bar #4295 1233 Main Street, Suite 3000 Wheeling, WV 26003 (304) 233-0000 37 CERTIFICATE OF SERVICE I hereby certify that on the 27th day of July 2017, I served the foregoing "Brief of Respondent Antero Resources Corporation" upon the following counsel, by depositing true copies thereof in the United States mail, postage prepaid, in envelopes addressed as follows: Anthony J. Majestro, Esquire J.C. Powell, Esquire Powell & Majestro, PLLC 405 Capitol Street, Suite P-1200 Charleston, WV 25301 James C. Peterson, Esquire Aaron L. Harrah, Esquire Hill, Peterson, Carper, Bee & Deitzler, PLLC 500 Tracy Way Charleston, WV 25311 Christopher L. Hamb, Esquire Craig S. Beeson, Esquire Robinson & McElwee PLLC Post Office Box 1791 400 Fifth Third Center 700 Virginia Street, East Charleston, WV 25301 Stephen F. Gandee, Esquire Robinson & McElwee PLLC Post Office Box 128 140 West Main Street, Suite 300 Clarksburg, WV 26302-0128 William M. Herlihy, Esquire Spilman Thomas & Battle, PLLC 300 Kanawha Boulevard, East P.O. Box 273 Charleston, WV 25321-0273 38 Matthew P. Heiskell, Esquire Spilman Thomas & Battle, PLLC 48 Donley Street, Suite 800 P.O. Box 615 Morgantown, WV 26507-0615 ~~A.7;§h~ W. Henr;:uwrence:w:a. Bar #2156 7746648 39