IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 17-0968 AT CHARLESTON EQT PRODUCTION COMPANY, Defendant Below, Petitioner, No.: 17-0968 - . vsi} - (From the Circuit Court of Doddridge County, No. 14-0-64.) - MARGOT BETH CROWDER AND DAVID WENTZ, Plaintiffs Below, Respondent. THE INDEPENDENT OIL AND GAS ASSOCIATION OF WEST VFRGENEA, li'?'el TO FILE CEREAE BRIEF IN SUPPORT OF EQT PRODUCTION COMPANY Pursuant to Rule .30 lot" the west Virginia Rules of Appellate Procedure for the Supreme Court of Appeals of West Virginia, the Independent Oil and Gas Association of West Virginia, Inc. respectfully requests leave of this Court to ?le an anxious curiae brief in support of Petitioner EQT Production Company. For almost sixty (60) years, IQGA has represented the interests of independent oil and gas producers in West Virginia, as well as others directly involved in the production of oil and natural gas. members are vitally interested in emerging legal issues affecting the oil and gas industry in West Virginia, including the legal issue presented by the present case. The Court?s resolution of the present appeal will affect not only the parties to the case but also oil and gas producers of all sizes throughout West Virignia. IOGA files this Motion for Leave 0 File Amicus Curiae Brief In Support of Petitioner EQT Production Company following careful consideration and a unanimous vote of its Board of Directors. On behalf of its members, IOGA respectfully requests permission to ?le a brief as anticus curiae in support of Petitioner EQT Production Company because the ruling of the Circuit Court of Doddridge County, West Virginia has significant negative implications upon existing and future oil'and gas developinent in. West Virginia. More particularly, the ruling of the Circuit Court of Doddridge County misapplies and is contrary to longstanding West Virginia mineral property conceming?the use of surface estates by owners of the underlying mineral estate and (ii) creates a material and substantial impediment to oil and gas development in West Virginia; e? For these reasons, any others apparent to the Court, the Independent Oil and Natural Gas Association of West Virginia, Ine, requests leave to file a brief as amicus curiae in. support of Petitioner EQT Production. Company?s appeal. AND GAS OF ASSOCIATION OF WEST VIRGINIA, INC. By counsel, Cm Woo GeOrge A. (WVSB #2138)? Evan G. Conard (WVSB #12265) BOWLES RICE LLP 600 Quarrier Street Charleston, West Virginia 25301 Telephone: (304) 347?} 100 Facsimile: (304) 3432867 CormsetforAmr'cus Curiae CERTIFICATE OF SERVICE 1, Evan G. Conard, hereby certify that on the 29 day of January, 2018, the foregoing The Independent 01?! and Gas Association of West Virginia, Inc. ?s Motion for Leave To File an Amicus Cw'ioe Briefz'n Support of Petitioner EQT Production Company was served by mailing a true and exact COpy thereof by United States mail, postage prepaid, upon the following: Nicole R. Snyder Bagnell Lucas Liben REED SMITH LLP Reed Smith Centre 225 Fifth Avenue Pittsburgh, 15222 Counselfor De?mdonr Petitz?oner EQT Production Company David L. Grubb Kristina Thomas Whiteaker THE GRUBB LAW GROUP 1114 iianawha Boulevard, East Charleston, WV 32530} David McMahon 1624 Kenwood Rd. Charleston, WV 25314 Counsel for Plaintiffs -- Respondent Margot Beth Crowder' and David Wem?z Qij?xm Q: Evan G. Conard (WVSB IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA No. 17-0968 AT CHARLESTON PRODUCTION COMPANY, Defendant Below, Petitioner, No.: 17-0968 vs.) - {From the Circuit Court of Doddridge County, No. 14-064) MARGOT BETH CROWDER AND DAVID WENTZ, - Plaintiffs Below, Respondent. (THEME OF THE INDEPENDENT OIL AND GAS ASSOCIATION OF WEST VIRGINIA, INC. IN SUPPORT OF PET IT IONER EQT COMPANY George A. Patterson, #2133] Evan G. Conard, #12265] BOWLES RICE LLP 600 Quarrier Street Charleston, West Virginia 25301 Telephone: (3 04) 347-1100 Facsimile: (304) 343-2867 Counsel for Amicus Curiae II. IV. V. TABLE OF CONTENTS INTRODUCTION, IDENTITY OF AMICUS, AND STATEMENT OF INTEREST 1 PROCEDURAL POSTURE OF THE CASE 3 SUMMARY OF ARGUMENT AND RELEVANT FACTS 4 ARGUMENT 6- A. The Circuit Court erred in finding EQT committed trespass by not obtaining a pooling ainendment from Respondents when such rights are not part of Respondents estate. 6 a. The right to pool, or not to pool, is a right exclusive to the oil and gas estate. 7 While the original oil and gas lease, executed prior to severance of the surface and oil and gas estates, did not contain a pooling clause, the lease has been amended by the oil and gas estate owner to allow for such rights. - 10 B. The Circuit. Court?s ruling failed to apply the ?reasonably necessary? standard established in Buffalo Mining Co. v. Martin and consider whether, and to what extent, Respondents? use their surface estate was substantially burdened by operations. a. The Circuit Court did not consider if operations completely destroyed Respondents use of the surface estate so as to not be reasonably necessary. 13 b. The Circuit Court failed to consider whether Respondents demonstrated that EQT operations deviated from industry standards to not be considered reasonably necessary. 16 CONCLUSION . l7 TABLE OF AUTHORITIES Cases Boggess v. Miiam, 127 W. Va. 654, 34 267 (1945) 6, 9 Bt?alo Mining Co. v. Martin, 165 W. Va. 10, 267 721 (1980) 6, 13 Davis v. Harrie-tan(1963) 5, 7 Faith United Methodist Church and Cemetery Qf Terra Alta, West Virginia v. I . Morgan, 23] W. Va. 423, 745 461 (2013) 6, 17 Fisher v. West Virginia Coal Tramp. 137 W. Va. 613, 73 633 (1952) . 5, 10 Gastar Exploration Inc v. Contraguerro, No. 16- 0429, 201 i W. Va. LEXIS 413 at. *23? 4, 800 E.2d 891 (2017) 7 Key Operating cf: Equipment, Inc. v. Hegar, - - 435 53.97.26 794 (TX. 2014) 8 v. Pen-aelttm Corp, 570 F. Supp. 28 (1983) 8 Port?m Mack/11%. .- 65 Va. 636, 64 S. E. 853 (1909) 13 .S'quires, et ai. v. quferty, . 95 W. Va. 304, 121 SE. 90 (1924) 5, 12 State by Dep ?t of Natural Res. v. Cooper, 152 W. Va. 309, 162 281 (1968) S, 6 7710mm v. Young, F- 93 W. Va. 555, 117 8.13. 909 (1923) 16 West Virginia Dep?t. ofTransp. v. Veach, 799 78 6 Whiteman v. Chesapeake Appalachia, LL. C, 729 F.3d 381 (4th Cir. 2013) 13 Rules West Virginia Rule of Appellate Procedure 30(b) 1 ii Secondary Sources Bureau of Business Economic Research, West Virginia University College of Business and Economic Research, West Virginia Economic Outlook 1 Amy Higginbotham et 31., The Impact of the Natural Gas Industry and the Marcellus Shale Development in West Virginia in 2009, (December 2010) 2 Mark B. Muchow et al., West Virginia Department of Revenue, Joint Select Committee on ax Reform Severance Tax (.9: Property Tax (Sept. 14 2015) 2 Proctor, Jason A., The Legality ofDrilling Sideways. Horizontal filing and its Future in West Virwgz'nia 1.15 VA. REV. .491 . 3,16 I. INTRODUCTION, IDENTITY OF AMICUS, AND STATEMENT OF INTEREST The Independent Oil and Gas Association of West Virginia, Inc. submits this brief amicus curiae] For approximately 59 years, IOGA, a West Virginia trade association, has represented independent oil and gas producers and others directly involved in the production of oil and natural gas in West Virginia. members are vitally interested in issues affecting the oil and gas industry, including the legal issue raised in this case. IOGA files this brief after careful consideration and unanimous vote of its Board of Directors.2 Between 2015 and 2016, natural gas production increased by twenty-one percent and is expected to increase annually by roughly nine to ten percent 1. through 2021.3 This year, for the first time on record, natural gas is expected to overtake coal in terms of accounting for a larger share of overall State GDP.4 Total employment for the State's energy sector is forecast to grow over the nest five years, and all cities growth is expected to come in th an '11 gas 1 Pursuant to West Virginia Rule of Appellate Procedure IOGAWV noti?ed counsel of record for all parties of its intention to ?le an ann?cus curiae brief (?amicus brief"). Accordingly, counsel for IOGAWV has ?ied a Motion for Leave to File Brief (if/imicns Curiae IOGAWV contemporaneously herewith pursuant to West Virginia Ruie of Appellate Procedure 30(a 2 All costs of filing this brief have been paid by with no contribution from any party involved in this proceeding. Neither Petitioner EQT Production Company nor counsel for Petitioner EQT Production Company, or any other party or entity, has made any contribution to in connection with this case. 3 Bureau of Business Economic Research, West Virginia University College of Business and Economics, 2017- 202 1, West Virginia Economic Outlook (2016)(located at 41d. 51d.