Hydraulic Fracturing - Arnold & Porter

Hydraulic Fracturing

Hydraulic Fracturing Case Chart Civil Tort Actions

Challenges to Municipal Actions

Oil & Gas Lease Disputes

Citizen Suits

Challenges to Agency Actions

Other Land Use and Property Rights Disputes

Challenges to State and Federal Laws and Regulations

Defamation and SLAPP Suits

Freedom of Information Lawsuits

Contract Disputes

Government Enforcement Actions Suits Against Project Opponents

Constitutional Claims

Date last updated: December 2, 2015

Other Disputes

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© 2015 Arnold & Porter LLP

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Maring v. Nalbone, Index No. K12009001499 (N.Y. Sup. Ct., filed Aug. 2009) + Zimmerman v. Atlas America, LLC, No. 2009 7564 (Pa. Ct. Comm. Pl, filed Sept. 2009) + Harnas v. Gas Field Specialists, Inc., No. 09-cv06629 (N.Y. Sup. Ct., filed Nov. 2009) (removed  to W.D.N.Y. Dec. 2009) + Ely v. Cabot Oil & Gas Corp., No. 09-CV-2284  (M.D. Pa., filed Nov. 2009) (mot. to dismiss denied Nov. 2010) (joint stip. of voluntary dismissal Sept. 2012) (R&R on Ely Estate claims Mar. 2014) (R&R on Hubert family claims Mar.  2014) (summ. j. for defs. on strict liab. claims Apr. 2014) (R&R on mot. for sanctions May 2014) (sanctions order July 2014) (summ. j. for defs. on Ely Estate claims July 2014) (partial summ. j. for defs. on Hubert family claims July 2014) (order adopting Carter stip. of voluntary discontinuance  July 2014) (sanctions notice of appeal Aug. 2014) (Ely Estate notice of appeal Aug. 2014) (order on defendants’ motion to clarify Oct. 2015) (order on plaintiffs’ motion for leave to take deposition Oct. 2015) + Scoma v. Chesapeake Energy Corp., No. 10-CV1385 (N.D. Tex., filed July 2010) (dismissed with prejudice after settlement Dec. 2011) +  Berish v. Southwestern Energy Production Co., 10-CV-1981 (M.D. Pa, filed Sept. 2010) (motion to dismiss partially denied Feb. 2011) (motion to add defendants granted May 2012) +  Armstrong v. Chesapeake Appalacia, LLC (Pa. Ct. Com. Pl., filed Oct. 2010) + Heinkel-Wolfe v. Williams Production Co., LLC, No. 10-40355-362 (362nd Dist. Ct. Denton Co., Texas, filed Nov. 2010) +

Civil Tort Actions Sizelove v. Williams Production Co., LLC, No. 1050355-367 (Tex. Dist. Ct., filed Nov. 2010) + Hagy v. Equitable Production Co., No. 10-CV-13722 (S.D. W. Va., filed Dec. 2010) (motion for SJ granted May 2012 and June 2012) (4th Cir. aff’d Oct. 2013) + Mitchell v. EnCana Oil & Gas, Inc., No. 10-CV-2555 (N.D. Tex., filed Dec. 2010) (voluntarily dismissed Nov. 2011 after settlement) + Otis v. Chesapeake Appalachia, LLC, No. 11-cv00115 (Pa. Ct. Com. Pl., filed Dec. 2010) (removed to M.D. Pa. Jan. 2011) Bidlack v. Chesapeake Appalachia, LLC, No. 11-cv-00129 (Pa. Ct. Com. Pl., amended complaint filed Dec. 2010) (removed to M.D. Pa. Jan. 2011) + Harris v. Devon Energy Prod. Co., L.P., No. 10-CV0708 (N.D. Tex., filed Dec. 2010) (transferred to E.D. Tex. Dec. 2010) (report & recommendation June 2011) (motion for partial dismissal granted July 2011) (report & recommendation Dec. 2011) (plaintiffs’ motion to dismiss without prejudice granted Jan. 2012) (dismissal affirmed as modified 5th Cir. Dec. 2012) + Smith v. Devon Energy Prod. Co., L.P., No. 11-CV0104 (N.D. Tex., filed Jan. 2011) (transferred to E.D. Tex. Mar. 2011) (plaintiffs’ motion to dismiss without prejudice granted July 2012) + Bombardiere v. Schlumberger Tech. Corp., No. 1:11cv-00050 (W. Va. Cir. Ct., filed Feb. 2011) (removed to N.D. W.Va. Apr. 2011) (stipulation and order of dismissal Jan. 16, 2013) (order on summary judgment motion Jan. 30, 2013) (order on summary judgment motion Jan. 31, 2013) (order on summary judgment motion Feb. 1, 2013) (order on summary judgment motion Feb. 21, 2013) (judgment Apr. 2013) +

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Parr v. Aruba Petroleum, Inc., No. 111650 (Dallas Co. Ct. at Law, filed Mar. 2011) (11th am. pet. filed Sept. 2013) (jury verdict Apr. 2014) (mot. for JNOV denied June 2014) (final judgment July 9, 2014) (order on motion for new trial Sept. 2014) (notice of appeal Oct. 2014) + Baker v. Anschutz Exploration Corp., No. 11-CV-6119 (N.Y. Sup. Ct. Chemung Co., filed under Index No. 11-1168, Feb. 2011) (removed to W.D.N.Y. Mar. 2011) (stip. & order June 2013) (mots. denied June 2013) + Andre v. EXCO Resources, Inc., No. 1100161 (W.D. La., filed Apr. 2011) + Strudley v. Antero Resources Corp., No. 2011-CV-22 (Colo. Dist. Ct., filed Mar. 2011) (dismissed May 2012) (Colo. Ct. App. dismissal rev’d July 2013) (pet. for cert filed Aug. 2013) (cert. granted Apr. 2014); No. 13SC576 (Colo. aff’d Apr. 2015) + Beckman v. EXCO Resources, Inc., No. 11-00617 (W.D. La., filed Apr. 2011) Ginardi v. Frontier Gas Services, LLC, No. 11-CV-0420 (E.D. Ark., filed May 2011) (motion for class certification denied) + Tucker v. Southwestern Energy Co., 11CV-0044 (E.D. Ark, filed May 2011) (mot. to dismiss granted in part Feb. 2012) (dismissed after settlement Aug. 2012) +

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Berry v. Southwestern Energy Co., 11-CV-0045 (E.D. Ark., filed May 2011) (mot. to dismiss granted in part Feb. 2012) (dismissed after settlement Aug. 2012) + Hearn v. BHP Billiton Petroleum (Arkansas) Inc., 11-CV-0474 (E.D. Ark., filed June 2011) + Scoggin v. Cudd Pumping Servs., Inc., No. 11-CV00678 (E.D. Ark., filed Sept. 2011) (stip. of dismissal without prejudice June 2013) + Evenson v. Antero Resources Corp., No. 2011CV-5118 (Denver Co. Dist. Ct., filed July 2011) (dismissed Aug. 2012) + Dillon v. Antero Resources, No. 11-CV-1038 (W.D. Pa., filed Aug. 2011); Beca v. Antero Resources, 11-CV-1040 (W.D. Pa., filed Aug. 2011) + Managan v. Landmark 4, LLC (N.D. Ohio, filed Mar. 2012); Boggs v. Landmark 4, LLC, No. 12cv- 614 (N.D. Ohio, filed Mar. 2012) (motion to dismiss denied Aug. 2012) + Kamuck v. Shell Energy Holdings GP, LLC (M.D. Pa. Apr. 2012) (motion for Lone Pine case management order denied Sept. 2012) (dismissed Mar. 2015) + Hiser v. XTO Energy, Inc. (W.D. Ark. mot. to compel denied Aug. 2012) (jury verdict for plaintiff Sept. 2012) (mot. for j. as matter of law & for new trial or remittitur denied Sept. 2013) No. 13-3443 (8th Cir. aff’d Oct. 2014) + Roth v. Cabot Oil & Gas Corp., No. 12-CV-00898 (Pa. Ct. Comm. Pl. filed Mar. 2012) (removed to M.D. Pa. May 2012) (first amended complaint filed Aug. 2012)(denial of Lone Pine case management order Oct. 2012) +

Civil Tort Actions 

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Teel v. Chesapeake Appalachia LLC , No. 11-cv-5 (N.D. W. Va. Oct. 2012) + Magers v. Chesapeake Appalachia LLC, No. 5:12cv-49 (N.D. W.Va.) (mot. to dismiss denied Apr. 2013) (CNX mot. to dismiss granted Aug. 2013) (mot. to amend/alter j. denied Dec. 2013) (Columbia Gas mot. for summ. j. granted Sept. 2014) + Whiteman v. Chesapeake Appalachia, L.L.C., No. 12-1790 (4th Cir. Sept. 4, 2013) + Reece v. AES Corp., No. CIV-12-0457-JH (E.D. Okla. Jan. 2014) + Leighton v. Chesapeake Appalachia, LLC, No. 1:13–CV–2018 (W.D. Pa. Nov. 2013) + Carter v. EOG Resources, Inc., No. 4:12–CV–003 (D.N.D. Oct. 2013) + Stroud v. Southwestern Energy Co., No. 4:12– cv–500–DPM (E.D. Ark. motion to dismiss denied in part Sept. 2013) (dismissed Sept. 2015); No. 15-3458 (8th Cir. appeal filed Oct. 2015) + Environmental Processing Systems LC v. FPL Farming Ltd., No. 09-08-00083-CV (Tex. Ct. App. remanded Sept. 2012); No. 12-0905 (Tex. oral argument Jan. 7, 2014) + Anglim v. Chesapeake Operating, Inc., No. 2011008256-1 (Tarrant Co. Ct. at Law) + Crowder v. Chesapeake Operating, Inc., No. 2011-008256-1 (Tarrant Co. Ct. at Law, filed ) (2d am. pet. Nov. 2013) (jury verdict May 2014) +

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Chesapeake Appalachia, L.L.C. v. Cameron International Corp., No. CIV-13-1118-M (W.D. Okla. July 2014) + Cerny v. Marathon Oil Corp., No. 13-050018-CVK (Tex. Dist. Ct., filed May 2013); No. 5:13-cv-00562-XR (W.D. Tex. removed June 2013; order denying remand Aug. 2013; remand order Aug. 2013); No. 13-05-0018CVK (Tex. Dist. Ct. orders granting summ. j. to defs. Aug. 2014; notice of appeal Aug. 2014); No. 04-14-00650-CV (Tex. Ct. App. aff’d Oct. 2015) (dissent Oct. 2015) + Ladra v. New Dominion LLC, No. CJ-2014115 (Okla. Dist. Ct., filed Aug. 2014) (dismissed Oct. 2014); No. SD - 113396 (Okla. rev’d June 2015) + Butts v. Southwestern Energy Production Co., No. 3:12-cv-1330 (M.D. Pa. defs.' mot. for summ. j. denied Aug. 2014; reconsideration denied Sept. 2014; order for dismissal Oct. 2014) + McKee v. Chevron Appalachia, LLC, GD No. 14-10554 (Pa. Ct. Common Pleas, filed June 2014; prelim. objections overruled Oct. 7, 2014) (order approving settlement May 2015) + Dueling v. Devon Energy Corp., No. 1411177 (5th Cir. remanded Aug. 2015) + Sciscoe v. Enbridge Gathering (North Texas), L.P., No. 07-13-00391-CV (Tex. Ct. App. summ. j. for defs. rev’d in part June 2015) +

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Civil Tort Actions 

Cole v. EP Energy Co., E&P, L.P., No. 4:15-cv02844 (S.D. Tex., filed Sept. 2015) +


Citizen Suits 

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Citizens for Pennsylvania’s Future v. Ultra Resources, Inc., No. 4:11-CV-1360 (M.D. Pa., filed July 21, 2011) + Clean Water Action v. Mun. Auth. of McKeesport (W.D. Pa., settled May 1, 2012) + Clean Air Council, 60-Day Notice of Intent to Sue (concerning Pennsylvania’s implementation of the Clean Air Act with respect to the oil and gas industries) (submitted to EPA on May 30, 2013) + Clean Water Action v. Waste Treatment Corp., No. 1300328 (W.D. Pa., filed Oct. 28, 2013) + Sierra Club, Notice of Intent to Sue for Violations of the Resource Conservation and Recovery Act Involving Earthquakes Induced by the Injection and Disposal of Oil and Gas Production Wastes into the Ground (Oct. 2015) +


Government Enforcement Actions 

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United States v. Range Prod. Co., 11-CV-0116 (N.D. Tex., filed Jan. 2011) (case voluntarily dismissed Mar. 2012) + In re U.S. Energy Dev. Corp., File No. 11-57 (N.Y. S. DEC, filed Jan. 2012) + In re Chesapeake Appalachia LLC (N.Y.S. Att’y Gen. June 2012) + Talisman Energy USA, Inc. (EPA, consent order entered July 2012) + Matter of Fluid Recovery Services, LLC, Docket No. CWA-03-2013-0051DN (EPA Region III, admin. order for compliance on consent May 2013); Matter of Hart Resource Technologies, Inc., Docket No. CWA-03-2013-0049 (EPA Region III, consent agreement and final order May 2013); Matter of Pennsylvania Brine Treatment, Inc., Docket No. CWA-03-20130050 (EPA Region III, consent agreement and final order May 2013) + U.S. v. SG Interests I, Ltd., 12-cv-00395 (D. Colo., filed Feb. 2012) (motion for entry of final judgment denied Dec. 2012) (final judgment on consent for SG Interests and Gunnison Apr. 2013) + D & L Energy, Inc. v. Div. of Oil & Gas Resources Mgmt., Appeal No. 847 (Ohio Oil & Gas Comm’n June 2013) + U.S. v. XTO Energy, Inc., 4:13-cv-01954-MWB (M.D. Pa. ) (consent decree entered Sept. 2013) +

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U.S. v. Guesman, 1:13 CR 113 (N.D. Ohio guilty plea Aug. 2013); U.S. v. Lupo, 4:13-cr-00113DCN (N.D. Ohio guilty plea Mar. 2014; sentencing Aug. 2014) + City of Denton, Texas v. EagleRidge Energy, LLC, No. __ (Tex. Dist. Ct., appl. for TRO Oct. 2013; notice of non-suit Oct. 2013) + U.S. v. Chesapeake Appalachia, LLC, 5:13-cv00170 (N.D. W. Va. consent decree entered Dec. 2013) + U.S. v. Stinson, 1:12-cr-00012-JHM-HBB (W.D. Ky. sentencing Jan. 2014) + Wisconsin v. Preferred Sands of Wisconsin, LLC, 2013 CX 000001 (Wis. Cir. Ct. Dec. 2013) + State of Florida Department of Environmental Protection v. Dan A. Hughes Co., L.P., OGC File No. 14-0012 (Fla. Dep’t of Envtl. Prot. consent order Apr. 2014); No. 14-0400 (Fla. Dep’t of Envtl. Prot. notice of revocation July 2014) + State of Florida, Department of Environmental Protection v. Dan A. Hughes Co., L.P., No. 112014CA0016430001XX (Fla. Cir. Ct., filed July 18, 2014) + Carrizo (Marcellus) LLC (Pa. Dept. of Envtl. Prot. June 2014) + United States v. Garber, No. 1:14-cr-114 (D.N.D. information June 2014; plea agreement June 2014; minutes Sept. 2014) +

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Colo. Oil & Gas Conservation Comm’n, “20Day Injection Pause” at Well Operated by NGL Water Solutions DJ LLC (press release June 2014; press release July 2014) + California Division of Oil, Gas, and Geothermal Resources, Orders Shutting Down 11 Wastewater Disposal Wells (orders issued July 2, 2014; press release July 18, 2014) + United States v. Wright, No. 14-cr-7 (W.D. Pa. indictment Feb. 2014; change of plea Aug. 2014) + United States v. Trans Energy, Inc., No. 5:14cv-00117 (N.D. W. Va. consent decree & complaint Sept. 2, 2014) + In re Investigation by Eric T. Schneiderman, Attorney General of State of New York, of EOG Resources, Inc., Assurance No. 14-182 (Oct. 2014); In re Investigation by Eric T. Schneiderman, Attorney General of State of New York, of Anadarko Petroleum Corp., Assurance No. 14-183 (Oct. 2014) + Commonwealth of Pennsylvania, Department of Environmental Protection v. EQT Production Co., No. 2014-140-CP-L (Pa. Envtl. Hearing Bd., filed Oct. 2014; stay denied Oct. 2014; opinion in support of stay denial Oct. 2014) + United States v. Hardrock Excavating LLC, No. 1:13-cr-113 (N.D. Ohio guilty plea May 2015) +


Government Enforcement Actions 

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In re Chevron Appalachia, LLC (Pa. Dep’t of Envtl. Prot. consent assessment of civil penalty May 2015) + North Dakota Industrial Commission v. Alturas Energy, LLC, No. 23514 (N.D. Indus. Comm’n order July 2015) + WPX Energy Appalachia, LLC v. Pennsylvania Department of Environmental Protection, No. 2015-110 (Pa. Envtl. Hearing Bd., filed Aug. 3, 2015) + Cabot Oil & Gas Corp. v. Pennsylvania Department of Environmental Protection, No. 2015-131 (Pa. Envtl. Hearing Bd., filed Sept. 2015; amended notice of appeal filed Sept. 2015) + Mason Well Service, OSHA Inspection No. 1045380 (Sept. 2015) + EQT Production Co. v. Pennsylvania Department of Environmental Protection, No. 2015-152 (Pa. Envtl. Hearing Bd., filed Oct. 2015) +


Challenges to Municipal Actions 

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Plains Exploration & Production Co. v. City of Culver City (Cal. Super. Ct. L.A. Co. Mar. 2010) + Northeast Natural Energy LLC v. City of Morgantown, West Virginia, No. 11-C-411 (W. Va. Cir. Ct. Aug. 2011) + Weiden Lake Property Owners v. Klansky (N.Y. Sup. Ct. Aug. 2011) + Matter of Wallach v. Town of Dryden (N.Y. Sup. Ct., filed Sept. 2011) (ordinance upheld Feb. 2012) (N.Y. App. Div. aff’d May 2013) (N.Y. leave to appeal granted Aug. 2013) (aff’d June 2014) (mot. for renewal & reargument denied Oct. 2014) + Cooperstown Holstein Corp. v. Town of Middlefield (N.Y. Sup. Ct., filed Sept. 2011) (ordinance upheld Feb. 2012) (N.Y. App. Div. aff’d May 2013) (N.Y. leave to appeal granted Aug. 2013) (aff’d June 2014) + Matter of Sierra Club v. Village of Painted Post (N.Y. Sup. Ct. Steuben Co., filed June 2012) + MarkWest Liberty Midstream & Resources, LLC v. Cecil Township (Pa. Commw. Ct., filed June 2012) + Colorado Oil and Gas Conservation Commission v. City of Longmont (Colo. Dist. Ct., filed July 2012) (stipulated dismissal Oct. 2014) + Jeffrey v. Ryan (N.Y. Sup. Ct. Oct. 2012) +

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Colo. Oil & Gas Ass’n v. Longmont (Colo. Dist. Ct., filed Dec. 2012) (plaintiffs’ mot. for summ. j. granted July 2014) (intervenors’ notice of appeal Sept. 2014)(stay order & bond order Oct. 2014); No. 14CA1759 (Colo. Ct. App. referred to Colo. Sup. Ct. Aug. 2015); Food and Water Watch v. TOP Operating Co., No. 15SC667 (Colo. petition for writ of certiorari granted Sept. 21, 2015) + State ex rel. Morrison v. Beck Energy Corp., 2013-Ohio-356 (Ohio. Ct. Comm. Pls. , inj. granted ) (Ohio Ct. App., rev’d Feb. 2013); No. 2013-0465 (Ohio aff’d Feb. 2015) + Lenape Resources, Inc. v. Town of Avon, Index No. 1060-2012 (N.Y. Sup. Ct. dismissed Mar. 2013); No. 14-00102 (N.Y. App. Div. dismissed as moot Oct. 2014) + Grafe-Kieklak v. Town of Sidney, Index No. 2013-602 (N.Y. Sup. Ct. Delaware Co. filed June 2013) + Protect Our Loveland, Inc. v. City of Loveland, Case No: 2013CV31142 (Colo. Dist. Ct.) (mot. for prelim. inj. Sept. 2013) + Beezley v. Broomfield, No. 2013CV30304 (Colo. Dist. Ct. Dec. 2013) + Colorado Oil & Gas Association v. City of Fort Collins, No. 2013CV031385 (Colo. Dist. Ct., filed Dec. 2013) (mot. to intervene Feb. 2014) (summ. j. for plaintiffs Aug. 2014); No. 14CA1991 (Colo. Ct. App. referred to Colo. Sup. Ct. Aug. 2015); No. 15SC668 (Colo. petition for writ of certiorari granted Sept. 2015) +

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Colorado Oil & Gas Association v. City of Lafayette, No. 2013CV031746 (Colo. Dist. Ct., filed Dec. 2013) (summ. j. for plaintiffs Aug. 2014) + Cave v. City & County of Broomfield, Colorado, No. 13CV303 13 (Colo. Dist. Ct. Feb. 2014) + Trinity East Energy, LLC v. City of Dallas, No. DC-14-01443 (Tex. Dist. Ct. filed Feb. 2014; am. pet. filed Apr. 2014) + Bass Energy, Inc. v. City of Broadview Heights, No. CV 14 828074 (Ohio Ct. Comm. Pleas, filed June 2014) + Western States Petroleum Association v. City of Compton, No. BC552272 (Cal. Super. Ct., filed July 2014) + Geokinetics USA, Inc. v. Center Township, No. 2:14-cv-00982 (W.D. Pa., filed July 2014) + MarkWest Liberty Midstream & Resources, LLC v. Cecil Township Zoning Hearing Board, No. 223 C.D. 2013 (Pa. Commw. Ct. judgment for def. rev’d Sept. 2014) +


Challenges to Municipal Actions 

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Pennsylvania General Energy Co., L.L.C. v. Grant Township, No. 14-cv-209 (W.D. Pa., filed Aug. 8, 2014) (plaintiffs’ motion for judgment on pleadings granted in part Oct. 2015) + Sovereign Operating Co. LLC v. City and County of Broomfield, Colorado, No. 2014CV30092 (Colo. Dist. Ct. summ. j. for plaintiffs Sept. 2014) + Arsenal Minerals and Royalty v. City of Denton, Texas, No. 14-07262-431 (Tex. Dist. Ct., filed Sept. 2014; amended pet. filed Sept. 2014); No. 4:14-cv00639-ALM (E.D. Tex., notice of removal Oct. 2014) (agreed motion to dismiss Mar. 2015) + Texas Oil & Gas Association v. City of Denton, No 14-08933-431 (Tex. Dist. Ct., filed Nov. 2014) (am. compl. June 2015) (agreed order of dismissal Sept. 2015) + Patterson v. City of Denton, No. D-1-GN-14-004628 (Tex. Dist. Ct., filed Nov. 2014) (transferred to Denton County), Bush v. City of Denton, No. 1502058-362 (Tex. Dist. Ct. agreed order of dismissal Sept. 2015) + Colorado Springs Citizens for Community Rights v. City of Colorado Springs, Colorado, No. 14CA1028 (Colo. Ct. App. opinion Aug. 2015) + Gorsline v. Board of Supervisors of Fairfield Township, No. 1735 C.D. 2014 (Pa. Commw. Ct. opinion Sept. 2015) + State ex rel. Walker v. Husted, No. 2015-1371 (Ohio, complaint for writ of mandamus filed Aug. 2015) (opinion Sept. 2015) +

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State ex rel. Youngstown v. Mahoning County Board of Elections, No. 2015-1422 (Ohio opinion Sept. 2015) + Matter of Sierra Club v. Village of Painted Post, No. 151 (N.Y. dismissal on standing grounds reversed Nov. 2015) +


Challenges to Agency Actions 

Summit Petroleum Corp. v. EPA, No. 09-4348/104572 (6th Cir., filed Nov. 2009/Dec. 2010) (EPA’s decision vacated Aug. 2012) +

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Environmental Working Group v. NYS Dep't of Envtl. Conservation (N.Y. Sup. Ct. Albany Co., filed Sept. 2012) +

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Mont. Envtl. Info. Ctr. v. BLM, No. 4:11-cv-00015(D. Mont., filed 2011) (motion for summary judgment granted June 2013) +

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Ctr. for Biological Diversity v. Cal. Dep't of Conservation (Cal. Super. Ct., filed Oct. 2012) (dismissed Jan. 2014) +

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Group Against Smog and Pollution v. Commonwealth of PA (Pa. Envtl. Hearing Bd., filed Apr. 2011) +

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Clean Air Council v. Commonwealth of PA (Pa. Envtl. Hearing Bd., filed May 2011) +

Ctr. for Biological Diversity v. Cal. Dep't of Conservation, No. RG13664534 (Cal. Super. Ct., filed Jan. 2013) +

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Western Energy Alliance v. Salazar, No. 10-cv-0226 (D. Wyo. June 2011) (app. dismissed 10th Cir. Mar. 2013) +

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Independent Petroleum Association of America v. EPA, No. 10-1233 (D.C. Cir., proposed settlement Feb. 2012) (joint motion for voluntary dismissal granted May 2012) +

Coalition for Responsible Growth and Resource Conservation v. Federal Energy Regulatory Commission, No. 12-566 (2d Cir., filed Feb. 2012) (dismissed June 2012) +

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Ozark Society v. U.S. Forest Service (E.D. Ark. Mar. 2012) +

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Powder River Basin Resource Council v. BLM, No. 1:12-cv-00996 (D.D.C. , filed June 2012) (defs.’ mot. for summ. j. granted Mar. 2014) +

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In re Bear Lake Properties (E.A.B. June 2012) +

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Impact Energy Resources v. Salazar (10th Cir. Sept. 2012) (cert. denied Oct. 7, 2013) +

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Minard Run Oil Co. v. U.S. Forest Service (plaintiffs’ motion for summary judgment granted W.D. Pa. Sept. 2012) (aff'd 3d Cir. Sept. 2013) +

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Ctr. for Biological Diversity, Notice of Intent to Sue (Sept. 2013) +

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Davis v. Bureau of Land Management, Case No. 1:13-cv-00971 (W.D. Mich. Sept. 2013) +

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Center for Biological Diversity, Request to Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement, Pacific Region, Regarding Offshore Hydraulic Fracturing (Oct. 2013) +

S. Utah Wilderness Alliance v. BLM, No. 13-cv00047 (D. Utah, filed Jan. 2013) (voluntary dismissal Feb. 2013) +

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WildEarth Guardians et al., Petition to Dep’t of the Interior & BLM Concerning Sage Grouse Habitat (Oct. 2013) +

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In re Stonehaven Energy Mgmt., LLC, UIC Appeal No. 12-02 (E.A.B. Mar. 2013) +

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WildEarth Guardians v. EPA, No. 13-1032 (D.C. Cir. Feb. 2013) (consolidated with No. 12-1309 under lead case Mississippi Comm’n on Envtl. Quality v. EPA May 2013) +

Hilcorp Energy Corp. v. Pennsylvania, EHB Docket No. 2013-155-SA-R (Pa. EHB, filed Aug. 2013) (dismissed Nov. 2013) +

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Wallach v. N.Y. State Dep’t of Envtl. Conservation, Index No. 6770-2013 (N.Y. Sup. Ct., filed Dec. 2013) (dismissed July 2014) +

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Chesapeake Appalachia, L.L.C. v. Department of Environmental Protection, No. 1570 C.D. 2013 (Pa. Commw. Ct. Apr. 2014) +

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Concerned Citizens of St. Tammany v. U.S. Army Corps of Eng’rs, No. 14-1118 (E.D. La., filed May 2014) (mot. to dismiss without prej. granted June 2014) +

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Sierra Club et al., Petition for Listing and Rulemaking Under Section 112 of the Clean Air Act to Establish an Area Source Category for Oil and Gas Production Wells and Associated Equipment and to Set National Emission Standards for Hazardous Air Pollutant Emissions (May 2014) +

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Ctr. for Biological Diversity v. BLM, No. 11-CV6174 (N.D. Cal., filed Dec. 2011) (order on motions for summary judgment Mar. 2013) (order granting joint mot. to stay) July 2014) (joint status report Oct. 2014) +

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In re West Bay Exploration Co., UIC App. Nos. 13-01 & 13-02 (E.A.B. Apr. 2013) +

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Ctr. for Biological Diversity v. Jewell, No. 13CV-1749 (N.D. Cal., filed Apr. 2013) (joint stip. of dismissal July 2014) +

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Manning v. Pa. Dep’t of Envtl. Protection, No. 2013-67 (Pa. Envtl. Hearing Bd., notice of appeal filed May 2013) +

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Matter of Encana Oil & Gas (USA) Inc., Case No. U-17195 (Mich. Pub. Serv. Comm’n June 28, 2013) +

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WildEarth Guardians v. United States Forest Service, No. 2:14-cv-00349-EJF (D. Utah, filed May 2014) +

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Center for Biological Diversity, Protest of BLM’s July 17, 2014 Oil and Gas Competitive Lease Sale and Environmental Assessment DOIBLM-NV-B000-2014-0001-EA (May 12, 2014) +

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Mosher v. Dan A. Hughes Co., L.P., Case No. 13004254 (Fla. Div’n of Admin. Hearings FDEP status report Apr. 2014; proposed orders May 2014) + Stedge v. Pennsylvania, No. 2014-042 (Pa. Envtl. Hearing Bd., appeal filed Apr. 28, 2014; am. notice of appeal filed May 2014) (adjudication & order Aug. 2015); Smithfield Township v. Pennsylvania, No. 2014-044 (Pa. Envtl. Hearing Bd. appeal filed Apr. 2014) (appeal withdrawn Sept. 2014) +

Joint Landowners Coalition of New York, Inc. v. Cuomo, Index No. 000843/2014 (N.Y. Sup. Ct., filed Feb. 2014) (dismissed July 2014) (notice of appeal July 2014) +



In re Endangered Species Act Section 4 Deadline Litigation, No. 10-mc-00377 (D.D.C., order approving extension for listing determination, May 2014; BLM Instruction Memorandum, May 2014) +

NO Gas Pipeline v. Federal Energy Regulatory Commission, Nos. 12-1470, 12-1474, 12-1475 (D.C. Cir. July 2014) +



Alabama-Coushatta Tribe of Texas v. United States, No. 13-40644 (5th Cir. July 2014) +



Athens County Fracking Action Network v. Ohio Department of Natural Resources, No. 14 CV 007132 (Ohio. Ct. Comm. Pleas, filed July 2014) +



In re Seneca Resources Corp., UIC Appeal Nos. 14-01, 14-02, & 14-03 (EAB May 2014) +



Defenders of Wildlife v. Jewell, No. 1:14-cv01025 (D.D.C., filed June 2014) +



Permian Basin Petroleum Association v. Department of the Interior, No. 7:14-cv-00050RAJ (W.D. Tex., filed June 2014) (rule vacated Sept. 2015) +



Reese River Basin Citizens Against Fracking, LLC v. Bureau of Land Management, No. 3:14cv-00338 (D. Nev., filed June 2014) (dismissed Sept. 2014) +



Oklahoma Independent Petroleum Association v. Department of the Interior, No. 4:14-cv00307-JHP-PJC (N.D. Okla., filed June 2014) +



LaCroix v. Snyder, No. C-200-0914 (Little Traverse Bay Bands of Odawa Indians Trib. Ct. dismissed Oct. 2014) +



St. Tammany Parish Council v. Welsh, No. C631370 (La. Dist. Ct., filed June 2014) (dismissed Apr. 2015) +



Del. Riverkeeper Network v. Pa. Dep’t of Envtl. Prot., No. 2014-101 (Pa. Envtl. Hearing Bd., filed July 2014; order Oct. 2014) +



Collier County v. Fla. Dep’t of Envtl. Prot., OGC File No. 14-0012 (Fla. Dep’t of Envtl. Prot., filed June 2014; FDEP letter to County Sept. 2014; stipulation Oct. 2014) +



Del. Riverkeeper Network v. Pa. Dep’t of Envtl. Prot., No. 2014-142-B (Pa. Envtl. Hearing Bd., filed Oct. 2014; 1st amended notice of appeal Nov. 2014) +



Lander County, Formal Administrative Protest (June 2014) +





South Fayette Township v. Commonwealth of Pennsylvania, No. 2014-071 (Pa. Envtl. Hearing Bd. May 2014) +

EQT Production Co. v. Department of Environmental Protection of Commonwealth of Pennsylvania, No. 485 MD 2014 (Pa. Commw. Ct., filed Sept. 2014) +



Town of Abita Springs v. U.S. Army Corps of Engineers, No. 15-451 (E.D. La., filed Feb. 12, 2015) +



Del. Riverkeeper Network v. FERC, No. 13-1015 (D.C. Cir. June 2014) +



Del. Riverkeeper Network v. Del. River Basin Comm’n, No. 10-cv-05639 (D.N.J., am. compl. Oct. 2011) (stip. of dismissal June 2014) +



In re Environmental Impact Statement Regarding the David Nisbit Quarry Conditional Use Permit Application to Extract Industrial Sand, No. A13–0745, A13–1198 (Minn. Ct. App. June 2014) +



In re Windfall Oil & Gas, Inc., appeal nos. 14-04 to 14-62 (EAB mot. for voluntary remand granted June 2014) +

Matter of U.S. Energy Development Corp. v. New York State Department of Environmental Conservation, No. 266 CA 13-01416 (N.Y. App. Div. June 2014) +



Schmude Oil, Inc. v. Department of Environmental Quality, No. 313475 (Mich. Ct. App. July 2014) +











In re Wind River Oil & Gas Permits, NPDES Appeal Nos. 15-02, 15-03, 15-04, 15-05 (EAB, Phoenix Production Co. petition for review filed Apr. 2015; Wesco Operating, Inc. summary petition filed Apr. 2015; NRDC petition for review filed Apr. 2015; PEER petition for review filed Apr. 2015) +



Citizens for Pennsylvania’s Future v. Pennsylvania, No. 2014-117-B (Pa. Envtl. Hearing Bd. opinion and order Sept. 2015) +



Morabito v. Martens, No. 3265-15 (N.Y. Sup. Ct., filed May 2015; am. pet. May 2015) (venue transfer Aug. 2015) +

Town of Abita Springs v. Welsh, No. 201415348 (La. Dist. Ct., filed Dec. 2014) (written reasons Apr. 2015) (judgment for def. May 2015) +



Osage Producers Association v. Jewell, No. 15cv-469 (N.D. Okla., filed Aug. 2015) +



Environmental Integrity Project et al., RCRA Notice of Intent to Sue (Aug. 2015) +



Barlow & Haun, Inc. v. United States, No. 08847L (Fed. Cl. dismissed Sept. 2014) (aff’d Oct. 2015) +

Center for Biological Diversity v. United States Bureau of Land Management, No. 2:15-cv-4378 (C.D. Cal., filed June 2015) +



Harvilchuck v. Department of Environmental Protection, No. 717 CD 2014 (Pa. Commw. Ct. dismissal rev’d June 2015) +



Kiskadden v. Pennsylvania, No. 2011-149-R (Pa. Envtl. Hearing Bd. permit upheld June 2015) +



Center for Biological Diversity v. California Department of Conservation, No. RG15769302 (Cal. Super. Ct. prelim. inj. denied July 2015) +



Center for Biological Diversity v. California Department of Conservation, No. __ (Cal. Super. Ct., filed July 2015) +



Environmental Defense Center v. Bureau of Safety and Environmental Enforcement, No. 2:14-cv-09281 (C.D. Cal. order denying protective order Aug. 2015) +



Town of Abita Springs v. Welsh, No. 637,209 (La. Dist. Ct., filed Feb. 2015) (permit vacated and remanded Aug. 2015) +



Diné Citizens Against Ruining Our Environment v. Jewell, No. 1:15-cv-00209 (D.N.M. memorandum opinion & order Aug. 14, 2015, memorandum opinion & order Sept. 16, 2015) +


Challenges to State and Federal Laws and Regulations 











State of New York v. United States Army Corps of Engineers, 11-CV-2599 (E.D.N.Y., filed May 2011) (dismissed Sept. 2012) + Delaware Riverkeeper Network v. United States Army Corps of Engineers, 11-CV-3780 (E.D.N.Y., filed Aug. 2011) (dismissed Sept. 2012) + Robinson Township v. Pennsylvania, 284-MD2012 (Pa. Commw. Ct., filed Mar. 2012) (prelim. inj. granted Apr. 2012) (decision overturning Act 31 issued July 2012) (inj. upheld Aug. 2012) (Pa. aff’d in part, rev’d in part Dec. 2013) (app. for reargument Jan. 2014) (Pa. denial of mot. to intervene aff’d Jan. 2014) (reargument denied Feb. 2014)(Pa. Commw. Ct. decision on remand July 2014) (PaPUC notice of appeal Aug. 2014) (PIOGA application for leave to intervene June 2015) (leave to intervene denied Aug. 2015) + Southwest Royalties, Inc. v. Combs (Tex. Dist. Ct. Travis Co. Apr. 2012) + Rodriguez v. Abruzzo, No. 3:12-cv-1458 (M.D. Pa., filed July 2012) (dismissed Oct. 2013) (mot. for reconsideration denied Jan. 2014) (am. compl. Jan. 2014) (dismissed June 2014) + Pa. Envtl. Def. Found. v. Commonwealth of Pennsylvania, No. 228 M.D. 2012 (Pa. Commw. Ct. , amended complaint filed Apr. 2012) (prelim. objections overruled Jan. 2013) (mem. & order re: application for special relief June 2014) (stipulation and order July 2014) (opinion Jan. 2015) +



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



American Petroleum Institute v. EPA, No. 121405/13-1108 (D.C. Cir., filed Oct. 2012) (Texas motion for voluntary dismissal granted Jan. 2013) (motion to sever and hold in abeyance granted Apr. 2013) + American Petroleum Institute v. EPA, No. 131289 (D.C. Cir., filed Nov. 2013; consolidated Dec. 2013; held in abeyance Dec. 2013) + Willmeng v. State of Colorado, No. 2014CV30718 (Colo. Dist. Ct., filed June 2014) + Matter of Title, Ballot Title, and Submission Clause, #85, #86, #87, #89, #90, #93, Nos. 14SA116, 14SA119, 14SA121, 14SA122, 14SA124, 14SA126 (Colo. June 30, 2014) + Delaware Riverkeeper Network v. Governor Corbett, No. 573 MD 2014 (Pa. Commw. Ct., filed Oct. 2014) + Wyoming v. United States Department of the Interior, No. 2:15-CV-043 (D. Wyo., filed Mar. 2015) (Colo. added as petitioner Apr. 2015) (N.D. added as intervenor-petitioner Apr. 2015) (envtl. groups motion to intervene as respondents granted June 2015) (Utah, Ute Indian Tribe added as intervenor-petitioners June 2015); Independent Petroleum Association of America v. Jewell, No. 2:15-cv00041 (D. Wyo., filed Mar. 2015) (effective date stayed June 2015) (prelim. inj. granted Sept. 30, 2015) + Smith v. Department of Natural Resources, No. 14-CH-711 (Ill. App. Ct. denial of prelim. inj. aff’d July 2015) +





Southern Ute Indian Tribe v. U.S. Department of the Interior, No. 15-cv-01303 (D. Colo., filed and TRO denied June 2015) (joint motion to stay Oct. 2015) (order administratively closing case Oct. 2015) + Pennsylvania Independent Oil & Gas Association v. Pennsylvania, No. 321 MD 2015 (Pa. Commw. Ct., filed June 2015) +


Oil and Gas Lease Disputes 

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

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Coastal Oil and Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008) + Alexander v. Chesapeake Appalachia LLC, 11-CV-0308 (N.D.N.Y., filed Mar. 18, 2011) (decision compelling arbitration Mar. 20, 2012) + Wiser v. Enervest Operating LLC, 10-CV-00794 (N.D.N.Y. March 22, 2011) + Jewett Sportsmen & Farmers Club, Inc. v. Chesapeake Exploration, LLC (Ohio Ct. Common Pleas Jan. 17, 2012) + Katzin v. Central Appalachia Petroleum, LLC (Pa. Super. Ct. Jan. 19, 2012) Chesapeake Appalachia LLC v. Golden, 883-cd-2011 (Pa. Commw. Ct. Jan. 26, 2012) + Aukema v. Chesapeake Appalachia, LLC, 11-CV-489 (N.D.N.Y. stay denied Mar. 2012) (partial summ. j. for plaintiff Nov. 2012) (2d Cir. appeal withdrawn Sept. 2013) + Koonce v. Chesapeake Exploration, LLC, 12-CV-0736 (N.D. Ohio, filed March 27, 2012) + McRoberts v. Chesapeake Energy Corp. (W.D. Pa., filed April 19, 2012) + Kalp v. WPX Energy Appalacia, LLC (W.D. Pa., filed May 16, 2012) + Sonda v. Chesapeake Appalacia, LLC (N.D. W. Vir., filed July 6, 2012) + Vodenichar v. Halcón Energy Properties Inc., No. 2:13-cv-00360 (W.D. Pa.) (motion to remand granted Apr. 4, 2013) (3d Cir. aff‘d on other grounds Aug. 16, 2013) +

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Caldwell v. Kriebel Resources Co., LLC, No. 1305 WDA 2012 (Pa. Super. Ct. June 2013) (Pa., No. 372 WAL 2013, pet. for appeal denied Nov. 2013) + Henry v. Chesapeake Appalachia, L.L.C., No. 124090 (6th Cir. Jan. 2014) + Lewis v. EnerQuest Oil and Gas, LLC, No. 12-CV1067 (W.D. Ark. Jan. 2014) + EQT Production Co. v. Opatkiewicz, No. GD 13013489 (Pa. Ct. Comm. Pl., filed July 2013) (inj. ordered Dec. 26, 2013) (opinion Jan. 6, 2014) (reconsideration granted Jan. 10, 2014) (hearing Feb. 7, 2014) (plaintiff’s mot. for partial j. on pleadings granted Apr. 2014) + Springer Ranch, Ltd. v. Jones, No. 04-12-00554-CV (Tex. Ct. App. Dec. 2013) + Southwestern Energy Production Co. v. Forest Resources, LLC, 2013 PA Super 307 (Pa. Super. Ct. Nov. 2013) (rearg. denied Feb. 2014) + BP America Production Co. v. Zaffirini, No. 04-1100550-CV (Tex. Ct. App. Aug. 2013) (reconsideration & reh’g denied Nov. 2013) + Community Bank of Raymore v. Chesapeake Exploration, L.L.C., No. 08-12-00025-CV (Tex. Ct. App. Nov. 2013) (reh’g denied Jan. 2014) + Liggett v. Chesapeake Exploration, L.L.C., 5:12CV2389 (N.D. Ohio Oct. 2013) + Wiley v. Triad Hunter LLC, No. 2:12-cv-00605 (S.D. Ohio, filed June 2012) (Sept. 27, 2013) +

continued on next page return to first page

Oil and Gas Lease Disputes •

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Stewart v. Chesapeake Exploration, L.L.C., Nos. 12-4457; 12-4466; 12-4517; 13-3021 (6th Cir. Oct. 2013) + Amarado Oil Co., Ltd. v. Davis, No. 5:12cv627 (N.D. Ohio Sept. 17, 2013) + Demchak Partners L.P. v. Chesapeake Appalachia, L.L.C., No. 3:13-cv-02289 M.D. Pa., filed Aug. 2013) (proposed settlement Aug. 2013) (order granting prelim. approval Sept. 2013) (mot. to intervene Sept. 2013) (mot. to enjoin arbitration Oct. 2013) + Brown v. Chesapeake Appalachia, LLC, No. 5:12CV71 (N.D. W. Va. Aug. 2013) + Humberston v. Chevron U.S.A., Inc., No. 1270 WDA 2012 (Pa. Super. Ct. Aug. 2013) + Sorenson v. Burlington Resources Oil & Gas Co., L.P. (N.D. Dist. Ct., filed Oct. 2013); No. 4:13-cv-00132-DLH-CSM (D.N.D., removed Nov. 2013; first amended compl. Jan. 2014; mot. to dismiss Feb. 2014) (dismissed May 2014) (notice of appeal June 2014) + City of Fort Worth v. Chesapeake Operating, Inc., No. 048 268798 13 (Tex. Dist. Ct. filed Oct. 17, 2013) + Conglomerate Gas II L.P. v. Chesapeake Operating, Inc., No. 096 269136 13 (Tex. Dist. Ct., filed Nov. 8, 2013) +

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•

•

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•

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French v. Occidental Permian Ltd. (Tex. Ct. App. judgment for defs. Oct. 2012); No. 121002 (Tex. pet. for review granted Jan. 2014) (aff’d June 2014) + Neuhard v. Range Resources–Appalachia, LLC, No. 4:11-cv-01989 (E.D. Pa. Apr. 3, 2014) + Fort Worth Housing Finance Corp. v. Chesapeake Energy Corp., No. 352-27213814 (Tex. Dist. Ct., filed May 2014) + Star-Telegram, Inc. v. Chesapeake Exploration LLC, No. 096-272142-14 (Tex. Dist. Ct., filed May 2014) + Fort Worth Independent School District v. Chesapeake Energy Corp., No. 236-27213614 (Tex. Dist. Ct. May 2014) + Key Operating & Equipment, Inc. v. Hegar, No. 33,968 (Tex. Dist. Ct., filed Dec. 2007) (inj. issued); No. 01-10-00350-CV (Tex. Ct. App. rev’d trial court Oct. 2011) (op. withdrawn on reh’g Jan. 2013); No. 13-0156 (Tex. pet. for review granted Dec. 2013) (oral argument Feb. 2014) (rev’d June 2014) + Eastham v. Chesapeake Appalachia, L.L.C., No. 13-4233 (6th Cir. June 2014) + Cole v. EV Properties, L.P., No. 13-3677 (6th Cir. Apr. 2014) + Suessenbach Family Limited Partnership v. Access Midstream Partners, L.P., No. 3:14cv-01197-MEM (M.D. Pa, filed June 2014) +

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•

•

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•

•

•

•

Novy v. Woolsey Energy Corp., No. 110,599 (Kan. Ct. App. June 2014; published version filed Sept. 2014) + Nolt v. TS Calkins & Associate., LP, No. 1214 MDA 2013 (Pa. Super. Ct. July 2014) + Apache Deepwater, LLC v. McDaniel Partners, Ltd., No. 14-0546 (Tex. petition for review filed, July 2014) + Harrison v. Cabot Oil & Gas Corp., No. 61 MM 2014 (Pa. July 2014) + Golden Eye Resources, LLC v. Ganske, No. 20130219 (N.D. Sept. 2014) + Barber v. Magnum Land Services, LLC, Nos. 1:13-cv-33 to 1:13-cv-100, 1:13-cv-113 to 1:13-cv-115 (N.D. W. Va. Oct. 2014) + Hupp v. Beck Energy Corp., 12 MO 6, 13 MO 2, 13 MO 3, 13 MO 11 (Ohio Ct. App. Sept. 2014) + Beardslee v. Inflection Energy, LLC, No. 3:12–CV–00242 (N.D.N.Y. summ. j. for plaintiffs Nov. 2012); No. 12‐4897‐cv (2d Cir. questions certified July 2014); (N.Y. certified questions accepted Aug. 2014); No. 44 (N.Y. ruling on certified questions Mar. 2015) (2d Cir. summ. j. aff’d Aug. 2015) +


Oil and Gas Lease Disputes •

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•

•

•

•

•

•

•

Eagle Energy Production, L.L.C. v. Corporation Commission of the State of Oklahoma, No. 112,165 (Okla. Civ. App. order aff’d Dec. 2014) + Cox v. Kimble dba Red Hill Development, No. 13 CA 32 (Ohio Ct. App. ruling for lessor aff’d Feb. 2015) + Dodd v. Croskey, No. 2013-1730 (Ohio opinion June 2015) + Chesapeake Exploration, L.L.C. v. Hyder, No. 14-0302 (Tex. opinion June 2015) + Looney v. Chesapeake Energy Corp., No. 2:15-cv-2108 (W.D. Ark., filed June 2015) + Mason v. Range Resources–Appalachia LLC, No. 12-cv-369 (W.D. Pa. judgment for defs. July 2015) + May v. BHP Billiton Petroleum (Fayetteville) LLC, No. 4:13-cv-494 (E.D. Ark. summ. j. for def. July 2015) + Trinity Valley School v. Chesapeake Operating, Inc., No. 3:13-cv-01082-K (N.D. Tex. pre-trial ruling Aug. 2015) + ConocoPhillips Co. v. Vaquillas Unproven Minerals, Ltd., No. 04-1500066-CV (Tex. Ct. App. partial summ. j. for lessor aff’d Aug. 2015) + Titan Operating, LLC v. Marsden, No. 02-14-00303-CV (Tex. Ct. App. judgment for plaintiffs rev’d Aug. 2015) +

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•

•

•

Seneca Resources Corp. v. S & T Bank, No. 2057 WDA 2014 (Pa. Super. Ct. judgment for lessee aff’d Aug. 2015) + Norberg v. Cottonwood Natural Resources, LTD., No. 8:15CV71 (D. Neb. dismissed Sept. 2015) + Brown v. Access Midstream Partners, L.P., No. 3:14-0591 (M.D. Pa. motion to dismiss denied Sept. 2015) + SWN Production Co. v. Edge, No. 5:15cv-00108 (N.D. W. Va. prelim. inj. granted Sept. 2015) +


Other Land Use and Property Rights Disputes 

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Butler v. Charles Power Estate (Pa. Super. Ct. Sept. 2011) (Pa. Apr. 2013) + Crawford v. TransCanada (Tex. Dist. Ct. Lamar Co. Aug. 2012) + Auth v. Marco Drilling Inc., 1674 WDA 2011 (Pa. Super. Ct. Mar. 2013) + Cain v. XTO Energy Inc., No. 1:11-cv-111 (W. Va. Cir. Ct., filed June 2011) (removed to N.D. W. Va. July 2011) (certification motion granted Mar. 2013) + Stone v. Chesapeake Appalachia, LLC, No. 5:12cv-00102 (W. Va. Cir. Ct., filed June 2012) (removed to N.D. W. Va. July 2012) (motion for summary judgment denied Apr. 2013) + Vavala v. Hall, No. 1147 WDA 2011 (Pa. Super. Ct. May 2013) + In re Cent. N.Y. Oil & Gas Co., LLC, No. 515347 (N.Y. App. Div. June 2013) + Rolla v. Tank, No. 20130035 (N.D. Oct. 2013) + Reep v. North Dakota, Nos. 20130110 & 20130111 (N.D. Dec. 2013) + Chesapeake Exploration v. Buell, No. 2:12-cv-916 (S.D. Ohio Jan. 2014) + Wellington Resource Group LLC v. Beck Energy Corp., No. 2:12-CV-104 (S.D. Ohio Sept. 2013) + Herder Spring Hunting Club v. Keller, No. 718 MDA 2013 (Pa. Super. Ct. May 2014) +













Fayviard, LLC v. UGI Storage Co., No. 4:13-cv02400 (M.D. Pa. June 2014) + Sabella v. Appalachian Development Corp., No. 722 WDA 2013 (Pa. Super. Ct. Oct. 2014) + Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Seneca Resources Corp., No. 89 M.D. 2013 (Pa. Commw. Ct. Oct. 2014) + Lightning Oil Co. v. Anadarko E&P Onshore LLC, No. 04-14-00903-CV (Tex. Ct. App. summ. j. for def. aff’d Aug. 2015) + Pfeifer v. Westmoreland County Tax Claim Bureau, No. 1346 C.D. 2014 (Pa. Commw. Ct. dismissal aff’d Sept. 2015) + Wright v. Misty Mountain Farm, LLC, No. 1658 MDA 2014 (Pa. Super. Ct. summ. j. for defs. aff’d Oct. 2015) +


Defamation and SLAPP Suits 





Duck Creek Energy, Inc. v. O’Dell (Ohio Ct. Common Pleas, filed Mar. 2012) (counterclaim filed Mar. 2012) + Lipsky v. Range Resources Corp., CV11-0798 (Tex. Dist. Ct., filed June 2011) (counterclaim filed July 2011) (dismissed Jan. 2012) (mot. to dismiss counterclaims denied June 2012) (appeal of denial of mot. to dismiss counterclaims dismissed Aug. 2012); No. 02-12-00348-CV (Tex. Ct. App. writ of mandamus issued Apr. 2013) (reh’g and en banc reconsideration denied Oct. 2013); No. 13-0928 (Tex. Lipsky pet. for writ of mandamus Nov. 2013; Range Resources pet. Dec. 2013) (opinion Apr. 2015) + Cabot Oil & Gas Corp. v. Scroggins, No. 20131303 (Pa. Ct. Comm. Pl. Mar. 2014) +


Suits Against Project Opponents 

Dewey Homes and Investment Properties, LLC v. Delaware Riverkeeper Network, No. 2015-10393 (Pa. CCP, filed May 2015) (dismissed Sept. 2015) (amended complaint filed Oct. 2015) +


Freedom of Information Lawsuits 

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



Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission (Wyo. Dist. Ct., filed Mar. 2012) (agency determination aff’d Mar. 2013) (notice of appeal Apr. 2013) (Wyo. oral argument Nov. 2013) (Wyo., No. S-13-0120, rev’d Mar. 2014) + Sierra Club v. Ohio Dep't of Natural Resources (Ohio Ct. Common Pleas, filed Apr. 2012) + Pa. Dep't of Envtl. Prot. v. Legere (Pa. Commw. Ct. July 2012) + Hallowich v. Range Resources Corp., No. 20103954 (Pa. Ct. Com. Pl. Mar. 20, 2013) + Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior, No. 12-cv-01661 (D. Colo., filed June 2012) (plaintiff’s motion for summary judgment granted Feb. 2013) (motion to intervene denied Apr. 2013) + Heavens v. Pa. Dep’t of Envtl. Prot., 912 CD 2012 (Pa. Commw. Ct. Apr. 2013) + Ohio ex rel. Bott Law Group, LLC v. Ohio Department of Natural Resources, No. 12AP-448 (Ohio Ct. App. Nov. 2013) + Athens County Fracking Action Network v. Department of Natural Resources, No. 14-AP000217 (Ohio Ct. App. June 2014) + Bell v. Pennsylvania Department of Environmental Protection, No. AP 2014-0880 (Pa. Office of Open Records July 2014) +





Vitali v. Pennsylvania Office of the Governor, No. AP 2014-0903 (Pa. Office of Open Records Oct. 2014) + Harper v. Department of the Army, Huntington District, Corps of Engineers, No. 2:14-cv-986 (S.D. Ohio summ. j. for def. Aug. 2015) +


Contract Disputes 

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





Minerals Development & Supply Co. v. Hunton & Williams, LLP (7th Cir. Apr. 2012) + GMX Resources Inc. v. Oneok Rockies Midstream, L.L.C., 5:13-ap-01111 (Bankr. W.D. Okla., filed Nov. 2013) + Mifflin Energy Corp. v. Chevron Appalachia LLC, G.D. No. 10-007408 (Pa. Ct. Comm. Pleas May 21, 2014) (notice of appeal, May 28, 2014) + Eagle Oil & Gas Co. v. Travelers Property Casualty Co. of America, No. 7:12-cv-00133-O (N.D. Tex. July 2014; jury verdict Aug. 2014; final judgment Aug. 2014; mot. for new trial & renewed mot. for JMOL & reconsideration of partial summ. j. rulings Sept. 2014) + Warren Drilling Co., Inc. v. Equitable Production Co., No. 2:12-cv-00425 (S.D. Ohio summ. j. for plaintiffs Apr. 2014; mot. for reconsideration granted in part, denied in part Aug. 2014; motion for stay granted in part, denied in part Oct. 2014); Nos. 14-3872, 14-3931 (6th Cir. aff’d July 2015) + St. Paul Fire & Marine Insurance Co. v. Petroplex Energy, Inc., No. 11-13-00104-CV (Tex. Ct. App. partial summ. j. for policyholder aff’d Aug. 2015) +


Constitutional Claims 

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Gas Drilling Awareness Coalition v. Powers (M.D. Pa. Apr. 2012) + NRDC v. Town of Sanford, N.Y., No. 3:13-CV-163 (N.D.N.Y., filed Feb. 2013) (stipulation of dismissal Apr. 2013) + Trail Enterprises, Inc. d/b/a Wilson Oil Co. v. City of Houston, No. 12-0906 (Tex. Oct. 2013); No. 131374 (U.S. pet. for cert. May 2014) (cert. denied Oct. 2014) + Pollard v. Quinn, No. __ (Ill. Cir. Ct., filed Oct. 17, 2014) + Gawenis v. Arkansas Oil & Gas Commission, No. CV-14-648 (Ark. opinion May 2015) + Kerns v. Chesapeake Exploration, L.L.C., No 1:15cv-346 (N.D. Ohio, filed Feb. 2015) (second am. compl. filed Apr. 2015) (dismissed Sept. 2015) + Lang v. Town of Tusten, N.Y., No. 14-cv-4136 (S.D.N.Y. decision on mot. to dismiss Aug. 2015) +


Other Disputes Antitrust  Cherry Canyon Resources, L.P. v. Halliburton, No. 2:13cv-00238 (S.D. Tex., filed July 2013) +  Star Insurance Company v. Bear Productions, Inc., No. CIV-12-149-RAW (E.D. Okla. summ. j. for plaintiff Oct. 2013) +


Ginardi v. Frontier Gas Services, LLC Name and Date

Description

Plaintiffs filed a class action on behalf of all residents Ginardi v. Frontier Gas Services, LLC, No. 11-CV-0420 within one mile of any natural gas compressor or (E.D. Ark., filed May 17, 2011) transmission station owned by defendants. The complaint alleges that defendants’ operations pollute nearby groundwater and soil. The complaint alleges causes of action for strict liability, nuisance, trespass, and negligence.

The court denied plaintiffs’ motion for class Ginardi v. Frontier Gas Services, LLC, No. 11-CV-0420 certification. (E.D. Ark. Apr. 19, 2012)

Tucker v. Southwestern Energy Co. Berry v. Southwestern Energy Co. Name and Date

Description

Tucker v. Southwestern Energy Co., 11-CV-0044 (E.D. Ark., filed May 17, 2011) Berry v. Southwestern Energy Co., 11CV-0045 (E.D. Ark., filed May 17, 2011)

Two class actions were filed on behalf of all residents living within three miles of any bore holes, wellheads, or other gas operations by defendant company. The cases were consolidated on July 22, 2011. Plaintiffs allege that their water wells and groundwater are contaminated with alpha methyl styrene or have emitted methane and hydrogen sulfide. The complaint alleges causes of action for strict liability, nuisance, trespass, and negligence.

Tucker v. Southwestern Energy Co., 11-CV-0044 (E.D. Ark. Feb. 17, 2012) Berry v. Southwestern Energy Co., 11CV-0045 (E.D. Ark. Feb. 17, 2012)

The court granted the defendants’ motion for a more definite statement, holding that the plaintiffs must plead facts to give the companies adequate notice of what and how each driller supposedly harmed them.

Tucker v. Southwestern Energy Co., 11-CV-0044 (E.D. Ark. Aug. 29, 2012) Berry v. Southwestern Energy Co., 11CV-0045 (E.D. Ark. Aug. 29, 2012)

After the parties reached a settlement, the court issued a judgment dismissing claims against defendants Chesapeake Energy, BHP Billiton Petroleum (Fayetteville), and Southwestern Energy with prejudice. Claims against XTO Energy were dismissed without prejudice.

Evenson v. Antero Resources Corp. Name and Date

Description

Evenson v. Antero Resources Corp., No. 2011-CV-5118 (Denver Co. Dist. Ct., filed July 20, 2011)

Several families residing in Garfield County, Colorado, filed a lawsuit alleging that drilling and exploration activities of defendant company exposed their properties to hazardous gases, chemicals, and industrial wastes. Plaintiffs are seeking class action status. The complaint includes causes of action for negligence and medical monitoring, among others.

Evenson v. Antero Resources Corp., (Denver Co. Dist. Ct. Aug. 17, 2012)

The state district court granted defendant’s motion to dismiss, holding that it lacked jurisdiction over plaintiffs’ claims. In particular, the court held that it could not enjoin the issuance of a drilling permit given that state law provided statutory mechanisms for seeking judicial review of such permits. In addition, the court held that the claims were not ripe because they were dependant on defendant seeking and being granted permits, which had not yet occurred.

Strudley v. Antero Resources Corp. Name and Date

Description

Strudley v. Antero Resources Corp., No. 2011-CV-22 (Denver Co. Dist. Ct., filed March 23, 2011)

Plaintiffs sued several companies that operated several natural gas wells in Garfield County, Colorado within one mile of plaintiffs’ property, alleging that the companies contaminated their well with several harmful chemicals, including hydrogen sulfide, hexane, n-heptane, toluene, propane, isobutene, and others. The complaint includes causes of action for negligence per se, common law negligence, nuisance, strict liability, trespass, and medical monitoring. On July 20, 2011, the court dismissed the negligence per se claim against one of the defendants, finding that it was not an operator or owner of the wells in question.

Strudley v. Antero Resources Corp., No. 2011-CV-22 (Denver Co. Dist. Ct. May 9, 2012)

The court granted the defendants’ motion to dismiss, holding that the plaintiffs failed to make a prima facie showing that they had been exposed to the chemicals alleged and that the chemicals caused their injuries. Previously, the court had issued a so-called “Lone Pine order,” which required plaintiffs, prior to discovery, to detail their alleged injuries and damages and show at least minimal evidence of causation.

Strudley v. Antero Resources Corp., No. 12CA1251 (Colo. Ct. App. July 3, 2013).

The Colorado Court of Appeals reversed, holding that Lone Pine orders are not permitted as a matter of Colorado law. The court cited two Colorado Supreme Court decisions disfavoring requirements that plaintiffs provide prima facie evidence of their claims prior to discovery and found that recent amendments to the Colorado Rules of Civil Procedure (CRCP) were not “so substantial as to effectively overrule” these decisions. The court further held that even if the CRCP amendments did overrule the Supreme Court decisions, a Lone Pine order would not be called for in this particular case, which was neither a mass tort case nor as complex as cases in which Lone Pine orders were issued in other jurisdictions. Continued on next page

Strudley v. Antero Resources Corp. Name and Date

Description

Strudley v. Antero Resources Corp., Case No. 2013SC576 (Colo. Aug. 29, 2013)

Defendants filed a petition for writ of certiorari in the Colorado Supreme Court.

Antero Resources Corp. v. Strudley, Case No. 2013SC576 (Colo. Apr. 7, 2014) Antero Resources Corp. v. Strudley, No. 13SC576 (Colo. Apr. 20, 2015)

The Colorado Supreme Court granted the certiorari petition.

The Colorado Supreme Court held that Colorado’s Rules of Civil Procedures did not permit trial courts to require plaintiffs to present prima facie evidence in support of their claims prior to discovery. The court said that case management orders requiring plaintiffs to do so—known as Lone Pine orders—would force dismissal before affording plaintiffs the opportunity to establish the theirs of their cases. The court noted that no statute, rule, or Colorado case recognized authority for Lone Pine orders. One justice dissented, saying that he would have held that the Rules of Civil Procedure authorized Lone Pine orders, even if the rules did not do so explicitly.

Baker v. Anschutz Exploration Corp. Name and Date

Description

Baker v. Anschutz Exploration Corp., No. 11-CV-6119 (W.D.N.Y., filed Mar. 9, 2011)

Fifteen landowners in Chemung County, New York filed a lawsuit against several related companies alleging that they were negligent in drilling and operating their natural gas wells such that combustible gas was released into plaintiffs’ wells and groundwater, and toxic sediments and industrial waste were discharged into the soil and water near plaintiffs’ homes. The complaint alleges causes of action for negligence per se, common law negligence, nuisance, strict liability, trespass, and medical monitoring. The case was originally filed in state court (Baker v. Anschutz Exploration Corp. Index No. 111168 (Sup. Ct. Chemung Co., filed Feb. 11, 2011)) before being removed to federal court.

Baker v. Anschutz Exploration Corp., No. 11-CV-6119 (W.D.N.Y. June 14, 2013)

The court “so ordered” a stipulation and order between plaintiffs and defendant Conrad Geoscience Corp. dismissing all claims against Conrad with prejudice.

Baker v. Anschutz Exploration Corp., No. 11-CV-6119 (W.D.N.Y. June 27, 2013)

The court denied defendants’ motion to strike plaintiffs’ expert reports for failure to comply with the court’s Lone Pine order, which had required plaintiffs to present certain prima facie evidence to support their claims. Though conceding that the expert reports were “far from models of clarity,” the court rejected defendants’ contention that the reports failed to comply with the court’s order to identify specific hazardous substances to which plaintiffs claimed exposure and to provide an explanation of causation. In the same decision and order, the court denied plaintiffs’ motion to remand the proceeding to state court since, in light of the dismissal of Conrad Geoscience Corp. from the case, plaintiffs no longer had a basis for arguing that a lack of diversity compelled remand.

Maring v. Nalbone Name and Date

Description

Maring v. Nalbone, Index No. K12009001499 (N.Y. Sup. Ct. Chautauqua Co., filed August 27, 2009)

Plaintiff alleges that defendants, oil and gas companies, have contaminated her water well with methane gas, making it unfit to drink. The complaint alleges causes of action for trespass, nuisance, and negligence and seeks damages for $250,000.

Berish v. Southwestern Energy Production Co. Name and Date

Description

Berish v. Southwestern Energy Production Co., 10-CV1981 (M.D. Pa., filed Sept. 29, 2010)

13 families in Susquehanna County, Pennsylvania, filed suit in state court (Berish v. Southwestern Energy Production Co., No. 10-1882 (Pa. Ct. Com. Pl., filed Sept. 14, 2010)). The lawsuit was removed to federal court on Sept. 29, 2010. The complaint alleges that beginning in 2008, fracking in close proximity to plaintiffs’ wells caused them to become contaminated. The complaint also alleges that the companies’ natural gas well was improperly cased, allowing contaminants to migrate to plaintiffs’ wells. The complaint includes causes of action for negligence per se, common law negligence, strict liability, medical monitoring, a violation of the Pennsylvania Hazardous Sites Cleanup Act.

Berish v. Southwestern Energy Production Co., 10-CV1981 (M.D. Pa. Feb. 3, 2011)

The court dismissed a claim for damages for emotional distress as to all but one plaintiff, but declined to dismiss a claim for strict liability, holding that it would wait until after discovery to determine whether defendant’s actions met this standard.

Berish v. Southwestern Energy Production Co., 10-CV1981 (M.D. Pa. May 3, 2012)

The court allowed plaintiffs leave to file an amended complaint to add four defendants (Halliburton Energy Services, Inc., BJ Services Co., Schlumberger Ltd., and Union Drilling, Inc.) that participated in the drilling and installation of the well in question.

Dillon v. Antero Resources Beca v. Antero Resources Name and Date

Dillon v. Antero Resources, 11-CV-1038 (W.D. Pa., filed Aug. 11, 2011); Beca v. Antero Resources, 11-CV-1040 (W.D. Pa., filed Aug. 12, 2011)

Description

Related lawsuits were filed by two families against defendant company in July 2011. The cases were removed to federal court in August 2011. The complaints allege that in early 2010, the company began drilling on property within 400-600 feet of plaintiffs’ well water supplies and that these activities contaminated their groundwater. The complaints include causes of action for negligence, strict liability, and trespass.

Ely v. Cabot Oil & Gas Corp. Name and Date

Description

Fiorentino v. Cabot Oil & Gas Corp., No. 09-CV-2284 (M.D. Pa., filed Nov. 19, 2009)

19 families in Susquehanna County sued defendant company for violations of state and common law. Among other things, plaintiffs allege that the company released combustible gas into plaintiffs’ wells, caused elevated levels of dissolved methane in the wells, and caused three significant spills in a 10-day period. The state law at issue is the Pennsylvania Hazardous Sites Cleanup Act (HSCA).

Fiorentino v. Cabot Oil & Gas Corp., No. 09-CV-2284 (M.D. Pa. Nov. 15, 2010)

Defendants moved to dismiss or, in the alternative, to strike certain claims. The court denied the motion, holding that plaintiffs sufficiently alleged a claim for response costs under HSCA as well as claims for medical monitoring and punitive damages. The court did dismiss a claim for gross negligence given that it was not recognized under Pennsylvania law.

Fiorentino v. Cabot Oil & Gas Corp., No. 09-CV-2284 (M.D. Pa. settled Aug. 16, 2012; joint stipulation filed Sept. 12, 2012)

Defendants and a number of the plaintiffs signed a confidential settlement and filed a joint stipulation of dismissal.

Continued on next page


Description

Ely v. Cabot Oil & Gas Corp., No. 09-CV-2284 (M.D. Pa. order on motion for summary judgment, Apr. 23, 2014; report and recommendation, Jan. 9, 2014)

The court granted summary judgment to defendants on plaintiffs’ strict liability claims. The court adopted in full the magistrate judge’s report and recommendation, which found that plaintiffs had failed to “substantiate their contention that the natural gas drilling activities, including hydraulic fracturing at issue in this case, are so inherently dangerous that they should be deemed ultrahazardous activities subject to strict liability.” The magistrate judge therefore recommended that the court decline to become the first jurisdiction to conclude that natural gas drilling is an abnormally dangerous activity.

Ely v. Cabot Oil & Gas Corp., No. 09-CV-2284 (M.D. Pa. May 22, 2014)

The magistrate judge issued a report and recommendation that recommended granting defendants’ motion to sanction plaintiffs’ former lawyer. Defendants alleged that the attorney had engaged in impermissible ghostwriting and other behind-the-scenes assistance to plaintiffs. Defendants pointed to metadata in plaintiffs’ court filings that indicated that the lawyer had drafted the documents. The magistrate judge noted that many courts have found ghostwriting to be a “surreptitious practice … antithetical to the duty of candor owed to a tribunal,” and that “[t]hese concerns are heightened when a pro se party who is secretly receiving counseled assistance, seeks the leniency of the court citing his pro se status.” The court also noted, however, that the Middle District of Pennsylvania had not prohibited ghostwriting, and that many bar associations had said that the practice was permissible. The court therefore did not base its decision that sanctions were warranted on the attorney’s ghostwriting. Instead, the magistrate judge said that given the unique factual context, the attorney’s conduct “fell short of the standards of candor” expected by the court in ways that were potentially prejudicial to many parties. As an example, the court noted that the attorney had assisted in the preparation of papers in which plaintiffs argued that they should receive special leniency due to their pro se status. The court also criticized the attorney for involving an unwitting junior lawyer in unethical conduct. The magistrate judge recommended that the court reprimand the senior attorney and order her to bear the junior lawyer’s defense expenses.



Description

Ely v. Cabot Oil & Gas Corp., No. 3:09-CV-2284 (M.D. Pa. July 21, 2014)

The district court imposed sanctions on an attorney who had formerly represented plaintiffs and who continued to ghostwrite and provide other legal assistance to plaintiffs after her representation ended even though plaintiffs represented to the court that they were pro se. The court agreed with the magistrate judge’s report and recommendation that the ghostwritten submissions should not be struck from the record and that, given the “evolving” rules of ethics regarding ghostwriting, the court would not ground its sanctions order on the attorney’s ghostwriting of submissions. Instead, the court cited the attorney’s “unprofessional and dishonest behavior towards the Court and her adversaries,” and in particular her “knowingly false statements” to the court that the plaintiffs were pro se. The court said her statements “not only violate the duty of candor, but they are breathtakingly brazen and cannot be lightly excused.” The court declined to impose sanctions on a more junior attorney who had “minimal contact with the matter.” The court, however, also declined to follow the magistrate judge’s recommendation that the more senior attorney be required to pay the junior attorney’s legal fees. The court said the junior attorney “should have had the wherewithal to understand that she was being led down a perilous road” and that she would have to bear the legal costs “as the wages of her improvident association” with the more senior lawyer. The court ordered the senior attorney to complete five hours of ethicsbased continuing legal education. The senior attorney filed a notice of appeal on August 1, 2014.



Description

Ely v. Cabot Oil & Gas Corp., No. 3:09-CV-2284 (M.D. Pa. order July 22, 2014; report & recommendation Mar. 6, 2014)

The court granted defendants’ motion for summary judgment against one of the remaining plaintiffs, Nolen Scott Ely as Executor of the Estate of Kenneth R. Ely (the Estate). The Estate sought only damages for ground contamination and unpaid royalties. The court adopted the report and recommendation of the magistrate judge, which concluded that the Estate had not provided support for its claims of breach of contract, fraudulent inducement, private nuisance, negligence and negligence per se, and violations of the Pennsylvania Hazardous Sites Cleanup Act. The court indicated that discovery, “although extensive,” had not produced probative evidence of ground contamination at the Estate’s 183acre property, and that “[n]early the entire thrust” of the plaintiffs’ consolidated brief had related to claims by other plaintiffs. On August 21, 2014, the Estate filed a notice of appeal.


After representatives decedent-plaintiffs Jeanette Carter and Todd Carter reached a settlement with defendants, the court terminated the Carters as parties to the action.



Description


In March 2014, the magistrate judge recommended dismissal of all Hubert family claims except for their private nuisance claim. The district court adopted this recommendation in July 2014. The “primary thrust” of the Huberts’ claims was that defendants’ drilling activities contaminated their water supply. The magistrate judge has also issued a report and recommendation advising the court to dismiss all but the private nuisance and negligence claims for another family (the Elys). As of November 11, 2014, the district court had not yet acted on this recommendations.

Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284 (M.D. Pa. July 24, 2015)

The court denied the remaining plaintiffs’ motion to amend their complaint to add the words “inconvenience and discomfort” to the description of damages they sought. The court found that this amendment was unnecessary, since the substance of damages for discomfort and inconvenience was “embodied” within the plaintiffs’ claims for damages related to their “use and enjoyment” of property and “loss of quality of life” on their property.

Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284 (M.D. Pa. Oct. 21, 2015)

On October 21, the court issued an order clarifying its denial in July 2015 of the plaintiffs’ motion to add the words “inconvenience and discomfort” to the ad damnum clause of their complaint. The court noted that the plaintiffs’ personal injury claims remained dismissed, and recited the portion of its July decision that discussed why the court did not find it necessary for the plaintiffs to explicitly seek damages for “inconvenience and discomfort” since such damages are so closely related to damages already sought for loss of use and enjoyment of real property. The court said that its decisions should not be construed to define the scope of the plaintiffs’ testimony.



Description

Ely v. Cabot Oil & Gas Corp., No. 3:09-cv-02284 (M.D. Pa. Oct. 26, 2015

The court granted in part the plaintiffs’ motion for leave to take a deposition of a non-testifying expert who had previously been designated by the defendant as a testifying expert. The court said that the plaintiffs could depose the witness, who is an expert in water treatment systems, despite the fact that the defendants do not intend to use him as a witness at trial. The court found that plaintiffs had demonstrated that exceptional circumstances justified a limited exception to the general rule that parties may not take depositions of consulting experts. The court noted that the materiality of the witness’s testimony “came into sharp focus late in this litigation,” due to a decision by the defense to raise an affirmative defense of failure to mitigate based on plaintiffs’ failure to accept water systems described by the expert in a report. The plaintiffs asserted that the defense’s other witnesses were unable to provide information about data relating to these water treatment systems. The court was not persuaded by the defendant’s arguments that the plaintiffs had not shown that they were unable to obtain similar information from other sources, and that plaintiffs had not taken steps to depose the witness during the two years he was listed as a testifying witness. The court found that the plaintiffs had not unreasonably delayed, given that the failure-to-mitigate defense to which the expert’s knowledge was relevant had been raised only in May 2015. The court also indicated that the defendant could not seek to insulate the witness while at the same time proffering experts who based their opinions in part on information supplied by the witness. The court found that “on this unique constellation of facts” the plaintiffs should be allowed a “narrow and limited opportunity” to take discovery from the expert regarding his “opinions and related factual knowledge that helped form the basis for the opinions being offered by the defendant’s remaining experts with respect to water safety.” A trial is scheduled to begin on February 22, 2016.

Armstrong v. Chesapeake Appalachia, LLC Name and Date

Description

A plaintiff filed a lawsuit in Bradford County, Armstrong v. Chesapeake Appalachia, LLC (Pa. Ct. Com. Pennsylvania, which was removed to federal court (Armstrong v. Chesapeake Appalachia, LLC, No. 10Pl., filed Oct. 27, 2010)

0680 (M.D. Pa, removed Oct. 27, 2010)), where additional plaintiffs were added, and then remanded back to state court. Plaintiffs, who owned property and wells within three miles of oil and gas wells owned by defendant company, alleged that the company’s drilling practices caused methane, ethane, barium and other substances to contaminate plaintiff’s water. The complaint includes causes of action for negligence, negligence per se, strict liability, trespass, medical monitoring, and violation of the Pennsylvania Hazardous Sites Cleanup Act.

Zimmerman v. Atlas America, LLC Name and Date

Description

Zimmerman v. Atlas America, Plaintiffs allege that defendant company used toxic LLC, No. 2009-7564 (Pa. Ct. chemicals during fracking on their property, which Com. Pl, filed Sept. 21, 2009) polluted their freshwater aquifers. Complaint

alleges several tort causes of action, as well as a breach of an agreement between the parties whereby the plaintiffs allowed the company to drill on their property subject to certain conditions.

Harris v. Devon Energy Prod. Co., L.P. Name and Date

Description

Harris v. Devon Energy Prod. Co., L.P., 10-CV-0708 (N.D. Tex., filed Dec. 15, 2010) (transferred to E.D. Tex. Dec. 22, 2010)

Two plaintiffs brought an action against defendant company. The case was originally filed in the Northern District of Texas but was transferred to the Eastern District. The complaint alleged that the company commenced fracking activities near their property and that, as a result, their groundwater became contaminated with high levels of aluminum, magnesium, and other hazardous substances. The complaint alleged causes of action for nuisance, trespass, negligence, fraud, and strict liability.

Harris v. Devon Energy Prod. Co., L.P., 10-CV-0708 (E.D. Tex. July 13, 2011)

Adopting the magistrate judge’s Report and Recommendation, the district court dismissed the cause of action for fraud or fraudulent concealment. The Report and Recommendation found that plaintiffs had not asserted damages that resulted from alleged false representations made by defendant’s representative regarding the lack of a connection between substances found in plaintiffs’ well water and defendant’s drilling activities, the need for a new well and defendant’s intent to pay for the new well.

Harris v. Devon Energy Prod. Co., L.P., 10-CV-0708 (E.D. Tex. Jan. 25, 2012)

After defendants moved for summary judgment in November 2011, plaintiffs moved for dismissal without prejudice on the ground that the contamination present in their well at the time the complaint was filed was no longer present. The district court adopted the magistrate judge’s Report and Recommendation and granted plaintiffs’ motion.

Harris v. Devon Energy Prod. Co., L.P., 10-CV-0708 (5th Cir. Dec. 7, 2012)

The Fifth Circuit ruled that the district court had abused its discretion and held that the lawsuit should be dismissed with prejudice. Noting that plaintiffs had conceded that they could not prove that defendant’s activity caused the contamination in their well and that there was no evidence explaining the lab report upon which the complaint was based, the Fifth Circuit concluded that plaintiffs sought to avoid an imminent adverse result on summary judgment – which was sufficient to cause plain legal prejudice to defendant.

Mitchell v. EnCana Oil & Gas, Inc. Name and Date

Description

Mitchell v. EnCana Oil & Gas, An individual filed a complaint against defendant company alleging that the company’s fracking Inc., No. 10-CV-2555 (N.D. activities and storage of drilling wastes Tex., filed Dec. 15, 2010) contaminated plaintiff’s wells. The complaint alleged causes of action for nuisance, trespass, negligence, fraud, and strict liability.

Mitchell v. EnCana Oil & Gas, Case was voluntarily dismissed after settlement. Inc., No. 10-CV-2555 (N.D. Tex. Nov. 14, 2011)

Scoma v. Chesapeake Energy Corp. Name and Date

Description

Scoma v. Chesapeake Energy Landowners in Johnson County, Texas brought an Corp., No. 10-CV-1385 (N.D. action against several related companies, alleging that the companies stored drilling waste at sites and Tex., filed July 15, 2010)

disposal wells near plaintiffs’ property and that their well water become contaminated as a result of the companies’ fracking and disposal activities. The complaint includes causes of action for negligence, nuisance, and trespass.

Scoma v. Chesapeake Energy Case was voluntarily dismissed with prejudice after Corp., No. 10-CV-1385 (N.D. settlement. Tex. Dec. 9, 2011)

Heinkel-Wolfe v. Williams Production Co., LLC Name and Date

Heinkel-Wolfe v. Williams Production Co., LLC, No. 1040355-362 (362nd Dist. Ct. Denton Co., Texas, filed Nov. 3, 2010)

Description

A woman and her daughter filed a lawsuit against defendant company, alleging that the company’s activities related to gas drilling polluted the air and water around plaintiff’s property. The complaint alleged causes of action for nuisance, negligence, and trespass. The negligence claim was later dropped.

Parr v. Aruba Petroleum Inc. Name and Date

Description

Parr v. Aruba Petroleum, Inc., No. 11-1650 (Dallas Co. Ct. at Law, filed Mar. 8, 2011; 11th am. pet. filed Sept. 17, 2013)

A married couple in Wise County, Texas that owned property near oil and gas wells filed suit against several related companies alleging that natural gas drilling operations exposed plaintiffs and their property to hazardous gases, chemicals, and industrial wastes. Plaintiffs allege claims for negligence per se, common law negligence, gross negligence, nuisance, strict liability, and trespass. Plaintiffs also allege claims for assault and IIED based on the discharges of hazardous gases.

Parr v. Aruba Petroleum, Inc., No. 11-1650 (Dallas Co. Ct. at Law, jury verdict Apr. 22, 2014)

A Texas jury awarded $2.925 million to a family whose ranch and family home were located within two miles of more than 20 natural gas wells operated by Aruba Petroleum, Inc. Many of the wells were within a mile and a half of the family’s home. The jury found Aruba liable for private nuisance. The verdict included $2 million for past physical pain and suffering, $250,000 for future physical pain and suffering, $400,000 for past mental anguish, and $275,000 for loss of market value on the family’s home.

Parr v. Aruba Petroleum, Inc., No. 11-1650 (Dallas Co. Ct. at Law June 19, 2014)

The Dallas County Court at Law denied without comment Aruba’s motion for judgment notwithstanding the verdict. Aruba had argued that the type of damages awarded to plaintiffs would have required plaintiffs to present expert evidence, which the court had recognized plaintiffs lacked. Aruba argued that there was not sufficient evidence that Aruba (1) had the intent necessary to support a claim of intentional nuisance or (2) proximately caused plaintiffs’ injuries. Continued on next page

Parr v. Aruba Petroleum Inc. Name and Date

Description

Parr v. Aruba Petroleum, Inc., No. 11-01650-E (Dallas Co. Ct. at Law, notice of appeal Oct. 6, 2014; order on motion for new trial Sept. 11, 2014; final judgment July 9, 2014)

On October 6, 2014, Aruba Petroleum, Inc. filed a notice of appeal of the final judgment that awarded more than $3 million to a family whose ranch and family home were located within two miles of more than 20 natural gas wells operated by Aruba. The jury found Aruba liable for private nuisance. In September, the trial court had denied without comment Aruba’s motion for a new trial.

Sizelove v. Williams Production Co., LLC Name and Date

Description

Sizelove v. Williams Production Co., LLC, No. 1050355-367 (367th Dist. Ct., Denton Co. Tex., filed Nov. 3, 2010)

Members of a family filed a lawsuit in Denton County, Texas, alleging that defendant company’s compressor operations and gas drilling caused plaintiffs to suffer headaches and respiratory problems. The complaint includes causes of action for nuisance, trespass, and negligence. The claim for negligence was later dropped.

Hagy v. Equitable Production Co. Name and Date

Description

Hagy v. Equitable Production Co., No. 10-CV-1372 (S.D. W. Va., filed Dec. 10, 2010)

A family filed suit in state court in West Virginia (Hagy v. Equitable Prod. Co., No. 10-c-163 (Jackson Co. Cir. Ct., filed Oct. 26, 2010). The case was removed to federal court in December 2010. Plaintiffs alleged that plaintiffs’ property and water well, which was within 1,000 feet from defendant company’s gas wells, became contaminated as a result of defendant’s wells. The complaint alleges causes of action for negligence, negligence per se, nuisance, strict liability, trespass, and medical monitoring.

Hagy v. Equitable Production Co., No. 10-CV-1372 (S.D. W. Va., May 17, 2012 and June 29, 2012)

The court granted summary judgment motion with respect to two defendants. In the May 2012 decision, the court held that the plaintiffs had entered into a settlement agreement that waived all causes of action against the drilling company. In the June 2012 decision, the court held that the claims against the remaining defendant, which supplied certain drilling equipment, should be dismissed given that plaintiffs failed to provide any evidence that would demonstrate negligence on the part of the equipment company.

Hagy v. Equitable Production Co. Name and Date

Description

Hagy v. Equitable Production Co., No. 12-1926 (4th Cir. Oct. 8, 2013)

The Fourth Circuit affirmed the decision of the district court granting summary judgment to defendants on plaintiffs’ trespass and negligence claims. The Fourth Circuit found no error in the district court’s determinations that plaintiffs had released their claims against the drilling company defendant and that plaintiffs had failed to present any evidence of negligence or trespass on the part of the defendant that had performed cementing services on wells.

Center for Biological Diversity v. BLM Name and Date

Description

Center for Biological Diversity v. BLM, No. 11-CV-6174 (N.D. Cal., filed Dec. 8, 2011)

Several environmental groups filed a lawsuit challenging the federal government’s leasing of nearly 2,700 acres of federal land in California to oil and gas developers for fracking. The complaint alleges violations of NEPA and the Mineral Leasing Act of 1920 (MLA) for failing to fully analyze the environmental impacts of fracking. According to the complaint, BLM issued a final environmental assessment finding no significant impact for the lease sale in June 2011.

Center for Biological Diversity v. BLM, No. 11-CV-6174 (N.D. Cal. Mar. 31, 2013)

The court granted plaintiffs’ motion for summary judgment as to their NEPA claims, finding that the potential use of horizontal drilling and hydraulic fracturing techniques in future well development had a “reasonably close causal relationship” to the action at issue even though single well development had been the norm in the past, and that BLM was unreasonable in categorically refusing to consider projections of drilling that included fracking operations. Rather than determining a remedy, the court ordered the parties to meet and confer and submit an appropriate judgment. The court denied plaintiffs’ motion for summary judgment as to the MLA claims.

continued on next page

Center for Biological Diversity v. BLM Name and Date

Description

Center for Biological Diversity v. Bureau of Land Management, No. 11-cv-06174 (N.D. Cal., joint status report Oct. 16, 2014; order granting joint mot. to stay July 17, 2014)

The U.S. Bureau of Land Management and the Center for Biological Diversity and Sierra Club filed a joint status report in the environmental organizations’ lawsuit challenging BLM’s leasing of federal lands in California for oil and gas development. In March 2013, the federal district court for the Northern District of California said that BLM had unreasonably refused to consider drilling projections that included hydraulic fracturing. In its October 2014 status report, BLM indicated that it had completed the public scoping process for its environmental impact review, published a Scoping Summary Report, funded a review of scientific and technical information on well stimulation technologies by the California Council on Science and Technology, and awarded a contract for preparation of the Resource Management Plan Amendment and environmental impact statement. BLM said that it anticipated that it will take two years to complete the review process and tentatively scheduled issuance of the record of decision for October 2016. The status report was filed three months after the parties reached a settlement pursuant to which this action was stayed.

Citizens for Pennsylvania’s Future v. Ultra Resources, Inc. Name and Date

Citizens for Pennsylvania’s Future v. Ultra Resources, Inc. (M.D. Penn, filed July 21, 2011)

Description

A public interest organization commenced a citizen suit pursuant to the Clean Air Act. The complaint alleges that defendant company, which operates oil and gas wells in Pennsylvania, did so without obtaining all necessary permits and without achieving the lowest achievable emissions rate of nitrogen oxides. In addition to alleging violations of the CAA, the lawsuit also alleges violations of Pennsylvania’s State Implementation Plan and its New Source Review regulations.

In re U.S. Energy Development Corp. Name and Date

Description

In re U.S. Energy Development Corp., File No. 11-57 (NYS DEC, filed Jan. 24, 2012)

The New York State Department of Environmental Protection filed an administrative complaint against a company seeking an order requiring it to pay $187,500 for water quality violations associated with fracking activities in Pennsylvania that polluted an upstate stream in New York. The violations area associated with poor stormwater controls around the roads used to access the wells. DEC is seeking the maximum penalty because of the company’s failure to comply with two previous consent orders in August and November 2010.

United States v. Range Prod. Co. Name and Date

Description

United States v. Range Prod. Co., 11-CV-0116 (N.D. Tex., filed Jan. 18, 2011)

In December 2010, EPA issued an emergency administrative order pursuant to the Safe Drinking Water Act. The order identified contaminants that “may present an imminent and substantial endangerment to the health of persons” and determined that two wells were affected by the company’s drilling activities in Fort Worth, Texas. The order required the company to take a number of steps to remediate impacted areas of the aquifer. The government filed a complaint for injunctive relief and civil penalties in January 2011.

United States v. Range Prod. Co., 11-CV-0116 (N.D. Tex. March 29, 2012)

After the order was filed, the defendant argued that it was entitled to pre-enforcement review and that EPA was required to show facts supporting the underlying elements of the violation. On March 29, 2012, EPA withdrew the order following the U.S. Supreme Court’s decision in Sackett v. EPA, which held that administrative orders are subject to pre-enforcement review.

Matter of Wallach v. Town of Dryden Name and Date

Description

Anschutz Exploration Corp. v. Town of Dryden (N.Y. Sup. Court Tompkins Co., filed September 2011)

A company sued the Town for adopting a resolution (Resolution 126) that prohibited exploration or extraction of natural gas. The company argued that the zoning resolution was preempted by the Oil, Gas and Solution Mining Law (OGSML) (see ECL § 23-0303(2)), which regulates the development and production of oil and gas in the state.

Anschutz Exploration Corp. v. Town of Dryden (N.Y. Sup. Court Tompkins Co. Feb. 21, 2012)

The trial court upheld the ordinance, rejecting claims by the oil and gas company that it was preempted by the OGSML. The court held that the OGSML only preempts local regulations concerning the operations of oil and gas industries and does not expressly preempt local regulation of land use and zoning.

Matter of Norse Energy Corp. USA v. Town of Dryden (3d Dep’t May 2, 2013)

The Third Department affirmed, holding that the OGSML neither expressly nor impliedly preempted the Town’s zoning ordinance. With respect to express preemption, the Third Department held that the statutory text, legislative history and decisional law supported a conclusion that the OGSML did not preempt local bans on activities relating to oil and gas drilling. With respect to implied preemption, the court concluded that the OGSML did not conflict with local laws, finding that the local laws dictated the districts in which drilling could occur, while the OGSML mandated technical and operational requirements for drilling activities within those districts.



Matter of Norse Energy Corp. USA v. Town of Dryden, Mot. No. 2013-604 (N.Y. Aug. 29, 2013)

Matter of Wallach v. Town of Dryden, No. 130 (N.Y. June 30, 2014)

Description The New York Court of Appeals granted leave to appeal the decision of the intermediate appellate court that held that state law did not explicitly or impliedly preempt local laws restricting hydraulic fracturing and other drilling activities. The court also accepted amici curiae briefs filed in support of the motion for leave to appeal on behalf of a number of organizations, including the American Petroleum Institute, the Associated General Contractors of New York State, LLC, the New York Farm Bureau, and the Washington Legal Foundation. Briefing for the appeal was completed in January 2014. Oral argument was held on June 3, 2014. The New York State Court of Appeals affirmed that municipalities may ban oil and gas production activities, including hydraulic fracturing, within their borders. The court affirmed the lower court rulings that the State’s Oil, Gas and Solution Mining Law (OGSML) does not preempt local authority to regulate land use. The Court of Appeals said that the New York constitution, the Municipal Home Rule Law, other statutes, and Court of Appeals precedent have designated land use regulation through adoption of zoning ordinances as “one of the core powers of local governance,” and that the court did not “lightly presume preemption where the preeminent power of a locality to regulate land use is at stake.” The court concluded that neither the plain language, the statutory scheme, nor the legislative history of the OGSML supported preemption. Two judges dissented, indicating that in their view the zoning ordinances’ restrictions on oil and gas development encroached on regulatory authority that the OGSML reserved for the State. See also Matter of Cooperstown Holstein Corp. v. Town of Middlefield. Continued on next page


Description

Matter of Wallach v. Town of Dryden, Mot. No. 2014-867 (N.Y. Oct. 16, 2014)

The New York Court of Appeals denied a motion for renewal and reargument. The bankruptcy trustee for Norse Energy Corp. USA (Norse) sought renewal based on the Colorado district court decision in Colorado Oil and Gas Association v. City of Longmont, which Norse said applied “persuasive precedent” from the Colorado Supreme Court to the question of conflict preemption under a Colorado state law similar to New York’s Oil, Gas and Solution Mining Law. Norse also grounded its request for reargument in the Colorado case, saying that the Court of Appeals should have decided the conflict preemption issue rather than treating the case simply as one of express preemption.

Matter of Cooperstown Holstein Corp. v. Town of Middlefield Name and Date

Description

Matter of Cooperstown Holstein Corp. v. Town of Middlefield (N.Y. Sup. Ct. Otsego Co., filed Sept. 2011)

A company that had leased land to a mining company sued the Town for enacting a zoning law that expressly prohibited natural gas drilling. The plaintiffs allege that the law is preempted by the Oil, Gas and Solution Mining Law (OGSML) (see ECL § 23-0303(2)).

Matter of Cooperstown Holstein Corp. v. Town of Middlefield (N.Y. Sup. Ct. Otsego Co. Feb. 24, 2012)

A state trial court upheld the Town’s zoning law, holding that the OGSML did not preempt local zoning ordinances restricting oil and gas drilling operations.

Matter of Cooperstown Holstein Corp. v. Town of Middlefield (3d Dep’t May 2, 2013)

For the reasons articulated in Norse Energy Corp. USA v. Town of Dryden, the Third Department affirmed the court below’s judgment declaring the zoning law valid.

Matter of Cooperstown Holstein Corp. v. Town of Middlefield, No. 131 (N.Y. June 30, 2014)

The New York State Court of Appeals affirmed that municipalities may ban oil and gas production activities, including hydraulic fracturing, within their borders. The court affirmed the lower court rulings that the State’s Oil, Gas and Solution Mining Law (OGSML) does not preempt local authority to regulate land use. The Court of Appeals said that the New York constitution, the Municipal Home Rule Law, other statutes, and Court of Appeals precedent have designated land use regulation through adoption of zoning ordinances as “one of the core powers of local governance,” and that the court did not “lightly presume preemption where the preeminent power of a locality to regulate land use is at stake.” The court concluded that neither the plain language, the statutory scheme, nor the legislative history of the OGSML supported preemption. Two judges dissented, indicating that in their view the zoning ordinances’ restrictions on oil and gas development encroached on regulatory authority that the OGSML reserved for the State. See also Matter of Wallach v. Town of Dryden.

Northeast Natural Energy LLC v. City of Morgantown, West Virginia Name and Date

Northeast Natural Energy LLC v. City of Morgantown, West Virginia, Civil Action No. 11-C411 (Cir. Ct. W. Va. Aug. 12, 2011)

Description

A mining company commenced a lawsuit in West Virginia state court challenging the adoption of a ban on hydraulic fracturing in the City of Morgantown on state preemption grounds. The plaintiffs companies moved for summary judgment. The court granted the motion, holding that the ordinance was preempted by state law, which provides a comprehensive framework for the application of oil and gas well permits.

Weiden Lake Property Owners v. Klansky Name and Date

Description

The owner of land that had signed a lease with a Weiden Lake Property Owners v. Klansky (N.Y. Sup. mining company was sued by a property owners Ct. Sullivan Co. Aug. 18, 2011) association, which alleged that a restrictive covenant prohibited gas drilling in properties in the community. The trial court agreed, holding that the language of the restrictive covenant was clear and unambiguous and restricted parcels in the community to single family residential, agricultural or recreational use only.

State of New York v. United States Army Corps of Engineers Name and Date

Description

State of New York v. United States Army Corps of Engineers, 11-CV-2599 (E.D.N.Y., filed May 31, 2011)

New York and other related parties commenced a lawsuit seeking to enjoin the Delaware River Basin Commission from issuing proposed regulations governing natural gas development in the Basin until the U.S. Army Corps of Engineers prepares a draft environmental impact statement pursuant to the National Environmental Policy Act.

State of New York v. United States Army Corps of Engineers (E.D.N.Y. Sept. 24, 2012)

The district court granted defendants’ motion to dismiss, holding that the lawsuit was premature given that until the Commission’s regulations are final, the plaintiffs could not establish a likelihood of injury. The court further held that the claims are not ripe because they would be moot if the Commission fails to issue final rules and leaves the current moratorium that has been in effect since 2009 in place.

Delaware Riverkeeper Network v. U.S. Army Corps of Engineers Name and Date

Description

Delaware Riverkeeper Network v. United States Army Corps of Engineers, 11CV-3780 (E.D.N.Y., filed Aug. 4, 2011)

Several environmental groups commenced a lawsuit seeking to enjoin the Delaware River Basin Commission from issuing proposed regulations governing natural gas development in the Basin until the U.S. Army Corps of Engineers prepares a draft EIS.

Delaware Riverkeeper Network v. United States Army Corps of Engineers, 113780 (E.D.N.Y. Sept. 24, 2012)

The court granted without prejudice defendants’ motion to dismiss for lack of subject matter jurisdiction, holding that the lawsuit was premature given that until the Commission’s regulations are final, the plaintiffs could not establish a likelihood of injury. The court further held that the claims are not ripe because they would be moot if the Commission fails to issue final rules and leaves the current moratorium that has been in effect since 2009 in place.

Alexander v. Chesapeake Appalachia LLC Name and Date

Description

A large number of plaintiffs sued defendant Alexander v. Chesapeake Appalachia LLC, 11-CV-0308 company concerning gas leases that the company (N.D.N.Y., filed Mar. 18, 2011) has with the plaintiffs. The complaint alleges a

violation of New York General Business Law § 349, alleging certain deceptive conduct concerning the extension of the lease terms by the company, which allegedly claimed that it was prevented from acting on the leases by “federal, state, and local law.” The plaintiffs seek a declaratory judgment as well as compensatory damages.

Alexander v. Chesapeake Appalachia LLC, 11-CV-0308 (N.D.N.Y. March 20, 2012)

The court granted the defendant company’s motion to stay the proceeding pending arbitration, holding that all of the leases that included an arbitration clause were required to arbitrate their claims.

Chesapeake Appalachia LLC v. Golden Name and Date

Description

Chesapeake Appalachia LLC v. Golden, 883-cd-2011 (Pa. Commonwealth Ct. Jan. 26, 2012)

A county recorder of deeds refused to record any deeds assigning more than one oil and gas lease and had rejected multiple lease assignments by plaintiff company containing 211 leases. The trial court granted summary judgment in favor of plaintiff. On appeal, a state appellate court affirmed, holding that the county recorder had no authority to reject the attempt to combine the lease assignments into one document.

Coastal Oil and Gas Corp. v. Garza Energy Trust Name and Date

Description

Coastal Oil and Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Texas 2008)

Royalty interest owners commenced a lawsuit against a gas well operator for subsurface trespass, breach of duty of good faith, and breach of implied covenants to develop, market, and protect against drainage. After a trial, a jury returned a verdict in favor of plaintiffs. On appeal, a state appellate court affirmed in part and reversed in part. On further appeal, the Texas Supreme Court held, among other things, that the “rule of capture” prevented plaintiffs from recovering damages on their trespass claim, and that the plaintiffs could not recover on their claim for breach of the implied covenant to protect against drainage in absence of evidence that a reasonably prudent operator should have prevented drainage.

Wiser v. Enervest Operating LLC Name and Date

Description

Wiser v. Enervest Operating LLC, 10CV-00794 (N.D.N.Y. March 22, 2011)

Plaintiff property owners had entered into 10-year leases with a mining company, which were subject to indefinite extension should drilling occur. The company was required to pay annual delay rentals. The company claimed that former New York Governor David Paterson’s 2008 moratorium on drilling constituted a force majeure, exempting the company from paying the delay rentals while keeping the leases open until the end of the moratorium. The district court disagreed, holding that rental payments were required and the company’s failure to do so rendered the leases null and void.

Independent Petroleum Association of America v. EPA Name and Date

Description

Independent Petroleum Association of America v. EPA, No. 10-1233 (D.C. Cir., proposed settlement Feb. 23, 2012)

EPA agreed to edit language on its website related to the use of diesel oil in hydraulic fracturing. The settlement resolves a 2010 lawsuit filed by the oil and gas industries over a statement on EPA’s website that injection wells that use diesel fuel as a hydraulic fracturing additive “will be considered Class II wells” by the agency’s Underground Injection Control Program. EPA requires a permit under the Safe Drinking Water Act for wells that use diesel oil. The settlement requires EPA to delete this language and replace it with a statement referring visitors to a separate website regarding the development of guidance on this issue.

Independent Petroleum Association of America v. EPA, No. 10-1233 (D.C. Cir. May 10, 2012)

The court granted the joint motion for voluntary dismissal.

Coalition for Responsible Growth and Resource Conservation v. Fed. Energy Regulatory Commission Name and Date

Description

Coalition for Responsible Growth and Resource Conservation v. Fed. Energy Regulatory Commission, No. 12-566 (2d Cir. Feb. 28, 2012)

Several environmental groups filed a lawsuit seeking to overturn the Federal Energy Regulatory Commission’s approval of a proposal to build a 39-mile pipeline that would transport gas from Pennsylvania’s Marcellus shale, alleging that FERC did not properly take into account environmental damage from gas drilling that the pipeline would facilitate and other ecological impacts the pipeline would have on the area. The groups petitioned the Second Circuit to review the order and stay the approval pending a hearing. The court denied the request for a stay.

Coalition for Responsible Growth and Resource Conservation v. Fed. Energy Regulatory Commission, No. 12-566 (2d Cir. June 12, 2012)

The Second Circuit issued a summary order holding that FERC complied with the National Environmental Policy Act in the depth and care of its environmental analysis for a proposed natural gas pipeline in Pennsylvania.

Plains Exploration & Production Co. v. City of Culver City

Name and Date

Plains Exploration & Production Co. v. City of Culver City (L.A. Co. Super. Ct. March 26, 2010)

Description

Plains Exploration & Production Company sought a writ of mandate invaliding Culver City’s moratorium on new oil drilling. The City had issued the temporary ban to allow it time to develop proper regulations of new wells and to address health issues, including concerns arising out of residents’ reports of noxious fumes originating in the Inglewood oil field in 2006. The court denied the writ of mandate, holding that, despite an 85-year history of oil field drilling in the area, the energy company did not have an absolute right to drill and the City had the authority via its zoning powers to condition or even refuse to grant new drilling permits.

Smith v. Devon Energy Production Co. Name and Date

Description

Smith v. Devon Energy Production Co. No. 11-CV0196 (N.D. Tex., filed Jan. 31, 2011)

Two individuals filed a lawsuit in federal court alleging that the activities of a natural gas drilling company polluted a well on their property. Plaintiffs alleged causes of action for trespass, nuisance, negligence, fraud, and strict liability.

The case was transferred to the federal district court Smith v. Devon Energy for the Eastern District of Texas. Production Co. No. 11-CV0196 (N.D. Tex., Mar. 4, 2011)

Smith v. Devon Energy Production Co. No. 11-CV0104 (E.D. Tex., July 2, 2012)

The court granted plaintiffs’ motion for dismissal without prejudice.

Summit Petroleum Corp. v. EPA Name and Date

Description

Summit Petroleum Corp. v. EPA (6th Cir., No. 09-4348, filed Nov. 4, 2009; No. 10-4572, filed Dec. 15, 2010)

An oil production company filed a petition seeking a review of EPA’s determinations issued on September 8, 2009 and reiterated on October 18, 2010 directing the company to obtain a Title V permit for emissions from approximately 100 natural gas production wells that sit on various parcels within a 43-square mile area given that they constitute a single “major source” under the Clean Air Act. The petition alleges that EPA’s determination was arbitrary and capricious.

Summit Petroleum Corp. v. EPA (6th Cir. Aug. 7, 2012)

The 7th Circuit vacated EPA’s determinations, holding that it is contrary to the plain meaning of “adjacent.” The court remanded the matter to EPA, with instructions that the agency must reassess whether the company’s operations are close enough to be considered adjacent.

Group Against Smog and Pollution v. Commonwealth of Pennsylvania Name and Date

Description

Group Against Smog and Pollution v. Commonwealth of Pennsylvania (Pa. Envtl. Hearing Bd., filed April 2, 2011)

An environmental group challenged the approval by the Pennsylvania Department of Environmental Protection of a natural gas production facility on the ground that it violated the Clean Air Act’s New Source Review program because none of the 73 surrounding well sites that were commonly controlled by the owner of the facility were included in the aggregation analysis or the resulting calculation for the facility’s potential to emit.

Clean Air Council v. Commonwealth of Pennsylvania

Name and Date

Description

Clean Air Council v. Commonwealth of Pennsylvania (Pa. Envtl. Hearing Bd., filed May 13, 2011)

An environmental group challenged the approval by the Pennsylvania Department of Environmental Protection of a permit by a gas company to construct a operate a fractionator tower and process heater at its natural gas processing plant in the state. The petition alleges that DEP’s approval does not require the company to meet the requirements of the Clean Air Act. Specifically, the petition alleges that DEP did not conduct a proper aggregation analysis of the company’s units that included other gas compressor stations.

Butler v. Charles Powers Estate Name and Date

Description

Butler v. Charles Powers Estate (Pa. Super. Ct. Sept. 7, 2011)

The owner of a 244-acre parcel of land filed an action to quiet title. The heirs of a previous owner of the parcel sought a declaratory judgment that Marcellus shale gas was included in the reservation of rights to the heirs in the previous owner’s deed, which stated that “mineral” rights were reserved. The trial court dismissed the request for a declaratory judgment. On appeal, the appellate court reversed, holding that although natural gas was not specifically reserved in the deed, it was unclear whether Marcellus shale constitutes a type of mineral such that the gas in it falls within the deed’s reservation. Thus, it remanded the case for further proceedings.

Butler v. Charles Powers Estate, No. 27 MAP 2012 (Pa. Apr. 24, 2013)

The Pennsylvania Supreme Court reversed the appellate court’s decision and reinstated the order of the trial court. Citing the Dunham Rule (derived from Dunham & Shortt v. Kirkpatrick, 101 Pa. 36 (Pa. 1882), and its progeny), the Supreme Court held that the trial court correctly concluded that Marcellus shale natural gas was not contemplated in the reservation of rights.

Jewett Sportsmen & Farmers Club, Inc. v. Chesapeake Exploration, LLC Name and Date

Description

Jewett Sportsmen & Farmers Club, Inc. v. Chesapeake Exploration, LLC (Harrison Co. Ohio Ct. of Common Pleas Jan. 17, 2012)

Two oil and gas companies were successors-ininterest to the mineral rights reserved by a coal company. In 1959, the coal company deeded the property at issue to a sportsman club with a reservation for certain mineral rights. The oil and gas companies began operations on the property to install two drill pads when the club sued to enjoin the operations. The court enjoined the companies from operating any hydraulic drilling on the property because their mineral rights do not reserve such drilling rights. In an earlier decision, the court held that the companies had the right to drill directly below the property, but held that they could not do so horizontally on adjacent properties.

Katzin v. Central Appalachia Petroleum, LLC

Name and Date

Description

Katzin v. Central Appalachia A state trial court held that a standard royalty Petroleum, LLC (Pa. Super. Ct. provision in an oil and gas lease complied with Pennsylvania’s Minimum Royalty Act even though Jan. 19, 2012)

the provision did not specify what post-production costs may be deducted from the lessor’s royalty payments.

Duck Creek Energy, Inc. v. O’Dell

Name and Date

Description

Duck Creek Energy, Inc. v. O’Dell (Ohio Ct. Common Pleas, filed March 20, 2012)

A natural gas production company filed a defamation lawsuit against an individual alleging that the defendant published several statements regarding a product manufactured by the company that is used for deicing was “fracking fluids.” The company maintains that the product (called AquaSalina) is derived from a salt brine solution that is different from fracking fluids. On March 23, the defendant filed a counterclaim against the company.

Aukema v. Chesapeake Appalachia LLC

Name and Date

Description

Aukema v. Chesapeake Appalachia, LLC, 11-CV-489 (N.D.N.Y. March 21, 2012)

Plaintiffs, owners of over 10,000 acres of land in various New York counties that sit atop the Marcellus shale, sought a declaratory judgment that their oil and gas leases, entered into many years ago, expired by their terms. The defendants, oil and gas companies that own the leases, claim that New York’s multiple year moratorium on hydraulic fracking constituted unforeseen events that triggered the leases’ force majeure clauses that automatically extended their leases. After plaintiffs filed the actions, the companies sought to stay the case pending arbitration. The court declined to stay the action, holding that none of the leases at issue contained arbitration clauses.

Aukema v. Chesapeake Appalachia, LLC, 11-CV-489 (N.D.N.Y. Nov. 15, 2012)

The court ruled that the State’s moratorium on hydraulic fracturing did not constitute a force majeure event allowing them to extend their leases.

Aukema v. Chesapeake Appalachia LLC, Nos. 12-5092,

After reaching a settlement with approximately 200 New York landowners, Chesapeake Appalachia LLC (Chesapeake) and StatoilHydro USA Onshore Properties, Inc. (StatoilHydro) withdrew their appeal of the November 2012 ruling. As part of the settlement, Chesapeake and StatoilHydro agreed to terminate their leases for approximately 13,000 acres.

12-5108 (2d Cir. Sept. 12, 2013)

Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission Name and Date

Description

Power River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission (Wyo. Dist. Ct., filed March 23, 2012)

Four environmental groups filed a lawsuit alleging that the Wyoming Oil and Gas Conservation Commission unlawfully withheld the identities of hydraulic fracturing chemicals used by oil and gas producers. The complaint challenges Wyoming’s application of the trade secret exception under Commission rules that otherwise require oil and gas companies to disclose the chemicals they use in the hydraulic fracturing process. The petition alleges that the Commission violated the state’s Public Records Act by denying their request for documents submitted to the Commission by several oil and gas companies.

Power River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission (Wyo. Dist. Ct. Mar. 21, 2013)

The court affirmed the agency’s determination that certain information constituted trade secrets and was therefore exempt from disclosure. Plaintiffs are appealing the ruling to the Wyoming Supreme Court.

Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission, No. S13-0120 (Wyo. Nov. 20, 2013)

Oral argument took place in the Wyoming Supreme Court on November 20, 2013. Halliburton Energy Services, Inc. intervened on behalf of WOGCC in the appeal.


Powder River Basin Resource Council v. Wyoming Oil and Gas Conservation Commission Name and Date

Description

Powder River Basin Resource Council v. Wyoming Oil & Gas Conservation Commission, No. S13-0120 (Wyo. Mar. 12, 2014)

The Wyoming Supreme Court reversed the district court’s judgment. As an initial matter, the Supreme Court said that plaintiffs had failed to follow the appeal procedures in the Wyoming Public Records Act (WRPA) and that the court should not have reviewed the Supervisor’s denial as an administrative decision under the arbitrary and capricious standard. The court therefore remanded the action to the district court for plaintiffs to seek an order to show cause requiring the Supervisor to justify its determination, in response to which the district court should determine whether the information sought constitutes trade secrets, with the burden on the Supervisor to demonstrate that the information does constitute trade secrets. Despite the “procedural flaws” in the case, the Supreme Court decided in the interests of judicial economy not “to cast the district court adrift without some guidance on the standard to be applied in trade secret cases under the WPRA.” Noting that it had consistently looked to federal precedent under the federal Freedom of Information Act (FOIA) in WRPA cases, the Supreme Court adopted the definition of “trade secret” used by federal courts under FOIA: “a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort.” In addition, there must be “a direct relationship between the trade secret and the productive process.” The Supreme Court indicated that this relatively narrow definition of trade secret was consistent with the policy of the WRPA favoring disclosure over secrecy. (The court also noted that a broader definition of trade secret would “render meaningless” WRPA’s exemption for “confidential commercial information,” an exemption category that had not been placed at issue in this case.) The court declined to reach the question of whether the identities of ingredients in hydraulic fracturing fluids were trade secrets, finding that this determination would require the district to hear expert opinions and other evidence. The Supreme Court directed the district court “to review the disputed information on a case-by-case, recordby-record, or perhaps even on an operator-by-operator basis, applying the definition of trade secrets set forth in this opinion and making particularized findings which independently explain the basis of its ruling for each.”

Koonce v. Chesapeake Exploration LLC

Name and Date

Description

Koonce v. Chesapeake Exploration LLC, 12-CV-0736 (N.D. Ohio, filed March 27, 2012)

A group of landowners sued an oil and gas company concerning leases entered into between them and the company, alleging that the company misrepresented the environmental disruptions that would be caused by hydraulic fracturing and concealed the land rights’ true potential. The plaintiffs are seeking a declaratory judgment voiding the leases.

Robinson Township v. Pennsylvania Name and Date

Description

Robinson Township v. Pennsylvania 284-MD2012 (Pa. Commw. Ct., filed March 29, 2012)

Seven towns and an environmental group sued Pennsylvania over Act 13, which standardizes zoning of oil and gas development across the state and imposes natural gas well fees. The law amends the Pennsylvania Oil and Gas Act to preempt municipal zoning of oil and gas development and establishes fees on companies that use natural gas wells. The complaint alleges that the law is unconstitutional because it gives the oil and gas industry special treatment and denies municipalities the ability to carry out their constitutional obligation to protect public natural resources. The suit seeks an injunction against the enactment of the law.

Robinson Township v. Pennsylvania 284-MD2012 (Pa. Commw. Ct. April 11, 2012)

The court issued a preliminary injunction holding that all local laws remain in effect until they are challenged and found invalid. The court also stayed the effective date of Act 13 for an additional 120 days to give municipalities time to amend local laws should they choose to do so.

Robinson Township v. Pennsylvania 284-MD2012 (Pa. Commw. Ct. April 20, 2012)

The court denied a motion by several gas drilling industry groups and state legislators seeking to intervene in the lawsuit, stating that these groups would be adequately represented by the State Attorney General.

Robinson Township v. Pennsylvania 284-MD2012 (Pa. Commw. Ct. July 26, 2012)

The court invalidated the uniform statewide zoning scheme established by Act 13, holding that because the statute fails to provide guidelines for the Pennsylvania Dep't of Environmental Protection to follow in granting waivers, it delegates to the agency the power to make legislative judgments reserved solely for the General Assembly in violation of the state Constitution. The state immediately appealed the decision.

Robinson Township v. Pennsylvania 284-MD2012 (Pa. Commw. Ct. Aug. 15, 2012)

The court upheld an injunction that it issued in July 2012 that struck down portions of the law during the pendency of the appeal, holding that the plaintiffs demonstrated a reasonable likelihood of success and irreparable harm if the injunction were set aside.


Robinson Township v. Commonwealth of Pennsylvania Name and Date

Description

Robinson Township v. Pennsylvania, Nos. 63, 64, 72 & 73 MAP 2012 (Pa. Dec. 19, 2013)

A plurality of the Pennsylvania Supreme Court issued a decision expansively invoking the Environmental Rights Amendment of the Pennsylvania Constitution to invalidate portions of a 2012 amendment—known as Act 13—to Pennsylvania’s Oil and Gas Act. Among other things, Act 13 restricted local government regulation of hydraulic fracturing in their jurisdictions. The plurality’s opinion, authored by Chief Justice Castille, held that Act 13 impermissibly commanded municipalities to ignore their obligations under the Environmental Rights Amendment and to take affirmative actions to undo existing local protections of the environment. The plurality also held that Act 13 did not meet the legislature’s obligation under the Environmental Rights Amendment to enact legislation that restrained private parties from harming the environment. The plurality drew comparisons between the potential impacts of hydraulic fracturing and the significant historical environmental impacts of the “industrial exploitation of Pennsylvania’s coalfields,” which formed the backdrop and impetus for the passage and ratification of the Environmental Rights Amendment in 1971. The court also reversed the Commonwealth Court’s ruling that certain petitioners, including a doctor who challenged Act 13’s restrictions on sharing information about chemicals used in drilling, lacked standing. Justice Baer wrote a concurring opinion indicating that he would not join the key portions of the “pioneering opinion” of the plurality, but that he would have held the Act 13 provisions unconstitutional on substantive due process grounds. Two justices authored dissenting opinions. Justice Saylor’s dissent emphasized the position that the Environmental Rights Amendment conferred obligations on the “Commonwealth,” and that municipalities did not obtain “a vested entitlement in their delegated authority to manage land use or the right to dictate the manner in which the General Assembly administers the Commonwealth's fiduciary obligation to the citizenry at large relative to the environment.” He questioned what he viewed as the plurality’s granting of standing to municipalities to vindicate individual rights. Justice Eakin joined Justice Saylor’s dissent, but also authored his own, expressing “significant concern” about “the alchemy that recognizes in municipalities the ability to enforce individual constitutional rights.”



Description

Robinson Township v. Pennsylvania, Nos. 63, 64, 72 & 73 MAP 2012 (Pa. Jan. 2, 2014)

On January 2, 2014, attorneys for the Pennsylvania Public Utility Commission and Pennsylvania Department of Environmental Protection filed an application for reargument seeking a remand to the Commonwealth Court for further factual development.

Robinson Township v. Pennsylvania, Nos. 63, 64, 72 & 73 MAP 2012 (Pa. Jan. 21, 2014)

On January 21, 2014, the Pennsylvania Supreme Court affirmed the Commonwealth Court’s denial of the request by the heads of the two houses of the state legislature to intervene in the Act 13 challenge. The Supreme Court said that the legislators merely sought to weigh in on the “correctness of governmental conduct,” which did not supply a basis for standing. The standard for legislator standing requires that the power or authority of the legislators’ offices or the “potency of their right to vote” be at stake.

Robinson Township v. Pennsylvania, Nos. 63, 64, 72 & 73 MAP 2012 (Pa. Feb. 21, 2014)

The Pennsylvania Supreme Court denied the application for reargument or reconsideration. One justice filed a dissenting statement.



Description

Robinson Township v. Commonwealth of Pennsylvania, No. 284 MD 2012 (Pa. Commw. Ct. July 17, 2014)

On remand from the Pennsylvania Supreme Court’s sweeping decision invalidating key provisions of the Act 13 amendments to the Oil and Gas Act, the Pennsylvania Commonwealth Court was faced with the tasks of determining whether certain remaining provisions were severable from the provisions the Supreme Court found unconstitutional, and of addressing claims that the Commonwealth Court previously had dismissed on standing grounds. Perhaps most notably, the Commonwealth Court concluded that Act 13’s provisions allowing municipalities and oil and gas companies to seek review by the state Public Utility Commission (PUC) of local ordinances (or proposed local ordinances) regulating oil and gas development were not severable. The court also concluded that a provision preempting local restrictions on features of oil and gas operations regulated by Act 13 was not viable after the Supreme Court’s decision. The Commonwealth Court also ruled that three Act 13 provisions were constitutional: (1) a provision requiring the Pennsylvania Department of Environmental Protection to notify public but not private drinking water facilities after receiving notification of a spill from drilling operations; (2) a provision allowing public utility corporations to use eminent domain; and (3) provisions prohibiting health professionals from disclosing information received from drilling companies about the identities and amount of fracking additives. One judge dissented from the court’s conclusion that PUC’s jurisdiction over the review of local ordinances was no longer viable; he believed that because Act 13’s provisions regulating the “how” of drilling were still effective, its provisions regarding PUC’s jurisdiction still had “efficacy.” Another judge dissented from the court’s holdings regarding health professionals’ obligations and spill notification requirements. PUC filed a notice of appeal in August 2014. Continued on next page


Description

Robinson Township v. Pennsylvania, Nos. 63, 64, 72, & 73 MAP 2012 (Pa., application for leave to intervene filed June 19, 2015; leave to intervene denied Aug. 20, 2015)

The Pennsylvania Supreme Court denied the Pennsylvania Independent Oil & Gas Association’s (PIOGA’s) application to intervene to enforce the Supreme Court’s 2013 decision in Robinson Township v. Pennsylvania, which declared portions of Act 13—which amended Pennsylvania’s Oil and Gas Act—unconstitutional. PIOGA contended that Robinson Township had invalidated and enjoined the Pennsylvania Department of Environmental Protection (PA DEP) from implementing Act 13 provisions that concerned the well permitting process, including a provision that required PA DEP to consider a proposed well’s impact on public resources. PIOGA asserted that PA DEP was improperly relying on this provision of Act 13 to impose requirements in its well permitting decisions. The Supreme Court denied PIOGA’s application without comment.

Sierra Club v. Ohio Dep't of Natural Resources

Name and Date

Description

Sierra Club v. Ohio Dep't of Natural Resources (Ohio Ct. of Common Pleas, filed April 10, 2012)

An environmental group filed a lawsuit against the Ohio Department of Natural Resources seeking to force the agency to turn over records relating to plans to allow oil and gas drilling in state parks and other public lands. In September 2011, a law went into effect that allows oil and gas exploration on all public lands, subject to lease agreements that would protect environmental quality.

Ozark Society v. U.S. Forest Service

Name and Date

Ozark Society v. U.S. Forest Service (E.D. Ark. March 23, 2012)

Description

An environmental group moved for a preliminary injunction against the U.S. Forest Service, alleging that the agency had failed to comply with NEPA in approving gas leases for exploration and development in the Ozark National Forest. The district court denied the motion, holding that the Forest Service was not required to supplement a 2005 EIS or that the issuance of a 2010 Supplement Impact Report by the agency constituted a final agency action. Thus, the court held that the group was not likely to succeed on the merits of its claim.

Managan v. Landmark 4, LLC Boggs v. Landmark 4, LLC Name and Date

Description

Managan v. Landmark 4, LLC (N.D. Ohio, filed March 12, 2012) Boggs v. Landmark 4, LLC (N.D. Ohio, filed March 12, 2012)

Two sets of landowner plaintiffs filed lawsuits in federal court alleging that a gas exploration company discharged hydraulic fracturing fluids onto their property, causing them to incur health injuries, emotional distress, and other damages. Plaintiffs allege claims for medical monitoring, negligence, strict liability, private nuisance, unjust enrichment, negligence per se, battery, intentional fraudulent concealment, and negligent misrepresentation.

Boggs v. Landmark 4, LLC (N.D. Ohio Aug. 13, 2012)

Defendant moved to dismiss for failure to join a required party—the company that performed the drilling activities. The court denied this motion, but granted the motion to dismiss plaintiff’s claims for intentional fraudulent concealment.

Minerals Development & Supply Co. v. Hunton & Williams LLP

Name and Date

Description

Minerals Development & Supply Co. v. Hunton & Williams LLP (7th Cir. April 23, 2012)

The Seventh Circuit overturned the dismissal of a hydraulic fracturing sand supplier’s tortious interference suit against a law firm, holding that the federal court did not have jurisdiction over the case since diversity jurisdiction was not met, and thus the case belonged in Wisconsin state court. In February 2009, the plaintiff entered into an agreement to sell to another company material used to produce hydraulic fracturing sand. The plaintiff then entered into an agreement to buy such material from a third party. The third party then ended its contract with plaintiff and negotiated directly with the other company, allegedly after being advised to do so by the firm. The plaintiff sued the firm for tortious interference with contract. In an earlier decision, the district court held that the firm was entitled to immunity and dismissed the case. The appellate court reversed, holding that because three firm partners live abroad, this destroyed diversity jurisdiction and the case should not have been removed to federal court.

Gas Drilling Awareness Coalition v. Powers

Name and Date

Description

Gas Drilling Awareness Coalition v. Powers (M.D. Pa. April 16, 2012)

An anti-hydraulic fracturing coalition filed a lawsuit in Pennsylvania federal court in 2010, alleging that the state’s former director of the state Emergency Management Agency’s Office of Homeland Security violated the group’s 14th and 1st Amendment rights when he authorized surveillance of the group. In an earlier decision, the court dismissed the 14th Amendment claims. The plaintiff group subsequently moved to add claims for defamation and conspiracy. The court granted the motion, holding that the claims involved the same allegations as those in the complaint, namely that the defendant published false statements about the group to a third party.

Kamuck v. Shell Energy Holdings GP LLC Name and Date

Description

Kamuck v. Shell Energy Holdings GP, LLC (M.D. Pa. April 27, 2012)

An individual filed a lawsuit against Shell Energy, alleging that its hydraulic fracturing operation on land neighboring his 93-acre tract in rural Pennsylvania contaminated his land and water supply. In his complaint, the individual alleged that the activities were abnormally dangerous and constituted an ultra-hazardous activity and thus they should be subject to strict liability. The company moved to dismiss. In March 2012, a magistrate judge recommended that the plaintiff’s strict liability and private nuisance claims not be dismissed. The district court agreed, although it did dismiss plaintiff’s claim that Shell drilled the shall in breach of its lease.

Kamuck v. Shell Energy Holdings GP, LLC (M.D. Pa. Sept. 5, 2012)

The court denied defendants’ motion for a Lone Pine case management order that would have required plaintiff to make a prima facie evidentiary showing in support of its claims prior to commencement of further discovery.

Kamuck v. Shell Energy Holdings GP, LLC, No. 4:11-CV-1425 (M.D. Pa. Mar. 25, 2015)

The federal district court for the Middle District of Pennsylvania granted summary judgment to Shell Energy Holdings GP, LLC and affiliated entities (together, Shell) on the remaining claims in a lawsuit brought by a Pennsylvania landowner. The landowner alleged that Shell’s natural gas extraction activities, including hydraulic fracturing, had caused personal injuries and property damage. The landowner filed the lawsuit in 2011 and had largely been proceeding pro se for two years since becoming estranged from his counsel. The court indicated that the landowner had “essentially boycotted” his own litigation and had not complied with discovery demands or court orders. Given the landowner’s “dilatory behavior,” including his failure to produce evidence to support his allegations or to fully and adequately address the dispositive motion, the court found that his negligence, strict liability, and nuisance claims should be dismissed for failure to prosecute as well as on the merits.

Clean Water Action v. Mun. Auth. of McKeesport

Name and Date

Description

Clean Water Action v. Municipal Authority of McKeesport (W.D. Pa., settled May 1, 2012)

Two environmental groups filed a Clean Water Act citizen suit alleging that a municipal water treatment plant violated the CWA and Pennsylvania state law by discharging oil- and natural gas-related pollutants from shale gas and coalbed methane operations that were not authorized under its discharge permit. After the lawsuit was filed, the two sides entered into a settlement agreement. The agreement requires the plant to analyze samples of the shale gas or coalbed methane wastewater it proposes to treat and to apply to state environmental regulators for a new or amended discharge permit prior to accepting the wastewater for treatment.

Southwest Royalties, Inc. v. Combs

Name and Date

Description

Southwest Royalties, Inc. v. Combs (Travis Co. Texas Dist. Ct. April 30, 2012)

A state district court judge reversed a previous verbal ruling and issued an order stating that sales tax does apply to the sale of machinery and equipment used to extract oil and gas. The plaintiffs alleged that the equipment used to extract oil and gas directly caused a physical change in the oil and gas, and thus exempted the equipment from state sales tax under exemptions for manufacturing. The court disagreed, holding that the equipment used to extract the oil and gas was not a direct cause of the changes of pressure and temperature to the oil and gas and thus it was not exempt.

Lipsky v. Range Resources Corp. Name and Date

Description

Lipsky v. Durant, Carter, Coleman LLC, No. 11CV-0798 (Tex. Dist. Ct. Parker Co., filed June 20, 2011) (counterclaim filed July 14, 2011)

A husband and wife alleged that hydraulic fracturing near their property contaminated their water supply well. In July 2011, defendants Range Production Co. and Range Resources Corp. (Range) filed a counterclaim, alleging that plaintiffs and an environmental consultant conspired to harm Range’s reputation. Among other things, the company alleged that plaintiff conspired to persuade EPA to get involved in the matter by using false and misleading data.

Lipsky v. Durant, Carter, Coleman LLC, No. 11CV-0798 (Tex. Dist. Ct. Parker Co. Jan. 27, 2012)

In January 2012, the trial court dismissed plaintiffs’ claims on jurisdictional grounds, holding that plaintiffs were required to appeal a March 2011 decision of the Railroad Commission of Texas that approved a report finding that Range had not caused the contamination in plaintiffs’ well.

Lipsky v. Durant, Carter, Coleman LLC, No. 11CV-0798 (Tex. Dist. Ct. Parker Co. June 2012)

In June 2012, the trial court denied plaintiffs’ motion to dismiss Range’s counterclaims as barred by the Texas Citizens’ Participation Act, an anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

Lipsky v. Range Production Corp., No. No. 02–12–00098–CV (Tex. Ct. App. Fort Worth Aug. 23, 2012)

In August 2012, the court of appeals dismissed plaintiffs’ appeal for lack of jurisdiction, citing an earlier ruling that it did not have jurisdiction over interlocutory appeals from trial court orders denying motions to dismiss under the anti-SLAPP statute. The court of appeals granted plaintiffs’ request that the appeal be converted to an original proceeding seeking a writ of mandamus.



Description

In re Lipsky, No. 02-12-00348-CV (Tex. Ct. App. Fort Worth Apr. 22, 2013)

In the original proceeding for a writ of mandamus concerning whether the trial court abused its discretion in denying motions to dismiss Range’s counterclaims against landowner plaintiffs and an environmental consultant (relators) as in violation of Texas’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, the court of appeals determined that relators had met their initial burden of establishing that Range’s counterclaims were based on relators’ exercise of their right to free speech and right to petition. The court of appeals further ruled that the trial court did not clearly abuse its discretion in determining that Range had presented clear and specific evidence to establish a prima facie case for its defamation and business disparagement claims against relator Steven Lipsky, but that it had abused its discretion in determining that prima facie cases for such claims had been made against the other relators. The court also ruled that the trial court abused its discretion in denying the motions to dismiss the civil conspiracy and “aiding and abetting” counterclaims against all relators. Finding that relators had no adequate remedy on appeal, the court conditionally granted writs of mandamus and ordered the trial court to dismiss the civil conspiracy and aiding and abetting claims against Steven Lipsky and all claims against the other relators.

In re Lipsky, No. 02-12-00348-CV (Tex. Ct. App. Oct. 10, 2013)

On October 10, 2013, the Texas Court of Appeals denied motions for rehearing and en banc reconsideration made by Steven Lipsky and by Range Resources Corp.



In re Lipsky, No. 13-0928 (Tex. Lipsky pet. for writ of mandamus Nov. 25, 2013; Range Resources pet. Dec. 2, 2013).

In re Lipsky, No. 13-0928 (Tex. Apr. 24, 2015)

Description On November 25, 2013, Lipsky filed a petition for a writ of mandamus in the Texas Supreme Court arguing that it was a clear abuse of discretion not to dismiss all claims against him. He also sought review on the question of whether appeal following final judgment was an adequate remedy for the erroneous denial of a motion to dismiss under the Texas Citizens Participation Act. On December 2, 2013, Range Resources filed its own petition for mandamus, arguing that the appellate court had misapplied the evidentiary threshold under the TCPA, which requires the plaintiff to prove “by clear and specific evidence a prima facie case for each essential element of the claim in question.” The Texas Supreme Court allowed a defamation claim to proceed against a Texas landowner who had brought a lawsuit with his wife alleging that hydraulic fracturing conducted near their property by Range Production Company and Range Resources Corporation (together, Range) contaminated a water supply well. The Texas Supreme Court agreed that Range could use circumstantial evidence, not just direct evidence, to defeat a motion to dismiss under the Texas Citizens Participation Act, Texas’s anti-SLAPP (strategic lawsuit against public participation) statute. The TCPA requires plaintiffs to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Although the court found that Range had not produced clear and specific evidence of special damages necessary to support a business disparagement claim, the court found that the trial court had not erred in denying the motion to dismiss because damages to reputation are presumed in a defamation per se claim. The Texas Supreme Court affirmed the dismissal under the TCPA of claims against the landowner’s wife and an environmental consultant.

Andre v. EXCO Resources, Inc.

Name and Date

Andre v. EXCO Resources, Inc. (W.D. La, filed April 15, 2011)

Description

A class action was filed on behalf of an individual and others who sustained damages from a natural gas well blowout. The complaint alleges that methane and other contaminants migrated into plaintiffs’ drinking well as a result of natural gas drilling and the blowout.

Beckman v. EXCO Resources, Inc.

Name and Date

Description

Beckman v. EXCO Resources, Inc. (W.D. La, filed April 15, 2011)

Six individuals and one corporation that allegedly sustained damages as the result of a natural gas well blowout filed a lawsuit claiming that that methane and other contaminants migrated into plaintiffs’ drinking well as a result.

Kalp v. WPX Energy Appalachia, LLC

Name and Date

Description

Kalp v. WPX Energy Appalachia, LLC (W.D. Pa., filed May 16, 2012)

Plaintiffs filed a breach of contract lawsuit against WPX Energy Appalachia seeking to halt the company's efforts to build a 27-acre Marcellus shale drilling pad on the family's farm. The plaintiffs contend a 2006 lease predated Marcellus shale drilling and does not permit the company to seize a large chunk of the farm to base its operations. The case was originally filed in state court.

McRoberts v. Chesapeake Energy Corp.

Name and Date

Description

McRoberts v. Chesapeake Energy Corp. (W.D. Pa., filed April 19, 2012)

17 families filed a lawsuit against several oil and gas drilling companies alleging that the companies, after entering into leases to conduct drilling operations on their properties, failed to pay the required royalties or otherwise develop the mineral resources of the properties. The complaint also alleges that the companies attempted to material alter or fraudulently obtain the leases in question. The lawsuit was originally filed in Pennsylvania state court.

Hearn v. BHP Billiton Petroleum (Arkansas) Inc. Name and Date

Description

Hearn v. BHP Billiton Petroleum (Arkansas) Inc. 11-CV-0474 (E.D. Ark., filed June 9, 2011)

Plaintiff filed a lawsuit against a gas drilling company alleging that the operation of Class II disposal wells led to a series of injury-causing earthquakes in north central Arkansas.

In re Chesapeake Appalachia LLC Name and Date

Description

In re Chesapeake Appalachia A subsidiary of an Oklahoma-based energy company LLC (N.Y.S. Attorney General, entered into an agreement with the New York State Attorney General’s office to allow landowners in signed June 12, 2012)

upstate New York to renegotiate thousands of natural gas leases. The company also agreed to pay $250,000 for the costs of a state investigation into allegations that it had unfairly invoked force majeure principles into the leases to extend the leases. In June 2009, the company sent letters notifying owners whose terms were set to expire that the company was electing to extend the leases. The reason given was that the company could not perform any exploration until New York State Dep't of Envtl. Conservation completed its review of hydraulic fracturing.

Sierra Club v. Village of Painted Post Name and Date

Description

Sierra Club v. Village of Painted Post (N.Y. Sup. Ct. Steuben Co., filed June 25, 2012)

Several environmental groups and individuals filed a lawsuit challenging bulk water exports by the Village of Painted Post. According to the complaint, plaintiffs seek to annul a water sales agreement entered into by the Village and a company, which includes the lease of land for a water loading facility, that would export as much as 1.5 million gallons of water per day from a local aquifer to Pennsylvania for use in hydrofracking gas wells until the Village has fully complied with the requirements of the State Environmental Quality Review Act (SEQRA) and other relevant state and federal laws.

In re Bear Lake Properties LLC Name and Date

In re Bear Lake Properties LLC (EPA Envtl. Appeals Bd. June 28, 2012)

Description

The EPA Environmental Appeals Board found that EPA’s permit review of two wastewater disposal wells for a Pennsylvania-based hydraulic fracturing operation is inadequate to show that drinking water supplies would be protected. The ruling held that EPA Region 3 failed to provide adequate support to substantiate its conclusions that the permits would be protective of underground sources of drinking water. The permit was remanded back to the agency.

MarkWest Liberty Midstream & Resources LLC v. Cecil Township Name and Date

Description

MarkWest Liberty Midstream & Resources LLC v. Cecil Township (Pa. Commonwealth Ct., filed June 29, 2012)

A company, claiming irreparable financial damage, sued a Pennsylvania town concerning the town’s denial of a second application to construct a natural gas compression station on property located within the town. The company claims that it should be permitted to build the compressor station because it meets the requirements of Act 13, which governs oil and gas drilling in Pennsylvania, concerning distance from existing buildings and property lines.

In re Talisman Energy USA, Inc. Name and Date

Description

In re Talisman Energy USA, Inc. (EPA, consent order entered July 3, 2012)

An energy company has agreed to pay a $62,457 penalty to settle alleged violations of hazardous chemical reporting requirements pursuant to the Emergency Planning and Community Right-to-Know Act (EPCRA) at 52 hydraulic fracturing facilities throughout Pennsylvania that include natural gas well sites and compressor stations. Although the company discovered the violations and self disclosed them in 2010, EPA determined that the company was not eligible for full penalty mitigation because the agency had conducted a prior investigation of potential EPCRA violations and the company’s facilities.

Rodriguez v. Abruzzo Name and Date

Description

Rodriguez v. Krancer 12-CV-01458 (M.D. Pa., filed July 27, 2012)

A Pennsylvania doctor filed a First Amendment lawsuit challenging a provision in Act 13 that bars certain disclosures by physicians treating patients who were exposed to hydraulic fracturing fluids. Pursuant to the provision, a drilling company can request that a health care provider enter into an agreement to maintain the confidentiality of information concerning the specific identity and amount of chemicals that are claimed to be a trade secret as a condition of receiving the information.

Rodriguez v. Krancer 12-CV-01458 (M.D. Pa. Oct. 23, 2013)

The court granted defendants’ motion to dismiss on the ground that the doctor lacked standing. The court ruled that plaintiff’s alleged injury was “too conjectural” to satisfy Article III’s injury-in-fact requirement, noting that he had not alleged that he had needed or tried to obtain information regulated by Act 13 or that he had been required to enter into a confidentiality agreement under the Act. Nor had plaintiff shown that he had a “well founded or reasonable fear of prosecution” or that he had incurred economic losses due to Act 13’s requirements. The court ruled, moreover, that plaintiff appeared to lack prudential standing to mount an overbreadth challenge to the statute. Plaintiff’s attorney has indicated that he will appeal the decision.

Rodriguez v. Krancer 12-CV-01458 (M.D. Pa. Jan. 10, 2014)

The court denied a motion for reconsideration but allowed plaintiff to amend his complaint.


Rodriguez v. Abruzzo Name and Date

Description

Rodriguez v. Abruzzo, No. 3:12cv-1458 (M.D. Pa. June 30, 2014)

The federal district court for the Middle District of Pennsylvania dismissed the physician’s claims. The court ruled—as it had in an October 2013 decision (after which it allowed the physician to amend his complaint)—that the doctor did not have standing. The court said that the doctor’s claims of a lack of information about the types of toxins in the water supply to which his patients were exposed did not establish an injury-in-fact because he had not sufficiently alleged a link between information about local water and the laws restricting disclosure. The court further found that the question of whether the physician needed the information restricted by the state laws to treat patients remained “factually unsubstantiated.”

Colorado Oil and Gas Conservation Commission v. City of Longmont Name and Date

Description

Colorado Oil and Gas Conservation Commission v. City of Longmont (Col. Dist. Ct., filed July 30, 2012)

A state oil and gas commission filed a lawsuit in Colorado state court challenging the City of Longmont’s new rules regarding oil and gas operations, alleging that they are preempted by state law. On July 17, 2012, the city approved an ordinance that banned hydraulic fracturing in residential areas. The ordinance is more restrictive that the rules administered by the Commission. The lawsuit alleges that the ordinance is superseded by the Commission’s comprehensive regulatory process.

Colorado Oil & Gas Conservation Commission v. City of Longmont, No. 2012cv702 (Colo. Dist. Ct., stipulated dismissal of all claims and covenant not to sue Oct. 14, 2014)

The Colorado Oil and Gas Conservation Commission (COGCC), the Colorado Oil and Gas Association (COGA), the City of Longmont, and the environmental groups Earthworks and Sierra Club filed a stipulation in the District Court for Boulder County agreeing to the dismissal of COGCC’s lawsuit challenging Longmont’s July 2012 ordinance regulating oil and gas development. The lawsuit was dismissed without prejudice, but the parties covenanted not to assert claims or counterclaims made in this action in any future case. (COGCC said that it had agreed to the dismissal of the lawsuit after Governor John Hickenlooper and Congressman Jared Polis announced an agreement for creation of a task force that would make recommendations to the State legislature for minimizing conflicts between oil and gas facilities and other land uses.)

Pennsylvania Dep't of Envtl. Protection v. Legere Name and Date

Description

Pa. Dep't of Envtl. Protection v. Legere (Pa. Commw. Ct. July 31, 2012)

A Pennsylvania state court held that the state’s Department of Environmental Protection (DEP) must release documents on the connection between hydraulic fracturing and water quality to a reporter who requested the information under the state’s Right-to-Know law. The court upheld a December 2011 decision by the Office of Open Records requiring DEP to turn the documents over to a reporter who reports routinely on the impacts of drilling in the Scranton Times-Tribune. The court rejected DEP’s argument that it should not have to produce the documents because they were not easily located and the request was overly burdensome. The reporter sought letters that DEP is legally obligated to send to landowners or water supply owners that describe whether nearby oil or gas drilling have affected their water supplies.

Sonda v. Chesapeake Appalachia, LLC Name and Date

Description

Sonda v. Chesapeake Appalachia, LLC (N.D. W. Vir., filed July 6, 2012)

A landowner in West Virginia filed a lawsuit against a natural gas drilling company, alleging that the lease he signed with the company in 2006 required the company to drill on his land by 2011, or the lease would expire. The complaint alleges that the company pooled plaintiff’s land with other land and planned to drill on parts of the pooled land that did not include the land leased by plaintiff. As a result, the complaint alleges that the lease should have expired in 2011.

Crawford v. TransCanada Name and Date

Description

Crawford v. TransCanada (Lamar Co. (Tex.) Dist. Ct. Aug. 23, 2012)

A county court in Texas ruled via a 15 word opinion sent from the judge’s iPhone that TransCanada, which is seeking to build a pipeline to carry oil from Canada to Texas oil refineries, can acquire a 50 foot strip of land owned by an individual via eminent domain. At issue in the case is whether the company is a “common carrier” — a company with a pipeline open to any oil company willing to pay published rates. In Texas, a common carrier has the power to condemn land with little oversight. Plaintiff alleged that to earn the designation, an oil company need only claim the status itself on a one-page form submitted to the Texas Railroad Commission, which regulates pipelines. The plaintiff has appealed the ruling.

Minard Run Oil Co. v. U.S. Forest Service Name and Date

Description

Minard Run Oil Co. v. U.S. Forest Service (W.D. Pa. Sept. 7, 2012)

A federal district court in Pennsylvania held that the U.S. Forest Service cannot implement a 2009 settlement agreement between the agency and environmental groups that required it to complete an environmental impact statement pursuant to NEPA prior to authorizing new oil and gas drilling in the Allegheny National Forest. In September 2011, the Third Circuit upheld a preliminary injunction issued by the district court, affirming its holding that the agency has only limited authority over privately owned mineral rights, and sent the case back to the court for a ruling on the merits. In its decision, the district court said that it was bound by the legal determinations made by the appellate court and thus the agency could not implement the NEPA requirements of the 2009 agreement.

Minard Run Oil Co. v. U.S. Forest Service, No. 12-4160 (3d Cir. Sept. 26, 2013)

The Third Circuit affirmed the district court order granting summary judgment to the plaintiffs. The court rejected the argument that the district court should not have applied the law of the case doctrine with respect to the Third Circuit’s September 2011 decision upholding a preliminary injunction. The court noted that the district court was correct that the September 2011 decision had not merely considered plaintiffs’ likelihood of success on the merits but had “decisively resolved” the legal claims.

Impact Energy Resources v. Salazar Name and Date

Description

Impact Energy Resources v. Salazar (10th Cir. Sept. 5, 2012)

In late 2008, the Bureau of Land Management opened lands in Utah for oil and gas leases, and awarded several leases to the highest bidders, including plaintiff energy companies. In February 2009, the newly appointed Secretary of the Interior announced that the land in question would not be leased. The plaintiff companies subsequently brought suit in state court. The district court dismissed the lawsuit as time barred under the Mineral Leasing Act, which requires actions contesting a decision to be commenced within 90 days after the final decision of the Secretary. On appeal, the 10th Circuit affirmed, holding that the action should have been brought within 90 days of the February 2009 announcement by the Secretary.

Impact Energy Resources, LLC v. Jewell, No. 12-1290; Uintah County, Utah v. Jewell, No. 12-1291 (U.S. Oct. 7, 2013)

The U.S. Supreme Court denied two petitions for writs of certiorari.

Jeffrey v. Ryan Name and Date

Description

Jeffrey v. Ryan (N.Y. Sup. Ct. Binghamton Co. Oct. 2, 2012)

A New York state court struck down a local law banning hydraulic fracturing in the City of Binghamton, ruling that the law constituted a moratorium that was not properly enacted by the city. The court held that the city did not follow three procedural steps when it enacted the moratorium in 2011: that the moratorium was in response to a dire necessity, that it was reasonably calculated to alleviate or prevent a crisis, and that the city was taking reasonable steps to rectify the problem. In particular, the court pointed out that there was no dire need for the moratorium given that the state Department of Environmental Conservation has yet to publish new regulations concerning the practice in New York.

Envtl. Working Group v. NYS Dep't of Envtl. Protection Name and Date

Envtl. Working Group v. NYS Dep't of Envtl. Protection (N.Y. Sup. Ct. Albany Co., filed Sept. 17, 2012)

Description

A Washington D.C.-based environmental group filed a lawsuit against New York seeking documents concerning the oil and gas industry’s efforts to influence the state’s regulation of hydraulic fracturing. The lawsuit seeks correspondence and communications since Jan. 1, 2011, between 25 oil and natural-gas companies or their representatives and the governor, his top aides and department officials. In March 2012, the group filed a request under the state’s Freedom of Information Law. However, the lawsuit alleges that the governor provided only a very limited number of records.

Hiser v. XTO Energy Inc. Name and Date

Description

Hiser v. XTO Energy, Inc. (E.D. Ark. Aug. 14, 2012)

A plaintiff alleged that her home was damaged by vibrations resulting from nearby drilling activity and brought claims for negligence, nuisance, and trespass. The case was originally filed in state court and then removed to federal court. The defendant company moved for summary judgment. The district court denied the motion, holding that expert testimony was not required to determine proximate cause and that this was an issue of fact to be determined by a jury.

Hiser v. XTO Energy Inc., No. 4:11-cv-00517-KGB (E.D. Ark. Sept. 30, 2013)

After a jury verdict in favor of plaintiff ($100,000 in compensatory damages, $200,000 in punitive damages), defendant moved for judgment as a matter of law and for a new trial or for remittitur. The district court for the Eastern District of Arkansas denied the motion. The court concluded that there was sufficient evidence to send the punitive damages issue to the jury because plaintiff “complained early and often” about the drilling and defendant never had a construction expert examine her property or test for vibrations until after plaintiff filed her lawsuit. The court also rejected the contention that a new trial was warranted because the defendant was prejudiced by the jury’s extrarecord discussion of fracking. Jurors had apparently discussed fracking and had sent the court a note asking, “Were they drilling only or were they also fracking?” Defendant contended that the discussions of fracking were prejudicial because of the negative attention fracking had received in the press and other media. continued on next page

Hiser v. XTO Energy Inc. Name and Date

Description

Hiser v. XTO Energy, Inc., No. 133443 (8th Cir. Oct. 3, 2014)

The Eighth Circuit Court of Appeals affirmed a district court’s denial of a motion for a new trial in a case where a jury awarded an Arkansas homeowner $300,000 for damages caused to her home by vibrations from drilling. The Eighth Circuit rejected defendant’s argument that a new trial was warranted because a juror brought extraneous, prejudicial information about hydraulic fracturing to the jury’s attention during its deliberations. The jury had not heard any evidence about fracking, but asked the court during deliberations, “Were they drilling only or were they also fracking,” after which the court instructed them to make their decision based on what they recalled of the evidence and the instructions provided. The Eighth Circuit said the court’s instruction eliminated any risk of prejudice, noting that fracking had not been discussed again after the court’s instruction. The court also said that the court had not abused its discretion when it refused to subpoena a juror who had not agreed to a voluntary interview.

American Petroleum Institute v. EPA Name and Date

Description

American Petroleum Institute v. EPA No. 12-1405 (D.C. Cir., filed Oct. 15, 2012)

Nine petitions were filed by environmental groups, industry associations, and the state of Texas challenging EPA’s air pollution standards for certain oil and gas operations, including gas wells. EPA’s final rule was released in April 2012 and published in August 2012. The final standards are expected to reduce emissions of volatile organic compounds, methane, and air toxics. However, the rule does not directly regulate methane, which the petitions by environmental groups challenge.

Texas v. EPA No. 12-1417 (D.C. Cir. Jan. 17, 2013)

In a clerk’s order, the court granted the Texas petitioners’ motion for voluntary dismissal. The Texas petitioners had informed the court that they believed that “the issues in this case more directly affect the industry petitioners and can be fully and adequately addressed by them.”

American Petroleum Institute v. EPA No. 12-1405 (D.C. Cir. Apr. 3, 2013)

In a clerk’s order, the court granted EPA’s unopposed motion to sever the challenge to the new source performance standards (NSPSs) from the challenge to the national emissions standards for hazardous air pollutants (NESHAPs). The challenges were suspended pending EPA actions on petitions for reconsideration. The NSPS challenge (now assigned to docket number 13-1108) is to be held in abeyance until August 30, 2013. The NESHAP challenge is to be held in abeyance until May 30, 2014, with a progress report due to the court from EPA on October 1, 2013. The court granted several extensions to the May 30, 2014 deadline, including a February 10, 2015 order that extended the deadline for submitting a motion to govern to February 27, 2015.

Center for Biological Diversity v. Cal. Dep't of Cons. Name and Date

Description

Center for Biological Diversity v. Cal. Dep't of Conservation No. RG12652054, (Cal. Super. Ct., filed Oct. 16, 2012)

Four environmental groups filed a lawsuit in California state court seeking to force the California Department of Conservation (CDC) to conduct environmental analyses for oil and gas fields before hydraulic fracturing occurs. The plaintiffs alleged that the California Division of Oil, Gas, and Geothermal Resources (CDOGGR), a division of CDC, had violated the California Environmental Quality Act (CEQA) by issuing permits for oil and gas drilling without analyzing the risks posed by fracturing.

Center for Biological Diversity v. Cal. Dep’t of Conservation, No. RG12652054 (Cal. Super. Ct. Jan. 13, 2014)

The court dismissed the action. It found that the claims regarding CDOGGR policy and practices prior to January 1, 2015 were moot, because SB 4—the California hydraulic fracturing law passed in 2013 after the commencement of the lawsuit—and emergency regulations issued pursuant to SB 4 establish the requirements for issuing permits prior to issuance of final regulations. (SB 4 requires issuance of the final regulations by January 1, 2015.) The challenge to policy and practices after January 1, 2015 was not ripe because the final regulations had not been issued yet.

Teel v. Chesapeake Appalachia LLC Name and Date

Description

Teel v. Chesapeake Appalachia LLC (N.D. W. Va. Oct. 25, 2012)

Landowners in West Virginia filed a lawsuit against a gas drilling company for trespass, negligence, and related claims alleging that the company’s dumping of large volumes of drill cuttings, mud, and chemical additives into a waste pit on their property damaged it and harmed them. The company moved for partial summary judgment on the trespass claim. The court granted the motion, holding that the plaintiffs could not maintain a trespass claim given that the creation of the pits was contemplated by state law and was thus necessary and reasonable.

Ctr. for Biological Diversity v. Jewell Name and Date

Description

Ctr. for Biological Diversity v. Jewell No. 13-CV-1749 (N.D. Cal., filed Apr. 18, 2013)

Plaintiffs asserted a NEPA challenge to the sale by the Bureau of Land Management (BLM) of oil and gas leases for almost 18,000 acres of federal land in California. Plaintiffs alleged that in asserting that only one well would be drilled on each acre, BLM failed to address the potential impacts of hydraulic fracturing on water and air quality and other resources.

Center for Biological Diversity v. Jewell, No. 13-cv-1749 (N.D. Cal. joint stipulation of dismissal without prejudice July 17, 2014)

The parties filed a joint stipulation of dismissal without prejudice. The stipulation was filed in conjunction with an agreement between the parties in a related case, Center for Biological Diversity v. Bureau of Land Management, No. 11cv-06174 (N.D. Cal.).

Harnas v. Gas Field Specialists, Inc. Name and Date

Description

Harnas v. Gas Field Specialists, Inc. Index No. 2009-2827 (N.Y. Sup. Ct. Nov. 23, 2009)

Plaintiffs asserted nuisance, trespass, negligence, and negligence per se causes of action against defendant who allegedly manufactured and produced natural gas and oil at property adjacent to plaintiffs’ property.

Harnas v. Gas Field Specialists, Inc. No. 6:09-cv-06629-CJS-MWP (W.D.N.Y. Dec. 9, 2009)

Defendant removed the action to federal district court in the Western District of New York.

Bombardiere v. Schlumberger Tech. Corp. Name and Date

Description

Bombardiere v. Schlumberger Tech. Corp. (W. Va. Cir. Ct. Feb. 11, 2011)

In this action, plaintiff alleged that he had been injured by exposure to hydraulic fracturing chemicals in the course of his work at gas wells. He asserted the following counts: negligence/willful, wanton and reckless misconduct; deliberate intent pursuant to West Virginia Code § 23-4-2(c) (Workers’ Compensation Act); alter ego; agency; strict liability/ultrahazardous activity; preparation and use of proprietary chemical fracking fluids; wrongful interference with employment/wrongful interference with protected property interests; and punitive damages.

Bombardiere v. Schlumberger Tech. Corp.,No. 11-cv-00050 (N.D. W. Va. Apr. 14, 2011)

Defendants removed the action based on diversity jurisdiction.

Bombardiere v. Schlumberger Tech. Corp., No. 11-cv-00050 (N.D. W. Va. Jan. 16, 2013)

The court “so ordered” a stipulation and order dismissing Consol Energy, Inc. and CNX Gas Corp. from the case, and withdrawing plaintiff’s alter ego claim against CNX Gas Co., LLC (CNX Gas Co.)


The court granted in part the motion for summary judgment of defendant SOS Staffing Services, Inc. (SOS), which had a Master Services Agreement with defendant Schlumberger Technology Corp. (Sclumberger) to provide temporary employees to Schlumberger and which had hired plaintiff to work at Schlumberger. The court granted SOS’s motion as to the negligence, agency, wrongful interference with employment, and punitive damages counts. The court reserved ruling on the deliberate intent claim and denied summary judgment for the strict liability claim on the ground that it was moot since plaintiff had withdrawn it.


Description


The court granted in part the motion for summary judgment of Schlumberger. The court ruled that Schlumberger was a “special employer” under the Workers’ Compensation Act and that the negligence claim therefore failed as a matter of law. The court also granted summary judgment to Schlumberger with respect to the agency and punitive damages claim. The court reserved ruling on the deliberate intent claim and denied summary judgment for the strict liability, preparation and use of proprietary chemical fracking fluids, and wrongful interference with employment claims on the ground that they were moot since plaintiff had withdrawn them.

Bombardiere v. Schlumberger Tech. Corp., No. 11-cv-00050 (N.D. W. Va. Feb. 1, 2013)

The court granted in part the motion for summary judgment of defendant CNX Gas Co. CNX Gas Co. had a Master Service Agreement with Schlumberger to provide certain oilfield services. The court granted summary judgment on the negligence count, ruling that the “peculiar risk exception” to the rule that landowners who employ independent contractors are exempt from liability for injuries to the contractors’ employees did not apply. The court also granted summary judgment on the agency and punitive damages counts and denied summary judgment for the strict liability, preparation and use of proprietary chemical fracking fluids, and wrongful interference with employment claims on the ground that they were moot since plaintiff had withdrawn them. The court dismissed CNX Gas Co. as a defendant.


Description

Bombardiere v. Schlumberger Tech. Corp., No. 11-cv-00050 (N.D. W. Va. Feb. 21, 2013)

The court granted SOS’s motion for summary judgment on the deliberate intent claims, finding that plaintiff had not established that SOS had actual knowledge of or intentionally exposed the plaintiff to any of the alleged unsafe working conditions. The court dismissed SOS as a defendant.

Bombardiere v. Schlumberger Tech. Corp., No. 11-cv-00050 (N.D. W. Va. Apr. 16, 2013)

In April 2013, a federal jury rendered a verdict in favor of the defendant Schlumberger Technology Corp.

Lenape Resources Inc. v. Town of Avon Name and Date

Description

Lenape Resources, Inc. v. Town of Avon,No. 1060-2012 (Sup. Ct. Livingston Co. Mar. 15, 2013)

The Town of Avon enacted a one-year moratorium on natural gas drilling activities within the Town. Plaintiff challenged the moratorium on a number of grounds. Plaintiff’s principal contention was that the moratorium was expressly preempted by New York’s Oil, Gas and Solution Mining Law (OGSML). Citing the New York Court of Appeals precedent (but writing that “[i]n this Court’s view, the Court of Appeals’ decision in Frew Run is flawed”), the court concluded that the moratorium was not preempted because it did not relate to the regulation of the oil, gas and solution mining industries but was concerned instead with general land use planning. Plaintiff has filed a notice of appeal. The appeal will be heard by the New York State Appellate Division’s Fourth Department.

Lenape Resources, Inc. v. Town of Avon, No. 14-00102 (N.Y. App. Div. Oct. 3, 2014)

The New York Appellate Division dismissed the appeal as moot. The court said the expiration of the moratorium rendered the appeal moot, and that the appeal did not qualify for the exception to the mootness doctrine for “significant or important questions not previously passed on, i.e., substantial and novel issues” because the New York Court of Appeals in Matter of Wallach v. Town of Dryden had resolved all of the substantive issues raised by plaintiff.

Matter of Grafe-Kieklak v. Town of Sidney Name and Date

Description

Matter of Grafe-Kieklak v. Town of Sidney Index No. 2013-602 (N.Y. Sup. Ct. Delaware Co. filed June 12, 2013)

Petitioners challenge the Town of Sidney’s temporary moratorium on oil and gas drilling activities within the Town. Petitioners claim that the Town Board did not follow proper procedures in enacting the moratorium. The complaint’s claims draw from the decision in Jeffrey v. Ryan (N.Y. Sup. Ct. Binghamton Co. Oct. 2, 2012) that struck down a drilling moratorium in the City of Binghamton.

Scoggin v. Cudd Pumping Services Inc. Name and Date

Description

Scoggin v. Cudd Pumping Services, Inc. No. 11-CV-00678 (E.D. Ark. filed Sept. 12, 2011)

This action was commenced by a grandmother on behalf of her minor grandchildren who resided with her and who were allegedly exposed to “noxious and poisonous carcinogenic matter and compounds” as a result of their home’s proximity to hydraulic fracturing operations. Plaintiffs alleged strict liability, nuisance, trespass, and negligence claims and sought compensatory and punitive damages as well as establishment of a medical monitoring fund.

Scoggin v. Cudd Pumping Services, Inc. No. 11-CV-00678 (E.D. Ark. June 10, 2013)

Plaintiffs and defendants filed a stipulation to dismiss the action without prejudice.

Ctr. for Biological Diversity v. Cal. Dep't of Conservation Name and Date

Description

Ctr. for Biological Diversity v. Cal. Dep't of Conservation No. RG13664534 (Cal. Super. Ct., filed Jan. 24, 2013)

The Center for Biological Diversity commenced this action seeking declaratory and injunctive relief in connection with the permitting practices of the Division of Oil, Gas and Geothermal Resources (DOGGR) of the California Department of Conservation. Plaintiff alleged that DOGGR issues permits for oil and gas operations in violation of California’s underground injection control program and in violation of DOGGR’s mandate under the California Public Resources Code to approve and supervise all oil and gas extraction so as to prevent, as far as possible, damage to life, health, property, and natural resources.

Roth v. Cabot Oil & Gas Corp. Name and Date

Description

Roth v. Cabot Oil & Gas Corp. (Pa. Ct. Comm. Pl. filed Mar. 19, 2012)

Plaintiffs alleged that defendants conducted oil and gas operations, including hydraulic fracturing, in the vicinity of their residence and water supply well, and that defendants’ activities caused personal injuries and property damage.

Roth v. Cabot Oil & Gas Corp. No. 12-CV-00898 (M.D. Pa. May 14, 2012)

Defendants removed the case to federal court in the Middle District of Pennsylvania.

Roth v. Cabot Oil & Gas Corp. No. 12-CV-00898 (M.D. Pa. Aug. 6, 2012)

Plaintiffs filed an amended complaint in which they no longer included damages for past and future medical costs, personal injury, or emotional distress, or establishment of a medical monitoring fund in their claim for relief.

Roth v. Cabot Oil & Gas Corp. No. 12-CV-00898 (M.D. Pa. Oct. 15, 2012)

The court denied defendants’ motion for a Lone Pine case management order that would have required plaintiffs to present a prima facie evidentiary showing in support of their claims prior to the commencement of traditional discovery.

Hallowich v. Range Resources Corp. Name and Date

Description

Hallowich v. Range Resources Corp. No. 2010-3954 (Pa. Ct. Com. Pl. Mar. 20, 2013)

Plaintiffs filed this lawsuit without a complaint in 2010. They asserted that defendant energy companies’ drilling operations resulted in contamination to their property. Plaintiffs also asserted that the Pennsylvania Department of Environmental Protection failed to enforce the state’s laws against defendants, thereby violating plaintiffs’ right to be free of a State-created danger. In July 2011, plaintiffs filed to discontinue the action because the parties had reached a settlement for which they sought court approval because the settlement affected the rights of minor children. The court held a hearing on August 23, 2011, and an order of the same date granted the defendant energy companies’ motion to seal the record in the case. Two newspapers sought to intervene and unseal the record. The court denied the newspapers’ requests to intervene as untimely, but on appeal the Pennsylvania Superior Court remanded the newspapers’ petitions with instructions to rule on the merits of the requests. On March 20, 2013, the Court of Common Pleas granted the motions to unseal the record. The court concluded that the common law right of access to court records compelled opening the record and that defendants’ claims of a right to privacy were meritless, finding that businesses do not have a right of privacy under the Pennsylvania constitution.

Western Energy Alliance v. Salazar Name and Date

Description

Western Energy Alliance v. Salazar No. 10-cv-0226 (June 29, 2011)

Plaintiffs sued the Bureau of Land Management (BLM) alleging that it violated the Mineral Leasing Act by failing to issue oil and gas leases within 60 days of the dates on which the top qualified bidders paid for the leases. The district court ruled that BLM was required to determine whether or not lands are to be leased within 60 days of payment, but was not required to issue the lease within the 60-day timeframe.

Western Energy Alliance v. Salazar No. 11-8071 (10th Cir. Mar. 12, 2013)

The Tenth Circuit dismissed the plaintiffs’ appeal on the jurisdictional ground that the district court’s June 2011 decision and order was not a “final decision” because the court had remanded the matter back to the agency for further action.

Magers v. Chesapeake Appalachia LLC Name and Date

Description

Magers v. Chesapeake Appalachia LLC No. 5:12-cv-49 (N.D. W.Va. Apr. 10, 2013)

Plaintiffs alleged that defendants’ gas drilling and storage activities on property adjacent to plaintiffs’ land caused methane pollution in their water. The court denied a motion to dismiss for failure to state a claim, but granted an alternative motion to require a more definite statement—and instructed plaintiffs to include more “succinct allegations” against the individual defendants outlining their individual contributions to the alleged injury.

Magers v. Chesapeake Appalachia, LLC, No. 5:12-cv-49 (N.D. W. Va. Aug. 19, 2013).

Among other things, plaintiffs alleged that the shallow gas wells of defendant CNX Gas Company, LLC (CNX) contaminated the well. The court granted CNX’s motion to dismiss for failure to state a claim. The court held that the statutes cited by plaintiffs as the basis for their action did not provide a private right of action to adjacent landowners. The court also held that plaintiffs had not adequately pleaded the duty and breach elements of a negligence claim.

Magers v. Chesapeake Appalachia, LLC, No. 5:12-cv-49 (N.D. W. Va. Dec. 6, 2013)

In December 2013, the court denied plaintiffs’ motion to alter or amend the judgment dismissing CNX from the action. However, the court allowed plaintiffs to amend their complaint to recouch their negligence claim against the other defendants.

Magers v. Chesapeake Appalachia, LLC, No. 5:12-cv-49 (N.D. W. Va. Sept. 2, 2014)

The federal district court for the Northern District of West Virginia granted summary judgment to Columbia Gas Transmission, L.L.C. (Columbia) in a lawsuit alleging that Columbia’s gas storage field caused methane contamination in plaintiff’s water well. The court found that plaintiffs had failed to show more than a mere possibility that Columbia was the source of the gas in plaintiffs’ well. The court noted that plaintiffs had not provided any evidence to counter defendant’s expert’s finding that the gas in their well was biogenic.

Heavens v. Pa. Dep’t of Envtl. Prot. Name and Date

Description

Heavens v. Pa. Dep’t of Envtl. Prot. 912 CD 2012 (Pa. Commw. Ct. Apr. 9, 2013)

Plaintiff had requested documents from the Pennsylvania Department of Environmental Protection (PADEP) in connection with a tank fire accident at a natural gas drilling site. PADEP declined to provide some documents on the ground that they were exempted from public access requirements. The court upheld PADEP’s determination, finding that PADEP had shown that the records fell within the noncriminal investigation exception or were protected by the attorney-client or work product doctrine privileges.

Vodenichar v. Halcón Energy Properties Inc. Name and Date

Description

Vodenichar v. Halcón Energy Properties, Inc. No. 13-cv-00360 (W.D. Pa. Apr. 4, 2013)

Plaintiff landowners initiated this class action lawsuit alleging breaches of contracts against energy companies. Plaintiffs had previously initiated a federal lawsuit against Halcón Energy Properties, Inc. (Halcón ) under the court’s diversity jurisdiction, which they voluntarily dismissed after Halcon indicated it would join two Pennsylvania companies. After plaintiffs reinitiated their lawsuit in Pennsylvania state court, Halcón removed the action, claiming that it fell within the scope of the Class Action Fairness Act. The federal court remanded the action, finding that the “home state exception” applied because plaintiffs had established that at least two-thirds of the plaintiffs and the “primary defendants” (which did not include Halcón) were Pennsylvania citizens.

Vodenichar v. Halcón Energy Properties Inc. No. 13-2812 (3d Cir. Aug. 16, 2013)

The Third Circuit affirmed. Unlike the district court, which found that the Class Action Fairness Act exception for local controversies did not apply because there was an “other class action” filed in the past three years (i.e., plaintiffs’ earlier federal action that they voluntarily dismissed), the Third Circuit said that the current action was in effect the same action and that the “local controversy” exception applied. The Third Circuit also ruled that Halcón was a “primary defendant” and that the “home state exception” therefore did not apply. The Third Circuit described criteria for determining whether a defendant is a “primary defendant,” including “whether the defendant is the ‘real target’ of the plaintiffs’ accusations; “if the plaintiffs seek to hold the defendant responsible for its own actions, as opposed to seeking to have it pay for the actions of others”; and whether the defendant “has potential exposure to a significant portion of the class and would sustain a substantial loss as compared to other defendants if found liable.”

Auth v. Marco Drilling, Inc. Name and Date

Description

Auth v. Marco Drilling, Inc. 1674 WDA 2011 (Pa. Super. Ct. Mar. 28, 2013)

Property owners appealed the denial of their request for a preliminary injunction to prevent a drilling company from using a private road for access to a drilling site. The court hearing the appeal affirmed the denial, finding that the increased traffic, maintenance, and changes to the roadways caused by the drilling company’s use did not pose an unreasonable burden on the property owners, and that maintenance agreements into which some of the property owners had entered could not serve as a basis for an injunction.

State ex rel. Morrison v. Beck Energy Corp. Name and Date

Description

State ex rel. Morrison v. Beck Energy Corp. (Ohio. Ct. Comm. Pls. Apr. 6, 2011)

Beck Energy Corp. began drilling in the City of Munroe Falls, Ohio after obtaining a permit from the Ohio Department of Natural Resources. The City issued a stop work order and sought an injunction in court, alleging that the drilling was not in compliance with the City’s permitting requirements for drilling, zoning, and construction of rights-of-way.

State ex rel. Morrison v. Beck Energy Corp. (Ohio. Ct. Comm. Pls. May 3, 2011)

The trial court granted a preliminary injunction on May 3, 2011 and subsequently issued an order granting a permanent injunction.

State ex rel. Morrison v. Beck Energy Corp. 2013-Ohio-356 (Ohio Ct. App. Feb. 6, 2013)

On appeal, the Ohio Court of Appeals reversed, finding that the state’s oil and gas drilling statute conflicted with and thus preempted the local drilling ordinances as well as the City’s requirements for obtaining zoning certificates for drilling activities. The City’s rights-of-way ordinances were not preempted but could not be enforced “in a way that discriminates against, unfairly impedes, or obstructs oil and gas activities and operations.”


State ex rel. Morrison v. Beck Energy Corp. Name and Date

State ex rel. Morrison v. Beck Energy Corp. 2013-0465 (Ohio June 19, 2013) State ex rel. Morrison v. Beck Energy Corp., No. 2013-0465 (Ohio Feb. 17, 2015)

Description The Ohio Supreme Court accepted an appeal for review.

The Ohio Supreme Court ruled that the Ohio Constitution’s Home Rule Amendment did not grant municipalities the authority to enforce their own permitting schemes for oil and gas wells and production operations. The court held that Ohio law gave the state government “sole and exclusive” authority” to regulate in this realm. The decision affirmed that the City of Munroe Falls could not enforce five local ordinances to prohibit defendant Beck Energy Corporation from drilling in the city, one ordinance that required a “zoning certificate” prior to commencement of construction or excavation and four ordinances relating to oil and gas exploration. In an opinion concurring in the judgment, one justice said that she believed the decision to be a narrow one that did not address the broader question of whether municipalities can enact zoning ordinances that affect oil and gas wells within their boundaries. Three justices dissented.

U.S. v. SG Interests I, Ltd. Name and Date

Description

U.S. v. SG Interests I, Ltd. No. 12-cv-00395 (D. Colo., filed Feb. 15, 2012)

In a civil antitrust action, the U.S. alleged that Gunnison Energy Corporation (GEC) and SG Interests I, Ltd. and SG Interests VII, Ltd. (collectively, SGI) violated section 1 of the Sherman Act (15 U.S.C. § 1). In 2005, the companies— which acquired and developed gas leases in the Ragged Mountain Area in Colorado—entered into a memorandum of understanding that provided that only SGI would bid on certain leases offered by the Bureau of Land Management and that if SGI won the auction it would assign a 50-percent interest to GEC at cost.

U.S. v. SG Interests I, Ltd. No. 12-cv-00395 (D. Colo. Dec. 12, 2012)

The district court rejected a settlement proffered by the parties as not in the public interest and denied a motion for entry of final judgment. The court found that it was inappropriate to combine settlement of the antitrust allegations with settlement of False Claims Act claims pending in a separate lawsuit. Moreover, the court cited the “unrepentant arrogance” of GEC in its response to public comments on the proposed settlement and found that it would not be in the public interest to permit a defendant “to leave its civil action in such a smirking, self-righteous attitude.” The court found no basis for saying that the settlement would deter defendants or other actors in the industry, noting that GEC had indicated that “joint bidding” was a common practice.

U.S. v. SG Interests I, Ltd. No. 12-cv-00395 (D. Colo. Apr. 22, 2013)

In April 2013, the district court approved a settlement that did not involve the False Claims Act claims, which were settled separately. The court entered final judgment with respect to both SGI and GEC.

Pa. Envtl. Def. Found. v. Commonwealth of Pennsylvania Name and Date

Description

Pa. Envtl. Def. Found. v. Commonwealth of Pennsylvania No. 228 M.D. 2012 (Pa. Commw. Ct. Apr. 2012)

Plaintiff challenged the constitutionality of various legislative enactments that plaintiff alleged impermissibly diverted funds from the Oil and Gas Lease Fund, which was created exclusively to preserve state parks and forests in connection with extraction activities on public lands, to the General Fund and other funds. Plaintiff also alleged that the laws compelled leasing of State forest lands without evaluation of potential harm to the State’s natural resources in violation of the State’s obligation as trustee. Pennsylvania’s constitution imposes the duty to “conserve and maintain” Pennsylvania’s public natural resources “for the benefit of all the people,” including future generations.

Pa. Envtl. Def. Found. v. Commonwealth of Pennsylvania No. 228 M.D. 2012 (Jan. 22, 2013) Pa. Envtl. Def. Found. v. Commonwealth of Pennsylvania, No. 228 MD 2012 (Pa. Commw. Ct. June 5, 2014)

The court overruled the Commonwealth’s preliminary objections, which challenged the legal sufficiency of the allegations and argued that they presented non-justiciable political questions. After Governor Tom Corbett proposed a budget for Fiscal Year (FY) 2014–15 that included $75 million in revenues from “non-surface impact leasing” of state lands for natural gas extraction as well as almost $120 million for the operating expenses of the Department of Conservation and Natural Resources, which oversees state parks and other state lands, the Pennsylvania Environmental Defense Foundation asked the court to grant a preliminary injunction. Petitioner asserted that these appropriations violated the Environmental Rights Amendment of the Pennsylvania Constitution, as well as the Conservation and Natural Resources Act and the Oil and Gas Lease Fund Act. The court declined to hold a hearing or make a decision on petitioner’s request prior to the completion of the State’s FY 2014–15 budget process. The court concluded that doing so would interfere with negotiations and decision-making in other branches of government and run afoul of the separation of powers. He asked that petitioner request a status conference after final enactment of the FY 2014–15 budget.



Description

Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, No. 228 MD 2012 (Pa. Commw. Ct. July 17, 2014)

The parties agreed to a stipulation under which plaintiff would withdraw its application for a preliminary injunction preventing the state from using the Oil and Gas Lease Fund to fund Department of Conservation and Natural Resources (DNCR) operations during the pendency of the action, and defendants and DNCR agreed not to execute any additional leases for gas or mineral interests in state forests and parks until the court issued a final order. The Pennsylvania Commonwealth Court issued an order cancelling a scheduled hearing on the application for the preliminary injunction and set a briefing schedule. Oral argument will take place in October 2014. The DNCR secretary said that the agreement ensured that DNCR would receive critical funding for keeping state parks open and managing state forests. The Pennsylvania Environmental Defense Foundation said they were “bringing their case to support DCNR’s ability to protect our Parks and Forests, not shut them down.”



Description

Pennsylvania Environmental Defense Foundation v. Pennsylvania, 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015)

The Pennsylvania Commonwealth Court rejected constitutional challenges to oil and gas development on state lands and to the state’s use of royalties from such development. Pennsylvania Environmental Defense Foundation (PEDF) had charged that the leasing of state lands for oil and gas development and the use of funds in the Oil and Gas Lease Fund (Lease Fund), which holds royalties from oil and gas leases on state land, for purposes other than conservation and protection of natural resources violated the Pennsylvania constitution’s Environmental Rights Amendment, the Conservation and Natural Resources Act, and the Oil and Gas Lease Fund Act. The Commonwealth Court held that statutory provisions that vested the General Assembly with authority to appropriate royalty monies in the Lease Fund and that limited the amount of royalties that could be appropriated to the Department of Conservation and Natural Resources (DCNR) to $50 million were not unconstitutional. The Commonwealth Court also denied PEDF’s constitutional challenge to the transfer of funds from the Lease Fund. The court also said that it believed that DCNR could oversee the lease of state lands for oil and gas development consistent with its obligations under the Environmental Rights Amendment. The court noted that this would involve not only imposing lease terms but also determining whether further leasing was appropriate. PEDF has appealed the decision to the Pennsylvania Supreme Court, where briefing was completed on August 26, 2015.

S. Utah Wilderness Alliance v. BLM Name and Date

Description

S. Utah Wilderness Alliance v. BLM No. 13-cv-00047 (D. Utah, filed Jan. 18, 2013)

Plaintiffs challenged the federal defendants’ approvals of the Gasco Energy Inc. Uinta Basin Natural Gas Development Project in Utah. Plaintiffs alleged that the Bureau of Land Management violated the National Environmental Policy Act in approving the project.

S. Utah Wilderness Alliance v. BLM No. 13-cv-00047 (D. Utah Feb. 13, 2013)

In February 13, plaintiffs filed a notice of dismissal.

Colo. Oil & Gas Ass’n v. Longmont Name and Date

Description

Colorado Oil and Gas Association v. City of Longmont, No. 13CV63 (Colo. Dist. Ct. July 24, 2014)

A Colorado District Court ruled that state law preempted the City of Longmont’s ban on hydraulic fracturing and the disposal and storage of waste from hydraulic fracturing. The court found that there was an “irreconcilable” operational conflict between the local interest in banning fracking activities and the State’s interests in the efficient development and production of oil and gas, the prevention of waste, and the protection of mineral rights owners’ correlative rights. The court declined to find that implied preemption applied in the case—which would have required a finding that the State’s interest in hydraulic fracturing was so dominant as to completely occupy the regulatory field. The court stayed its order enjoining enforcement of the ban to allow time for the filing of a notice of appeal.

Colorado Oil and Gas Association v. City of Longmont, No. 13CV63 (Colo. Dist. Ct. stay order & bond order Oct. 14, 2014)

The Colorado district court granted the City’s motion for stay pending appeal. The City and intervenor environmental groups have appealed the July ruling. TOP Operating Co. (TOP), which plans to use hydraulic fracturing in wells in Longmont and which intervened on the plaintiffs’ side, had asked for bond of approximately $20 million, but the court instead set a nominal bond of $100 (to be paid by the environmental groups). The court noted that if its July 2014 order was upheld on appeal TOP could still obtain revenue from drilling.


Colo. Oil & Gas Ass’n v. Longmont Name and Date

Description

Colorado Oil and Gas Association v. City of Longmont, No. 14CA1759 (Colo. Ct. App. Aug. 17, 2015)

The Colorado Court of Appeals referred appeals in unsuccessful challenges to municipal bans on hydraulic fracturing in Longmont and Fort Collins to the Colorado Supreme Court, citing the public interest in the cases, the important legal issues raised, the desirability of conserving public and private resources, and the potential for inconsistent appellate judgments.

Food and Water Watch v. TOP Operating Co., No. 15SC667 (Colo. Sept. 21, 2015)

The Colorado Supreme Court agreed to hear challenges to municipal bans on hydraulic fracturing in two cities, Longmont and Fort Collins. The municipalities and several environmental groups are appealing rulings by the state district courts that struck down a fracking ban in Longmont and a Fort Collins fracking moratorium as preempted by state law. The court will consider “[w]hether home-rule cities are preempted from promulgating local land-use regulations that prohibit the use of hydraulic fracturing in oil and gas operations and the storage of such waste products within city limits when the Colorado Oil and Gas Conservation Commission regulates hydraulic fracturing within the state.”

Montana Env. Information Center v. BLM Name and Date

Description

Mont. Envtl. Info. Ctr. v. BLM No. 4:11-cv-00015 (D. Mont., filed Feb. 7, 2011)

A coalition of environmental groups sued the Bureau of Land Management (BLM) for allegedly failing to consider the climate change impacts of oil and gas leasing on public lands in Montana and the Dakotas. The groups alleged that the Interior Department failed to control the release of methane from oil and gas development on nearly 60,000 acres of leases sold in 2008 and December 2010 in violation of NEPA. The environmental groups settled an earlier action under which BLM agreed to suspend the 2008 leases and conduct a supplement EIS of their climate change impacts. In August 2010, BLM said that emissions from developing these leases could not be tied to specific climate change impacts and decided to move forward with issuing the 2008 leases and a new round of 2010 leases.

Mont. Envtl. Info. Ctr. v. BLM No. 4:11-cv-00015 (D. Mont. June 14, 2013)

The court granted defendants’ motion for summary judgment and dismissed the lawsuit on standing grounds, finding that plaintiffs had failed to establish injury-in-fact. Noting that plaintiffs’ recreational and aesthetic interests were “uniformly local” and the effects of greenhouse gas emissions “diffuse and unpredictable,” the court found that plaintiffs had presented “no scientific evidence or recorded scientific observations to support their assertions that BLM’s leasing decisions will present a threat of climate change impacts on lands near the lease sites.” The court further held that plaintiffs had made no effort to show that methane emissions from the lease sites would make a “meaningful contribution” to global warming and had thus failed to show that potential climate change impacts to the local environment were “fairly traceable” to greenhouse gas emissions associated with the challenged leases.

Powder River Basin Resource Council v. BLM Name and Date

Description

Powder River Basin Resource Council v. BLM,No. 1:12-cv00996 (D.D.C. , filed June 19, 2012)

Plaintiffs challenged the national Bureau of Land Management (BLM) director’s determination to affirm the Resource Management Plan Amendment (RMPA) and associated Environmental Assessment the Fortification Creek Plan Amendment to the Buffalo Resource Management Plan, as well as BLM’s subsequent approval of a 16-well drilling-stage project implementing the RMPA. The RMPA concerns an area of the Powder River Basin in northeastern Wyoming. Plaintiffs allege that BLM’s actions violated the National Environmental Policy Act. They contend, among other things, that BLM permitted its own management approach to be coopted by the coalbed natural gas industry’s interests.

Powder River Basin Resource Council v. United States Bureau of Land Management, No. 12-cv00996 (BJR) (D.D.C. Mar. 28, 2014)

The federal district court for the District of Columbia granted defendants’ motion for summary judgment. The court ruled that BLM had complied with the National Environmental Policy Act, in that it taken a hard look at environmental impacts, including impacts to a nonmigratory elk herd and impacts to water resources, soil, slopes, and reclamation. The court also said that BLM considered an appropriate no-action alternative and that BLM was not required to supplement its environmental assessment as a result of new information in a U.S. Geological Services study about impacts to water resources.

In re Stonehaven Energy Mgmt., LLC Name and Date

Description

In re Stonehaven Energy Mgmt., LLC UIC Appeal No. 12-02 (E.A.B. Mar. 28, 2013)

Petitioner sought review of EPA Region 3’s issuance of an underground injection control (UIC) permit to Stonehaven Energy Management Co., LLC, which intended to convert an existing well to an injection well for disposal of brine produced from Stonehaven’s oil production operations. The Environmental Appeals Board remanded the permit in part, finding that Region 3 had not responded adequate to public comments regarding the risks of contamination of underground sources of water due to earthquakes or faults.

In re West Bay Exploration Co. Name and Date

Description

In re West Bay Exploration Co. UIC App. Nos. 13-01 & 13-02 (E.A.B. Apr. 16, 2013)

Petitioners challenged an underground injection control permit for a brine wastewater disposal well in Mississippi issued to West Bay Exploration Co. by EPA Region 5. Among other things, the petitions challenged EPA’s findings that the permitted injection would not contaminate underground sources of water and that the well would not adversely affect endangered species, including the Indiana bat. The Environmental Appeals Board dismissed the petitions as moot after the Region 5 regional administrator unilaterally withdrew the permit.

Manning v. Pa. Dep’t of Envtl. Protection Name and Date

Description

Manning v. Pa. Dep’t of Envtl. Protection No. 2013-67 (Pa. Envtl. Hearing Bd. May 29, 2013)

Petitioners appealed the determination of the Pennsylvania Department of Environmental Protection (PADEP) that drilling activities near their property were not the cause of methane contamination in their private water supply. They argued that PADEP’s determination provided insufficient information about the sampling data and methodology to support the conclusion.

Stone v. Chesapeake Appalachia, LLC Name and Date

Description

Stone v. Chesapeake Appalachia, LLC No. 12-C-78 (W. Va. Cir. Ct. June 4, 2012)

Plaintiffs, who were parties to a lease held by defendants for the oil and gas within and underlying their property, commenced this action alleging (1) breach of contract based on defendants’ pooling and unitizing the Marcellus shale formation underlying plaintiffs’ property in violation of their lease; (2) trespass by engaging in hydraulic fracturing on plaintiffs’ property; and (3) that the defendants failed to protect plaintiffs’ property from drainage.

Stone v. Chesapeake Appalachia, LLC No. 5:12-cv-00102 (N.D. W. Va. July 6, 2012)

The case was removed to federal court.

Stone v. Chesapeake Appalachia, LLC No. 5:12-cv-00102 (N.D. W. Va. Apr. 10, 2013)

The court denied defendants’ motion for summary judgment. The court found that hydraulic fracturing under the land of a neighboring property without that party’s consent is not protected by the “rule of capture,” but rather constitutes an actionable trespass. In reaching this conclusion, the court determined that the West Virginia Supreme Court would not adopt the “rule of capture” principles ascribed to in the Texas Supreme Court’s Coastal Oil & Gas Corp. v. Garza Energy Trust decision, which in the court’s view “gives oil and gas operators a blank check to steal from the small landowner.” The court also denied summary judgment on the breach of contract and drainage claims.

Matter of Cent. N.Y. Oil & Gas Co. LLC Name and Date

Description

Matter of Cent. N.Y. Oil & Gas Co., LLC, No. 515347 (N.Y. App. Div. 3d Dep’t June 13, 2013)

Petitioner owns a natural gas underground storage facility in Tioga County, New York. In condemnation proceedings to acquire perpetual easements for underground gas storage in land owned by respondents, respondents sought to introduce the testimony of a geologist that the easement would interfere with their rights to develop gas in the Marcellus and Utica shale formations. The New York State Supreme Court, Tioga County barred the expert from testifying, and the Appellate Division, Third Department affirmed, finding that the expert’s testimony was not relevant. The terms of the easement explicitly reserved to respondents the right to grant oil and gas rights in formations others than those in the Oriskany Sandstone formation. Moreover, no commercial development of the Marcellus shale was currently taking place as a result of a New York State moratorium on hydraulic fracturing, so an analysis of the potential effects of such activity would be “premature and speculative.” If hydraulic fracturing eventually proved to pose an unacceptable risk to petitioner’s storage facility, petitioner could at such time seek to acquire whatever additional rights were necessary.

Caldwell v. Kriebel Resources Co. LLC Name and Date

Description

Caldwell v. Kriebel Resources Co., LLC, No. 1305 WDA 2012 (Pa. Super. Ct. June 21, 2013)

The Pennsylvania Superior Court affirmed the dismissal by the Court of Common Pleas of plaintiffs’ amended complaint. Plaintiffs had entered into an oil and gas agreement in 2001 with defendant Kriebel Resources Co., LLC. The agreement provided for a two-year term that could be extended so long as oil or gas was being produced. Plaintiffs sought to terminate the lease, alleging that defendants had only engaged in shallow gas drilling and had not initiated development activities for the Marcellus shale. The Superior Court declined to read into the 2001 agreement an implied covenant to develop all strata of natural gas, and also rejected plaintiffs’ claim that defendants’ had breached an implied covenant to develop in “paying quantities.” The court also was not persuaded that it should impose a “good faith” standard for all aspects of the industry that affect natural gas production and therefore give plaintiffs an opportunity to show that defendants had not acted in good faith as to the amount of gas being produced from plaintiffs’ property.

Caldwell v. Kriebel Resources Co., LLC, No. 372 WAL 2013 (Pa. Nov. 26, 2013)

The Pennsylvania Supreme Court denied a request to hear an appeal.

Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior Name and Date

Description

Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior, No. 12-cv01661 (D. Colo., filed June 26, 2012)

Plaintiff challenged the Bureau of Land Management’s (BLM’s) withholding of information requested under the Freedom of Information Act (FOIA). Plaintiffs had requested Expressions of Interest (EOIs) for parcels in Colorado that were to be included in an upcoming sale of oil and gas leases, as well as all documents related to such EOIs. BLM declined to disclose certain information, including the identities of parties submitting EOIs. On administrative appeal, the Department of the Interior invoked FOIA’s exemption for commercial or financial information obtained from a person that is privileged or confidential (Exemption 4) as the basis for withholding the information.

Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior, No. 12-cv01661 (D. Colo. Feb. 13, 2013)

The court granted summary judgment to plaintiff on its FOIA claim, finding that Exemption 4 did not shield the information provided by an EOI submitter. The court rejected defendants’ contention that it was necessary to exempt such information from disclosure because exploration for oil and gas on public lands was very competitive and businesses’ interest in certain parcels and their preliminary investigative work to determine which parcels they were interested in was therefore protected information. The court found that this contention “runs directly contrary to the purpose of the public sale process,” noting that competition in bidding would promote fair pricing for publicly owned minerals and that disclosure of the EOI information would permit plaintiff and others to raise concerns regarding the stewardship records of potential owners.

Citizens for a Healthy Cmty. v. U.S. Dep’t of Interior, No. 12-cv01661 (D. Colo. Apr. 10, 2013)

The court denied a motion to intervene by the Western Energy Alliance, which sought to intervene for the sole purpose of filing an appeal.

NRDC v. Town of Sanford N.Y. Name and Date

Description

NRDC v. Town of Sanford, N.Y., No. 3:13-CV-163 (N.D.N.Y., filed Feb. 2013)

Plaintiffs challenged a resolution of the Town of Sanford, New York that barred discussion of natural gas development during the public participation portion of defendant’s Town Board meetings. Plaintiff organizations alleged that the resolution violated their members’ state and federal constitutional rights.

NRDC v. Town of Sanford, N.Y., No. 3:13-CV-163 (N.D.N.Y. Apr. 18, 2013)

The Town repealed the resolution, and on April 18, 2013 the court entered a stipulation dismissing the action.

Vavala v. Hall Name and Date

Description

Vavala v. Hall, No. 1147 WDA 2011 (Pa. Super. Ct. May 1, 2013)

In 2009, plaintiffs filed a complaint to quiet title with respect to a 71.28-acre tract they owned in Fox Township, Pennsylvania. They alleged that defendants had not paid taxes on the oil and gas rights appurtenant to the property and further alleged that they had obtained the oil and gas rights through adverse possession or abandonment. The trial court granted plaintiffs’ motion for service by publication, and subsequently granted their motion for default judgment. In March 2010, six months after entry of judgment and publication of the judgment in two local newspapers, appellant Seneca Resources Corp. sought to open or strike the judgment, claiming that it was the successor to the oil and gas rights. The trial court denied Seneca’s motion. On appeal, the Superior Court concluded that notice by publication was appropriate and that the trial court therefore had jurisdiction. The Superior Court further found that the trial court had not abused its discretion in denying Seneca’s petition to open the judgment because Seneca’s petition was untimely.

Cain v. XTO Energy Inc. Name and Date

Description

Cain v. XTO Energy Inc., No. 11-C165 (W. Va. Cir. Ct., filed June 2011)

Plaintiff sought declaratory and injunctive relief to prevent the surface of his land from being used to drill horizontal wells to produce oil and gas from neighboring mineral tracts that do not underlie his land. He alleged that plaintiffs had permits to drill three horizontal wells from one well site on his property, and that plans were underway for additional well sites and horizontal wells, and that these wells would be used to produce gas from tracts beyond the mineral tract of which his land was once a part.

Cain v. XTO Energy Inc., No. 1:11cv-111 (N.D. W. Va. July 2011)

The action was removed to federal court.

Cain v. XTO Energy Inc., No. 1:11cv-111 (N.D. W. Va. Mar. 2013)

The court certified to the West Virginia Supreme Court the question of whether a mineral owner or lessee, whose rights are expressly limited by deed to surface rights for the production of oil and/or gas within and underlying the subject tract, nonetheless may use the surface for the production of oil and/or gas that is not within and underlying the subject tract. The court denied plaintiff’s motion to certify other questions that concerned damages since the factual record was underdeveloped on the issue of damages and since any number of issues could moot the question of damages.

Clean Air Council Notice of Intent to Sue Name and Date

Description

Clean Air Council, 60-Day Notice of Intent to Sue (May 30, 2013)

The Clean Air Council submitted a 60-day Notice of Intent to Sue to the Environmental Protection Agency (EPA), citing EPA’s failure to respond to a February 2012 petition in which plaintiff asked EPA (1) to make a finding that Pennsylvania was not implementing the requirements of its State Implementation Plan, (2) to determine that Pennsylvania was not adequately administering and enforcing its Clean Air Act Title V permitting program, and (3) to apply sanctions for these failures. These failures are in connection with Pennsylvania’s alleged failure “to perform legally adequate and complete single source determinations for the oil and gas industries.”

Matter of Fluid Recovery Services LLC Matter of Hart Resource Technologies Inc. Matter of Pennsylvania Brine Treatment Inc. Name and Date

Matter of Fluid Recovery Services, LLC, Docket No. CWA03-2013-0051DN Matter of Hart Resource Technologies, Inc., Docket No. CWA-03-2013-0049 Matter of Pennsylvania Brine Treatment, Inc., Docket No. CWA-03-2013-0050 (EPA Region III May 2013)

Description EPA entered into consent agreements and final orders (CAFOs) with two companies that operated wastewater treatment facilities in western Pennsylvania and an administrative order for compliance on consent (AOCOC) with the two companies and a third company that was to become their successor in interest. The CAFOs and AOCOC settled alleged violations of National Pollutant Discharge Elimination System (NPDES) permits. The violations were associated with the treatment of wastewater produced by shale gas extraction activities. The AOCOC barred the wastewater treatment facilities operated by respondents from discharging wastewater from shale gas extraction activities until certain improvements had been made at the facilities and Water Quality Management permits and renewed or modified NPDES permits that specified more stringent discharge limitations had been obtained.

Matter of Encana Oil & Gas (USA) Inc. Name and Date

Description

Matter of Encana Oil & Gas (USA) Inc., Case No. U-17195 (Mich. Pub. Serv. Comm’n June 28, 2013)

The Michigan Public Service Commission (MPSC) approved the construction and operation of two natural gas pipelines. Petitioners filed a petition to intervene, consolidate proceedings, vacate the decisions, and hold a hearing to receive additional evidence. They also filed a claim of appeal in the Michigan Court of Appeals, which was stayed during the pendency of the MPSC petition. In April 2013, MPSC denied the request to intervene for lack of standing. Petitioners moved for reconsideration. On reconsideration, MPSC concluded that due to MSPC’s limited jurisdiction it could not consider environmental issues and that petitioners had brought their challenge in the wrong forum.

D & L Energy Inc. v. Div. of Oil & Gas Resources Mgmt. Name and Date

Description

D & L Energy, Inc. v. Div. of Oil & Gas Resources Mgmt., Appeal No. 847 (Ohio Oil & Gas Comm’n June 2013)

D & L Energy, Inc. (D&L) appealed an order of the Ohio Division of Oil and Gas Resources Management revoking saltwater injection permits held by D&L, denying applications for new injection wells, ordering cessation of use of a temporary storage facility, and ordering disposal of all oilfield waste at the temporary facility within a specified timeframe. This order effectively terminated D&L’s oilfield waste disposal operations in Ohio. On appeal, the Ohio Oil and Gas Commission affirmed the order, finding that the Division chief had authority to revoke permits and that D&L’s participation in an illegal dumping incident in January 2013 was “so egregious” as to justify the draconian effects of the mandates in the Division chief’s order.

Bidlack v. Chesapeake Appalachia, LLC Name and Date

Description

Bidlack v. Chesapeake Appalachia, LLC, No. 10-EQ000761 (Pa. Ct. Com. Pl., filed Dec. 2010) (removed to M.D. Pa. Jan. 2011)

In a first amended complaint, plaintiffs alleged that defendants’ oil and gas exploration activities had caused environmental contamination in and around plaintiffs’ residence, including contamination of their water supply. They alleged a cause of action under the Hazardous Sites Cleanup Act as well as causes of action for negligence, strict liability, private nuisance, trespass, and medical monitoring trust funds.

Bidlack v. Chesapeake Appalachia, LLC, No. 11-cv00129 (removed to M.D. Pa. Jan. 2011)

The case was removed to federal court.

U.S. v. XTO Energy Inc. Name and Date

United States v. XTO Energy, Inc., 4:13-cv-01954-MWB (M.D. Pa. Sept. 18, 2013)

Description The federal district court for the Middle District of Pennsylvania entered a consent decree that resolved a federal Clean Water Act enforcement action against XTO Energy, Inc. (XTO). The consent decree required payment of a civil penalty of $100,000. It also required XTO to recycle flowback and produced fluid to the maximum extent practicable and restricted the waste treatment facilities at which XTO could dispose of such fluid. The settlement also required XTO to implement a spill prevention plan under the oversight of EPA.

Mississippi Commission on Environmental Quality v. EPA Name and Date

Description

WildEarth Guardians v. EPA, No. 12-1326 (D.C. Cir. July 20, 2012); 13-1032 (D.C. Cir. Feb. 14, 2013)

Petitioners sought review of EPA’s refusal to designate the Uinta Basin in Utah as a nonattainment area for the 2008 ozone national ambient air quality standard (NAAQS). Petitioners contended, among other things, that the leasing of lands in the Uinta Basin for oil and gas development would cause emissions leading to elevated ozone would continue in the absence of a nonattainment designation.

WildEarth Guardians v. EPA, No. 13-1032 (D.C. Cir. Mar. 18, 2013)

Petitioners filed a nonbinding statement of issues specifying that they would be focusing on EPA’s designation for the Uinta Basin.

Mississippi Commission on Environmental Quality v. EPA, No. 12-1309 (D.C. Cir. May 10, 2013)

The proceeding was consolidated with other challenges of EPA’s air quality designations for the 2008 ozone NAAQS under the lead case Mississippi Commission on Environmental Quality v. EPA.

Protect Our Loveland Inc v City of Loveland Name and Date

Description

Protect Our Loveland, Inc. v. City of Loveland, Case No: 2013CV31142 (Colo. Dist. Ct. Sept. 30, 2013)

Plaintiff is a non-profit organization that petitioned to place on the November 2013 ballot a proposed ordinance that would establish a two-year moratorium on hydraulic fracturing in the City of Loveland, Colorado. Plaintiff sought a preliminary injunction in Colorado District Court in Larimer County after the Loveland City Council voted to take no action on the proposed ordinance pending the outcome of a lawsuit initiated by Larry Sarner, who had filed an unsuccessful protest of plaintiff’s petition. Plaintiff asked the court to order the City to place the proposed ordinance on the November ballot or to hold a special election for the ordinance no later than January 24, 2014.

Reece v. AES Corp. Name and Date

Reece v. AES Corp., No. CIV-120457-JH (E.D. Okla. Jan. 8, 2014)

Description Plaintiffs from LeFlore County, Oklahoma alleged that they sustained personal injuries and property damage from defendants’ improper handling, transporting, storage, or disposal of waste fluids from oil and gas drilling operations as well as coal combustion waste from a power plant. The federal district court for the Eastern District of Oklahoma dismissed strict liability claims against all but the owners/operators of a commercial disposal pit and dismissed the trucking companies that brought the coal and drilling fluid waste to the pit from the action entirely. Although the court rejected arguments for dismissing trespass, nuisance, and unjust enrichment claims against the oil producer defendants, the court also ruled that plaintiffs’ allegations of damages were insufficient. The court gave plaintiffs 15 days to file an amended complaint with sufficient allegations of personally sustained injuries that resulted from the oil producers’ conduct—and warned that this would be plaintiffs’ last opportunity to amend their complaint.

Whiteman v. Chesapeake Appalachia LLC Name and Date

Whiteman v. Chesapeake Appalachia, L.L.C., No. 12-1790 (4th Cir. Sept. 4, 2013)

Description The Fourth Circuit affirmed the district court’s granting of summary judgment to defendant on plaintiffs’ common law trespass claim. Plaintiffs owned the surface rights to 101 acres in West Virginia on which they farmed. Defendant owned mineral rights and operated three natural gas wells and installed permanent waste disposal pits on ten acres of plaintiffs’ property. For trespass claims involving owners of mineral estates rights to enter the surface estate owner’s land, West Virginia law requires that the invasion be “reasonably necessary” and that it not impose a “substantial burden.” In this case, the Fourth Circuit found that the record established that the waste pits did not impose a “substantial burden” on plaintiffs’ surface rights, where defendant’s expert opined—and plaintiffs did not rebut—that the waste pits had not affected plaintiffs’ property value at all. The Fourth Circuit also concluded that plaintiffs had failed to prove that the waste pits were not “reasonably necessary” given that the open pit disposal system was the “common and ordinary” disposal method in West Virginia at the time of the drilling and was consistent with state permitting requirements.

Leighton v. Chesapeake Appalachia LLC Name and Date

Leighton v. Chesapeake Appalachia, LLC, No. 1:13–CV– 2018 (W.D. Pa. Nov. 26, 2013)

Description Landowners who had entered into an oil and gas lease with Chesapeake Appalachia, LLC commenced an action seeking damages and declaratory relief against Chesapeake Appalachia and three other entities. Plaintiffs alleged that defendants’ natural gas drilling activities had resulted in the damages. Defendants sought to compel arbitration pursuant to a provision in the lease. The court preliminarily found that the claims fell within the arbitration clause’s broad scope, and that under an agency theory two defendants affiliated with Chesapeake Appalachia whose interests were directly related to it could enforce the arbitration agreement. The court concluded that the fourth defendant could not enforce the arbitration agreement under either an agency or an equitable estoppel theory. The court ordered a short discovery period on the issue of whether the three defendants who were not parties to the lease were agents of Chesapeake Appalachia, and subsequent briefs on whether the information obtained in discovery altered the court’s conclusions.

Stroud v. Southwestern Energy Co. Name and Date

Description

Hill v. Southwestern Energy Co., No. 4:12–cv–500–DPM (E.D. Ark. Sept. 26, 2013)

A group of Arkansas landowners commenced a lawsuit in the federal district court for the Eastern District of Arkansas against three companies with whom all but one of the landowners had entered into mineral rights leases. The three companies injected waste fluids from hydraulic fracturing in wells on parties owned by third parties. The landowners alleged that the waste fluids had exceeded the capacity of the wells and migrated to their properties. The court ruled that plaintiffs had standing to pursue the claims but dismissed most of the claims, including claims under the Racketeer Influenced and Corrupt Organizations Act and Arkansas Deceptive Trade Practices Act; claims of fraud, civil conspiracy, strict liability, and conversion; and a claim for breach of contract and violation of the covenant of good faith and fair dealing implicit in the mineral leases. However, the court found that plaintiffs had stated claims for trespass and unjust enrichment.


Stroud v. Southwestern Energy Co. Name and Date

Description

Stroud v. Southwestern Energy Co., No. 4:12-cv-00500-DPM (E.D. Ark. Sept. 25, 2015)

The federal district court for the Eastern District of Arkansas dismissed landowners’ claim of trespass and resulting unjust enrichment related to the subsurface migration of waste fluid from a fracking waste disposal well located on an adjacent property. After the first phase of discovery had ended, the district court concluded that there was not enough evidence in the record to support a verdict for the plaintiffs, finding that a juror would have to speculate to conclude that a trespass had occurred. The court found that the testimony of the plaintiffs’ expert witness, who had derived an equation that he said showed that waste fluid had migrated under the plaintiffs’ land, did not meet the evidentiary standard in Daubert v. Merrell Down Pharmaceuticals, Inc. The court said the equation “assumes the answer to the fighting issue” and that the expert’s testimony was not based on sufficient facts or data about the subsurface. The court also identified other methodological problems with the expert’s equation.

Stroud v. Southwestern Energy Co., No. 15-3458 (8th Cir. Oct. 29, 2015)

The landowners appealed the judgment of the federal district court for the Eastern District of Arkansas to the Eighth Circuit Court of Appeals.

Carter v. EOG Resources Inc. Name and Date

Description

Carter v. EOG Resources, Inc., No. 4:12–CV–003 (D.N.D. Oct. 4, 2013)

Jereme Mortinson died in 2009 after an explosion that occurred while he was operating a fresh water truck used for oil drilling and fracking operations in North Dakota. Mortinson’s common law spouse commenced a wrongful death and survival action on behalf of his estate and his heirs and next of kin, and later sought to amend the complaint to add her claims as common law spouse. The federal district court for the District of North Dakota granted her motion to amend the complaint. The court rejected defendants’ arguments concerning the timeliness of the motion, finding that the amendment simply made the assertion of the common law wife’s right to recover under North Dakota’s wrongful death statute more explicit.

Beezley v. Broomfield Name and Date

Beezley v. Broomfield, No. 2013CV30304 (Colo. Dist. Ct. Dec. 10, 2013)

Description On December 10, 2013, a Colorado District Court enjoined the City of Broomfield from certifying the results of a recount for an election in which City voters approved a measure to amend the City’s home rule charter to impose a five-year moratorium on hydraulic fracturing and the disposal of hydraulic fracturing waste. The parties agreed to place the action on hold pending the Colorado Supreme Court’s determination of Hanlen vs. Gessler, another lawsuit that concerns the elections process.

Hilcorp Energy Corp. v. Pennsylvania Name and Date

Hilcorp Energy Corp. v. Pennsylvania, EHB Docket No. 2013-155-SA-R (Pa. EHB, filed Aug. 26, 2013) (dismissed Nov. 20, 2013)

Description Hilcorp Energy Corp. (Hilcorp) filed a complaint and application with the Pennsylvania Environmental Hearing Board (EHB) seeking an order establishing well spacing and drilling units for more than 3,000 acres covering the Utica Shale. Hilcorp had filed a similar application with the Pennsylvania Department of Environmental Protection (PADEP), which had disclaimed authority to consider the application and directed Hilcorp to apply to the EHB. The EHB determined that it did not have original jurisdiction to issue well spacing orders. Instead, applications for such orders should be submitted to PADEP, with appeal to the EHB available after PADEP renders its determination. A concurring opinion noted that “[r]ather than re-learning how to apply this longstanding but seldom used regulatory authority to issue orders establishing well spacing and drilling units to the new circumstances involving the development of the Utica Shale,” PADEP appeared to be attempting to “abdicate” its authority to the EHB. If PADEP ultimately grants Hilcorp’s application, it would be the first use of force pooling in Pennsylvania in the context of horizontal hydraulic fracturing.

U.S. v. Stinson Name and Date

U.S. v. Stinson, No. 1:12-cr00012-JHM-HBB (W.D. Ky. Jan. 16, 2014)

Description The federal district court for the Western District of Kentucky sentenced two men, Charles Stinson and Ralph Dowell, and an oil well operating company, Logsdon Valley Oil Company, Inc., for criminal violations of the Safe Drinking Water Act. The two men had pleaded guilty to conspiracy to commit violations of an underground injection control (UIC) program, and the company had pleaded guilty to violation of a UIC program. EPA’s press release indicated that defendants had configured piping to inject fluids brought to the surface in connection with oil production into sinkholes and that they had ignored orders to stop discharging the waste into the sinkholes. The individuals were sentenced to two years of probation, and one of the individuals must personally pay a $45,000 fine and also provide documentation that the well used for the illegal injections has been plugged and abandoned in a way that is protective of groundwater.

U.S. v. Chesapeake Appalachia LLC Name and Date

Description

U.S. v. Chesapeake Appalachia, LLC, No. 5:13-cv-00170 (N.D. W. Va. Dec. 19, 2013)

Chesapeake Appalachia, LLC (Chesapeake) reached an agreement with the U.S. and West Virginia over alleged violations of the Clean Water Act (CWA) and the West Virginia Water Pollution Control Act related to its natural gas extraction activities. The U.S. and West Virginia alleged that the company discharged dredged or fill material without a permit in connection with these activities. Under the terms of a consent decree lodged in the federal district court for the Northern District of West Virginia, Chesapeake will pay a $3.2 million civil penalty, half to the U.S. and half to the state. The consent decree notes that it does not impose a civil penalty in connection with Chesapeake’s activities at the Blake Fork, which resulted in a December 2012 guilty plea in a federal criminal proceeding involving CWA violations. The consent decree also requires Chesapeake to purchase stream and wetland mitigation credits from mitigation banks and to undertake mitigation and restoration activities at sites that have not already been restored. The agreement sets forth steps Chesapeake must take to assure that all of the sites remain undisturbed. It also establishes a compliance protocol for existing and future surface impoundments, ponds, compressor stations, pipelines, well pads, and associated access roads, and requires a training program for Chesapeake employees and contractors to ensure CWA compliance.

Wisconsin v. Preferred Sands of Wisconsin Name and Date

Description

Wisconsin v. Preferred Sands of Wisconsin, LLC, No. 2013 CX 000001 (Wis. Cir. Ct. Dec. 13, 2013)

The State of Wisconsin and the operator of a sand mining operation that produced sand for hydraulic fracturing resolved the State’s claims that the sand mine operator had violated storm water and air pollution control requirements. The stipulation and judgment entered by a Wisconsin Circuit Court require the company to pay $195,000 in five installments through 2017 as well as $5,000 in attorney fees. This was reportedly Wisconsin’s first environmental enforcement action against a sand mine.

United States v. Guesman United States v. Lupo Name and Date

United States v. Guesman, No. 1:13 CR 113 (N.D. Ohio Aug. 29, 2013)

Description On August 29, 2013, defendant Michael Guesman pleaded guilty to violating section 309(c)(2)(A) of the Clean Water Act. The indictment charged that Guesman discharged fracking waste liquids into a storm drain that flowed into a tributary of the Mahoning River in Ohio.

United States v. Lupo, No. 4:13cr-00113-DCN (N.D. Ohio Mar. 24, 2014)

Another defendant, Ben Lupo, who owned a company that provided services to oil and gas companies in Ohio and Pennsylvania, pleaded guilty to an indictment for violations of the Clean Water Act. Lupo’s company owned a waste storage and processing facility in Youngstown, Ohio. In 2012 and 2013, Lupo directed an employee to dump waste liquid that included a mixture of brine and oil-based drilling mud into a stormwater drain that flowed into a tributary of the Mahoning River. Sentencing was scheduled for June 16, 2014.

United States v. Lupo, No. 4:13cr-00113-DCN (N.D. Ohio Aug. 5, 2014)

The court sentenced Lupo to 28 months in prison and ordered him to pay a $25,000 fine.

Henry v. Chesapeake Appalachia L.L.C. Name and Date

Description

Henry v. Chesapeake Appalachia, L.L.C., No. 12-4090 (6th Cir. Jan. 14, 2014)

The Sixth Circuit reversed a decision by the federal district court for the Southern District of Ohio that granted a judgment against Chesapeake Appalachia that its lease with plaintiffs had expired. The Sixth Circuit agreed with Chesapeake that the term of the lease was extended by Chesapeake’s filing of a Declaration and Notice of Pooled Unit (DPU) (which declared the creation of a unit that included plaintiffs’ properties) a few days before the primary term of the leases expired. The court held that filing of the DPU constituted the “commencement of operations “ and thus triggered the extension of the leases.

Lewis v. EnerQuest Oil and Gas LLC Name and Date

Description

Lewis v. EnerQuest Oil and Gas, LLC, No. 12-CV-1067 (W.D. Ark. Jan. 2014)

Plaintiffs asked the federal district court for the Western District of Arkansas to cancel the portion of mineral leases in formations in the Chalybeat Springs Unit in Arkansas that were not producing. Plaintiffs alleged that defendants had violated their implied covenant to develop the unit. In response, defendants said that development in the formation would require horizontal wells and that other operators had spent millions of dollars drilling three such wells since June 2013 that were now abandoned or shut in. The court ruled that plaintiffs had failed to give defendants notice of the alleged breach of the implied covenant and time to comply. The court was not persuaded that plaintiffs’ commencement of a proceeding in the Arkansas Oil and Gas Commission (AOGC) in 2010 to dissolve the unit provided the required notice since the hearing before AOGC took place before defendants assumed operational control over the unit.

EQT Production Co. v. Opatkiewicz Name and Date

EQT Production Co. v. Opatkiewicz, No. GD 13-013489 (Pa. Ct. Comm. Pl., filed July 2013) (inj. ordered Dec. 26, 2013) (opinion Jan. 6, 2014) (reconsideration granted Jan. 10, 2014) (reconsideration order dismissed Jan. 30, 2014)

Description Plaintiff, which is in the business of exploring for, developing, and producing natural gas, brought an action in July 2013 against a number of defendants who were parties to oil and gas leases with plaintiff. Plaintiff alleged that in spite of its exclusive rights under the leases, including its right to have access to the surface area of the properties in furtherance of the development of the oil and gas resources, a group of the defendants had banded together to prevent plaintiff from entering their properties in an attempt to force plaintiff to renegotiate their leases. Citing a recent amendment to Pennsylvania law that permits pooling of leases, plaintiff sought a declaration of its rights under the lease as well as injunctive relief. In December 2013, the Court of Common Pleas issued an order enjoining defendants from interfering with plaintiff’s rights to enter their properties for seismic testing. The court ordered plaintiff to pay a $25,000 bond. A separately issued opinion indicated that the leases conferred the right to conduct the seismic testing and the prerequisites for a preliminary injunction had been met. The court concluded that an injunction would likely benefit the public interest. On January 10, 2014, the court agreed to reconsider the decision and scheduled a hearing for February 7, but on January 30 the hearing was cancelled and the order granting reconsideration dismissed after defendants filed a motion for partial judgment on the pleadings.


EQT Production Co. v. Opatkiewicz Name and Date

EQT Production Co. v. Opatkiewicz, No. GD 13-013489 (Pa. Ct. Comm. Pl. Apr. 8, 2014)

Description The court granted the motion for partial judgment on the pleadings of a mineral rights leaseholder who claimed that pursuant to 2013 amendments to Pennsylvania’s Oil and Gas Lease Act (section 34.1), which permitted pooling of leases, it had the right to jointly develop its leases with defendant landowners. The court said that the Pennsylvania law violated neither the Pennsylvania nor the U.S. Constitution, rejecting defendants’ contentions that the law was an ex post facto law or a law that impaired contracts. The court said that the law merely clarified existing rights. The court also said that the law did not constitute a taking or violate rights to possess and protect property.

Springer Ranch Ltd. v. Jones Name and Date

Description

Springer Ranch, Ltd. v. Jones, No. 04-12-00554-CV (Tex. Ct. App. Dec. 20, 2013)

In a case involving the allocation of royalties from horizontal wells that cross property lines, the Texas Court of Appeals affirmed the trial court’s holding that the contract required royalties from the horizontal wells to be allocated based on the productive portions of the wells underlying the parties’ properties. The contract allocated royalties to the owner of the surface estate on which a well was “situated.” The court concluded that the horizontal wells were “situated” on all of the properties that they traversed. The court rejected the contention that the allocation should be based on the entire length of the well, not just the productive portions of the well.

Southwestern Energy Production Co. v. Forest Resources LLC Name and Date

Description

Southwestern Energy Production Co. v. Forest Resources, LLC, 2013 PA Super 307 (Pa. Super. Ct. Nov. 2013) (rearg. denied Feb. 2014)

Trusts that owned land in Pennsylvania sought to invalidate oil and gas leases, alleging that they violated Pennsylvania’s Guaranty Minimum Royalty Act (GMRA). The Superior Court reversed the trial court and ruled that the provisions of certain letter agreements that provided for the lessor to pay back 50 percent of royalties were to be construed as part of a single lease agreement, and that the lease, so construed, was in violation of the GMRA. Reargument was denied on February 4, 2014.

BP America Production Co. v. Zaffirini Name and Date

BP America Production Co. v. Zaffirini, No. 04-11-00550-CV (Tex. Ct. App. Aug. 30, 2013) (reconsideration & reh’g denied Nov. 2013)

Description In this dispute over the construction of the bonus terms in oil and gas leases, the Texas Court of Appeals on November 7, 2013 denied the lessors’ motions for rehearing and for reconsideration en banc. In its August 30 decision, the Court of Appeals had determined that the leases unambiguously created an “unallocated” bonus, with no separation consent-to-assignment fee, and that BP had not breached the contracts. The Court of Appeals also ruled that lessors were not entitled to summary judgment on BP’s common law fraud, fraud-inthe-inducement, or fraud by nondisclosure claims.

Community Bank of Raymore v. Chesapeake Exploration L.L.C. Name and Date

Description

Community Bank of Raymore v. Chesapeake Exploration, L.L.C., No. 08-12-00025-CV (Tex. Ct. App. Nov. 6, 2013) (reh’g denied Jan. 15, 2014)

Plaintiff and defendants entered into four blocks of oil and gas leases covering 16,000 acres in Texas. During the lease’s primary term, defendant Chesapeake Exploration, L.L.C. (Chesapeake) drilled producing wells in one of the blocks; the deepest of the wells extended 5,672 feet below the surface. When the primary term ended, Chesapeake refused to release its rights to formations below that depth. Plaintiff sued for breach of contract. In an opinion turning on the meaning of conjunctions, the Texas Court of Appeals affirmed the district court’s ruling in favor of the leaseholder defendants. The court held that the lease’s “horizontal Pugh clause,” which provided for termination of the lease below the base of the deepest formation from which the leaseholder was then producing oil or gas, “never sprang into life.” The Pugh clause was triggered by “the expiration of the Primary Term or the conclusion of the continuous development program,” and the court considered the meaning of “or,” as well as the clause’s interplay with other provisions of the lease and the commercial impacts, and ruled that because there had been no cessation of continuous development, the Pugh clause had not been triggered. The court also ruled that the expiration of the primary term had not triggered the lease’s severance clause to break the block into 17 producing units, each separately governed by the lease’s terms (which would have been to plaintiff’s advantage). The court held that the lease provided that the severance clause was triggered only after the expiration of the primary term “and” any extension of the primary term. Rehearing was denied on January 15, 2014.

Liggett v. Chesapeake Exploration L.L.C. Name and Date

Liggett v. Chesapeake Exploration, L.L.C., 5:12CV2389 (N.D. Ohio Oct. 11, 2013)

Description In 2005, Willard and Ruth Liggett put their interests in real property located in Dennison, Ohio in trusts in each of their names. Several years later they entered into oil and gas leases for the property using their personal signatures without disclosing that they held the property as trustees. They subsequently accepted payments under the leases. In 2013, they brought an action to invalidate the leases based on their signing in their personal capacities rather than as trustees. The court denied their motion for summary judgment on their ejectment claim, finding that the Liggetts had not established that defendants had possession of the property and were unlawfully keeping the Liggettts out of it. The court also granted defendants’ motion for summary judgment on their request for a declaratory judgment that the leases were valid and enforceable. The court found that the Liggetts believed they had the power to enter the leases, intended to enter into the leases, and believe that they had entered the leases. The court also based its decision on the fact that the Liggetts had warranted title and entered a covenant to defend it. Because the lease was valid and enforceable, the court ruled that the Liggetts’ frivolous conduct claim was without merit.

Wiley v. Triad Hunter LLC Name and Date

Description

Wiley v. Triad Hunter LLC, No. 2:12-cv-00605 (S.D. Ohio, filed June 8, 2012)

A group of landowners in Noble County, Ohio entered into oil and gas leases. The oil and gas rights were eventually transferred to certain Chesapeake Exploration, L.L.C. entities (Chesapeake) and Triad Hunter LLC (Triad). The leases contained identical “Paragraph 14s” entitled “Preferential Right to Renew” that provided that the landowners would give notice to the leaseholders upon receiving bona fide offers from third parties to lease the oil and gas rights, and that a leaseholder would have a 30-day period in which to advise the landowner of its agreement to match the terms of any third-party offer. Landowners brought an action against Triad (in which Chesapeake intervened) seeking, among other things, a declaration that failure to match the terms of a third-party offer would terminate and cancel the lease.

Wiley v. Triad Hunter LLC, No. 2:12-cv-00605 (S.D. Ohio Sept. 27, 2013)

On motions for summary judgment, the federal district court for the Southern District of Ohio noted that earlier decisions had interpreted the same contractual language and joined those courts in ruling the provision unambiguously stated that should the leaseholder not advise that it would match the terms of the third-party offer, the current lease would continue until it ended according to the terms of the contract. The court also granted Triad’s motion to toll the terms of its leases; the leases would be tolled from the date of service to the date of final disposition of the landowners’ claims.

Stewart v. Chesapeake Exploration L.L.C. Name and Date

Stewart v. Chesapeake Exploration, L.L.C., Nos. 124457; 12-4466; 12-4517; 133021 (6th Cir. Oct. 30, 2013)

Description The Sixth Circuit affirmed the district court’s ruling in favor of defendant Chesapeake Exploration, L.L.C. in cases brought by a number of Ohio landowners. Like other courts before it, the court rejected a reading of the standard Paragraph 14 in the leases that would have permitted the landowners to terminate the leases with Chesapeake immediately if Chesapeake declined to match third-party offers. The Sixth Circuit played down the landowners’ concern that they would never be able to eject Chesapeake from their properties even if Chesapeake did not attempt to extract oil or gas. The court noted that Ohio law creates an implied obligation to perform a contract in good faith and that Chesapeake’s interest in developing its oil and gas rights were aligned with the landowners’. The court stated: “We are therefore confident that, if Chesapeake declined in bad faith to explore or drill on a landowner’s property, and instead sought merely to hold the property indefinitely, Ohio law would provide the landowner a remedy.”

Amarado Oil Co. Ltd. v. Davis Name and Date

Description

Amarado Oil Co., Ltd. v. Davis, No. 5:12cv627 (N.D. Ohio Sept. 17, 2013)

Plaintiff sought to recover more than $2 million it paid for mineral leases in the Utica Shale formation with a "catastrophic title defect" that defeated defendant sellers'--and thus plaintiffs'--title. The federal district court for the Northern District of Ohio granted seller defendants' motion to dismiss in part and denied it in part. The court dismissed the breach of contract claim for breach of established contractual course of conduct, finding that plaintiff had attempted to reject the leases after it had accepted them and after the deadline prescribed in the contract, as well as the fraud, unjust enrichment, and promissory estoppel claims. The court declined to dismiss the breach of warranty claim and the partial rescission claim insofar as it was an alternative remedy or theory for plaintiff's claim of breach of contract for failure to return the purchase price on leases that could not be held by production, which was not the subject of the motion to dismiss.

Demchak Partners L.P. v. Chesapeake Appalachia L.L.C. Name and Date

Description

Demchak Partners L.P. v. Chesapeake Appalachia, L.L.C., No. 3:13-cv-02289 (M.D. Pa., filed Aug. 30, 2013) (proposed settlement Aug. 30, 2013) (order granting prelim. approval Sept. 11, 2013) (mot. to intervene Sept. 12, 2013) (mot. to enjoin arbitration Oct. 2, 2013)

In late August 2013, Chesapeake Appalachia, L.L.C. (Chesapeake) reached a settlement with a group of Pennsylvania landowners who alleged that Chesapeake underpaid royalties owed to them because it deducted costs for gathering, dehydration, and compression of natural gas so that it could be delivered in “marketable form” to the interstate pipeline system. Plaintiffs moved for preliminary approval of the settlement and asked the court to certify the settlement class, and on September 11, 2013 the court issued an order granting the preliminary approval and certifying the settlement class. The terms of the settlement provide that Chesapeake would pay 55 percent of all of the post-production costs deducted from royalty payments prior to September 1, 2013, and 27.5 percent of all such deducted costs from September 1 to the effective date of the settlement (a total payment of approximately $7.5 million). In the future, class members would bear 72.5 percent of the postproduction costs. Another group of Pennsylvania landowners who were pursuing similar claims against Chesapeake in arbitration moved to intervene and urged the court to reject the settlement. Chesapeake asked the court to permanently enjoin the arbitration proceedings.

Brown v. Chesapeake Appalachia LLC Name and Date

Brown v. Chesapeake Appalachia, LLC, No. 5:12CV71 (N.D. W. Va. Aug. 21, 2013)

Description Plaintiff brought a putative class action seeking a declaratory judgment regarding the construction and/or validity of certain oil and gas leases held by defendant and to quiet title to the oil and gas rights associated with the leases. Defendant had notified plaintiff at the end of the five-year primary term of the lease that it was extending the lease for five years pursuant to Paragraph 19 of the lease. Plaintiff contended that Paragraph 19 did not permit defendant to unilaterally extend the lease, but merely gave defendant a “priority option” to negotiate a new lease. In August 2013, the federal district court for the Northern District of West Virginia granted summary judgment to defendant as to the meaning of Paragraph 19, ruling that the plaintiff’s construction was at odds with the plain meaning of the provision because it attributed the same meaning to the words “renew” and “extend.” The court also held that the defendant’s reading of Paragraph 19 did not render the lease in violation of the rule against perpetuities. Plaintiff has appealed the decision.

Humberston v. Chevron U.S.A. Inc. Name and Date

Description

Humberston v. Chevron U.S.A., Inc., No. 1270 WDA 2012 (Pa. Super. Ct. Aug. 20, 2013)

Plaintiffs who owned approximately 133 acres in Pennsylvania and who had entered into an oil and gas lease in 2006 brought an action to quiet title and for trespass. Plaintiffs challenged defendants’ right to construct and maintain an 11-acre freshwater impoundment on plaintiffs’ property for storing water for use in the development of gas wells. The Pennsylvania Superior Court affirmed the dismissal of the action. In an opinion first issued as an unpublished memorandum and then subsequently issued as a published opinion upon defendant Chevron’s motion, the court noted that the lease and Pennsylvania law permitted use of the surface area of the plaintiffs’ property as “reasonably necessary or convenient” and that plaintiffs had not alleged that the freshwater impoundment was not necessary to the extraction of gas from the Marcellus shale. The court also rejected plaintiffs’ contention that the use of hydraulic fracturing was not anticipated at the time at which they entered into the leases; the court noted, as had the trial court, that the lease explicitly provided that lessees were not restricted to using current technologies.

Chesapeake Exploration v. Buell Name and Date

Description

Chesapeake Exploration v. Buell, No. 2:12-cv-916 (S.D. Ohio Jan. 4, 2014)

The federal district court for the Southern District of Ohio certified two questions concerning the Ohio Dormant Mineral Act to the Ohio Supreme Court: (1) Is the recorded lease of a severed subsurface mineral estate a title transaction under the DMA? (2) Is the expiration of a recorded lease and the reversion of rights granted under that lease a title transaction that restarts the 20-year forfeiture clock under the DMA at the time of the reversion? The answers to these questions will determine whether an oil and gas lease held by plaintiff Chesapeake Exploration is for mineral interests that have been abandoned under the provisions of the DMA and have therefore vested in the owners of the surface rights.

Reep v. North Dakota Name and Date

Reep v. North Dakota, Nos. 20130110 & 20130111 (N.D. Dec. 26, 2013)

Description The North Dakota Supreme Court ruled in the State’s favor when it determined that the State held the mineral rights to the “shore zone,” the area between the high and low watermarks. The court held that at the time of statehood, the State owned the shore zone mineral rights, and that the anti-gift clause in the State’s constitution precluded ruling that ownership of the mineral rights was conferred on upland owners by a state statute that provided that an upland owner’s property extended to the low watermark. The contested areas included portions of the Missouri River that run through the Bakken Shale.

Rolla v. Tank Name and Date

Description

Rolla v. Tank, No. 20130035 (N.D. Oct. 2, 2013)

Prior to his death, a father executed two quitclaim deeds to convey part of his property in North Dakota to his son. After the father’s death, ConocoPhillips ceased making production payments, believing that the son owned the mineral rights. A sister brought a quiet title action in her capacity as personal representative of her father’s estate to determine ownership of the mineral estate. The North Dakota Supreme Court affirmed the district court’s determination that the quitclaim deeds reserved the mineral interests to the father. The reservation of a life estate for the surface of the property therefore did not extend to the mineral interests, and the mineral interests therefore passed to the father’s successors.

Wellington Resource Group LLC v. Beck Energy Corp. Name and Date

Description

Wellington Resource Group LLC v. Beck Energy Corp., No. 2:12-CV104 (S.D. Ohio Sept. 20, 2013)

Beck Energy Corp. (Beck), which owned oil and gas leases in Ohio, purportedly entered into an agreement with Wellington Resource Group LLC (Wellington) in which Wellington agreed to bring prospective purchasers of the leases to Beck. Wellington entered into a co-brokerage agreement with Transact Partners International, LLC (Transact) under which Wellington would pay Transact a percentage of the total transaction price. After Beck sold the oil and gas leases and related properties to XTO Energy for approximately $85 million, Wellington told Transact that it would not pay the fee. Transact intervened in a suit by Wellington against Beck, and Beck sought to dismiss Transact’s claims in part on the ground that oil and gas leases constituted real estate under Ohio law and that Transact was therefore not entitled to fees because it was not a licensed real estate broker. The federal district court for the Southern District of Ohio rejected this argument and declined to dismiss Transact’s “real estate claims.” After a “thorough survey of Ohio case law,” the court concluded that the Ohio Supreme Court would rule that oil and gas leases are not real estate under Ohio law.

Ohio ex rel. Bott Law Group LLC v. Ohio Dep’t of Natural Res. Name and Date

Description

Ohio ex rel. Bott Law Group, LLC v. Ohio Department of Natural Resources, No. 12AP-448 (Ohio Ct. App. Nov. 26, 2013)

Attorneys for an Ohio city and a water treatment plant commenced an action requesting that the Ohio Court of Appeals order the Ohio Department of Natural Resources (ODNR) to provide public records in response to requests made in 2011 and 2012. The city and water treatment plant were involved in litigation against ODNR challenging provisions of the fracking permits that had been issued to them, and the records requests were made in conjunction with this litigation. In the course of discovery in 2012, the attorneys became aware of a document that should have been produced in response to the earlier public records requests. ODNR subsequently provided more than 1,200 additional public records. The Ohio Court of Appeals agreed with the attorneys that ODNR had failed to meet its clear legal duty under the public records law when it incompletely responded to the 2011 and 2012 records requests. The court said that ODNR was required to recover e-mails that had been deleted in violation of retention policies as well as documents from the personal computers of personnel who had subsequently left ODNR. The complexity and expansiveness of the records request did not relieve ODNR of its obligations. The court did not award attorney’s fees as the attorneys were, in essence, proceeding as pro se litigants who had not incurred attorney fees.

Trail Enterprises Inc. d/b/a Wilson Oil Co. v. City of Houston Name and Date

Description

Trail Enterprises, Inc. d/b/a Wilson Oil Co. v. City of Houston, No. 12-0906 (Tex. Oct. 18, 2013)

The Texas Supreme Court denied the petition of review filed by Trail Enterprises, Inc. d/b/a Wilson Oil Co. in this inverse condemnation action. A jury had awarded Trail and other parties $17 million after the trial court found that the City of Houston’s restrictions on oil and gas drilling in the vicinity of Lake Houston constituted a compensable taking. In reversing this judgment, the appellate court found that two of the three Penn Central factors weighed heavily in the City’s favor because protection of water sources was a primary governmental function and Trail and the other mineral lessees demonstrated minimal reasonable and distinct investment-backed expectations.

Trail Enterprises, Inc. d/b/a Wilson Oil Co. v. City of Houston, No. 13-1374 (U.S. May 14, 2014)

Wilson Oil filed a petition for certiorari in the United States Supreme Court seeking review of the Texas appellate court decision. In its petition for Supreme Court review, Wilson Oil presented five questions, including whether the Texas Supreme Court had erred in denying review of the appellate court’s decision, which Wilson Oil contended improperly applied a “substantially advancing formula” to determine that there was no compensable taking because the City’s actions were designed to advance a legitimate government interest in protecting water sources. Wilson Oil contended that reliance on this factor was in contravention of Supreme Court precedent in Lingle v. Chevron U.S.A., 544 U.S. 528 (2005).

Trail Enterprises, Inc. d/b/a Wilson Oil Co. v. City of Houston, No. 13-1374 (U.S Oct. 6, 2014)

The U.S. Supreme Court denied certiorari without comment.

Star Insurance Company v. Bear Productions Inc. Name and Date

Description

Star Insurance Company v. Bear Productions, Inc., No. CIV-12149-RAW (E.D. Okla. Oct. 16, 2013)

An insurer filed an action seeking a declaratory judgment that it was not obligated to defend or indemnify Bear Productions, Inc. (Bear) in a class action lawsuit brought against Bear and other parties for environmental damage in connection with the transportation of oil and gas drilling waste fluids. The federal district court for the Eastern District of Oklahoma granted the insurer’s motion for summary judgment, ruling that the relevant policies’ pollution exclusions barred coverage. Bear had negotiated a limited exception to the exclusion for “pollution incidents,” but the allegations in the underlying action did not qualify for the exception.

Star Insurance Company v. Bear Productions Inc. Name and Date

Description

Star Insurance Company v. Bear Productions, Inc., No. CIV-12149-RAW (E.D. Okla. Oct. 16, 2013)

An insurer filed an action seeking a declaratory judgment that it was not obligated to defend or indemnify Bear Productions, Inc. (Bear) in a class action lawsuit brought against Bear and other parties for environmental damage in connection with the transportation of oil and gas drilling waste fluids. The federal district court for the Eastern District of Oklahoma granted the insurer’s motion for summary judgment, ruling that the relevant policies’ pollution exclusions barred coverage. Bear had negotiated a limited exception to the exclusion for “pollution incidents,” but the allegations in the underlying action did not qualify for the exception.

Key Operating & Equipment Inc. v. Hegar Name and Date

Description

Key Operating & Equipment, Inc. v. Hegar, No. 33,968 (Tex. Dist. Ct., filed Dec. 2007) (inj. issued); No. 01-10-00350-CV (Tex. Ct. App. rev’d trial court Oct. 2011) (op. withdrawn on reh’g Jan. 2013); No. 13-0156 (Tex. pet. for review granted Dec. 13, 2013) (oral argument Feb. 4, 2014) Key Operating & Equipment, Inc. v. Hegar, No. 13-0156 (Tex. June 20, 2014)

On February 4, 2014, the Texas Supreme Court heard oral arguments in this case involving a trespass claim made by property owners who alleged that a company drilling a well on an adjacent property made improper use of a roadway on their land to reach the well. A portion of the mineral estate underlying the property on which the roadway was located was subject to a pooling agreement that was signed after the mineral rights were severed from the surface estate. An intermediate appellate court ruled in January 2013 (reversing a 2011 ruling) that the pooling agreement was not part of plaintiffs’respondents’ title and that the pooling agreement therefore did not authorize the company to use the road to reach a well on another property. The Texas Supreme Court agreed to review the case on December 13, 2013. The Texas Supreme Court ruled that “when parts of two mineral leases have been pooled but production is from only one lease, the mineral lessee has the right to use a road across the surface of the lease without production in order to access the producing lease.” In doing so, the court reversed the appellate court’s decision that ruled that the lessee’s use of the road was not authorized. The Texas Supreme Court said that the lessee had implied property rights to use the surface of the property regardless of whether the lease and pooling agreement were in the chain of title. The court said that the appellate court’s decision was at odds with the “primary legal consequence” of pooling: “that production anywhere on the pooled unit and operations incidental to that production are regarded as taking place on each pooled tract.”

Environmental Processing Systems L.C. v. FPL Farming Ltd. Name and Date

Environmental Processing Systems L.C. v. FPL Farming Ltd., No. 12-0905 (Tex. oral argument Jan. 7, 2014)

Description On January 7, 2014, the Texas Supreme Court heard oral arguments in the appeal by a disposal company of an appellate court decision that revived trespass claims against the company by the owner of a rice farm. The rice farm owner alleged that subsurface migration of wastewater from an underground injection well constituted a trespass. The appellate court held that the trial court should have placed the burden of proof on the issue of consent on the disposal company, not on the owner. The oral argument raised the question of whether a subsurface trespass claim in Texas should require some showing of harm or interference with the use of property.

Colorado Oil & Gas Association v. City of Fort Collins Name and Date

Description

Colorado Oil & Gas Association v. City of Fort Collins, No. 2013CV031385 (Colo. Dist. Ct., filed Dec. 3, 2013)

The Colorado Oil and Gas Association (COGA) challenged a November 2013 ballot measure in the City of Fort Collins that imposed a five-year moratorium on hydraulic fracturing. COGA asserted that state law preempts the local moratorium because there is an express or operational conflict between the local measure and Colorado’s Oil and Gas Conservation Act and the rules of the Colorado Oil and Gas Conservation Commission (COGCC) implementing the Act.

Colorado Oil & Gas Association v. City of Fort Collins, No. 2013CV031385 (Colo. Dist. Ct., mot. to intervene filed Feb. 13, 2014) Colorado Oil & Gas Association v. City of Fort Collins, No. 2013CV031385 (Colo. Dist. Ct. Aug. 7, 2014)

Citizens for a Healthy Fort Collins, the Sierra Club and Earthworks sought to intervene in lawsuit. The environmental groups’ motion to intervene was accompanied by a motion to dismiss. The City has also filed a motion to dismiss.

A Colorado district court ruled that the moratorium was impliedly preempted by the Colorado Oil and Gas Conservation Act (OGCA) because the moratorium substantially impeded a significant state interest in oil and gas development and production. The court further held that the moratorium also was preempted because it prohibited activities the OGCA expressly authorized the Colorado Oil and Gas Conservation Commission to permit. On September 23, 2014, the Fort Collins City Council directed the city attorney to file an appeal of the decision.


Colorado Oil & Gas Association v. City of Fort Collins Name and Date

Description

Colorado Oil and Gas Association v. City of Fort Collins, No. 14CA1991 (Colo. Ct. App. Aug. 17, 2015)

The Colorado Court of Appeals referred appeals in unsuccessful challenges to municipal bans on hydraulic fracturing in Longmont and Fort Collins to the Colorado Supreme Court, citing the public interest in the cases, the important legal issues raised, the desirability of conserving public and private resources, and the potential for inconsistent appellate judgments.

City of Fort Collins, Colorado v. Colorado Oil and Gas Association, No. 15SC668 (Colo. Sept. 21, 2015)

The Colorado Supreme Court agreed to hear challenges to municipal bans on hydraulic fracturing in two cities, Longmont and Fort Collins. The municipalities and several environmental groups are appealing rulings by the state district courts that struck down a fracking ban in Longmont and a Fort Collins fracking moratorium as preempted by state law. The court will consider “[w]hether home-rule cities are preempted from promulgating local land-use regulations that prohibit the use of hydraulic fracturing in oil and gas operations and the storage of such waste products within city limits when the Colorado Oil and Gas Conservation Commission regulates hydraulic fracturing within the state.”

Colorado Oil & Gas Association v. City of Lafayette Name and Date

Description

Colorado Oil & Gas Association v. City of Lafayette, No. 2013CV031746 (Colo. Dist. Ct. Dec. 3, 2013)

The Colorado Oil and Gas Association (COGA) challenged a ballot question passed in November 2013 by City of Lafayette voters that bans oil and gas extraction within the City’s borders. Just as in the Fort Collins case, COGA argued that state law preempts the local measure. The State indicated that it did not intend to intervene in the cases challenging the 2013 local bans. Instead, the State would await the outcome of the July 2012 COGCC lawsuit challenging the City of Longmont restrictions on hydraulic fracturing. A COGA spokesperson indicated that it had not filed a lawsuit challenging a ban in the City of Boulder because there were no active wells in Boulder.

Colorado Oil and Gas Association v. City of Lafayette, Colo., No. 13CV31746 (Colo. Dist. Ct. Aug. 27, 2014)

The Colorado district court ruled that the City of Lafayette’s ban on oil and gas drilling and related activities was preempted by the Colorado Oil and Gas Conservation Act (OGCA). The court declined to apply an implied preemption framework, citing precedent finding that the state’s interest in oil and gas activities was not “so patently dominant” over local interest in land use control as to warrant implied preemption. Instead, the court ruled that the voterapproved charter amendment that imposed the ban was preempted due to operational conflict. In support of its conclusion that there was preemption, the court noted the interest in statewide uniformity of oil and gas regulation, the prospect that the local law would have extraterritorial impacts due to oil and gas reserves extending across City boundaries, and the traditional regulation of oil and gas development by the Colorado Oil and Gas Conservation Commission. The court said there was “no way to harmonize” the charter amendment with the OGCA because the local interest in banning drilling was not reconcilable with state law’s goals of production, prevention of waste, and protection of correlative rights.

Wallach v. N.Y. State Dep’t of Envtl. Conservation Name and Date

Description

Wallach v. New York State Department of Environmental Conservation, Index No. 67702013 (N.Y. Sup. Ct., filed Dec. 17, 2013)

The bankruptcy trustee for Norse Energy USA, which holds oil and gas lease rights to approximately 130,000 acres of land in New York, commenced an action seeking to force New York State to end the de facto moratorium on fracking in the state. Specifically, the lawsuit seeks to force the state to issue a final supplemental generic environmental impact statement (SGEIS) and findings with respect to oil and gas permits involving horizontal drilling and high-volume hydraulic fracturing. The suit also seeks a declaration that the Commissioner of the Department of Environmental Conservation (DEC) improperly delegated DEC’s environmental review obligations by referring the draft SGEIS to the State Department of Health for input on potential public health impacts, and that Governor Cuomo was illegally interfering with the review process.

Wallach v. New York State Department of Environmental Conservation, No. 6773-2013 (Sup. Ct. Albany Co. July 11, 2014)

The court dismissed the lawsuit, ruling that plaintiffs did not have standing to pursue claims under the State Environmental Quality Review Act (SEQRA) because they alleged only economic injury, which was not within SEQRA’s zone of interests. The court said that it was not persuaded that it should carve out an exception to the environmental injury requirement beyond the only currently recognized exception—property owners whose land is targeted for rezoning.

American Petroleum Institute v. EPA Name and Date

Description

American Petroleum Institute v. EPA, No. 13-1289 (D.C. Cir., filed Nov. 22, 2013; consolidated Dec. 3, 2013; held in abeyance Dec. 27, 2013)

Five energy industry groups filed petitions in the D.C. Circuit seeking review of EPA’s rule extending deadlines for installing storage tank pollution controls to comply with the 2012 new source performance standards (NSPS) for the oil and gas sector. The five petitions have been consolidated into one proceeding. On December 27, 2013, the D.C. Circuit granted a request to hold the proceedings in abeyance pending EPA’s responses to requests for reconsideration. The D.C. Circuit is also holding challenges to the 2012 NSPS in abeyance pending EPA’s action on petitions for reconsideration.

WildEarth Guardians Petition Concerning Sage Grouse Habitat Name and Date

WildEarth Guardians et al., Petition to Department of the Interior and Bureau of Land Management Concerning Sage Grouse Habitat (Oct. 24, 2013)

Description WildEarth Guardians, the Biodiversity Conservation Alliance, and the American Bird Conservancy formally petitioned the Department of the Interior and the Bureau of Land Management to take a number of actions that the conservation groups alleged were necessary to protect the habitat of the greater sage grouse. The groups asked the agencies to prohibit new roads or wellpads in the Douglas Sage Grouse Core Area in Wyoming until resource amendments plan amendments for sage grouse protection are completed and to restrict new wells to currently active wellpads. The U.S. Fish and Wildlife Service (FWS) is scheduled to complete its determination of the greater sage grouse’s status under the Endangered Species Act sometime in 2015, and the conservation groups assert that enforcement of existing protections for the sage grouse are necessary in order for FWS to rely on them in making its determination.

Center for Biological Diversity, Request to BOEM Regarding Offshore Hydraulic Fracturing Name and Date

Description

Center for Biological Diversity, Request to Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement, Pacific Region, Regarding Offshore Hydraulic Fracturing (Oct. 3, 2013)

CBD submitted a letter to the Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement, Pacific Region, requesting that they impose an immediate moratorium on new approvals of oil and gas approvals involving hydraulic fracturing and that they suspend fracking and other unconventional oil and gas extraction activities occurring under existing approvals. CBD asked that the agencies conduct a supplemental environmental review under the National Environmental Policy Act.

Davis v. Bureau of Land Management Name and Date

Davis v. Bureau of Land Management, Case No. 1:13-cv00971 (W.D. Mich. Sept. 5, 2013)

Description Husband and wife plaintiffs brought a lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) compliance with the National Environmental Policy Act (NEPA) in connection with its decision to lease federally owned mineral rights within the Allegan State Game Area in Michigan for oil and gas development.

Center for Biological Diversity Notice of Intent to Sue Name and Date

Center for Biological Diversity Notice of Intent to Sue (Sept. 5, 2013)

Description On September 5, 2013, the Center for Biological Diversity (CBD) announced that it had submitted a formal notice of intent to sue BLM under the Endangered Species Act in connection with BLM’s decision to lease publicly owned mineral rights in the Allegan State Game Area in Michigan. CBD asserts that drilling in the area would damage habitat critical to the survival of endangered species, including the Karner blue butterfly and the Indiana bat.

City of Denton Texas v. EagleRidge Energy LLC Name and Date

City of Denton, Texas v. EagleRidge Energy, LLC, No. __ (Tex. Dist. Ct., appl. for TRO Oct. 18, 2013; notice of non-suit Oct. 22, 2013)

Description The City of Denton, Texas filed an application for a temporary restraining order to stop defendants from constructing and operating certain new wells within City limits. The City alleged that defendant had not obtained required approvals and permits for the new wells. Less than a week later, the City filed a notice of non-suit without prejudice. The case was closed on October 23, 2013.

Clean Water Action v. Waste Treatment Corp. Name and Date

Clean Water Action v. Waste Treatment Corp., No. 13-00328 (W.D. Pa., filed Oct. 28, 2013)

Description Plaintiff, a non-profit organization, commenced an action in the federal district court for the Western District of Pennsylvania alleging that defendant had violated the Clean Water Act, the Pennsylvania Clean Streams Act, and the Endangered Species Act. Plaintiff seeks declaratory and injunctive relief, penalties and litigation fees and costs. Plaintiff alleges that defendant violated effluent limits in its National Pollutant Discharge Elimination System (NPDES) permit and discharged oil and gas wastewater without authorization. The complaint also alleges that defendant’s discharges to the Allegheny River constitute an unlawful taking of the endangered Northern Riffleshell mussel. A proposed consent decree in a related action pending in state court (Department of Environmental Protection v. Waste Treatment Corp., No. 463 M.D. 2013 (Pa. Commw. Ct.)) may lead to a quick disposition of this citizen suit.

French v. Occidental Permian Ltd. Name and Date

Description

French v. Occidental Permian Ltd., No. 12-1002 (Tex. Jan. 15, 2014)

The Texas Supreme Court agreed to review a royalty dispute that concerns mineral leases in the Cogdell Canyon Reef Unit oil field in Texas. The Texas Court of Appeals ruled in October 2012 that the oil companies had properly deducted the cost of removing carbon dioxide from gas that had been recovered by using carbon dioxide injection from royalties paid to landowners.

French v. Occidental Permian Ltd., No. 12-1002 (Tex. June 27, 2014)

The Texas Supreme Court affirmed the intermediate appellate court’s ruling that an oil company could deduct from royalties the processing costs for removing carbon dioxide (CO2) from “casinghead gas,” the gas produced with oil recovered using the enhanced oil recovery method of CO2 flooding. The casinghead gas produced at the wells in question, which were located in the Canyon Reef formation in the Permian Basin, was approximately 85% CO2. Although the parties agreed that removing contaminants “indigenous to the production field” was not part of production (meaning the costs were deductible from royalties), this case was apparently the first to address whether the “the separation of extraneous substances injected into the field” constituted production (the costs of which are not deducted from royalties). Because the agreements between the royalty owners and the working interest (the oil company) had given the working interest the right and discretion to decide whether to reinject or process the casinghead gas, the court ruled that the costs of CO2 removal were not production expenses necessary for the continued production of oil, but postproduction expenses that made the gas marketable.

Conglomerate Gas II L.P. v. Chesapeake Operating Inc. Name and Date

Conglomerate Gas II L.P. v. Chesapeake Operating, Inc., No. 096 269136 13 (Tex. Dist. Ct., filed Nov. 8, 2013)

Description Plaintiff entered into an exploration and development (E&D) agreement with Chesapeake entities under which plaintiff contributed leases for Chesapeake to develop wells in the Barnett Shale (approximately 6,000 below ground level) while plaintiff’s interest in shallower formations would be held by Chesapeake’s production. Plaintiff alleged that Chesapeake’s plugging and abandonment of wells (and plans for plugging and abandonment), termination of leases, and permitting leases to lapse violated the E&D agreement and related agreements. Plaintiff seeks declaratory and injunctive relief as well as damages.

City of Fort Worth v. Chesapeake Operating Inc. Name and Date

Description

City of Fort Worth v. Chesapeake Operating, Inc., No. 048 268798 13 (Tex. Dist. Ct. filed Oct. 17, 2013)

The City of Fort Worth, Texas sued Chesapeake Operating, Inc. and Total E&P (USA), Inc., alleging that they violated their oil and gas leases with the City by underpaying on royalty payments due to the City, including through use of sham sales to affiliates and by improperly deducting the costs of gas gathering, transportation, separation, treatment, and other production services. The City of Arlington and individual landowners have previously sued Chesapeake and Total on similar grounds.

Sorenson v. Burlington Resources Oil & Gas Co. L.P. Name and Date

Description

Sorenson v. Burlington Resources Oil & Gas Co., L.P. (N.D. Dist. Ct., filed Oct. 16, 2013); No. 4:13-cv-00132-DLH-CSM (D.N.D., removed Nov. 14, 2013, first amended compl. filed Jan. 2, 2014, mot. to dismiss Feb. 5, 2014)

In one of ten class action lawsuits commenced in October by mineral lessors in North Dakota alleging improper gas flaring, plaintiffs alleged that defendant— the operator of a well that produces oil and gas from their mineral interests— has flared gas in violation of North Dakota law. Plaintiffs seek to recover royalties for the flared gas. They also allege causes of action based on conversion and common law waste. On November 14, 2013, defendant removed the action to federal court on the basis of diversity and the Class Action Fairness Act of 2005. Plaintiffs filed an amended complaint on January 2, 2014, and defendant filed a motion to dismiss on February 5, 2014, arguing that the dispute should be heard, if heard at all, by the North Dakota Industrial Commission.

Sorenson v. Burlington Resources Oil & Gas Co., L.P., No. 4:13-cv132 (D.N.D. May 14, 2014)

The federal district court for the District of North Dakota concluded that it lacked subject matter jurisdiction over this case, as well as 13 other lawsuits filed by mineral lessors seeking to recover royalties for natural gas that had been flared in violation of North Dakota law. (The 14 actions raised nearly identical issues, but they were not consolidated.) The court agreed with defendants that the lessors had not exhausted their administrative remedies because they should have pursued their claims before the North Dakota Industrial Commission (NDIC). The court was not persuaded by plaintiffs’ arguments that their claims posed purely statutory construction issues not requiring the expertise of the NDIC, that the administrative remedy would be futile because they could not force NDIC to exercise its enforcement authority, and that state law did not require them to go first to the NDIC. The court also dismissed the actions on the grounds that state law did not create a private right of action and that common law claims for waste and conversion were preempted by statute.

Sorenson v. Burlington Resources Oil & Gas Co. L.P. Name and Date

Sorenson v. Burlington Resources Oil & Gas Co., L.P., No. 4:13-cv132 (D.N.D. June 13, 2014)

Description The mineral lessors filed a notice of appeal.

GMX Resources Inc. v. Oneok Rockies Midstream L.L.C. Name and Date

GMX Resources Inc. v. Oneok Rockies Midstream, L.L.C., 5:13ap-01111 (Bankr. W.D. Okla. Nov. 22, 2013)

Description GMX Resources Inc. (GMX) filed an adversary proceeding against Oneok Rockies Midstream, L.L.C. (Oneok) in conjunction with GMX’s pending bankruptcy proceedings. GMX sought to block Oneok from converting its natural gas gathering pipeline to a high-pressure line that would prevent the line from carrying gas from GMX’s wells and forcing GMX to shut in its wells. GMX alleged that Oneok’s actions are a violation of the automatic stay imposed in the bankruptcy proceeding because the actions are an improper attempt to exercise control over property of the GMX’s bankruptcy estate.

Cherry Canyon Resources L.P. v. Halliburton Name and Date

Cherry Canyon Resources, L.P. v. Halliburton, No. 2:13-cv-00238 (S.D. Tex. filed July 31, 2013)

Description Plaintiff filed a class action complaint alleging that Halliburton, Schlumberger, and Baker Hughes conspired to restrain free trade in the market for fracking pressure pumping services in the United States. Plaintiff alleged that the defendants controlled 60 percent of the pressure pumping service market in North America and are the only companies that provide “full service” operations in all regions of the U.S. The lawsuit was commenced after the U.S. Department of Justice Antitrust Division confirmed that it was investigating anticompetitive practices in the pressure pumping services market.

Cave v. City & County of Broomfield Colorado Name and Date

Cave v. City & County of Broomfield, Colorado, No. 13CV303 13 (Colo. Dist. Ct. Feb. 27, 2014)

Description A Colorado district court upheld the results of a November 2013 election in which residents of the City and County of Broomfield approved a measure that banned hydraulic fracturing in Broomfield for five years. The margin by which the measure was approved was very narrow (an initial vote count showed that it had failed), and the election was subject to a new voting law that imposed complicated residency requirements. Plaintiffs claimed that illegal votes were counted and legal votes rejected, but calling the election “remarkably transparent,” the court found that local officials acted in good faith and had substantially complied with Colorado election law.

Chesapeake Appalachia L.L.C. v. Department of Environmental Protection Name and Date

Description

Chesapeake Appalachia, L.L.C. v. Department of Environmental Protection, No. 1570 C.D. 2013 (Pa. Commw. Ct. Apr. 3, 2014)

The Pennsylvania Commonwealth Court affirmed the Environmental Hearing Board’s (EHB’s) dismissal of Chesapeake Appalachia LLP’s (Chesapeake’s) appeals of three letters from the Pennsylvania Department of Environmental Protection (PADEP) that modified a corrective action plan (CAP) that Chesapeake submitted to PADEP. Chesapeake was required to prepare the CAP pursuant to a consent order into which it entered after natural gas leaks contaminated drinking water supplies and surface waters. The CAP was required to identify actions Chesapeake would take to evaluate and rehabilitate 116 gas wells. The court agreed with the EHB that the PADEP letters modifying the CAP were not reviewable final actions.

State of Fla. Dep’t of Envtl. Prot. v. Dan A. Hughes Co. L.P. Name and Date

Description

State of Florida Department of Environmental Protection v. Dan A. Hughes Co., L.P., OGC File No. 14-0012 (Fla. Dep’t of Envtl. Prot. consent order Apr. 8, 2014)

On December 31, 2013, the Florida Department of Environmental Protection (FDEP) ordered Dan A Hughes Co., L.P. (Hughes) to stop work at a well at the Hogan Island Farm in Collier County where Hughes was conducting a “workover operation.” In a consent order effective April 8, 2014, Hughes agreed to pay $25,000 and to implement a groundwater monitoring plan. It also agreed not to conduct any similar “workover operations,” which involved an “enhanced extraction procedure” similar to hydraulic fracturing, until it had submitted a report satisfactory to FDEP confirming that the activities would not cause or contribute to any violation of groundwater quality standards. On May 2, 2014, FDEP announced that it had asked Hughes to cease all new operations in Florida until the results of monitoring were assessed. On June 18, 2014, FDEP sent a letter to Hughes and Collier Resources Company, which owns the well, requiring that they hold three public hearings to discuss and take public comment on plans for the well site and on plans for current and future energy operations in Collier County.


State of Fla. Dep’t of Envtl. Prot. v. Dan A. Hughes Co. L.P. Name and Date

Description

State of Florida, Department of Environmental Protection v. Dan A. Hughes Co., L.P., OGC Case No. 14-0400 (Fla. Dep’t of Envtl. Prot., notice of revocation July 18, 2014); State of Florida, Department of Environmental Protection v. Dan A. Hughes Co., L.P., No. 112014CA0016430001XX (Fla. Cir. Ct., filed July 18, 2014)

On July 18, the Florida Department of Environmental Protection (FDEP) took two enforcement steps against Dan A. Hughes Co., L.P. (Hughes), the operator of an oil well at the Hogan Island Farm in Collier County. FDEP (1) issued a notice of its revocation of permits issued for the well and (2) commenced an enforcement action in Florida state court. The notice of revocation said Hughes had violated the terms of an April 2014 consent order that addressed Hughes’s refusal to comply with a December 2013 order by FDEP to stop a workover operation Hughes was conducting at the well. Alleged violations of the consent order included failure to submit an adequate Interim Spill Prevention and Cleanup Plan, failure to retain an independent third-party expert to assess the likelihood of Hughes’s workover operation at the well site causing or contributing to a violation of groundwater quality standards, and failure to submit a groundwater monitoring plan. Among other allegations in the notice was that Hughes disposed of flowback material from the workover operation without conducting required sampling that was essential to the development of the monitoring plan. The notice also alleged violations of environmental regulations requiring Hughes to provide manifests for flowback material transported off site and to post certain signs at the well site. The notice further alleged that Hughes maintained an unpermitted “stationary installation” (a dumpster in which FDEP observed waste materials covered in oil). The complaint in the enforcement action contained the same allegations regarding the violations of the consent order and state statutory and regulatory requirements. FDEP sought injunctive relief, including an order requiring Hughes to permanently plug and abandon the well and remediate the site, authorizing FDEP to retain an expert at Hughes’s expense to conduct the water quality risk assessment, and requiring Hughes to conduct a contamination assessment at the well site. FDEP also sought penalties of more than $100,000 and investigative costs and expenses for maintaining the enforcement action. FDEP’s actions came two weeks after it sent Hughes a letter outlining steps the company needed to take to avoid regulatory and enforcement action.

Neuhard v. Range Resources–Appalachia LLC Name and Date

Description

Neuhard v. Range Resources– Appalachia, LLC, No. 4:11-cv01989 (E.D. Pa. Apr. 3, 2014)

The federal district court for the Eastern District of Pennsylvania issued a declaratory judgment in favor of landowners who contended that their lease of Range Resources–Appalachia, LLC had terminated. The court determined that although Range had “commenced a well” as required to avoid expiration of the lease, its activities did not take place “on the Leased Premises” or “on a spacing unit containing a portion of the Leased Premises” because Range’s designation of a 395-acre unit exceeded its unitization authority under the lease. Nor did Range’s drilling activities on an adjacent property suffice to extend the lease.

Herder Spring Hunting Club v. Keller Name and Date

Description

Herder Spring Hunting Club v. Keller, No. 718 MDA 2013 (Pa. Super. Ct. May 9, 2014)

The Pennsylvania Superior Court vacated a trial court judgment that awarded fee simple ownership of subsurface rights to the heirs of a husband and wife who in 1899 had transferred surface rights to the property but had retained subsurface rights. In 2008, the Herder Spring Hunting Club, which acquired the property in 1959, filed an action to quiet title. The appellate court ruled that a prior sale of the land for failure to pay taxes had rejoined the subsurface and surface rights because the husband and wife had not complied with their obligation under an 1806 law to inform the county commissioners of their retention of the subsurface rights. When the county acquired the property due to nonpayment of real estate taxes, it acquired (and subsequently sold) the entire property in fee simple, including subsurface rights.

Cabot Oil & Gas Corp. v. Scroggins Name and Date

Description

Cabot Oil & Gas Corp. v. Scroggins, No. 2013-1303 (Pa. Ct. Comm. Pl. Mar. 28, 2014)

The Pennsylvania Court of Common Pleas narrowed the scope of an October 2013 injunction barring an anti-fracking activist from property owned or leased by Cabot Oil & Gas Corporation (Cabot). The court’s March 2014 order identified specific properties that defendant was barred from entering, and also barred her from entering well pads where Cabot was conducting surface operations or maintaining a well in production, and from access roads to such well pads and within 100 fee of such well pads. The court concluded that the preliminary injunction was warranted to protect the safety of Cabot workers and defendant.

Trinity East Energy LLC v. City of Dallas Name and Date

Description

Trinity East Energy, LLC v. City of Dallas, No. DC-14-01443 (Tex. Dist. Ct. filed Feb. 13, 2014; am. pet. filed Apr. 1, 2014)

Trinity East Energy, LLC (Trinity) commenced a lawsuit against the City of Dallas, alleging that the City had taken Trinity’s property without just compensation. In 2008, Trinity leased 3,600 acres of mineral rights from the City (in the City’s proprietary capacity) for which Trinity paid $19 million. Trinity alleged that the City knew that Trinity would not have entered into the leases if it would not have had access to drilling sites on City property. After Trinity spent months working with City and federal officials on engineering, surveying, and planning for the design of the drilling sites, the City denied its applications for permits allowing drilling on City property. In addition to its state law inverse condemnation claim, Trinity alleges breach of contract, common law fraud, statutory fraud, promissory estoppel, and negligent misrepresentation claims, and reserved its federal claims pending resolution of its state law claims.

Concerned Citizens of St. Tammany v. U.S. Army Corps of Engineers Name and Date

Description

Concerned Citizens of St. Tammany v. U.S. Army Corps of Engineers, No. 14-1118 (E.D. La., filed May 15, 2014)

A citizen group asked the federal district court for the Eastern District of Louisiana to enjoin the U.S. Army Corps of Engineers’ commencement of a public comment period on an application by Helis Oil & Gas Co. for a dredge and fill permit that would allow Helis to develop wells at which it would use hydraulic fracturing. Plaintiff alleged that this would be the “first ever fracking project” in the St. Tammany parish and that the public was only made aware of the proposed project when the Corps initiated a public comment period in April 2014. Plaintiff claimed that the Corps’ actions violated the Clean Water Act and Administrative Procedure Act because the Corps had not provided information necessary for meaningful public comment.

Concerned Citizens of St. Tammany v. U.S. Army Corps of Engineers, No. 14-1118 (E.D. La. June 12, 2014)

After the U.S. Army Corps of Engineers agreed to extend the public comment period on the application, plaintiff filed a motion to dismiss without prejudice. The court granted the motion on June 12, 2014. Plaintiff reportedly filed a similar action against the Louisiana Department of Environmental Quality in state court seeking to prevent it from issuing a water certification necessary the dredge and fill permit. The Louisiana Department of Environmental Quality reportedly indicated that it, too, would extend the comment period. The motion and order came days after the St. Tammany Parish Council authorized a lawsuit seeking to block the Louisiana Department of Natural Resources from issuing drilling permits in the parish.

Petition for Listing and Rulemaking Under Section 112 of the Clean Air Act to Establish an Area Source Category for Oil and Gas Production Wells Name and Date

Description

Sierra Club, Earthjustice, & NRDC, Petition for Listing and Rulemaking Under Section 112 of the Clean Air Act to Establish an Area Source Category for Oil and Gas Production Wells and Associated Equipment and to Set National Emission Standards for Hazardous Air Pollutant Emissions (May 13, 2014)

Sierra Club, Earthjustice, and the Natural Resources Defense Council submitted a petition to the United States Environmental Protection Agency (EPA) on behalf of a number of national, regional, and local environmental organizations, asking EPA to list oil and gas wells in urban areas as area sources for purposes of regulating them under the Clean Air Act’s hazardous air pollutant provisions. The petition cited the authority granted to EPA in 42 U.S.C. § 7412(n)(4)(B) to establish an area source category for such wells where “emissions of hazardous air pollutants from such wells present more than a negligible risk of adverse effects to public health.”

WildEarth Guardians v. United States Forest Service Name and Date

Description

WildEarth Guardians v. United States Forest Service, No. 2:14cv-00349-EJF (D. Utah, filed May 7, 2014)

WildEarth Guardians commenced a lawsuit in federal court in Utah alleging that the United States Forest Service and the United States Bureau of Land Management failed to comply with the National Environmental Policy Act, the Federal Onshore Oil and Gas Leasing Reform Act, the National Forest Management Act, the Clean Air Act, the Clean Water Act, and Utah Water Quality Standards when they approved a 400-well oil and gas development project in the Ashley National Forest.

Center for Biological Diversity Protest of BLM’s July 17 2014 Oil and Gas Competitive Lease Sale and Environmental Assessment DOI-BLM-NV-B000-2014-0001-EA Name and Date

Center for Biological Diversity, Protest of BLM’s July 17, 2014 Oil and Gas Competitive Lease Sale and Environmental Assessment DOI-BLM-NV-B000-2014-0001-EA (May 12, 2014)

Description The Center for Biological Diversity (CBD) submitted a formal protest to BLM’s Nevada office objecting to BLM’s plan to conduct an oil and gas lease sale in July 2014 for 102 parcels covering 174,021.36 acres. CBD asked BLM to cancel the lease sale and prepare a full environmental impact statement. CBD said BLM must reopen the decision-making process to address methane waste, water quality, air quality, sage grouse and other biological resources, and climate change impacts.

Mosher v. Dan A. Hughes Co. L.P. Name and Date

Description

Mosher v. Dan A. Hughes Co., L.P., Case No. 13-004254 (Fla. Div’n of Admin. Hearings FDEP status report, Apr. 15, 2014; proposed orders May 14, 2014)

Two individuals (Thomas G. Mosher and Matthew Schwartz) challenged a permit issued by the Florida Department of Environmental Protection (FDEP) for an exploratory oil and gas well in the Big Cypress Swamp Watershed in Collier County. The permit expressly states that it does not authorize hydraulic fracturing. In a status report filed with the Florida Division of Administrative Hearings on April 15, 2014, FDEP submitted the recommendation of the Big Cypress Swamp Advisory Committee that the permit be denied but indicated that FDEP saw no basis for denial. FDEP indicated that the concerns and recommendations of the advisory committee were beyond FDEP’s purview. On May 14, 2014, all parties submitted proposed recommended orders. Case documents are available at the Florida Division of Administrative Hearings’ website. As discussed above, FDEP announced on May 2 that it had asked Hughes to cease all new oil and gas operations pending the results of groundwater monitoring at another well in Collier County.

Stedge v. Pennsylvania Smithfield Township v. Pennsylvania Name and Date

Description

Appellants Stedge et al., No. 2014-042 (Pa. Envtl. Hearing Bd., appeal filed Apr. 28, 2014; am. notice of appeal filed May 16, 2014); Appellant Smithfield Township, No. 2014-044 (Pa. Envtl. Hearing Bd. appeal filed Apr. 30, 2014)

Individual appellants challenged the Pennsylvania Department of Environmental Protection’s issuance of a permit to Chesapeake Appalachia, LLC (Chesapeake) for a facility to be used for storage of oil and gas liquid waste for use as a water supply to develop or hydraulically fracture an oil or gas well. Appellants contend in their notice of appeal filed with the Environmental Hearing Board that Chesapeake did not fully disclose the purpose of the facility to the public, that the facility’s name (Lamb’s Farm Storage Facility) was deceptive, and that a public hearing should have been held prior to issuance of the permit. Appellants called Chesapeake “a frequent violator” of environmental laws and identified 18 areas of concern that should be addressed prior to issuance of the permit, including assessment of the potential impact on nearby waterways. Smithfield Township also challenged the permitting of the facility. The Township’s objections include that the facility’s liner would be inadequate to prevent spills and that inadequate attention was given to impacts on air, traffic, and wetlands, and to the possibility of radiation accumulation.

Smithfield Township v. Pennsylvania, No. 2014-044 (Pa. Envtl. Hearing Bd. Sept. 4, 2014)

The Township formally withdrew its appeal, after “an independent review” resulted in a determination that the permit process had been proper.


Stedge v. Pennsylvania Smithfield Township v. Pennsylvania Name and Date

Description

Stedge v. Pennsylvania, No. 2014-042-L (Pa. Envtl. Hearing Bd. Aug. 21, 2015)

The Pennsylvania Environmental Hearing Board upheld coverage under a general permit for an oil and gas liquid waste storage and beneficial use facility. The facility consisted of 38 wastewater tanks. The general permit encompassed requirements under air, water, solid waste, and storage tank regulations. The Board was not convinced that procedural improprieties, including “less than perfect attention to detail” in the preparation of the application for coverage, warranted reversing the approval of coverage. The Board also found that the appellants had not proved problems with respect to air quality, radiation, truck traffic, tank design, spill containment, and the suitability of the facility’s location. The Board also said that approval of coverage under the permit did not violate the Pennsylvania constitution’s Environmental Rights Amendment. The Board noted that any expansion of the facility’s operations beyond storage would require a permit modification application.

Joint Landowners Coalition of New York Inc. v. Cuomo Name and Date

Description

Joint Landowners Coalition of New York, Inc. v. Cuomo, Index No. 000843/2014 (N.Y. Sup. Ct., filed Feb. 14, 2014; hearing Apr. 25, 2014)

A nonprofit organization formed “in a response to the regulatory barriers to natural gas development in New York” filed a lawsuit in New York state court seeking to compel the State to issue a supplemental generic environmental impact statement and a findings statement under the State Environmental Quality Review Act (SEQRA) with respect to the issuance of oil and gas well permits involving high-volume hydraulic fracturing and horizontal drilling. The nonprofit organization, along with two other petitioners-plaintiffs, also asked the court to determine that the New York Department of Environmental Conservation (DEC) acted arbitrarily and capriciously and violated its lead agency obligations under SEQRA when it asked the New York State Department of Health (DOH) to evaluate the public health impacts of fracking. Petitioners-plaintiffs also alleged that Governor Andrew M. Cuomo should be declared an interested agency due to his intervention in the SEQRA process and that Governor Cuomo should be declared to have acted outside his jurisdiction by “orchestrating the delay” in the SEQRA process and precluding DEC from exercising its decision-making authority. In connection with these allegations, petitioners-plaintiffs ask the court to require Governor Cuomo, DEC, and DOH to make records related to the SEQRA process available.


Joint Landowners Coalition of New York Inc. v. Cuomo Name and Date

Description

Joint Landowners Coalition of New York, Inc. v. Cuomo, No. 843-2014 (Sup. Ct. Albany Co. July 11, 2014; notice of appeal July 24, 2014)

The court ruled that plaintiffs-petitioners—a landowner with an oil and gas lease, a holder of mineral rights, and a coalition of 38 coalitions representing over 70,000 New York landowners—did not have standing to bring SEQRA claims challenging DEC’s failure to complete its environmental review of the hydraulic fracturing-horizontal drilling regulations. The court found that injuries alleged were solely economic in nature. The court rejected petitioners’ argument that they did not need to allege environmental harm because they raised procedural, not substantive, SEQRA challenges. In addition, the court said that plaintiffs-petitioners did not qualify for the single recognized exception to the environmental harm requirement—property owners whose land is targeted for rezoning. The court said that it recognized “the possibility that respondents’ alleged actions/inactions in the SGEIS process are potentially shielded from challenges,” but that it could not “discern any applicable exception in the SEQRA case law that would allow standing to be conferred upon the petitioners herein.” Plaintiffs-petitioners announced they would appeal the ruling. See also the related case, Wallach v. DEC.

Fort Worth Housing Finance Corp. v. Chesapeake Energy Corp. Name and Date

Fort Worth Housing Finance Corp. v. Chesapeake Energy Corp., No. 352-272138-14 (Tex. Dist. Ct., filed May 16, 2014)

Description The Fort Worth Housing Finance Corporation and related parties alleged that oil and gas developers, including Chesapeake, Total, and Aubrey McClendon, materially breached their contractual obligations under mineral rights leases entered into with plaintiffs. Plaintiffs contended that defendants had “acted in concert with related and affiliated parties to manipulate sales points and to enter into non-arm’s length agreements as a means to perpetuate a fraud in order to try to impose upon [plaintiffs] costs the lessees agreed to bear.” Plaintiffs sought damages equal to the underpayments of royalties as well as declaratory relief, including a declaration that plaintiffs could terminate their leases.

Star-Telegram Inc. v. Chesapeake Exploration LLC Name and Date

Description

Star-Telegram, Inc. v. Chesapeake Exploration LLC, No. 096-272142-14 (Tex. Dist. Ct., filed May 16, 2014)

The Fort Worth Star-Telegram alleged that Chesapeake entities had underpaid royalties on one lease and had failed to pay royalties on another, despite the fact that the lease began production more than three years before the filing of the lawsuit. The Star-Telegram pleads breach of contract claims and also a claim under the Texas Natural Resources Code, which requires payment to lessors within 120 days after the end of the month of the first sale of production.

Fort Worth Independent School Dist. v. Chesapeake Energy Corp. Name and Date

Description

Fort Worth Independent School District v. Chesapeake Energy Corp., No. 236-272136-14 (Tex. Dist. Ct., filed May 15, 2014)

The Fort Worth Independent School District alleged that oil and gas developers, including Chesapeake, Total, and Aubrey McClendon, materially breached their contractual obligations under mineral rights leases entered into with plaintiffs. Plaintiff contended that defendants had “acted in concert with related and affiliated parties to manipulate sales points and to enter into non-arm’s length agreements as a means to perpetuate a fraud in order to try to impose upon [plaintiffs] costs the lessees agreed to bear.” Plaintiff sought damages equal to the underpayments of royalties as well as declaratory relief, including a declaration that plaintiffs could terminate their leases.

Delaware Riverkeeper Network v. FERC Name and Date

Description

Delaware Riverkeeper Network v. Federal Energy Regulatory Commission, No. 13-1015 (D.C. Cir. June 6, 2014)

The D.C. Circuit Court of Appeals ruled that the Federal Energy Regulatory Commission (FERC) had improperly segmented its National Environmental Policy Act review of one of four “connected, closely related, and interdependent” natural gas pipeline projects that constituted a major upgrade to the pipeline that carries natural gas eastward from western Pennsylvania. The court said that each of the four phases “fit with the others like puzzle pieces to complete an entirely new pipeline.” The court further held that FERC had failed to meaningfully analyze the cumulative impacts of the four interconnected projects. Judge Brown concurred in the cumulative impacts portion of the opinion, but “would have declined to delve into the murky waters of backwards-looking segmentation review.” And though Senior Judge Silberman concurred in both the segmentation and the cumulative impacts holdings, he agreed that the “the ‘cumulative impact’ issue is a stronger ground upon which to base the decision.”

Crowder v. Chesapeake Operating Inc. Name and Date

Description

Crowder v. Chesapeake Operating, Inc., No. 2011008256-1 (Tarrant Co. Ct. at Law May 23, 2014)

A Texas state court jury awarded $20,000 to plaintiffs who alleged that activities connected to a drilling site near their home constituted a nuisance. Plaintiffs complained of noise, odors, and truck traffic. The jury found that the activities were a temporary nuisance and therefore did not award an additional $88,000 sought by plaintiffs. Plaintiffs’ attorney also represented plaintiffs in another case involving the same drilling site. The jury in that case—Anglim v. Chesapeake Operating, Inc.—found in favor of defendant in April 2014.

Anglim v. Chesapeake Operating Inc. Name and Date

Description

Anglim v. Chesapeake Operating, Inc., No. 2011-008256-1 (Tarrant Co. Ct. at Law, 2d am. pet. Nov. 26, 2013)

Plaintiff alleged claims of private nuisance, trespass, and indemnification in connection with the operation of gas wells approximately 595 feet from her home in Texas. Plaintiff alleged that activities associated with the wells caused noxious odors and loud and constant noise. (This case involved the same drilling site as Crowder v. Chesapeake Operating, Inc.)

Anglim v. Chesapeake Operating, Inc., No. 2011-008256-1 (Tarrant Co. Ct. at Law Apr. 2014)

The jury found in favor of the defendant.

Delaware Riverkeeper Network v. Delaware River Basin Commission Name and Date

Description

Delaware Riverkeeper Network v. Delaware River Basin Commission, No. 10-cv-05639 (D.N.J. June 19, 2014)

Plaintiffs commenced this action in 2010 to challenge the Delaware River Basin Commission’s (DRBC’s) approval of a water withdrawal docket authorizing Stone Energy Corporation to withdraw up to 0.7 million gallons of water per day from the West Branch of the Lackawaxen River in Pennsylvania. The water would be used for natural gas development and extraction activities, including hydraulic fracturing. Plaintiffs alleged that the approval violated the substantive and procedural requirements of the Delaware River Basin Water Code and the Delaware River Basin Administrative Manual: Rules of Practice and Procedure and that the DRBC had not met additional requirements applicable to Special Protection Waters. On June 19, 2014, the parties filed a stipulation of dismissal without prejudice in the federal district court for the District of New Jersey. Lead counsel for plaintiffs said that Stone Energy had relinquished the docket, rendering the case moot.

In re EIS Regarding the David Nisbit Quarry Conditional Use Permit Application to Extract Industrial Sand Name and Date

Description

In re Environmental Impact Statement Regarding the David Nisbit Quarry Conditional Use Permit Application to Extract Industrial Sand, No. A13–0745, A13–1198 (Minn. Ct. App. June 16, 2014)

The Minnesota Court of Appeals affirmed the Winona County Board of Commissioners' decisions to issue a negative declaration and a conditional use permit for a proposed silica sand mining project. The mine would be a source of industrial sand for use as a proppant for hydraulic fracturing of oil and gas wells. Among other things, the court found that the Board had properly considered potential cumulative effects and had concluded that the proposed mine was small and isolated, and that future potential mining projects in the relevant geographic area, of which there were several, were speculative or uncertain. The court also concluded that there was a reasonable basis for granting the conditional use permit.

In re Windfall Oil & Gas Inc.

Name and Date

Description

In re Windfall Oil & Gas, Inc., appeal nos. 14-04 to 14-62 (EAB June 10, 2014)

In February 2014, EPA Region 3 issued an Underground Injection Control permit to Windfall Oil & Gas, Inc. for a Class II-D injection well in Pennsylvania for waste fluids associated with oil and gas development. EPA’s Environmental Appeals Board (EAB) received 57 petitions challenging the permit. On May 15, 2014, EPA Region 3 filed a motion for a voluntary remand. The motion papers indicated that EPA Region 3 had not fully considered and responded to public comments and that there were factual errors in its response to comments document. For example, EPA Region 3 had indicated that there were no drinking water wells in the area of review, while the permit application had identified several drinking water wells (which Region 3 said were considered in drafting the construction requirements for the permit). EAB granted the motion. Among other things, the EAB directed EPA Region 3 to provide additional opportunity for public comment if it determined that a new draft permit should be issued.

In re Endangered Species Act Section 4 Deadline Litigation Name and Date

Description

In re Endangered Species Act Section 4 Deadline Litigation, No. 10-mc-00377 (D.D.C., order approving extension for listing determination, May 6, 2014; BLM Instruction Memorandum, May 30, 2014)

The federal district court for the District of Columbia granted the Fish and Wildlife Service’s (FWS’s) unopposed motion seeking a six-month extension (to November 12, 2014) for finalizing an Endangered Species Act listing determination for the Gunnison sage grouse. The FWS said that the extension was necessary because information received during the public comment period on its proposal to list the Gunnison sage grouse as endangered suggested that the viability of the species might instead warrant a threatened status. In the event that the FWS determines that the species should be listed as threatened, it intends to concurrently issue a Section 4(d) special rule to specify conservation measures to avoid public confusion about what activities are prohibited. WildEarth Guardians agreed not to oppose the extension request in exchange for the application of additional conservation measures, including restrictions on oil and gas development. On May 30, 2014, the U.S. Bureau of Land Management issued an “Instruction Memorandum” describing the interim conservation measures for important Gunnison sage grouse habitat. The measures include a bar on the disturbance of habitat in a four-mile buffer area around leks (mating areas), except for valid existing rights.

In re Seneca Resources Corp. Name and Date

Description

In re Seneca Resources Corp., UIC Appeal Nos. 14-01, 14-02, & 1403 (EAB May 29, 2014)

The EAB denied three consolidated appeals that challenged an Underground Injection Control permit issued for a Class II injection well in Pennsylvania. The EAB denied one appeal because the petition lacked sufficient specificity; it was one page in length and raised general concerns regarding health and safety risks posed by injection wells. A second appeal was dismissed as untimely because the EAB had never received the petition, and the petitioner had not provided any proof of mailing. (The EAB noted that it would have rejected the appeal in any case because of insufficient specificity.) The third appeal was dismissed for lack of standing because the petitioner had not participated in the public review process for the permit.

Carrizo (Marcellus) LLC Name and Date

Description

Carrizo (Marcellus) LLC (Pa. Dept. of Envtl. Prot. June 18, 2014)

The Pennsylvania Department of Environmental Protection (PADEP) announced that it had imposed fines totaling $192,044 on Carrizo (Marcellus) LLC for (1) a well control incident in March 2013 during which production fluid escaped from the well for a number of hours at a rate of 800 to 1,100 barrels per hour, and (2) a production water spill of more than 9,000 gallons in April 2013 that reached a private residence as well as a pasture where livestock were grazing. After both incidents, PADEP issued notices of violation for violations of the Clean Streams Law, Solid Waste Management Act, and Chapter 78 oil and gas regulations.

Eastham v. Chesapeake Appalachia L.L.C. Name and Date

Description

Eastham v. Chesapeake Appalachia, L.L.C., No. 13-4233 (6th Cir. June 6, 2014)

The Sixth Circuit Court of Appeals affirmed the granting of summary judgment to defendant Chesapeake Appalachia, L.L.C. regarding the renewal terms of an oil and gas lease embodied in the much-litigated Paragraph 19 of the lease, which included the sentence: “Upon the expiration of this lease and within sixty (60) days thereinafter, Lessor grants to Lessee an option to extend or renew under similar terms a like lease.” The Sixth Circuit rejected the argument that Paragraph 19 was ambiguous and concluded that it permitted defendant either to extend the lease on the same terms or to renegotiate a new lease on similar terms. In particular, the court rejected the argument that options to “extend” were synonymous with options to “renew” under Ohio law. The Sixth Circuit also rejected the notion that the extension of the lease was invalid because it occurred before the expiration of the lease, and the arguments that defendant’s interpretation of the lease was against public policy or led to an unconscionable result. The same result was reached in Kenney v. Chesapeake Appalachia, L.L.C., No. 2013 CV 240 (Ohio Ct. Comm. Pleas Apr. 3, 2014); Bissett v. Chesapeake Appalachia, L.L.C., No. 5:13-CV-20 (N.D. W.Va. Apr. 14, 2014); and Brown v. Chesapeake Appalachia, L.L.C., No. 5:12-CV-71 (N.D. W.Va. Aug. 18, 2013).

Cole v. EV Properties L.P. Name and Date

Description

Cole v. EV Properties, L.P., No. 13-3677 (6th Cir. Apr. 18, 2014)

In 2006, plaintiffs, who owned a farm in Ohio, executed documents purporting to grant an oil and gas lease to North Coast Energy, Inc. Plaintiffs alleged that they did not personally appear before the notary public who notarized the documents. In 2012, dissatisfied with North Coast’s conduct under the leases, plaintiffs filed a lawsuit charging that the leases were invalid and unenforceable due to the defective acknowledgment. The Sixth Circuit Court of Appeals affirmed the federal district court for the Northern District of Ohio in holding that the lease gave rise to an enforceable interest between the parties despite the defective acknowledgment. In doing so, the Sixth Circuit rejected a distinction that plaintiffs tried to find in Ohio caselaw between transfers of fee interests and transfers of lease interests. The Sixth Circuit said it was confident that the Ohio Supreme Court “would not permit [plaintiffs] to exploit a technically defective acknowledgment to documents that they unquestionably executed.”

Fayviard, LLC v. UGI Storage Co. Name and Date

Description

Fayviard, LLC v. UGI Storage Co., No. 4:13-cv-02400 (M.D. Pa. June 6, 2014)

Plaintiff originally filed this lawsuit in the Pennsylvania Court of Common Pleas, seeking the appointment of “viewers” to assess damages owed as a result of the de facto condemnation by defendant of plaintiff’s interests in oil and gas beneath the surface of property in Tioga County, Pennsylvania. Defendant, a gas storage utility, was seeking a certificate of public convenience and necessity from the Federal Energy Regulatory Commission to operate a gas storage facility that would have a 3,000-square-foot buffer zone. Plaintiff alleged that its oil and gas interests were located within the storage facility and buffer zone, and that hydraulic fracturing would not be permitted there, destroying plaintiff’s property’s value. Defendant removed to the federal district court for the Middle District of Pennsylvania on the basis of federal question jurisdiction. The federal court remanded the action, finding that plaintiff’s state law claim for relief did not state a federal claim for relief and did not necessarily require resolution of a substantial question of federal law, despite the fact that the de facto condemnation claim “implicated” federal law, including the Natural Gas Act, which was the source of defendant’s eminent domain power. The court was highly critical of counsel for both parties, stating that “[t]he parties’s briefs are, to put it lightly, not exemplary, and certainly do not meet the complexity of the issues involved.” The court noted that plaintiff’s counsel had “candidly, if ludicrously” admitted that he had not extensively researched the law before filing briefs in support of remand.

Mifflin Energy Corp. v. Chevron Appalachia LLC Name and Date

Description

Mifflin Energy Corp. v. Chevron Appalachia LLC, G.D. No. 10007408 (Pa. Ct. Comm. Pleas May 21, 2014; notice of appeal, May 28, 2014)

The Pennsylvania Court of Common Pleas dismissed Mifflin Energy Corporation’s (Mifflin’s) lawsuit against Chevron Appalachia LLC (Chevron). Mifflin sought unjust enrichment damages in connection with the breach of a joint venture agreement concerning natural gas drilling. Mifflin had terminated the joint venture agreement prior to its assignment to Chevron. The court ruled that Mifflin did not have standing to bring a restitution or other claim because it had not demonstrated that it had been “negatively impacted in real and direct fashion” since Mifflin’s alleged lost profits were profits that “might” have been realized under different circumstances. Even if Mifflin did have standing, the court concluded that it would not have established the element of an unjust enrichment claim requiring that it had conferred a benefit on Chevron. The court also said Mifflin had not adequately pled damages. Mifflin filed a notice that it would appeal the court’s judgment to Pennsylvania Superior Court.

Bass Energy Inc. v. City of Broadview Heights Name and Date

Description

Bass Energy, Inc. v. City of Broadview Heights, No. CV 14 828074 (Ohio Ct. Comm. Pleas, filed June 10, 2014)

In 2007, plaintiff Bass Energy, Inc. entered into an oil and gas lease with a church that owned 100 acres of land in the City of Broadview Heights, Ohio. Plaintiff Ohio Valley Energy Development Corporation entered into nondevelopment oil and gas leases with property owners in the vicinity of the church property authorizing the drilling of directional wells beneath the properties. Plaintiffs alleged that three wells permitted by the Ohio Department of Natural Resources (Ohio DNR) were operating and producing on the church property. Plaintiffs further alleged that Ohio DNR had granted a permit for a fourth well on the church property, but that plans for the well had been hampered by a 2012 amendment (Article XV) to the City’s charter that barred new oil and gas development and prohibits transportation of drilling wastewater and other drilling waste products and byproducts in the city. Plaintiffs claim that enforcement of the charter amendment deprived them of their property in violation of their rights to due process, and that the amendment was in conflict with state law that required uniform regulation of oil and gas activities. Plaintiffs sought an order declaring that the City had no authority to prevent them from drilling the fourth well and an order enjoining the City from preventing them from undertaking activities authorized by the Ohio DNR permit.

Defenders of Wildlife v. Jewell Name and Date

Description

Defenders of Wildlife v. Jewell, No. 1:14-cv-01025 (D.D.C., filed June 17, 2014)

Multiple challenges were filed in multiple venues to the final determination by the U.S. Fish and Wildlife Service (FWS) regarding the status of the lesser prairie-chicken under the Endangered Species Act (ESA). Three conservation groups challenged the decision to list the lesser prairie-chicken as threatened rather than endangered, noting its “precipitous population decline” and the dwindling of its range to include a few areas in southeastern Colorado, western Kansas, eastern New Mexico, western Oklahoma, and the Texas Panhandle. Their complaint filed in the federal district court for the District of Columbia alleged that the decision to list the species as threatened was driven at least in part by the agency’s plan to create a Section 4(d) rule that exempted some of the primary threats to the species, including oil and gas development, from the most powerful ESA protections. The other lawsuits were Permian Basin Petroleum Association v. Department of the Interior, No. 7:14-cv-00050-RAJ (W.D. Tex., filed June 9, 2014), and Oklahoma Independent Petroleum Association v. Department of the Interior, No. 4:14-cv-00307-JHP-PJC (N.D. Okla., filed June 8, 2014).

Permian Basin Petroleum Ass'n v. Dep't of the Interior Name and Date

Description

Permian Basin Petroleum Association v. Department of the Interior, No. 7:14-cv-00050-RAJ (W.D. Tex., filed June 9, 2014)

Multiple challenges were filed in multiple venues to the final determination by the U.S. Fish and Wildlife Service (FWS) regarding the status of the lesser prairie-chicken under the Endangered Species Act (ESA). In one of the lawsuits, this one brought in the federal district court for the Western District of Texas, the Permian Basin Petroleum Association and four New Mexico counties claimed that FWS defendants had acted arbitrarily and capriciously in designating the lesser prairie-chicken as threatened because they had not properly taken into account the conservation efforts implemented on a “massive scale” by private and public stakeholders. The other lawsuits were Defenders of Wildlife v. Jewell, No. 1:14-cv-01025 (D.D.C., filed June 17, 2014), and Oklahoma Independent Petroleum Association v. Department of the Interior, No. 4:14-cv-00307-JHP-PJC (N.D. Okla., filed June 8, 2014).

Permian Basin Petroleum Association v. Department of the Interior, No. 14-cv-50 (W.D. Tex. Sept. 1, 2015)

The federal district court for the Western District of Texas vacated the listing of the lesser prairie chicken as a threatened species under the Endangered Species Act. The court said that the United States Fish and Wildlife Service (FWS) had not properly followed its own Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE) when it considered a rangewide plan (RWP) implemented by five states to protect the lesser prairie chicken’s habitat and range. Under the plan voluntary private participants, including oil and gas companies, fund conservation efforts. The court said the FWS improperly interpreted and applied the PECE “in a cursory and conclusory manner.” The plaintiffs in the case had alleged that the listing would have impeded oil and gas operations in the Permian Basin, “the most prolific oilproducing region in the United States.”

Okla. Indep. Petroleum Ass’n v. Dep’t of the Interior Name and Date

Description

Oklahoma Independent Petroleum Association v. Department of the Interior, No. 4:14-cv-00307-JHP-PJC (N.D. Okla., filed June 8, 2014)

Multiple challenges were filed in multiple venues to the final determination by the U.S. Fish and Wildlife Service (FWS) regarding the status of the lesser prairie-chicken under the Endangered Species Act (ESA). Six organizations representing oil and gas interests brought suit in the federal district court for the Northern District of Oklahoma claiming that listing the species as threatened violated the ESA and the Administrative Procedures Act because the agencies had ignored the success of voluntary conservation programs and the improvement in the species’s status between the proposed listing in 2012 and the final listing in 2014.The other lawsuits were Defenders of Wildlife v. Jewell, No. 1:14-cv-01025 (D.D.C., filed June 17, 2014), and Permian Basin Petroleum Association v. Department of the Interior, No. 7:14-cv-00050-RAJ (W.D. Tex., filed June 9, 2014).

St. Tammany Parish Council v. Welsh Name and Date

Description

St. Tammany Parish Council v. Welsh, No. C631370 (La. Dist. Ct., filed June 16, 2014)

The St. Tammany Parish Council commenced a proceeding against the Office of Conservation of the Louisiana Department of Natural Resources, seeking to bar it from issuing permits to Helis Oil & Gas Co. for the drilling of a well at which hydraulic fracturing would be used. The parish council seeks a declaratory judgment that the parish’s zoning ordinances should be given primary consideration in defendant’s review of the permit application. The Parish Council authorized the lawsuit on June 5, 2014.

St. Tammany Parish Council v. Welsh, No. C631370 (La. Dist. Ct. Apr. 20, 2015)

A Louisiana district court ruled that state regulation of the oil and gas industry preempted local law, rejecting the St. Tammany Parish Council’s argument that its zoning ordinances should be given primary consideration in the review by the Office of Conservation of the Louisiana Department of Natural Resources of permits for drilling a well at which hydraulic fracturing would be used. The state issued a drilling permit on December 19, 2014, which the court said provided evidence that the Office of Conservation had considered the parish’s master plan as it was required to do by state.

Collier County v. Fla. Dep't of Envtl. Prot. Name and Date

Description

Collier County v. Florida Department of Environmental Protection, OGC File No. 14-0012 (Fla. Dep’t of Envtl. Prot., filed June 12, 2014)

Collier County and the Collier County Water-Sewer District (County) requested a formal administrative hearing to challenge the April 8, 2014 consent order between the Florida Department of Environmental Protection (FDEP) and Dan A Hughes Co., L.P. (Hughes). The consent order concerned a well at the Hogan Island Farm in Collier County where Hughes conducted a “workover operation” that petitioners contend involved hydraulic fracturing. Petitioners also charge that Hughes conducted the operation in violation of its FDEP-issued permit, and that it continued to do so after being notified by FDEP that its activities were not approved. The County also claim that the FDEP’s issuance of a permit to Hughes was improper, in part because FDEP did not provide notice to the County. The County seeks either revocation of the permit or modification of the consent order to require that the County be involved in the review of water quality information, reports, and plans generated pursuant to the consent order, that Hughes notify the County of incidents and accidents at the well site, and that Hughes post a $1 million bond for potential cleanup costs. The County filed its challenge despite receiving a letter from FDEP urging it to collaborate with FDEP rather than pursue litigation. The letter warned that challenging the consent order would suspend the consent order and delay implementation of its water quality monitoring requirements and other provisions. FDEP also indicated that the County could not challenge the permit itself. On June 18, 2014, FDEP sent a letter to Hughes and Collier Resources Company, which owns the well, requiring that they hold three public hearings to discuss and take public comment on plans for the well site and on plans for current and future energy operations in Collier County. continued on next page

Collier County v. Fla. Dep't of Envtl. Prot. Name and Date

Description

Collier County v. Florida Department of Environmental Protection, OGC File No. 14-0012 (Fla. Dep’t of Envtl. Prot., stipulation Oct. 17, 2014; FDEP letter to County Sept 12, 2014)

Collier County and the Collier County Water-Sewer District agreed to withdraw their petition challenging the consent order between Florida Department of Environmental Protection (FDEP) and Dan A Hughes Co., L.P. (Hughes). Hughes received a permit from FDEP in 2013 for an oil well in Collier County. FDEP and Hughes entered into the consent order in April 2014 to resolve FDEP’s concerns regarding a “workover operation” conducted by Hughes at the well that involved an “enhanced extraction procedure” similar to hydraulic fracturing. FDEP revoked the permit in July 2014, alleging that Hughes had not complied with the consent order’s terms. In exchange for the County’s withdrawal of the petition, FDEP committed to take certain steps to investigate and monitor potential impacts of the well on groundwater resources. FDEP also said it would seek additional legislative authority to strengthen its oil program regulations. FDEP indicated that it expected the County to join FDEP’s ongoing administrative and judicial enforcement actions against Hughes.

Willmeng v. State of Colorado Name and Date

Willmeng v. State of Colorado, No. 2014CV30718 (Colo. Dist. Ct., filed June 10, 2014)

Description Two residents of the City of Lafayette filed a class action lawsuit against the State of Colorado, its governor, the Colorado Oil and Gas Association (COGA), and a John Doe oil and gas company. The lawsuit sought the dismissal of a lawsuit brought by COGA in which COGA claimed that state law preempted a charter amendment barring oil and gas drilling within city limits that Lafayette voters approved in 2013. The class action plaintiffs alleged that the interpretation of the Oil and Gas Act as preempting the charter amendment violated the U.S. and Colorado constitutions. The class action lawsuit also sought declaratory relief and an injunction against the enforcement of the Oil and Gas Act to preempt the charter amendment.

Suessenbach Family Ltd. P’ship v. Access Midstream Partners, L.P., Name and Date

Description

Suessenbach Family Limited Partnership v. Access Midstream Partners, L.P., No. 3:14-cv-01197MEM (M.D. Pa, filed June 20, 2014)

Plaintiffs leased almost 140 acres of land for purposes of natural gas extraction to oil and gas production companies, including Chesapeake Appalachia, LLC, a subsidiary of defendant Chesapeake Energy Corporation (Chesapeake). On June 20, 2014, plaintiffs commenced a class action lawsuit under the Racketeering Influenced and Corrupt Organizations Act against Chesapeake and Access Midstream Partners, L.P. (Access Midstream). Plaintiffs also alleged claims under common law principles of unjust enrichment, conversion, and civil conspiracy. The complaint alleged that Chesapeake formed Access Midstream in 2010 and later began spinning off Chesapeake’s midstream assets (e.g., natural gas gathering and intrastate pipeline operations) to the new company. The crux of plaintiffs’ action is that Chesapeake artificially manipulated and deducted from royalty payments the costs of marketing, gathering, and transporting natural gas. In particular, plaintiffs alleged that Chesapeake subsidiaries agreed to pay above-market fees for midstream services provided by Access Midstream. Plaintiffs’ allegations drew extensively from a ProPublica article published in March 2014 that reported that Chesapeake Energy had financially resuscitated itself by shortchanging oil and gas lessors.

Lander County Formal Administrative Protest Name and Date

Description

Lander County, Formal Administrative Protest (June 1, 2014)

Lander County filed a formal protest of the U.S. Bureau of Land Management’s planned oil and gas competitive lease sale, which was scheduled for July 17, 2014. The Lander County commissioner reportedly said the protest was filed on behalf of ranchers and farmers in the county who were concerned that hydraulic fracturing would take water away from them. This is the second protest filed challenging the lease sale. The Center for Biological Diversity filed a protest on May 12, 2014.

South Fayette Township v. Commonwealth of Pennsylvania Name and Date

Description

South Fayette Township v. Commonwealth of Pennsylvania, No. 2014-071 (Pa. Envtl. Hearing Bd., filed May 29, 2014)

South Fayette Township in Pennsylvania filed a notice of appeal with the Pennsylvania Environmental Hearing Board challenging the Pennsylvania Department of Environmental Protection’s (PADEP’s) approval of an application by Range Resources–Appalachia, LLC (Range Resources) for coverage under an erosion and sediment control general permit for earth disturbance associated with oil and gas development. The Township contended that Range Resources had not complied with local ordinances and that PADEP’s approval of the application was therefore improper.

Chesapeake Appalachia L.L.C. v. Cameron International Corp. Name and Date

Description

Chesapeake Appalachia, L.L.C. v. Cameron International Corp., No. CIV-13-1118-M (W.D. Okla. July 21, 2014)

The federal district court for the Western District of Oklahoma denied Cameron International Corporation’s (Cameron’s) motion to dismiss an action by Chesapeake Appalachia, L.L.C. (Chesapeake) alleging claims of negligence, products liability, and negligent misrepresentation. The claims arose from an alleged failure of a wellhead provided by Cameron at a well site operated by Chesapeake. Chesapeake alleged that the wellhead failure caused an uncontrollable discharge of fluids, and that Chesapeake had to cease operations at the well, as well as “all other fracturing operations in Pennsylvania and elsewhere.” Chesapeake alleged it had suffered harm from the failed wellhead, including costs to “monitor, cleanup, and remedy the incident,” monitoring costs, fines, and “loss of goodwill and damage of public reputation.” The court held that the economic loss rule did not bar Chesapeake’s claims, and that the Master Services Agreement between Chesapeake and Cameron permitted Chesapeake to bring negligence-based claims against Cameron. The court also found that Chesapeake had sufficiently pled facts to sustain its claims.

Schmude Oil Inc. v. Department of Environmental Quality Name and Date

Description

Schmude Oil, Inc. v. Department of Environmental Quality, No. 313475 (Mich. Ct. App. July 1, 2014)

The Michigan Court of Appeals affirmed the Michigan Department of Environmental Quality’s (MDEQ’s) denial of drilling permits at well sites located on privately owned lands in a state forest. The court concluded that the “nondevelopment region” in the forest, where state law provided that no drilling could occur, encompassed private as well as public lands. The court also affirmed MDEQ’s denial of a permit in a “limited development region” where the site was within a quarter-mile of a river. The court also rejected the claims that the permit denials were regulatory takings or violations of equal protection rights.

Matter of Title Ballot Title and Submission Clause #85 #86 #87 #89 #90 and #93 Name and Date

Description

Matter of Title, Ballot Title, and Submission Clause, #85, #86, #87, #89, #90, #93, Nos. 14SA116, 14SA119, 14SA121, 14SA122, 14SA124, 14SA126 (Colo. June 30, 2014)

In a series of three opinions, the Colorado Supreme Court approved six ballot initiatives that could have created or authorized restrictions on oil and gas development in the state. The court affirmed actions of the Ballot Title Setting Board setting titles for the proposed ballot initiatives, which were to go before Colorado voters in November. In August, however, Governor John Hickenlooper and Congressman Jared Polis announced an agreement that reportedly would remove the initiatives from the ballot in exchange for the formation of a task force that would represent the oil and gas industry and the public and which would make recommendations to the State legislature for minimizing conflicts between oil and gas facilities and other land uses. Three of the ballot initiatives would have established new statewide setback requirements from occupied structures for new oil and gas wells. The setback requirements could be waived by property owners. Three different setback distances were proposed in the three initiatives: Ballot Initiative #85 would establish a 1,500-foot setback; #86 would establish a 2,000-foot setback; and #87 would establish a half-mile setback. Two other initiatives would have allowed local governments to adopt regulations for oil and gas drilling that are more restrictive than state requirements. The sixth initiative dealt with “the creation of the public’s right to Colorado’s environment” and the creation of mechanisms for carrying out this primary objective—namely, making state and local governments trustees of Colorado’s environment and authorizing local governments to adopt environmental regulations that are more stringent than the State’s. The court held that each of the initiatives contained one subject, and that the titles set by the Board “fairly reflect” the purposes of the initiatives and were not misleading. Among other things, the court upheld the Board’s decision to remove the term “hydraulic fracturing” because it was a “catch phrase” and “politically charged,” and also rejected an argument that the setback initiatives should have informed voters that they would not affect federal takings claims. The court indicated that it was not ruling on the merits of the initiatives, just on their conformity with formal requirements.

Alabama-Coushatta Tribe of Texas v. United States Name and Date

Description

Alabama-Coushatta Tribe of Texas v. United States, No. 1340644 (5th Cir. July 9, 2014)

The Fifth Circuit Court of Appeals affirmed the dismissal of a suit brought by the Alabama-Coushatta Tribe of Texas against the United States and the Departments of Agriculture and the Interior. The suit claimed that defendants had breached their fiduciary duty to protect land and natural resources subject to the aboriginal title of the Tribe by, among other things, issuing drilling permits and oil and gas leases. The Fifth Circuit agreed with the district court that subject matter jurisdiction was lacking because defendants had not waived sovereign immunity. The Fifth Circuit said the only applicable waiver would have been from the Administrative Procedure Act (APA), which “waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review.” The Tribe’s suit, however, was a “programmatic challenge”—as opposed to a challenge to a “particular and identifiable” agency action—and was not permissible under the APA. The APA waiver of sovereign immunity therefore did not apply.

NO Gas Pipeline v. Federal Energy Regulatory Commission Name and Date

Description

NO Gas Pipeline v. Federal Energy Regulatory Commission, Nos. 12-1470, 12-1474, 12-1475 (D.C. Cir. July 1, 2014)

The D.C. Circuit Court of Appeals dismissed challenges to a Federal Energy Regulatory Commission (FERC) order granting a certificate of public convenience and necessity for construction of a natural gas pipeline connecting New Jersey and New York. The D.C. Circuit ruled that environmental groups challenging FERC’s compliance with the National Environmental Policy Act did not have standing. The court said that the environmental petitioners’ claimed injuries of exposure to higher levels of radon and potential cyberterrorism were speculative and that the petitioners had not demonstrated that such injuries were fairly traceable to FERC’s action. The court also ruled that the challenge by the City of Jersey City—which charged that FERC could not constitutionally adjudicate pipeline issues because the pipeline industry was its source of funding—suffered from multiple infirmities, including that the City did not challenge any part of the order itself.

California DOGGR Orders Shutting Down 11 Wastewater Disposal Wells Name and Date

Description

California Division of Oil, Gas, and Geothermal Resources, Orders Shutting Down 11 Wastewater Disposal Wells (orders issued July 2, 2014; press release July 18, 2014)

On July 2, the California Division of Oil, Gas, and Geothermal Resources (DOGGR) ordered seven oil companies to stop wastewater injections at 11 disposal wells operating under permits issued by DOGGR in the vicinity of Bakersfield. Officials said that the companies might have injected “produced water” and fracking fluids at depths that might contain water suitable for drinking and irrigation. The Central Valley Regional Water Quality Control Board also issued orders to the seven companies setting deadlines for submitting groundwater samples, analytical data, and technical reports. On July 18, DOGGR announced that it would review, in conjunction with the U.S. Environmental Protection Agency, the state’s Underground Injection Control program to make sure that it complies with the federal Safe Drinking Water Act. DOGGR said that it became aware that the wells might be injecting into “nonexempt zones” in the course of its implementation of SB 4, the state law regulating well stimulation treatments. DOGGR said that two of the 11 wells had been authorized to resume operations.

Colorado OGCC “20-Day Injection Pause” at Well Operated by NGL Water Solutions DJ LLC Name and Date

Description

Colorado Oil and Gas Conservation Commission, “20Day Injection Pause” at Well Operated by NGL Water Solutions DJ LLC (press release June 24, 2014; press release July 17, 2014)

On June 24, the Colorado Oil and Gas Conservation Commission (COGCC) announced that it had directed the operator of a wastewater injection well in Weld County to take a “20-day injection pause.” COGCC said that the step was a precautionary measure to allow COGCC to gather and analyze information to determine whether low-level seismic activity in the general vicinity of the well was related to injections at the well. On July 17, COGCC announced that the well’s operator would be required to make changes to the well and adjust its disposal activities. COGCC said that seismic data gathered after injections ceased showed continuing seismic activity, but at a lower energy level. The changes included plugging the “basement” of the well. COGCC said limited injections could resume at the well at lower pressures and volumes on July 18, and that there would be continued monitoring. COGCC also said it was reviewing a potential violation of permitted injection volumes at the well.

Novy v. Woolsey Energy Corp. Name and Date

Description

Novy v. Woolsey Energy Corp., No. 110,599 (Kan. Ct. App. June 27, 2014; published version filed Sept. 10, 2014)

The Kansas Court of Appeals ruled that an oil and gas leaseholder had not breached the implied covenant to prudently develop. The lessors had argued that the lease should be terminated because the leaseholder had refused to drill on their land for more than 30 years based on its determination that oil or gas would not be produced in commercial quantities. The court found that the lessors had not presented evidence of any of the factors bearing on whether there had been a breach, including whether there was the capability of producing oil or gas in paying quantities under the leased land; whether there was a local market and demand for the oil or gas; the extent and results of operations on adjacent lands; the character of the natural reservoir; the cost of drilling, equipment, and operation of any wells drilled; and the cost of transportation and storage.

Nolt v. TS Calkins & Associate. LP Name and Date

Description

Nolt v. TS Calkins & Associate., LP, No. 1214 MDA 2013 (Pa. Super. Ct. July 7, 2014)

The Pennsylvania Superior Court affirmed the dismissal of a quiet title action brought by landowners to invalidate an oil and gas lease. The lease was for a 98-acre parcel that encompassed the property owned by plaintiffs and was signed by a man who had previously transferred title to the property to his son and daughter-in-law. The son and daughter-in-law had recorded the transfer of the property in a county in which the property was not situated. The lessee did not sign the oil and gas lease. Landowners asserted that the oil and gas lease was subject to Pennsylvania’s Landlord and Tenant Act of 1951, and that the Act’s statute of frauds barred enforcement of the lease. The Pennsylvania Superior Court said this argument turned a “blind eye” to caselaw rejecting the application of landlord-tenant principles to oil and gas leases. The general statute of frauds, which required only the signature of the grantor, applied to the oil and gas lease. The Superior Court also concluded that the lessee had met its obligation to conduct due diligence prior to entering into the lease. The court noted that the lessee’s representative had reviewed records in the county where the property was located and had asked the possessor of the property about his title. Because plaintiffs had not raised the question of whether the lease had expired due to inactivity of drilling operations during the lease’s primary term in their summary judgment motion, the Superior Court declined to consider the issue.

Bell v. Pennsylvania Department of Environmental Protection Name and Date

Bell v. Pennsylvania Department of Environmental Protection, No. AP 2014-0880 (Pa. Office of Open Records July 11, 2014)

Description The Pennsylvania Office of Open Records (OOR) issued a final determination regarding a request for records made on behalf of Delaware Riverkeeper Network under Pennsylvania’s Right-to-Know Act. The request sought records related to the Pennsylvania Department of Environmental Protection’s (PADEP’s) study of technologically enhanced naturally occurring radioactive material (TENORM) in equipment, material, and media used in oil and gas development. PADEP denied the request for TENORM study sample data. On appeal, OOR determined that PADEP had not established that the withheld data fell within the Right-to-Know Law’s exemptions for records relating to noncriminal investigations; for records for which disclosure would threaten personal security, public safety, or public security of infrastructure; or for records comprising internal predecisional PADEP deliberations.

Athens County Fracking Action Network v. Department of Natural Resources Name and Date

Athens County Fracking Action Network v. Department of Natural Resources, No. 14-AP000217 (Ohio Ct. App. June 20, 2014)

Description The Ohio Department of Natural Resources (ODNR) settled a lawsuit brought under the State’s Public Records Act by a local group that opposed waste fluid injection wells in Troy Township in Athens County. The agreement indicated that ODNR had provided records to the group since the lawsuit was commenced. ODNR agreed to pay the group $1,000. The local group has appealed the Ohio Oil and Gas Commission’s June dismissal of the group’s appeal of the issuance of a well permit (see here).

Eagle Oil & Gas Co. v. Travelers Property Casualty Co. of America Name and Date

Description

Eagle Oil & Gas Co. v. Travelers Property Casualty Co. of America, No. 7:12-cv00133-O (N.D. Tex. July 14, 2014)

The federal district court for the Northern District of Texas issued summary judgment rulings that largely favored the policyholder in a dispute over coverage under a well control policy issued by Travelers Property Casualty Company of America (Travelers). After an out-of-control well incident at the well owned and operated by the policyholder, Eagle Oil & Gas Co., and Eagle Oil’s joint venture partners, who were additional insureds (together, Eagle Oil), sought coverage under the policy. Eagle Oil incurred costs and expenses: (1) in attempting to regain control of the well, including plugging and abandonment (P&A) costs; (2) in redrilling a replacement well; (3) in cleaning up pollution resulting from the blowout; and (4) in regard to oil field equipment owned by others that was damaged. One of the primary disputed issues was whether Eagle Oil violated the policy’s “due care and diligence” clause because it had exceeded the maximum safe fracturing pressure. The court concluded that the clause was not a condition precedent to coverage, but a covenant enforceable as an exclusion. As a result, Travelers bore the burden of proving that Eagle Oil had not exercised due care and diligence. The court declined, however, to accept Eagle Oil’s contention that a “gross negligence” standard should be read into the “due care and diligence” clause. Eagle Oil had incorrectly attempted to replace the “reasonable prudent operator” standard required by industry practice and Texas regulatory standards with the higher level of culpability specified in Eagle Oil’s joint operating agreement. The court also agreed with Eagle Oil that reasonable plugging and abandonment costs were covered until the well was permanently plugged and abandoned, and that Eagle Oil did not need to demonstrate that the P&A costs were necessary to bring the well under control to trigger coverage. Finally, the court rejected Travelers’s argument that it was not obligated to cover the costs of redrilling the well. The court granted Travelers’s motion for summary judgment on plaintiffs’ extra-contractual claims of breach of the duty of good faith and fair dealing and violations of the Texas Insurance Code and the Texas Deceptive Trade Practices Act. The court concluded that these claims could not survive because a reasonable juror could not find that the denial of coverage had been unreasonable or, alternatively, because Eagle Oil had not raised a triable issue of fact that the denial of coverage caused them injury independent of the nonpayment of the claim. The court granted summary judgment to a company that provided loss-adjusting services to Travelers on Eagle Oil’s extra-contractual claims.


Eagle Oil & Gas Co. v. Travelers Property Casualty Co. of America Name and Date

Description

Eagle Oil & Gas Co. v. Travelers Property Casualty Co. of America, No. 7:12-cv00133-O (N.D. Tex. mot. for new trial & renewed mot. for JMOL & reconsideration of partial summ. j. rulings Sept. 17, 2014; final judgment Aug. 20, 2014; jury verdict Aug. 8, 2014)

The court entered final judgment in favor of the policyholder. Judgment was entered 12 days after a jury found that the insurer had not proved by a preponderance of the evidence that the policyholder failed to exercise due care and diligence in its well operations. The court ordered the insurer to pay actual damages of $5.75 million, including more than $2.2 million for control-of-well and pollution costs; almost $90,000 for care, custody, and control costs; more than $1.3 for plugging and abandonment costs; and $2 million in redrill costs. The court also held that the policyholder had established the insurer’s liability under its prompt payment claim pursuant to the Texas Insurance Code and ordered payment of more than $2 million in interest in connection with that claim as well as payment of prejudgment interest of more than $600,000. The court also said the policyholder was entitled to attorney fees and other costs. In September, the insurer filed a motion for judgment as a matter of law and reconsideration of the court’s earlier partial summary judgment rulings and a motion for a new trial.

Geokinetics USA, Inc. v. Center Township Name and Date

Description

Geokinetics USA, Inc. v. Center Township, No. 2:14-cv00982 (W.D. Pa., filed July 22, 2014)

A company that provided seismic testing services to assist oil and gas operators in locating hydrocarbons filed a lawsuit in the federal district court for the Western District of Pennsylvania against Center Township and its board of supervisors. The township had passed an ordinance regulating seismic testing after the company— which alleged it had obtained all required state approvals—requested the township’s approval to use certain local roads. The company alleged that the local ordinance “was passed without any public notice or process” and that it “effectively prevents any and all seismic testing in the Township through vague, arbitrary, and unreasonable regulations.” The company further contended that the ordinance “contains onerous and arbitrary application requirements, confiscatory application fees, punitive penalty provisions, and operational regulations that are inconsistent with state regulations.” The company alleged state law preemption, as well as violations of Pennsylvania’s Second Class Township Code and violations of procedural and substantive due process and equal protection rights.

Western States Petroleum Association v. City of Compton Name and Date

Description

Western States Petroleum Association v. City of Compton, No. BC552272 (Cal. Super. Ct., filed July 21, 2014)

The Western States Petroleum Association (WSPA) commenced an action in California Superior Court to challenge an ordinance adopted by the City of Compton that bans the use of hydraulic fracturing, acidizing, or any other well stimulation treatment for production or extraction of oil, gas, or other hydrocarbon from any surface location in the City or from any sites outside the City “where the subsurface bottom hole is located in the City.” WSPA claimed that state law occupied the field of well stimulation treatments and therefore preempted the local ban. The complaint also alleged that the ordinance’s regulation of activities outside City limits violated the California constitution because it was an ultra vires action beyond the City’s police powers, and that the City’s adoption of the ordinance—which WSPA said was “crammed” through City Council in one week with no notice to or testimony from affected mineral rights holders—violated the due process rights of those mineral rights holders.

Athens Cnty. Fracking Action Network v. Ohio Dep’t of Natural Resources Name and Date

Description

Athens County Fracking Action Network v. Ohio Department of Natural Resources, No. 14 CV 007132 (Ohio. Ct. Comm. Pleas, filed July 14, 2014)

In July 2014, a local group filed a notice that it would appeal the Ohio Oil and Gas Commission’s denial of its challenge to a permit issued for an injection well in Troy Township in Athens County. The Commission denied the challenge on June 12, 2014, saying that it lacked jurisdiction because the permit at issue was a drilling permit, not an injection permit. The local group has claimed that its appeal is the first-ever appeal of an injection well in Ohio. In June, the group settled a dispute under the Ohio Public Records Act (see here).

Reese River Basin Citizens Against Fracking LLC v. BLM Name and Date

Description

Reese River Basin Citizens Against Fracking, LLC v. Bureau of Land Management, No. 3:14-cv00338 (D. Nev., filed June 27, 2014)

A group of owners of farming and ranching land, water rights, and grazing rights in Nevada filed an action in the federal district court for the District of Nevada challenging the U.S. Bureau of Land Management’s (BLM’s) decision to lease 230,989 acres of public lands for oil and gas development. The group alleged that BLM had not fulfilled its obligations under the National Environmental Policy Act. It said the environmental assessment prepared for the sale “ignored or downplayed” the impacts the lease sale and oil and gas development would have, including by failing to address impacts on water and air quality and seismic activity from hydraulic fracturing, which the group alleged was likely to be used to extract oil and gas in the leased areas.

Reese River Basin Citizens Against Fracking, LLC v. Bureau of Land Management, No. 3:14-cv00338 (D. Nev. Sept. 8, 2014)

The court rejected a request for a preliminary injunction and also sua sponte dismissed the lawsuit. The court concluded that it had no subject matter jurisdiction because there had been no final agency action since although BLM had conducted the lease sale, it had not yet decided whether to issue the leases.

Harrison v. Cabot Oil & Gas Corp. Name and Date

Harrison v. Cabot Oil & Gas Corp., No. 61 MM 2014 (Pa. July 16, 2014)

Description The Pennsylvania Supreme Court granted a petition for certification of question of law from the United States Third Circuit Court of Appeals. The Supreme Court will consider the following issue: “When an oil and gas lessor files an unsuccessful lawsuit to invalidate a lease, is the lessee entitled to an equitable extension of the primary lease term equal to the length of time the lawsuit was pending?” A federal district court said in August 2012 that it would not find that a lessor’s filing of a lawsuit repudiated a lease warranting extension “[u]ntil the Pennsylvania courts say otherwise.”

Apache Deepwater LLC v. McDaniel Partners Ltd. Name and Date

Description

Apache Deepwater, LLC v. McDaniel Partners, Ltd., No. 14-0546 (Tex. petition for review filed, July 14, 2014)

Apache Deepwater, LLC (Apache) filed a petition seeking the Texas Supreme Court’s review of an appellate court decision that held that “production payments” must continue after an oil and gas lease expires. Production payments are “a share of the oil or other minerals ‘produced from the described premises, free of costs of production, terminating when a given volume of production has been paid over, or when a specified sum from the sale of such oil has been realized.’” The obligation to make the production payments in this case arose from the 1953 assignment of four oil and gas leases to Apache’s predecessor. The assignment reserved a substantial production payment to the assignor. The court concluded that if the parties to the assignment had intended to provide for adjustment of the production payment upon expiration of the leases, the assignment would have included terms providing for such an adjustment. In the petition for review, Apache said the appellate court decision “gets Texas law backwards,” and that because production payments are “substantially identical” to royalties, they should terminate when the lease does, absent language to the contrary.

United States v. Wright Name and Date

Description

United States v. Wright, No. 14-cr-7 (W.D. Pa. indictment Feb. 11, 2014; change of plea Aug. 25, 2014)

A contractor who conducted abandoned oil well plugging operations pleaded guilty to submitting false Certificates of Well Plugging to the U.S. Environmental Protection Agency (EPA) to make it appear that three wells in Elk County, Pennsylvania, had been properly plugged. The provision of the certificates to EPA is required to indicate compliance with Safe Drinking Water Act abandoned well plugging requirements.

Cerny v. Marathon Oil Corp. Name and Date

Description

Cerny v. Marathon Oil Corp., No. 13-05-0018-CVK (Tex. Dist. Ct., filed May 21, 2013)

Plaintiffs filed an action in state court in Texas alleging private nuisance, negligence, and negligence per se claims against companies that owned wells that “completely surrounded” plaintiffs’ property. (Plaintiffs lived on a one-acre property in Karnes County.) Plaintiffs alleged property damage, including structural damage to their home, formation of sinkholes, chemical pollution, noxious odors and emissions, dead trees, and dead animals. They also sought damages related to health problems including headaches, rashes, chest pain, bone pain, strange nerve sensations, and nosebleeds.

Cerny v. Marathon Oil Corp., No. 5:13-cv-00562-XR (W.D. Tex., remand order Oct. 7, 2013; order denying motion to remand Aug. 6, 2013) Cerny v. Marathon Oil Corp., No. 13-05-0018-CVK (Tex. Dist. Ct., notice of appeal Aug. 26, 2014; orders granting summ. j. Aug. 14, 2014; motion for summary judgment June 17, 2014)

Two of the defendants removed the case to federal court, asserting that the Clean Air Act preempted plaintiffs’ state law claims. The court initially denied the motion to remand. After plaintiffs filed an amended complaint and a second motion to remand, the federal court concluded that their claims were not completely preempted and remanded to state court. The court cited an intervening decision of the Third Circuit Court of Appeals, Bell v. Cheswick Generating Station, which held that the Clean Air Act did not preempt state law tort claims. In August 2014, the Texas district court granted summary judgment to defendants. The court reportedly said that plaintiffs had failed to link defendants’ activities to their alleged ailments. Plaintiffs filed a notice of appeal.

Cerny v. Marathon Oil Corp. Name and Date

Description

Cerny v. Marathon Oil Corp. (opinion & dissenting opinion), No. 04-14-00650-CV (Tex. Ct. App. Oct. 7, 2015)

The Texas Court of Appeals affirmed a judgment in favor of oil and gas companies who faced nuisance and negligence claims by a family who alleged that toxic emissions from oil and gas operations caused damage to their health and property. The appellate court agreed with the defendants that expert testimony was required to prove the family’s claims and affirmed the trial court’s granting of the defendants’ no-evidence motion for summary judgment. The court found that the plaintiffs failed to present “more than a scintilla of expert evidence that emissions” from defendants’ facilities caused their injuries and property damage. The court also found that the plaintiffs had not presented more than a scintilla of evidence to support the portion of their nuisance claim seeking damages for loss of use and enjoyment of their property due to dust, noise, traffic, and foul odors. The court found that the lay evidence was too conclusory and speculative to establish that defendants’ activities caused these damages. One justice dissented from the portion of the opinion that affirmed judgment for the defendants on the plaintiffs’ odor-based nuisance claim.

Ladra v. New Dominion LLC Name and Date

Description

Ladra v. New Dominion LLC, No. CJ2014-115 (Okla. Dist. Ct., filed Aug. 4, 2014; dismissed Oct. 16, 2014)

A state court in Oklahoma concluded that it did not have jurisdiction to hear a lawsuit brought by a woman who alleged that she suffered personal injuries as a result of earthquakes caused by the disposal of fracking wastewater in injection wells. The court said that the Oklahoma Corporation Commission had authorized the wells and that plaintiff had not alleged any violations of the terms of the licenses for the wells. The court also found that the Commission had exclusive jurisdiction over injection wells. The court therefore concluded that it did not have jurisdiction to hear the case.

Ladra v. New Dominion, LLC, No. SD - 113396 (Okla. June 30, 2015)

The Oklahoma Supreme Court reversed the dismissal of a tort action in which a woman sought damages for injuries sustained in an earthquake allegedly caused by defendants’ operation of wastewater injection wells, which were used for disposal of drilling wastes. The district court had dismissed the action on the ground that the Oklahoma Corporation Commission (OCC) had exclusive jurisdiction over injection wells. The Oklahoma Supreme Court said that the OCC’s jurisdiction over the wells was limited “solely to the resolution of public rights” and that the plaintiff had pled a private cause of action that the OCC did not have jurisdiction to resolve.

Butts v. Southwestern Energy Production Co. Name and Date

Description

Butts v. Southwestern Energy Production Co., No. 3:12-cv-1330 (M.D. Pa. summary judgment opinion Aug. 12, 2014; reconsideration opinion Sept. 15, 2014; order for dismissal Oct. 16, 2014)

In September, the federal district court for the Middle District of Pennsylvania denied Southwestern Energy Production Company’s (SEPCO’s) motion for reconsideration of the court’s denial of summary judgment in a case in which homeowners in Susquehanna County, Pennsylvania, alleged that SEPCO’s drilling activities created an invasion of their private use and enjoyment of their homes. The homeowners alleged, among other things, that SEPCO’s activities resulted in excessive noise and light and impacts on the homeowners’ well water. The homeowners also alleged a negligence claim. In denying reconsideration, the court said SEPCO had not satisfied its initial burden of demonstrating the absence of material factual issues. The court found that plaintiffs’ water contamination claim and their excessive noise and light nuisance claims presented genuine issues of material fact. In October, the court dismissed the action after being notified that the parties had reached a settlement.

McKee v. Chevron Appalachia LLC Name and Date

Description

McKee v. Chevron Appalachia, LLC, GD No. 14-10554 (Pa. Ct. Common Pleas, filed June 2014; prelim. objections overruled Oct. 7, 2014)

In June 2014, the parents of a man killed in an explosion at a natural gas well pad in Pennsylvania commenced a personal injury lawsuit in the Pennsylvania Court of Common Pleas against the operator of the well. In October, the court overruled—in a one-sentence order—the operator’s preliminary objections to the strict liability count in the complaint.

McKee v. Chevron Appalachia, LLC, GD No. 14-10554 (Pa. Ct. Common Pleas May 26, 2015)

Chevron Appalachia, LLC (Chevron) agreed to settle a lawsuit brought by the parents of a man killed in an explosion at a natural gas well pad in Pennsylvania in February 2014. Chevron agreed to pay $5 million to resolve all claims. In May 2015, the Pennsylvania Court of Common Pleas issued an order approving the settlement and directing that approximately $2.9 million go to the man’s after-born son pursuant to the Wrongful Death Act and approximately $300,000 to the man’s estate under the Survival Act.

Sovereign Operating Co. LLC v. City and County of Broomfield, Colorado Name and Date

Description

Sovereign Operating Co. LLC v. City and County of Broomfield, Colorado, No. 2014CV30092 (Colo. Dist. Ct. Sept. 25, 2014)

A Colorado state court ruled that a fracking moratorium approved by voters in the City and County of Broomfield in November 2013 could not apply retrospectively to oil and gas exploration and extraction permits issued to Sovereign Operating Co. LLC (Sovereign). Earlier in 2013, Sovereign received the permits pursuant to the terms of a Memorandum of Understanding (MOU) approved by the Broomfield City Council. The MOU allowed Sovereign to proceed through an expedited permitting process but made Sovereign’s activities subject to stricter requirements than federal or state law. The court said language in the MOU that provided for application of regulations enacted in the future to well sites governed by the MOU did not encompass ballot initiatives such as the moratorium. The court also ruled that applying the moratorium to the MOU would violate the constitutional prohibition against ex post facto laws.

LaCroix v. Snyder Name and Date

Description

LaCroix v. Snyder, No. C-200-0914 (Little Traverse Bay Bands of Odawa Indians Trib. Ct. Oct. 2, 2014)

The Tribal Court of the Little Traverse Bay Bands of Odawa Indians (LTBB) in Michigan dismissed an action seeking to enjoin the governor of Michigan and others from issuing water withdrawal permits for fracking activities in violation of LTBB and Michigan law, the 1836 Treat of Washington, and the Intergovernmental Water Accord of 2004. The tribal court, on its own accord, ruled that it lacked subject matter jurisdiction because there was no authority granting petitioners a private right of action.

In re Investigation by New York Attorney General of EOG Resources Inc. In re Investigation by New York Attorney General of Anadarko Petroleum Corp. Name and Date

Description

In re Investigation by Eric T. Schneiderman, Attorney General of State of New York, of EOG Resources, Inc., Assurance No. 14182 (Oct. 1, 2014); In re Investigation by Eric T. Schneiderman, Attorney General of State of New York, of Anadarko Petroleum Corp., Assurance No. 14183 (Oct. 1, 2014)

On October 3, 2014, New York State Attorney General (NYAG) Eric T. Schneiderman announced that his office had reached agreements with natural gas development companies Anadarko Petroleum Corp. and EOG Resources, Inc. regarding disclosures to investors of financial risks associated with the development of unconventional natural gas resources. The NYAG’s Office said the agreements closed investigations launched in 2011 under New York’s Martin Act. Under the agreements, the companies agreed to include information in their Securities and Exchange Commission (SEC) filings regarding financial effects from present and probable future regulation of development of unconventional resources and from the environmental impacts of such development. The agreements also require the companies to disclose in their SEC filings the steps they are taking to minimize environmental impacts and their strategies for managing the financial effects of regulation, litigation, or environmental impacts related to unconventional natural gas extraction. In addition to the SEC disclosures, each company’s agreement also requires it to make additional information available to the public about environmental impacts of unconventional drilling and actions taken to manage and reduce environmental impacts.

United States v. Garber Name and Date

Description

United States v. Garber, No. 1:14-cr114 (D.N.D. minutes Sept. 26, 2014; plea agreement June 16, 2014)

An individual who operated a saltwater disposal well in North Dakota pleaded guilty to violations of the Safe Drinking Water Act, to conspiracy to violate the requirements of North Dakota’s underground injection control (UIC) program, to making false statements and falsifying records, and to concealing and covering up a tangible object. The individual helped convert an oil well in North Dakota that had not produced oil to a saltwater disposal well for injection of drilling waste fluids; he then operated the well in violation of the requirements of the UIC program and. The individual injected saltwater into the well without a field inspector having witnessed a mechanical integrity test and continued to inject saltwater after a North Dakota Industrial Commission ordered him to stop the injections and after the well failed the integrity test.

United States v. Trans Energy Inc. Name and Date

Description

United States v. Trans Energy, Inc., No. 5:14-cv-00117 (N.D. W. Va. consent decree & complaint Sept. 2, 2014)

In September 2014, EPA, the U.S. Department of Justice, and the West Virginia Department of Environmental Protection announced a settlement with Trans Energy, Inc. to resolve alleged violations of the Clean Water Act and West Virginia state law. The U.S. and the State had charged that in the course of construction of natural gas facilities, the company discharged dredged or fill material to the waters of the United States at 15 sites without authorization. Under the terms of a consent decree lodged in the federal district court for the Northern District of West Virginia, Trans Energy will pay a $3-million penalty, divided equally between the United States and West Virginia. Trans Energy must also restore and monitor all sites where restoration is feasible and also perform compensatory mitigation, likely through purchase of wetland mitigation bank credits. In addition, Trans Energy will provide Clean Water Act training to employees, contractors, and affiliates and will integrate a Clean Water Action Section 404 compliance protocol into its operating procedures in West Virginia.

Golden Eye Resources LLC v. Ganske Name and Date

Description

Golden Eye Resources, LLC v. Ganske, No. 20130219 (N.D. Sept. 23, 2014)

The North Dakota Supreme Court ruled that a district court had erred when it concluded that oil and gas lessors’ fraudulent inducement claims against their lessee were barred as a matter of law. The lessors said they were induced to sign leases by the lessee’s material misrepresentations regarding its qualifications and plans for drilling and operating wells on their property. The Supreme Court said that the district court had misconstrued the parol evidence rule as barring the alleged misrepresentations because they contradicted the leases’ terms. The Supreme Court held that the rule did not bar consideration of the alleged oral promises and misrepresentations where the issue was whether the parties freely consented to the terms of the agreement, not interpretation of the agreement itself. The Supreme Court also held that the alleged misrepresentations went beyond mere sales talk, puffery, and opinion. The court remanded the lessee’s quiet title action and the lessors’ counterclaims for rescission or cancellation of the leases.

Barber v. Magnum Land Services LLC Name and Date

Description

Barber v. Magnum Land Services, LLC, Nos. 1:13-cv-33 to 1:13-cv-100, 1:13-cv-113 to 1:13-cv-115 (N.D. W. Va. Oct. 14, 2014)

The federal district court for the Northern District of West Virginia ruled in favor of defendants in a case brought by property owners in Preston County, West Virginia, against companies that had acquired (or assisted in the acquisition of) oil and gas rights from the property owners in 2007 and 2008 at relatively low prices. (Plaintiffs leased oil and gas rights for $25 per acre and later learned that other lessors had received more than $2,000 per acre; the company that initially purchased the oil and gas leases sold its interests to another defendant in 2010 and realized a profit of approximately $1,666 per acre.) The court found that there was no fraud in the inducement because plaintiffs could not reasonably have relied on alleged statements by defendants that if plaintiffs did not enter into leases, defendants would still be able to extract gas from under plaintiffs’ land. The court called this “a blatant misrepresentation of the law of trespass and conversion” that was “unreasonable to believe.” Moreover, the fraud in the inducement claims were barred by the statute of limitations. The court also said that civil conspiracy claims were not supported by evidence. The court also declined to rescind the leases, ruling that the restoration rule barred rescission since plaintiffs had retained their $25-per-acre payments, and that the leases were not substantively or procedurally unconscionable. The court said the rescission claims were also barred under the doctrine of laches.

Barlow & Haun Inc. v. United States Name and Date

Description

Barlow & Haun, Inc. v. United States, No. 08-847L (Fed. Cl. Sept. 26, 2014)

In a case involving 26 oil and gas leases covering 26,000 acres of federally owned land in southwestern Wyoming where the federal government had suspended oil and gas development indefinitely since 2000, the Court of Federal Claims ruled against the leaseholders. Oil and gas development was suspended due to concerns about whether it was compatible with the mining of trona—the hard component of sodium—on the same lands. The suspension was intended to protect trona extraction and trona workers from risks posed by oil and gas development. The court said the leaseholders’ taking claims were unripe because they had not taken the first step towards obtaining a permit by submitting an Application for Permit to Drill (APD) and had not established the futility of seeking a permit. The court also dismissed breach of contract claims by three of the four plaintiffs for lack of standing because they lacked a contractual relationship with the U.S. With respect to the fourth plaintiff, the court ruled that the U.S. had not repudiated its contractual obligations because it had not unequivocally refused to review an APD.


Barlow & Haun Inc. v. United States Name and Date

Description

Barlow & Haun, Inc. v. United States, No. 2015-5028 (Fed. Cir. Oct. 9, 2015)

The Federal Circuit Court of Appeals affirmed. The court affirmed the ruling on the merits against the leaseholder on its breach of contract claim, finding that the trial court had properly determined that the federal government had not repudiated the leases since the United States Bureau of Land Management had stated “unequivocally” that existing contractual rights would be recognized. The appellate court also held that the federal government had not breached the leases by imposing conditions to protect trona miner safety. The appellate court also affirmed the dismissal of the leaseholder’s takings claim for lack of ripeness, finding that no propertyspecific determination had been made with respect to the leaseholder’s rights because it never submitted an application for permit to drill. The appellate court also affirmed the dismissal of the three other parties’ breach of contract claims for lack of standing because even though these appellants had operating rights under the leases, they were not in privity with the United States.

Hupp v. Beck Energy Corp. Name and Date

Description

Hupp v. Beck Energy Corp., 12 MO 6, 13 MO 2, 13 MO 3, 13 MO 11 (Ohio Ct. App. Sept. 26, 2014)

The Ohio Court of Appeals reversed a trial court and ruled against landowners who had entered into oil and gas leases with Beck Energy Corp.The landowners had successfully argued to the trial court (and been granted summary judgment on the merits) that the leases contained terms and conditions contrary to public policy and that Beck Energy had breached its implied covenant to reasonably develop. The appellate court ruled that the trial court had incorrectly concluded that the leases were no-term and perpetual and therefore void as contrary to public policy. Among other things, the appellate court noted that continuation of a lease for so long as the premises were “capable of production” required that a well be capable of producing, not merely that the land be capable of production. The court also said that the trial court erred in finding that the leases were subject to implied covenants, including the implied covenant to reasonably develop.

Beardslee v. Inflection Energy LLC Name and Date

Description

Beardslee v. Inflection Energy, LLC, 12‐4897‐cv (2d Cir. July 31, 2014); (N.Y. certified questions accepted Aug. 28, 2014)

The Second Circuit Court of Appeals certified two questions to the New York Court of Appeals concerning the interpretation of oil and gas leases. A federal district court had granted summary judgment to landowners in Tioga County who sought a declaration that defendant energy companies’ oil and gas leases had expired at the ends of their five-year primary terms despite the de facto moratorium in New York on high‐volume hydraulic fracturing combined with horizontal drilling. The energy companies contended the moratorium was a force majeure event that extended the primary term of the leases. The Second Circuit asked the Court of Appeals to weigh in on (1) whether the moratorium constituted a force majeure event in the context of an oil and gas lease and (2) whether the force majeure clause modified the habendum clause (which established the period of time during which the energy companies could exercise their drilling rights) and extended the primary term of the lease. The Second Circuit said that although the case turned on these “questions of contract interpretation that may not be the typical material for certification,” it would certify the two questions “because the dispute arises in a relatively underdeveloped area of law and because it implicates matters of public policy integral to the economic and environmental wellbeing of the State of New York.” With respect to the first question, the Second Circuit noted that whether the moratorium was a force majeure event depended on whether barring all “commercially viable” drilling but not all drilling constituted such an event. With respect to the second question, the Second Circuit indicated that New York law did not clearly indicate whether the force majeure provision modified the term established in the habendum clause where the habendum clause was not expressly subject to other terms in the lease. Continued on next page

Beardslee v. Inflection Energy LLC Name and Date

Description

Beardslee v. Inflection Energy, LLC, No. 44 (N.Y. Mar. 31, 2015)

The New York Court of Appeals elected to address the second question certified by the Second Circuit, and the holding on that issue rendered the first question moot. The Court of Appeals said that the habendum clause did not incorporate the force majeure clause by reference or contain language expressly subjecting the habendum clause to other lease terms. The court also said that language in the force majeure clause providing that delay or interruption resulting from, among other causes, a government rule or regulation did not specifically refer to the habendum clause’s provisions. The Court of Appeals said, moreover, that the phrase “anything in this lease to the contrary notwithstanding” in the force majeure clause made the provision supersede only conflicting lease provisions and that the force majeure clause was not in conflict with provisions concerning the primary term of the habendum clause. The Court of Appeals concluded that the force majeure clause’s impact on the habendum clause was limited to the habendum clause’s provisions regarding energy companies’ performance of their obligations during the secondary term. The Court of Appeals noted that its interpretation was consistent with interpretation of similar or identical clauses in “out-of-state ‘oil’ jurisdictions” such as Texas and California.

Beardslee v. Inflection Energy, LLC, 12‐4897‐cv (2d Cir. Aug. 19, 2015)

Based on the “definitive statement” of New York law from the New York Court of Appeals, the Second Circuit Court of Appeals affirmed the judgment in favor of New York landowners who had entered into oil and gas leases with energy companies. In doing so, the Second Circuit rejected the energy companies’ contentions that the Court of Appeals had misquoted the leases’ language and misapplied New York law.

Sabella v. Appalachian Development Corp. Name and Date

Description

Sabella v. Appalachian Development Corp., No. 722 WDA 2013 (Pa. Super. Ct. Oct. 20, 2014)

The Pennsylvania Superior Court ruled that a husband and wife who purchased oil, gas, and mineral rights (OGMs) in 2003 from a company that did not own the OGMs were liable to plaintiff for bad-faith trespass. Plaintiff was the actual owner of the OGMs. This ruling reversed the trial court’s finding that the trespass had been in good faith until the husband realized during a meeting with plaintiff several years after acquiring the purported OGMs that he and his wife had been producing on the 66 acres that plaintiff said he owned. (The husband and wife continued to drill wells on the 66 acres after the meeting.)The appellate court said that the husband and wife had “willfully elected” not to conduct a full title search, and that they were on constructive notice of plaintiff’s interest in the property since the conveyance of the OGMs to plaintiff in 1997 had been duly recorded as required by Pennsylvania’s constructive notice statute. Because the husband and wife were not good-faith purchasers, they were not entitled to offset their costs of production from damages, and plaintiff was entitled to the entirety of revenues derived from their production on his OGMs. The court rejected the husband and wife’s arguments that the owners of the surface rights over the OGMs who purported to lease the OGMs were indispensable parties, and that their absence from the action left the trial court without subject matter jurisdiction. The appellate court also said that the action was not time-barred. The appellate court said the discovery rule applied and upheld the trial court’s finding that a “reasonably prudent landowner exercising reasonable efforts” would not have discovered defendants’ oil and gas production activities involving his property.

Pennsylvania Game Commission v. Seneca Resources Corp. Name and Date

Description

Commonwealth of Pennsylvania, Pennsylvania Game Commission v. Seneca Resources Corp., No. 89 M.D. 2013 (Pa. Commw. Ct. Oct. 6, 2014)

The Pennsylvania Commonwealth Court ruled on the rights of Seneca Resources Corp. (Seneca) to extract oil and gas beneath property owned by the Commonwealth of Pennsylvania, Pennsylvania Game Commission (Commission) pursuant to a 1928 deed. The court said Seneca had the right under the 1928 deed to horizontally extract its oil and gas from adjacent land. The court said that it was not clear whether the 1928 deed precluded Seneca from extracting oil and gas using technologies not available in 1928 such as hydraulic fracturing from the surface of the Commission’s property. The court ordered a hearing on the issue of whether the 1928 deed restricted Seneca’s extraction methods from the Commission property’s surface to “ordinary means” in use in 1928.

Vitali v. Pennsylvania Office of the Governor Name and Date

Description

Vitali v. Pennsylvania Office of the Governor, No. AP 2014-0903 (Pa. Office of Open Records Oct. 6, 2014)

The Pennsylvania Office of Open Records (OOR) largely granted an appeal under the Right-to-Know Law (RTKL) by a member of the Pennsylvania House of Representatives who had sought records from the Office of the Governor concerning the plan to raise funds by allowing “non-surface impact” drilling on land owned by the Commonwealth. OOR said the governor’s office had not met its burden of showing that records were shielded from disclosure by the attorney-client privilege or by the exemption for draft of bills, resolutions, regulations, statements of policies, and similar types of documents. OOR also found that the majority of records held back as exempt under the RTKL’s exemption for internal, predecisional deliberations did not qualify for the exemption, citing, among other things, the withholding of communications between an employee of the governor’s office and an officer of a private corporation. OOR also said the governor’s office had unreasonably restricted the scope of the request to apply it to only 13 members of the office’s executive staff. OOR said the unreasonableness of this narrowing was demonstrated by the absence of Governor Corbett from the list of the 13 people to whom the request applied.

Warren Drilling Co. Inc. v. Equitable Production Co. Name and Date

Description

Warren Drilling Co., Inc. v. Equitable Production Co., No. 2:12-cv-00425 (S.D. Ohio summ. j. for plaintiffs Apr. 16, 2014; mot. for reconsideration granted in part, denied in part Aug. 26, 2014; motion for stay granted in part, denied in part Oct. 3, 2014)

In April 2014, the federal district court for the Southern District of Ohio ruled that a drilling contract between Warren Drilling Co., Inc. (Warren) and Equitable Production Co. (EQT) required EQT to defend and indemnify Warren in a tort suit brought by property owners for water contamination and to pay Warren’s attorney fees in the instant action. On August 26, 2014, the court denied EQT’s motion for reconsideration in part and granted it in part. The court said it had properly looked at provisions of the drilling contract that dealt specifically with indemnification for pollution and contamination claims rather than the general indemnification and insurance provisions on which EQT based its arguments. The court ruled, however, that the drilling contract did not require EQT to pay Warren’s attorney fees because there was no express language including such fees within the scope of the indemnification obligation. Because EQT had stipulated that the amount of Warren’s settlement with the plaintiffs in the water contamination tort action ($40,000) and its attorney and expert fees and costs in that action (totaling approximately $155,000) were reasonable, the court also found that the amounts were reasonable and entered final judgment. EQT filed a notice of appeal on September 4, 2014. On October 3, 2014, the district court granted EQT’s request for a stay but required it to post bond in the full judgment amount.


Warren Drilling Co. Inc. v. Equitable Production Co. Name and Date

Description

Warren Drilling Co., Inc. v. Equitable Production Co., Nos. 14-3872, 143931 (6th Cir. July 2, 2015)

In an unpublished decision, the Sixth Circuit Court of Appeals affirmed a district court ruling requiring Equitable Production Company (now known as EQT) to indemnify Warren Drilling Company (Warren), the independent contractor EQT hired to drill three wells in West Virginia. Warren sought indemnification for its attorney and settlement costs in an underlying action in which plaintiffs alleged that EQT and Warren contaminated their water supply. The Sixth Circuit found that the record did not support a finding that Warren ever possessed or controlled the substance—hydraulic fracturing fluid—that caused the contamination; under the contract with EQT, Warren would have been obligated to indemnify EQT in such a situation. The Sixth Circuit also found that the underlying lawsuit triggered EQT’s duty to defend and duty to indemnify and affirmed that the settlement amount was reasonable. The Sixth Circuit further ruled, however, that Warren was not entitled to attorney’s fees incurred in the contract dispute over indemnity obligations.

Texas Oil & Gas Association v. City of Denton Name and Date

Description

Texas Oil & Gas Association v. City of Denton, No 14-08933-431 (Tex. Dist. Ct., filed Nov. 5, 2014)

A day after voters in the City of Denton, Texas, approved a measure banning hydraulic fracturing within City borders, the Texas Oil and Gas Association (TXOGA) filed a lawsuit alleging that the ban was preempted by Texas state law and therefore was unconstitutional. TXOGA said Denton’s ban undermined the State’s “comprehensive” system regulating oil and gas development and “second-guesses and impedes this state regulatory framework.”

Texas Oil & Gas Association v. City of Denton, No. 14-08933-431 (Tex. Dist. Ct., agreed order of dismissal Sept. 4, 2015)

After Texas enacted HB 40, the state law that bars local governments from regulating oil and gas operations, the City of Denton repealed its hydraulic fracturing ban and allowed its moratorium on hydraulic fracturing to expire. The City and the Texas Oil and Gas Association (TXOGA) subsequently agreed to an order dismissing as moot the action TXOGA had brought in Texas District Court to challenge the ban. HB 40 expressly preempts municipal regulation of oil and gas operations, except for “commercially reasonably” regulatory actions that affect only surface activity incidental to oil and gas operations and that do not effectively prohibit an oil and gas operation.

Patterson v. City of Denton Name and Date

Description

Patterson v. City of Denton, No. D1-GN-14-004628 (Tex. Dist. Ct., filed Nov. 5, 2014)

A day after voters in the City of Denton, Texas, approved a measure banning hydraulic fracturing within City borders, the Commissioner for the Texas General Land Office—which manages “oil and gas leases for stateowned mineral interests and state-owned lands within the City of Denton, including free royalty lands dedicated to the funding of our public schools, lands owned by the Texas Department of Aging and Disability Services, and Texas highway right-of-way lands”—charged that the ban could not apply to State-owned lands and that the ban was preempted by State law and was arbitrary, capricious, and unreasonable.

Patterson v. City of Denton, No. D1-GN-14-004628 (Tex. Dist. Ct. Feb. 19, 2015)

In February 2015, the court ordered that the case be transferred to the district court in Denton County.

Bush v. City of Denton, No. 1502058-362 (Tex. Dist. Ct., agreed order of dismissal Sept. 11, 2015)

After Texas enacted HB 40, the state law that bars local governments from regulating oil and gas operations, the City of Denton repealed its hydraulic fracturing ban and allowed its moratorium on hydraulic fracturing to expire. The City and the Texas General Land Office (GLO) subsequently agreed to an order dismissing the action the GLO had brought in Texas District Court to challenge the ban. HB 40 expressly preempts municipal regulation of oil and gas operations, except for “commercially reasonably” regulatory actions that affect only surface activity incidental to oil and gas operations and that do not effectively prohibit an oil and gas operation.

Arsenal Minerals and Royalty v. City of Denton Name and Date

Description

Arsenal Minerals and Royalty v. City of Denton, Texas, No. 14-07262-431 (Tex. Dist. Ct., filed Sept. 12, 2014; amended pet. filed Sept. 22, 2014); No. 4:14-cv-00639-ALM (E.D. Tex., notice of removal Oct. 3, 2014)

Two months before City of Denton voters approved a fracking ban, property owners filed a lawsuit in Texas state court against the City. The property owners alleged that the City had failed to prepare the Takings Impact Assessment required under the Texas Private Real Property Rights Preservation Act in connection with ordinances establishing a moratorium on gas drilling and production activities. The property owners also alleged takings under both the Texas and U.S. constitutions, and alleged that Texas state law preempted local regulation of gas drilling. On October 3, 2014, the City removed the action to the federal district court for the Eastern District of Texas on the ground that it raised federal constitutional issues.

Arsenal Minerals and Royalty v. City of Denton, Texas, No. 4:14-cv00639-ALM (E.D. Tex. agreed motion to dismiss Mar. 31, 2015)

The plaintiffs in a case challenging a moratorium on gas drilling and production in Denton, Texas, asked the federal district court for the Eastern District of Texas to dismiss their lawsuit after they determined that their property lay outside Denton city limits and was not subject to the moratorium.

Pennsylvania General Energy Co. v. Grant Township Name and Date

Description

Pennsylvania General Energy Co., L.L.C. v. Grant Township, No. 14-cv209 (W.D. Pa., filed Aug. 8, 2014)

Pennsylvania General Energy Company, L.L.C., and oil and gas exploration and production company, challenged Grant Township’s adoption of an ordinance (the Community Bill of Rights Ordinance) that prohibited the disposal of waste from oil and gas extraction and invalidated state and federal permits for such disposal. The Community Bill of Rights Ordinance also provided that corporations that violated its provisions would not be deemed to be “persons” and would not possess the “rights, privileges, powers, or protections” of persons, including the power to assert that state or federal law preempted the ordinance or that the municipality lacked authority to adopt the ordinance. PGE alleged that the ordinance violated the U.S. Constitution’s Supremacy and Contract Clauses and the First Amendment, and that it constituted violations of PGE’s equal protection, substantive due process, and procedural due process rights. PGE also asserted that the ordinance also alleged that the ordinance was an impermissible exercise of police power under state law as well as preempted by state law, and that it was invalid as exclusionary.


Pennsylvania General Energy Co. v. Grant Township Name and Date

Description

Pennsylvania General Energy Co. v. Grant Township, No. 14-cv-209 (W.D. Pa. Oct. 14, 2015)

The federal district court for the Western District of Pennsylvania ruled that Grant Township exceeded its legislative authority when it enacted a Community Bill of Rights Ordinance that prohibited the disposal of waste from oil and gas extraction and invalidated state and federal permits for such disposal. The court also said the prohibition was unlawfully exclusionary because it completely banned a legitimate use. In addition, the court said the township exceeded its legislative authority by creating a cause of action for its residents to enforce the ordinance. Provisions of the ordinance that divested corporations of their rights as persons and restricted the applicability of state laws were invalidated as preempted by Pennsylvania Limited Liability Companies Law and the Second Class Township Code. The court declined to address constitutional challenges to the restrictions on corporate rights, finding that constitutional analysis was not required since state statutes preempted the restrictions. The court also denied the township’s motion for judgment on the pleadings on its counterclaim alleging that the lawsuit challenging the ordinance violated the rights of the people to local community self-government. The township has sought reconsideration of the court’s decision.

Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection Name and Date

Description

Delaware Riverkeeper Network v. Commonwealth of Pennsylvania, Department of Environmental Protection, No. 2014-101 (Pa. Envtl. Hearing Bd., filed July 30, 2014; order Oct. 14, 2014)

Delaware Riverkeeper Network and various individuals appealed permits issued by the Pennsylvania Department of Environmental Protection (PaDEP) for a well pad. Appellants argued that the well pad was less than 1,000 feet from existing water wells in violation of state law, and that PaDEP had violated the Environmental Rights Amendment of the Pennsylvania constitution, the Clean Streams Law, the Oil and Gas Act, and other laws by failing to evaluate the impacts on groundwater and surface water resources, impacts on public trust resources and environmental rights, and local zoning and planning issues. After the appeal was filed, the permittee, XTO Energy, Inc., withdrew its request for coverage under the stormwater permit, rendering some portions of the appeal moot.

Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection Name and Date

Description

Delaware Riverkeeper Network v. Commonwealth of Pennsylvania, Department of Environmental Protection, No. 2014-142-B (Pa. Envtl. Hearing Bd., filed Oct. 13, 2014; 1st amended notice of appeal Nov. 3, 2014)

Delaware Riverkeeper Network, the Clean Air Council, and a number of individuals appealed the Pennsylvania Department of Environmental Protection’s (PaDEP’s) issuance of permits for six unconventional gas wells in Butler County to the Pennsylvania Environmental Hearing Board. Appellants contended that the well pad was only a few hundred feet from residential development and water wells. Appellants said the PaDEP violated the Environmental Rights Amendment of Pennsylvania’s constitution by failing to consider local conditions, zoning, and planning and by failing to fulfill its own independent obligation to confirm that the well is suitably located. Appellants also charged that PaDEP had permitted a nuisance in violation of Pennsylvania’s Oil and Gas Act and had relied on the permittee’s “deficient and conclusory summaries of the risks and hazards posed by the proposed wellsite” rather than conducting its own analysis.

Matter of U.S. Energy Development Corp. v. New York State Department of Environmental Conservation Name and Date

Description

Matter of U.S. Energy Development Corp. v. New York State Department of Environmental Conservation, No. 266 CA 13-01416 (N.Y. App. Div. June 20, 2014)

The New York Appellate Division affirmed the dismissal of an action seeking a writ of prohibition against the New York State Department of Environmental Conservation (DEC). The writ was sought by a company that conducted oil and gas operations in Pennsylvania in the Allegheny National Forest near the New York border. After personnel of the New York State Office of Parks, Recreation and Historic Preservation reported pollution in a brook in a State park that was caused by the company’s operations, the company and DEC entered into two consent orders. Due to alleged continuing and ongoing violations, DEC later commenced an administrative proceeding against the company seeking penalties, as well as enforcement of the consent orders. The company filed this lawsuit, which challenged DEC’s enforcement authority over out-of-state activities. It alleged that the federal Clean Water Act preempted application of New York’s laws and regulations to an out-of-state source. The appellate court ruled that as a matter of law petitioner could not meet its “heavy burden” as a party seeking a writ of prohibition of demonstrating that it had a clear right to relief and that the prohibition would be “a more complete and efficacious remedy” than the administrative proceeding and resulting judicial review. The court said the company had not demonstrated that DEC’s enforcement of the consent orders would be an obstacle to full implementation of the Clean Water Act. Nor had the company demonstrated that it would suffer the irreparable injury necessary for invoking the writ of prohibition for an agency’s ultra vires act when another avenue of judicial review was available.

Delaware Riverkeeper Network v. Governor Corbett Name and Date

Description

Delaware Riverkeeper Network v. Governor Corbett, No. 573 MD 2014 (Pa. Commw. Ct., filed Oct. 30, 2014)

Delaware Riverkeeper Network and an individual who serves as the Delaware Riverkeeper (a full-time, privately funded ombudsman responsible for the protection of the Delaware River watershed) filed an action in Pennsylvania Commonwealth Court contesting Pennsylvania’s plan to balance its budget by leasing state park and forest land for shale gas development. Petitioners alleged that the Commonwealth, Governor Corbett, and the Department of Conservation and Natural Resources violated the Environmental Rights Amendment of the Pennsylvania’s constitution. They sought declaratory judgments that both Governor Corbett’s executive order allowing further leasing and Pennsylvania Fiscal Code legislation that requires leasing of state forest and park land violated the Environmental Rights Amendment, and also sought a declaratory judgment that further leasing of state forest and park land would violate the Environmental Rights Amendment and injunctions prohibiting both further leasing of such lands and the permitting of wells that use highvolume hydraulic fracturing and directional drilling on such lands.

Pennsylvania Department of Environmental Protection v. EQT Production Co. Name and Date

Description

Commonwealth of Pennsylvania, Department of Environmental Protection v. EQT Production Co., No. 2014-140-CP-L (Pa. Envtl. Hearing Bd., filed Oct. 7, 2014; stay denied Oct. 21, 2014; opinion in support of stay denial Oct. 28, 2014)

The Pennsylvania Department of Environmental Protection (PaDEP) filed an administrative complaint before the Pennsylvania Environmental Hearing Board seeking civil penalties against EQT Production Co. (EQT). PaDEP alleged violations of the Clean Streams Law in connection with unauthorized releases of flowback fluid from a six-million-gallon impoundment at a natural gas well facility in Tioga County. PaDEP sought more than $4.5 million and said that the amount saved by EQT as a result of the violations also should be added to the penalty. EQT had preemptively filed a declaratory judgment action in Pennsylvania Commonwealth Court on September 19, 2014, after receiving a proposed consent assessment of civil penalty from PaDEP in May 2014. EQT said that PaDEP had based its penalty demand on an interpretation of the Clean Streams Law under which every day that contaminants from the impoundment remained in the soil or passively entered ground or surface water was a “continuing violation” subject to a separate civil penalty. EQT said this interpretation was at odds with the statute’s plain meaning and therefore unlawful. On October 28, 2014, the PaEHB denied EQT’s motion for a stay of its proceedings pending resolution of the declaratory judgment action. The PaEHB said EQT’s action was not an appropriate substitute for an enforcement proceeding before the PaEHB.

EQT Production Co. v. Pennsylvania Department of Environmental Protection Name and Date

Description

EQT Production Co. v. Department of Environmental Protection of Commonwealth of Pennsylvania, No. 485 MD 2014 (Pa. Commw. Ct., filed Sept. 19, 2014)

EQT Production Co. preemptively filed a declaratory judgment action in Pennsylvania Commonwealth Court on September 19, 2014, after receiving a proposed consent assessment of civil penalty from the Pennsylvania Department of Environmental Protection in May 2014. EQT said that PaDEP had based its penalty demand on an interpretation of the state’s Clean Streams Law under which every day that contaminants from the impoundment remained in the soil or passively entered ground or surface water was a “continuing violation” subject to a separate civil penalty. EQT said this interpretation was at odds with the statute’s plain meaning and therefore unlawful. In October 2014, PaDEP initiated enforcement proceedings before the Pennsylvania Environmental Hearing Board (PaEHB). On October 28, 2014, the PaEHB denied EQT’s motion for a stay of its proceedings pending resolution of the declaratory judgment action. The PaEHB said EQT’s action was not an appropriate substitute for an enforcement proceeding before the PaEHB.

Pollard v. Quinn Name and Date

Pollard v. Quinn, No. __ (Ill. Cir. Ct., filed Oct. 17, 2014)

Description Owners of oil and gas mineral rights in Wayne County, Illinois, filed a class action lawsuit against Governor Pat Quinn and the Director of the Illinois Department of Natural Resources. Plaintiffs alleged that defendants’ refusals to issue them or their lessees permits to conduct planned horizontal drilling and fracking operations constituted takings without just compensation. On November 6, the Illinois legislature’s Joint Committee on Administrative Rules approved the State’s fracking regulations, a development that will allow permits to be issued.

Wyoming v. U.S. Department of the Interior Independent Petroleum Association of America v. Jewell Name and Date

Description

Independent Petroleum Association of America v. Jewell, No. 2:15-cv-00041 (D. Wyo., filed Mar. 20, 2015)

The Independent Petroleum Association of America filed a petitioner for review in the federal district court for the District of Wyoming to challenge the United States Bureau of Land Management’s regulations for hydraulic fracturing on federal and Indian lands. The petition said the regulations were a “reaction to unsubstantiated concerns,” and that the record did not contain the evidence necessary to sustain the regulations. The petition also alleged that the regulations either duplicated state law requirements or improperly curtailed states’ primary jurisdiction, and that they were not tailored to achieve a legitimate government purpose. This proceeding was consolidated with Wyoming’s lawsuit, which became the lead case.

Wyoming v. U.S. Department of the Interior, No. 2:15-cv-00043 (D. Wyo., filed Mar. 26, 2015)

On March 26, 2015, Wyoming filed a petition for review of the United States Bureau of Land Management’s (BLM’s) regulations of hydraulic fracturing on federal and Indian lands. The petition alleged that the regulations exceeded BLM’s statutory jurisdiction, conflicted with the Safe Drinking Water Act, and unlawfully interfered with state regulations. Wyoming’s lawsuit was consolidated with the proceeding initiated by the Independent Petroleum Association of America; the Wyoming lawsuit is the lead case.



Description

Wyoming v. U.S. Department of the Interior, No. 2:15-cv-00043 (D. Wyo. orders adding Colo. as petitioner (Apr. 22, 2015), N.D. as intervenor-petitioner (Apr. 22, 2015), environmental groups as intervenor-respondents (June 3, 2015), Utah as intervenor-petitioner (June 16, 2015), Ute Indian Tribe as intervenorpetitioner (June 23, 2015)

Colorado was added as a petitioner. Two other states—North Dakota and Utah—joined the lawsuit as intervenor-petitioners, as did the Ute Indian Tribe. Environmental groups joined as intervenor-respondents.

Wyoming v. U.S. Department of the Interior, No. 2:15-cv-00043 (D. Wyo. order postponing effective date June 24, 2015)

On the effective date for the U.S. Bureau of Land Management’s (BLM’s) regulations governing hydraulic fracturing on tribal and public lands, the federal district court for the District of Wyoming indicated that it would stay the effective date pending BLM’s filing of the administrative record. BLM was required to file the record by July 22, 2015. A week after the record was filed, the parties were to file citations in support of their positions, and the court said it intended to issue its ruling on the preliminary injunction motion within two weeks of that time.



Description

Wyoming v. United States Department of the Interior, No. 2:15-CV-043 (D. Wyo. Sept. 30, 2015)

The federal district court for the District of Wyoming granted motions for a preliminary injunction preventing the United States Bureau of Land Management (BLM) from implementing its hydraulic fracturing regulations on federal and tribal lands. The court found that petitioners had shown a likelihood of success on the merits. The court was convinced by the argument that BLM lacked statutory authority to issue the regulations (because the Energy Policy Act of 2005 specifically removed authority to regulate hydraulic fracturing under the Safe Drinking Water Act from the United States Environmental Protection Agency). The court also found that the regulations were likely arbitrary, saying that it was “troubled by the paucity of evidentiary support” for the regulations and calling the final rule “a remedy in search of harm.” The court also found merit in the Ute Indian Tribe’s argument that BLM had failed to follow its policy on consultation with tribes. With respect to irreparable harm, the court found that harm to state and tribal sovereignty would occur the moment the regulation went into effect, and that economic losses to the states and tribes would also be irreparable. The court also found that industry petitioners had demonstrated irreparable injury. The court further found that there had been no demonstration that delay in implementation of the rule would result in environmental or other harm to the public that would outweigh the potential harms to the petitioners.

Southern Ute Indian Tribe v. U.S. Department of the Interior Name and Date

Description

Southern Ute Indian Tribe v. U.S. Department of the Interior, No. 15-cv01303 (D. Colo., filed June 18, 2015)

The Southern Ute Indian Tribe filed a lawsuit in the federal district court for the District of Colorado on June 18, 2015, claiming that the United States Bureau of Land Management’s final rule regulating hydraulic fracturing on federal and Indian lands unlawfully interfered with the Tribe’s powers under the Indian Reorganization Act and the Indian Mineral Development Act.

Southern Ute Indian Tribe v. U.S. Department of the Interior, No. 15-cv01303 (D. Colo., TRO denied June 22, 2015)

The federal district court for the District of Colorado denied a request by the Southern Ute Indian Tribe for an ex parte temporary restraining order (TRO) preventing BLM’s hydraulic fracturing regulations from going into effect. The court found that the Tribe’s assertion of a “conceptual or philosophical harm” to tribal sovereignty was not sufficient to demonstrate the immediate, irreparable injury required for issuance of a TRO. The court also said that its finding of no imminent irreparable harm was bolstered by the Tribe’s delay in seeking relief.

Southern Ute Indian Tribe v. U.S. Department of the Interior, No. 15cv-01303 (D. Colo. order Oct. 19, 2015; joint motion to stay Oct. 9, 2015)

The court ordered the clerk to administratively close the case after the Southern Ute Indian Tribe and the federal defendants filed a joint motion seeking to stay the proceeding. The parties indicated that they believed they were close to reaching an agreement in principle that would resolve the case, but that the development and approval of a final settlement would take weeks or months. The court said that a stay, with periodic status reports, would pose unnecessary administrative burdens on the parties and the court and therefore order the administrative stay, subject to any party seeking to reopen the case upon a showing of good cause at the conclusion of the settlement efforts.

Dueling v. Devon Energy Corp. Name and Date

Description

Dueling v. Devon Energy Corp., No. 1411177 (5th Cir. Aug. 14, 2015)

The Fifth Circuit Court of Appeals ruled that a Texas federal district court should have allowed homeowners to amend their complaint against an energy company that operated a drilling site across the street from their homes. The homeowners initially brought their nuisance claim in state court against only Devon Energy Corporation. The plaintiffs eventually realized that the well was actually operated by Devon Energy Production Company, L.P. (DEPCO) and 20 months later moved to add DEPCO as a party. The state court allowed the homeowners to amend their complaint, but judgment was granted to DEPCO on the pleadings after DEPCO removed to federal court. The federal court denied plaintiffs’ request to amend their complaint to allege misidentification and tolling of the statute of limitations. The Fifth Circuit said plaintiffs’ delay in state court did not substantially prejudice DEPCO and did not overcome the presumption in favor of granting leave to amend.

State ex rel. Walker v. Husted Name and Date

Description

State ex rel. Walker v. Husted, No. 20151371 (Ohio, complaint for writ of mandamus filed Aug. 2015) (opinion Sept. 2015)

The Ohio Supreme Court affirmed the Ohio Secretary of State’s decision to uphold protests against ballot measures in three counties that would have banned high-volume hydraulic fracturing. The court ruled, however, that the Secretary of State did not have authority to invalidate the ballot measures based on his assessment of their constitutionality. (One of the Secretary of State’s rationales for invalidating the measures was that they were in conflict with the state’s sole regulatory authority over oil and gas extraction, as established by the Supreme Court in State ex rel. Morrison v. Beck Energy Corp.) The Supreme Court instead looked to the Secretary of State’s second rationale—that the measures did not satisfy the threshold requirements for a “charter initiative”—and found that this rationale provided a basis for invalidating the measures.

State ex rel. Youngstown v. Mahoning County Board of Elections Name and Date

Description

State ex rel. Youngstown v. Mahoning County Board of Elections, No. 20151422 (Ohio opinion Sept. 2015)

The Ohio Supreme Court reversed a county board of elections’ rejection of a City of Youngstown charter amendment that would bar the use of hydraulic fracturing to extract oil and gas. The board of elections rejected the measure because its members believed it was unconstitutional under State ex rel. Morrison v. Beck Energy Corp. The Supreme Court said that boards of elections did not have the power to determine the legality or constitutionality of ballot measures’ substantive terms.

Colorado Springs Citizens for Community Rights v. City of Colorado Springs Name and Date

Description

Colorado Springs Citizens for Community Rights v. City of Colorado Springs, Colorado, No. 14CA1028 (Colo. Ct. App. Aug. 27, 2015)

The Colorado Court of Appeals affirmed a district court ruling upholding the City of Colorado Springs’ “single-subject rule,” an ordinance requiring that citizen-initiated proposals to amend the City’s charter contain only one subject. The City’s Title Board cited the single-subject rule in rejecting a draft charter amendment to prohibit hydraulic fracturing in the city. The Court of Appeals stated that Colorado’s Municipal Home Rule Act and the City’s charter left Colorado Springs with discretion to set requirements for proposed charter amendments. The appellate court did not address the details of the rejected fracking ballot initiative, but noted that the singlesubject rule did not constitute a “substantive limitation” on the power to amend the charter.

Gorsline v. Board of Supervisors of Fairfield Township Name and Date

Description

Gorsline v. Board of Supervisors of Fairfield Township, No. 1735 C.D. 2014 (Pa. Commw. Ct. Sept. 14, 2015)

The Pennsylvania Commonwealth Court reversed a trial court decision that set aside Fairfield Township’s approval of a conditional use permit for a well. The Commonwealth Court said that the trial court had too narrow a view of what uses were appropriate for the zoning district in which the well would be located. In particular, the court noted that the proposed well was similar to a “public service facility”—a use expressly allowed in the district. The Township’s zoning ordinance defined public service facilities to include power plants or substations, water treatment plants or pumping stations, and sewage disposal or pumping plants. The court also said that the well did not conflict with the general purpose of the zoning ordinance, and that the trial court erred in finding that the well would pose a detriment to the neighborhood’s health and safety in the absence of any evidence other than concerns raised by neighboring landowners.

Diné Citizens Against Ruining Our Environment v. Jewell Name and Date

Description

Diné Citizens Against Ruining Our Environment v. Jewell, No. 1:15-cv00209 (D.N.M. Aug. 14, 2015)

The federal district court for the District of New Mexico denied a request for a preliminary injunction in a challenge to the United States Bureau of Land Management’s (BLM’s) issuance of drilling permits for the Mancos Shale in northwestern New Mexico. The court found that plaintiffs had not established a likelihood of success on the merits. The court was not persuaded by plaintiffs’ arguments that environmental impact statements (EISs) were required for the applications for permits to drill (APDs) or that the APDs could not be “tiered” to a 2003 EIS, but instead had to wait until BLM completed an amended EIS. The court said that the popularization of a new technology (such as hydraulic fracturing and directional drilling, in the instant case) would only require an EIS if it would cause environmental impacts to exceed levels contemplated in the earlier EIS. The court also found that although the plaintiffs had established irreparable harm, they had not shown that the harm would outweigh the economic damage to the oil and gas operators. The court also found that shutting down portions of the oil and gas industry in New Mexico would not be in the public interest.

Diné Citizens Against Ruining Our Environment v. Jewell, No. 1:15-cv00209 (D.N.M. Sept. 16, 2015)

The court subsequently denied plaintiffs’ motion for an injunction pending appeal.

Environmental Defense Center v. Bureau of Safety and Environmental Enforcement Name and Date

Description

Environmental Defense Center v. Bureau of Safety and Environmental Enforcement, No. 2:14-cv-09281 (C.D. Cal. Aug. 14, 2015)

In the Environmental Defense Center’s lawsuit alleging that federal agencies and officials failed to comply with the National Environmental Policy Act when they authorized well stimulation techniques such as hydraulic fracturing at drilling locations off the California coast, the federal district court for the Central District of California denied a request for a protective order by intervenor Exxon Mobil Corporation (Exxon). Exxon sought to seal 16 documents in the administrative record that it said contained confidential business information, including applications for permit to drill, applications for permit to modify, a 1982 development and production plan (DPP), and a 1987 update to the DPP. The court disagreed with Exxon that the documents could not be disclosed because they fell within exemptions under the Freedom of Information Act. The court found that the documents were subject to disclosure under the Outer Continental Shelf Lands Act.

Town of Abita Springs v. Welsh Name and Date

Description

Town of Abita Springs v. Welsh, No. 637,209 (La. Dist. Ct., filed Feb. 18, 2015; permit vacated and remanded Aug. 10, 2015)

A Louisiana district court vacated and remanded a drilling permit issued by the Office of Conservation of the Louisiana Department of Natural Resources. In doing so, the court granted a petition for review filed by the Town of Abita Springs in which the Town alleged numerous failures to consider the impacts of the drilling project, which would involve horizontal drilling and hydraulic fracturing. The court said that the Office of Conservation needed to demonstrate that it had considered potential impacts related to the presence of fault lines. The court also said that the agency had to demonstrate consideration of whether the site was the best location for drilling and that a cost-benefit analysis was performed. The agency was not required to reopen the public comment period or hold a new hearing.

Citizens for Pennsylvania’s Future v. Pennsylvania Name and Date

Description

Citizens for Pennsylvania’s Future v. Pennsylvania, No. 2014-117-B (Pa. Envtl. Hearing Bd. Sept. 10, 2015)

The Pennsylvania Environmental Hearing Board (Board) concluded that an organization had standing to challenge an erosion and general sediment control general permit for oil and gas development activities, as well as an authorization issued under the general permit to Anadarko E&P Onshore, LLC. The authorization permits Anadarko to undertake activities in a state forest. The Board found that one of the organization’s members, who alleged he was an avid hiker who had hiked in the affected area, had alleged a realistic potential for harm to his aesthetic and recreational interests.

Pennsylvania Independent Oil & Gas Association v. Pennsylvania Name and Date

Description

Pennsylvania Independent Oil & Gas Association v. Pennsylvania, No. 321 MD 2015 (Pa. Commw. Ct., filed June 19, 2015)

The Pennsylvania Independent Oil & Gas Association (PIOGA) filed a petition for review in Pennsylvania Commonwealth Court seeking a declaratory judgment against the Commonwealth of Pennsylvania and the Pennsylvania Department of Environmental Protection (PA DEP). PIOGA alleged that PA DEP was imposing Act 13 requirements on the well permitting process in violation of the Pennsylvania Supreme Court’s decision in Robinson Township v. Pennsylvania. PIOGA unsuccessfully filed a motion asking the Pennsylvania Supreme Court to issue an order enjoining enforcement of the Act 13 provisions.

Mason Well Service Name and Date

Description

Mason Well Service, OSHA Inspection No. 1045380 (Sept. 8, 2015)

The federal Occupational Safety and Health Administration (OSHA) issued a citation and notice of penalty to Mason Well Service with total proposed penalties of $50,400. The violations occurred at a well site in Texas where an explosion killed three workers in March 2015. The violations were for failure to ensure that employees wore flame-resistant clothing, failure to do a hazard assessment to determine what personal protective gear was required, failure to provide documentation that the work site was a hazardous location, and failures to protect employees from respiratory hazards. OSHA also cited the company for not taking precautions to prevent sources of ignition where flammable vapors were present, a violation for which the company had been cited in 2014 at another site. The citation for the 2015 violations said that the company had allowed smoking near the well head and had allowed a pickup truck to drive near the well head.

Norberg v. Cottonwood Natural Resources Name and Date

Description

Norberg v. Cottonwood Natural Resources, LTD., No. 8:15CV71 (D. Neb. Sept. 14, 2015)

The federal district court for the District of Nebraska dismissed an action brought by plaintiffs who claimed that Cottonwood Natural Resources, LTD. (Cottonwood) owed them a $144,000 lease bonus. A letter agreement executed by Cottonwood but not by the plaintiffs provided for such a bonus. The court found that the plaintiffs had never accepted the letter agreement’s offer, rejecting their argument that the parties intended to incorporate the letter agreement into their final lease.

Trinity Valley School v. Chesapeake Operating Name and Date

Description

Trinity Valley School v. Chesapeake Operating, Inc., No. 3:13-cv-01082-K (N.D. Tex. Aug. 19, 2015)

The federal district court for the Northern District of Texas issued a pre-trial ruling favoring holders of royalty and override interests under oil and gas leases in a lawsuit accusing Chesapeake Operating, L.L.C. and Chesapeake Exploration, L.L.C. (Chesapeake) of underpaying royalties. The court held that the leases did not permit deductions for post-production expenses. The court also said that Chesapeake had not established the elements for quasi-estoppel, waiver, or ratification affirmative defenses.

Titan Operating v. Marsden Name and Date

Description

Titan Operating, LLC v. Marsden, No. 02-14-00303-CV (Tex. Ct. App. Aug. 27, 2015)

A Texas appellate court reversed a trial court judgment in favor of homeowners who alleged that drilling near their residence created an intentional nuisance. A jury had awarded the homeowners $36,000. The Texas Court of Appeals found that the defendant had established the elements of the quasi-estoppel affirmative defense because the homeowners had entered into an oil and gas lease that expressly allowed the defendant to drill in a location adjoining their land, in exchange for which the homeowners received a per-acre bonus and had received royalty payments. The homeowners had also granted a pipeline easement across their property so that gas could be marketed and sold. The appellate court said that the homeowners’ nuisance suit was “a de facto attempt to repudiate … part of their bargain,” and that such a result would be unconscionable.

Seneca Resources Corp. v. S & T Bank Name and Date

Description

Seneca Resources Corp. v. S & T Bank, No. 2057 WDA 2014 (Pa. Super. Ct. Aug. 31, 2015)

The Pennsylvania Superior Court affirmed a trial court ruling for an oil and gas lessee based a lease entered into in 1962 with a primary term of 40 years and a secondary term extending for as long as any portion of the leased premises for as long as any portion of the leased premises was being drilled or operated for the production of oil or gas. Approximately 25,000 acres were covered by the lease. The mineral rights owner contended that the lease should be terminated with respect to 3,131 acres of “unoperated” land. The Superior Court ruled that the operable and unoperable acreages were not severable under the lease and said that the lease’s secondary term would be extended for as long as any portion of the leased premises was being drilled or operated for the production of oil or gas. The court also found that there was no breach of Pennsylvania’s implied covenant to develop and produce oil and gas on the unoperated acreage.

ConocoPhillips Co. v. Vaquillas Unproven Minerals Name and Date

Description

ConocoPhillips Co. v. Vaquillas Unproven Minerals, Ltd., No. 04-1500066-CV (Tex. Ct. App. Aug. 5, 2015)

The Texas Court of Appeals affirmed a trial court ruling that a lessee was allowed to retain only 40 acres per producing or shut-in gas well after its continuous drilling program ended. The lease included a retained acreage provision that allowed the lessee to retain 40 acres per producing oil well and 640 acres per producing or shut-in gas well, but also included an exception that provided that if the Texas Railroad Commission (RRC) or other regulatory authority issued a rule that provided for a different spacing, the resulting acreage units would apply. The Court of Appeals agreed that RRC field rules applicable to the oil and gas leases in the case established a different standard acreage for gas wells—40 acres—than was set forth in the leases. The Court of Appeals said the retained acreage clause was “clear, precise, and unequivocal,” and that the only dispute remaining related to calculating the number of acres the lessee could retain.

Pfeifer v. Westmoreland County Tax Claim Bureau Name and Date

Description

Pfeifer v. Westmoreland County Tax Claim Bureau, No. 1346 C.D. 2014 (Pa. Commw. Ct. Sept. 1, 2015)

The Pennsylvania Commonwealth Court upheld a lower court’s ruling that the six-year statute of limitations and laches barred plaintiffs who had inherited oil and gas rights between 1925 and 2010 from challenging the sale of those rights in a 1990 tax sale. The Commonwealth Court said that the recording of the deed of the tax sale provided constructive notice to the plaintiffs, who said that they became aware of their ownership of the rights only in 2011 and 2012 when they were approached by persons interested in leasing or owning the rights. The court said that the “asserted failure to discover the loss was a result of their failure to exercise due diligence.”

Lightning Oil Co. v. Anadarko E&P Onshore LLC Name and Date

Description

Lightning Oil Co. v. Anadarko E&P Onshore LLC, No. 04-14-00903-CV (Tex. Ct. App. Aug. 19, 2015)

The Texas Court of Appeals issued a ruling in a dispute between two lessees of adjacent mineral estates, Lightning Oil Company (Lightning) and Anadarko E&P Onshore LLC (Anadarko). The court found that the surface estate owner of the land overlying Lightning’s mineral estate had authorized Anadarko to drill through its property to Anadarko’s adjacent mineral estate. The court rejected Lightning’s claim that this constituted a trespass, noting that a surface estate owner controlled “the matrix of the underlying earth” and that Lightning did not “own or control the earth surrounding any hydrocarbon molecules that may lie within the boundaries” of its lease. The court affirmed the trial court’s grant of summary judgment to Anadarko on trespass and tortious interference with contract claims. On September 4, 2015, the Texas Supreme Court declined to take up an appeal of an earlier appellate court decision that denied a temporary injunction.

Dewey Homes and Investment Properties v. Delaware Riverkeeper Network Name and Date

Description

Dewey Homes and Investment Properties, LLC v. Delaware Riverkeeper Network, No. 201510393 (Pa. CCP, filed May 22, 2015)

Landowners in Butler County, Pennsylvania, commenced a lawsuit against Delaware Riverkeeper Network, the Clean Air Council, and five individuals. The landowners, all of whom had entered into oil and gas leases, asserted claims of tortious interference with contracts, tortious interference with prospective contractual relations, and civil conspiracy. They alleged that the defendants had sought to prevent the development of the leases by making “false, misleading, or inflammatory public statements” and presenting “improper and unfounded” and “wrongful and/or unsupported” affidavits before a local zoning board. The landowners alleged that the defendants’ “sham” activities had caused their leaseholders to suspend or stop development of the leases and had had a “dampening effect” on potential new leases, resulting in the loss of income to the landowners.

Dewey Homes and Investment Properties, LLC v. Delaware Riverkeeper Network, No. 2015-10393 (Pa. CCP Sept. 23, 2015)

The Pennsylvania Court of Common Pleas dismissed a lawsuit by oil and gas lessors against Delaware Riverkeeper Network, Clean Air Council, and five individuals. The plaintiffs alleged that the defendants interfered with their contractual relationships with oil and gas developers, resulting in a substantial loss of oil and gas royalty income for plaintiffs. The plaintiffs also alleged interference with prospective contractual relations and civil conspiracy. The court found that the pleadings lacked sufficient specificity to support the plaintiffs’ claims and failed to associate allegations with specific defendants. The court said that the plaintiffs could file an amended complaint within 20 days.


Dewey Homes and Investment Properties v. Delaware Riverkeeper Network Name and Date

Description

Dewey Homes and Investment Properties, LLC v. Delaware Riverkeeper Network, No. 201510393 (Pa. CCP, filed Oct. 13, 2015)

After the Pennsylvania Court of Common Pleas dismissed a lawsuit by oil and gas lessors in Middlesex Township against Delaware Riverkeeper Network, Clean Air Council, and five individuals for allegedly interfering with their contractual relationships with oil and gas developers, the lessors filed an amended complaint. The lessors alleged that Delaware Riverkeeper Network and Clean Air Council used the individuals as their agents and employed their “power and resources” to “harass and deter” the lessors “in their use of, and reliance upon the leases, and the proper use of zoning procedures, promulgation of zoning regulations, and zoning adjudicating administrative proceedings.” The amended complaint alleged that the plaintiffs’ substantive challenges to zoning permits and to a zoning ordinance were intended to prevent any activity pursuant to the plaintiffs’ leases. The complaint alleged that the defendants made misrepresentations and presented false information to the Middlesex zoning hearing board. The amended complaint alleged three causes of action: tortious interference with contract, tortious interference with potential contractual relations, and conspiracy.

Harper v. Department of the Army, Huntington District, Corps of Engineers Name and Date

Description

Harper v. Department of the Army, Huntington District, Corps of Engineers, No. 2:14-cv-986 (S.D. Ohio Aug. 31, 2015)

A federal magistrate judge in the Southern District of Ohio granted summary judgment to the Army Corps of Engineers (Corps) in an action in which an individual sought information under the federal Freedom of Information Act (FOIA) on hydraulic fracturing in the Muskingum Watershed Conservancy District (MWCD). The magistrate ruled that the Corps had properly withheld communications between the Corps and the MWCD, an Ohio political subdivision, under FOIA Exemption 5 for “interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” The magistrate said the communications qualified as “interagency or intra-agency” documents because the Corps and the MWCD were jointly responsible for administering the Muskingum Watershed, and because the Corps relied on information from the MWCD to administer national policy on the impact of hydraulic fracturing on dam and levee safety. The judge also determined that the deliberative process privilege was properly invoked to shield the withheld documents in their entirety.

St. Paul Fire & Marine Insurance Co. v. Petroplex Energy Inc. Name and Date

Description

St. Paul Fire & Marine Insurance Co. v. Petroplex Energy, Inc., No. 11-1300104-CV (Tex. Ct. App. Aug. 31, 2015)

The Texas Court of Appeals affirmed a trial court ruling for a policyholder that asserted that it was entitled to coverage under well-control and commercial liabilities policies in connection with a well where a blowout occurred in September 2007. The appellate court found that the policyholder owned a 100% working interest in the well, and that the well was an insured well at the time of the blowout. The court rejected the insurer’s contention that the well had ceased to be an insured well because the policyholder had begun activities that changed the well from a “producing” well to a “reworking” or “workover” well. The court concluded that the policyholder could recover expenses, damages, and defense costs incurred as a result of the blowout.

Kerns v. Chesapeake Exploration, L.L.C. Name and Date

Description

Kerns v. Chesapeake Exploration, L.L.C., No 1:15-cv-346 (N.D. Ohio, filed Feb. 23, 2015; second amended complaint filed Apr. 27, 2015)

The owners of land in Harrison County, Ohio, commenced a lawsuit against Chesapeake Exploration, L.L.C., American Energy-Utica, LLC, and the Division of Oil and Gas Resources Management of the Ohio Department of Natural Resources and its chief. The landowners alleged that the state statute authorizing the unitization of an underground reservoir of oil or gas that underlies their properties violated their state and federal constitutional rights, including due process rights, the right to contract, and the right to have a judicial determination of compensation for the taking of a property. The plaintiffs sought compensatory, punitive, and exemplary damages.

Kerns v. Chesapeake Exploration, L.L.C., No 1:15-cv-346 (N.D. Ohio Sept. 1, 2015)

The court dismissed their taking and due process claims as unripe and found that they had failed to state a contracts clause claim.

Lang v. Town of Tusten, N.Y. Name and Date

Description

Lang v. Town of Tusten, N.Y., No. 14cv-4136 (S.D.N.Y. Aug. 6, 2015)

The federal district court for the Southern District of New York allowed First Amendment retaliation and viewpoint discrimination claims to proceed against the Town of Tusten, New York in a case where a Tusten resident alleged that the Town enforced its sign law against him because he posted, and proposed to post, pro-fracking signs on his property. A sign on the plaintiff’s garage read “Let’s get frack’n just pass the gas,” and the plaintiff later applied to put up a sign that said, “The Narrowsburg Inn Welcomes American Gas … American Jobs.” The plaintiff alleged that the Town did not enforce the sign law against signs that expressed anti-fracking messages. Though the court found that the plaintiff stated ripe First Amendment claims, it dismissed a selective enforcement claim as unripe and dismissed a demand for punitive damages.

Osage Producers Association v. Jewell Name and Date

Description

Osage Producers Association v. Jewell, No. 15-cv-469 (N.D. Okla., filed Aug. 18, 2015)

An association of oil and gas producers with leases in Osage County, Oklahoma, filed a lawsuit against the Department of the Interior (DOI), the Bureau of Indian Affairs (BIA), and officials with DOI and BIA. The plaintiff alleged that oil and gas drilling and other well-related activities in Osage County required permits from BIA. The plaintiff further alleged that the number of permits issued had declined significantly since 2013 and that BIA had “tacitly denied” more than 400permits. The association alleged that many permit applications had been before the agency for more than a year and that the lack of drilling and reworking in the county reduced royalties paid to the Osage Indians. The associated asked the court to review each and every “tacit denial” of a permit.

Environmental Integrity Project RCRA Notice of Intent to Sue Name and Date

Description

Environmental Integrity Project et al., Notice of Intent to Sue for Violation of Nondiscretionary Duties under the Resource Conservation and Recovery Act with respect to Wastes Associated with the Exploration, Development, or Production of Oil and Gas (Aug. 26, 2015)

Seven environmental groups submitted a notice of intent to sue to the United States Environmental Protection Agency (EPA) on August 26, 2015. The groups contended that EPA had failed to perform nondiscretionary duties required under the Resource Conservation and Recovery Act (RCRA) by failing to review and update RCRA waste regulations and guidelines for state solid waste management plans to reflect modern oil and gas operations. In particular, the organizations argued that EPA had not taken action to regulate oil and gas wastes under Subtitle D of RCRA or to revise the exemption for oil and gas wastes under Subtitle C despite a 1988 regulatory determination in which EPA set forth a plan for regulating oil and gas wastes under Subtitle D. The groups asserted that review of the regulations and guidelines is required every three years.

Morabito v. Martens Name and Date

Description

Morabito v. Martens, No. 3265-15 (N.Y. Sup. Ct., filed May 6, 2015; amended complaint May 22, 2015; venue transfer Aug. 19, 2015)

A New York landowner filed a proceeding in New York State Supreme Court against the New York State Department of Environmental Conservation (DEC) alleging that the agency acted arbitrarily and capriciously by refusing to allow him to pursue a permit to conduct hydraulic fracturing on his property. The petitioner further alleged that DEC’s actions denied him his due process rights. The petitioner said that the environmental impact statements prepared by DEC “have clearly set forth that high-volume hydraulic fracturing (fracking) in the State of New York is a viable and acceptable practice of retrieving and extracting the enormous gas reserves in the State of New York.” In August 2015, the lawsuit was transferred from Allegany County, where the landowner’s property was located, to Albany County.

Cabot Oil & Gas Corp. v. Pennsylvania Department of Environmental Protection Name and Date

Description

Cabot Oil & Gas Corp. v. Pennsylvania Department of Environmental Protection, No. 2015-131 (Pa. Envtl. Hearing Bd., filed Sept. 3, 2015; amended notice of appeal filed Sept. 23, 2015)

Cabot Oil & Gas Corporation (Cabot) appealed an order of the Pennsylvania Department of Environmental Protection (PA DEP) finding it liable for polluting a water supply well and ordering it to take steps to address the contamination. The water well is located in Susquehanna County, approximately 990 feet from three unconventional wells operated by Cabot. PA DEP found that Cabot was presumed to responsible for the pollution because the polluted well was located within 2,500 feet of the unconventional vertical well bore and the pollution occurred within 12 months of the drilling of the unconventional wells. Cabot contested this finding as unsupported by basic facts and not in accordance with law. Cabot asserted a number of factual and legal shortcomings in PA DEP’s order, including that iron and turbidity were present at concentrations above drinking water standards before commencement of drilling and had historically been problems with the water supply, and that PA DEP had unreasonably concluded that water quality in the well was not adequate.

WPX Energy Appalachia, LLC v. Pennsylvania Department of Environmental Protection Name and Date

Description

WPX Energy Appalachia, LLC v. Pennsylvania Department of Environmental Protection, No. 2015-110 (Pa. Envtl. Hearing Bd., filed Aug. 3, 2015)

WPX Energy Appalachia, LLC (WPX) appealed an enforcement order issued by the Pennsylvania Department of Environmental Protection (PA DEP). PA DEP asserted that flowback fluid at a WPX drilling site had leaked from a temporary impoundment into the ground and had contaminated a private water well. PA DEP said WPX had failed to permanently restore the private water supply or to replace it with an alternative source of water. PA DEP said WPX had created a public nuisance and ordered WPX to submit a written plan within 30 days for the restoration or replacement of the water supply. WPX called the order “premature, arbitrary, and unwarranted,” asserting that neither PA DEP nor WPX had completed their investigations, and that the water quality conditions were “naturally resolving” over time. WPX also asserted, among other arguments, that PA DEP had not supported its assertion that WPX was responsible for the contamination, and that WPX had successfully treated the water and was currently supplying bottled water.

Sciscoe v. Enbridge Gathering (North Texas), L.P. Name and Date

Description

Sciscoe v. Enbridge Gathering (North Texas), L.P., No. 07-1300391-CV (Tex. Ct. App. June 1, 2015)

The Texas Court of Appeals reversed portions of a summary judgment ruling for energy production companies. The energy companies had prevailed in the trial court against the town of DISH, Texas, and homeowners in the town who alleged that they had suffered damages arising from noise, light, odors, and chemical particulates from natural gas pipeline compressor stations and other related facilities operated by the companies. The plaintiffs asserted claims of trespass and common law nuisance. The appellate court ruled that the energy production companies had failed to establish as a matter of law the migration of odors and chemical particulates onto the homeowners’ properties could not constitute a trespass. The appellate court also said that trespass and nuisance claims for compensation for past diminution in value of property were not barred by preemption or the political question doctrine just because the natural gas facilities were operating within regulatory guidelines. The court also said that the claims were not time-barred as a matter of law and that the town had authority to bring a lawsuit seeking monetary damages for the diminution in the value of its tax base.

MarkWest Liberty Midstream & Resources, LLC v. Cecil Township Zoning Hearing Board Name and Date

Description

MarkWest Liberty Midstream & Resources, LLC v. Cecil Township Zoning Hearing Board, No. 223 C.D. 2013 (Sept. 26, 2014)

The Pennsylvania Commonwealth Court directed the Cecil Township zoning hearing board to grant an application for a special exception for the construction of a natural gas compressor station. In doing so, the Commonwealth Court reversed a trial court decision upholding the denial of the application. The Commonwealth Court said that the denial was at odds with the Township’s Unified Development Ordinance (UDO). The Commonwealth Court also concluded that the UDO did not unlawfully exclude natural gas compressor stations as a use in the Township and that the UDO was not preempted by state law.

Smith v. Department of Natural Resources Name and Date

Description

Smith v. Department of Natural Resources, No. 14-CH-711 (Ill. App. Ct. July 10, 2015)

The Illinois Appellate Court affirmed the denial of a preliminary injunction that would have prevented regulations implementing Illinois’s Hydraulic Fracturing Regulatory Act from going into effect. The appellate court concluded that the plaintiffs had failed to establish a fair question as to the existence of irreparable harm. The court declined to accept plaintiffs’ view that courts should presume irreparable harm where defendants failed to follow rulemaking requirements. The court found that the plaintiffs’ conclusory allegations that they owned land near areas where permits to conduct hydraulic fracturing might be filed were too speculative to establish irreparable harm.

Town of Abita Springs v. Welsh Name and Date

Description

Town of Abita Springs v. Welsh, No. 201415348 (La. Dist. Ct., filed Dec. 1, 2014; written reasons Apr. 15, 2015; judgment May 11, 2015)

The Town of Abita Springs, Louisiana filed a petition for declaratory judgment in a Louisiana district court seeking to stop a drilling project that would involve horizontal drilling and hydraulic fracturing. The Town asserted that the project would violate the zoning laws of St. Tammany Parish.

Town of Abita Springs v. Welsh, No. 201415348 (La. Dist. Ct., filed Dec. 1, 2014; written reasons Apr. 15, 2015; judgment May 11, 2015)

The court ruled that the Town did not have the legal right to rely on the parish’s zoning to prevent the project.

Harvilchuck v. Department of Environmental Protection Name and Date

Description

Harvilchuck v. Department of Environmental Protection, No. 717 CD 2014 (Pa. Commw. Ct. June 2, 2015)

The Pennsylvania Commonwealth Court revived an appeal of a well drilling renewal permit. The Pennsylvania Environmental Hearing Board had dismissed the appeal as untimely. The court said that neither e-mail notices informing the petitioner of changes to the permit application nor the website to which the e-mailed linked provided constitutionally adequate notice. Because the e-mails and the website did not provide information about the contents of the permit, the objector could not determine the permit’s effect on him until he received a written copy of the permit from the Pennsylvania Department of Environmental Protection.

Kiskadden v. Pennsylvania Name and Date

Description

Kiskadden v. Pennsylvania, No. 2011-149-R (Pa. Envtl. Hearing Bd. June 12, 2015)

In the first case in which a claim that unconventional drilling caused contamination in a water well proceeded to a hearing, the Pennsylvania Hearing Board rejected a homeowner’s challenge to a Pennsylvania Department of Environmental Protection determination that Range Resources-Appalachia, LLC’s natural gas drilling activities did not cause contamination in a water supply well on his property. The homeowner’s water well as located approximate a half-mile from the Range Resources’ drilling site. The Board said that the homeowner had not demonstrated by a preponderance of evidence that there was a hydrogeological connection between the well and the drilling operations. It was not sufficient that the homeowner presented evidence of leaks and spills at the drilling site and of information that PA DEP had not reviewed in making its determination.

Center for Biological Diversity v. California Department of Conservation Name and Date

Description

Center for Biological Diversity v. California Department of Conservation, No. RG15769302 (Cal. Super. Ct. July 16, 2015)

A California Superior Court denied a motion for a preliminary injunction that would have vacated California’s emergency regulations under the Safe Drinking Water Act (SDWA) for injection wells related to oil and natural gas production. The emergency regulations were issued by California’s Division of Oil, Gas and Geothermal Resources in cooperation with the United States Environmental Protection Agency. The emergency regulations addressed DOGGR’s failure to enforce the SDWA’s exemption requirements and established a plan that grouped injection wells together based on the quality of water in associated aquifers and set deadlines for operators in each group to establish entitlement to an SDWA exemption. The court said that the plaintiffs’ “general propositions” concerning the harm to the underground drinking water supply did not constitute evidence of risk of imminent harm to the aquifers, and that, on the other hand, the “costs and strain on Sate resources” if the state were required to commence individual enforcement actions against up to 6,100 wells would be “substantial and almost certain to occur.” The court found that an injunction would not result in “orderly or effective” enforcement of Safe Drinking Water Act.

United States v. Hardrock Excavating LLC Name and Date

Description

United States v. Hardrock Excavating LLC, No. 1:13-cr-113 (N.D. Ohio May 28, 2015)

A Youngstown, Ohio-based company pleaded guilty to violating the Clean Water Act in connection with the disposal of hydraulic fracturing waste into a tributary of the Mahoning River. The company’s owner previously pleaded guilty and was sentenced to 28 months in prison. The company was required to pay a community service payment of $25,000 to be split between Friends of the Mahoning River and Midwest Environmental Enforcement Association and to pay a fine of $75,000.

North Dakota Industrial Commission v. Alturas Energy, LLC Name and Date

Description

North Dakota Industrial Commission v. Alturas Energy, LLC, No. 23514 (N.D. Indus. Comm’n July 28, 2015)

The North Dakota Industrial Commission (Commission) issued an order requiring Alturas Energy, LLC to pay $900,000 in fines for violations at multiple well sites. Alturas did not respond to the complaint, which was served in April 2015, so the complaint’s allegations were deemed admitted, including charges that the company had violated North Dakota requirements for plugging abandoned wells and reclaiming sites, for which the company was fined $625,000. Alturas was also deemed to have admitted to failing to file a well bond to cover costs for plugging the abandoned well and reclamation, and to allowing fluid to flow over or pool on the surface of the land or infiltrate the soil at multiple well sites.

In re Chevron Appalachia, LLC Name and Date

In re Chevron Appalachia, LLC (Pa. Dep’t of Envtl. Prot. consent assessment of civil penalty May 21, 2015)

Description The Pennsylvania Department of Environmental Protection (PA DEP) reached an agreement with Chevron Appalachia, LLC (Chevron) in connection with an explosion and fire at gas wells in Dunkard Township, Greene County. One worker died in the incident, and the facilities emitted natural gas and discharged production fluids. PA DEP determined that Chevron had violated, and was liable for civil penalties under, the Oil and Gas Act and the Oil and Gas Conservation Law. Chevron agreed to pay a penalty of $939,552.79

May v. BHP Billiton Petroleum (Fayetteville) LLC Name and Date

Description

May v. BHP Billiton Petroleum (Fayetteville) LLC, No. 4:13-cv-494 (E.D. Ark. July 29, 2015)

The federal district court for the Eastern District of Arkansas granted summary judgment to BHP Billiton Petroleum (Fayetteville) LLC (BHP), the holder of mineral leases in White County, Arkansas, on claims of abandonment and of violation of a statutory duty to develop each lease. The court found, however, that it could not grant summary judgment to either BHP or the landowners on the claim that BHP had violated the implied covenant of reasonable development. The court rejected BHP’s argument that it had fulfilled its obligations as a matter of law because there had been pooling and the Arkansas Oil and Gas Commission had directed that the sections in which the landowners’ property was located be operated as units, and a well had been drilled in each unit. The court said that this position “would allow lessees, with minimal development, to hold swathes of the State’s natural resources for extended periods,” eliminating protections that Arkansas law had “long afforded” to mineral lessors. The court also said such a result would ignore the Arkansas legislature’s intention to promote development of the state’s natural gas.

Mason v. Range Resources–Appalachia LLC Name and Date

Description

Mason v. Range Resources– Appalachia LLC, No. 12-cv-369 (W.D. Pa. July 27, 2015)

The federal district court for the Western District of Pennsylvania ruled that a 1961 lease for oil and gas rights in Pennsylvania remained valid. The court concluded that use of the property for protection of gas stored on adjacent lands extended the lease. The court also concluded that the lease did not fail for lack of consideration. The court also ruled that a 2005 sublease to a predecessor of Range Resources–Appalachia LLC was not a novation of the 1961 lease that extinguished and replaced it.

Dodd v. Croskey Name and Date

Description

Dodd v. Croskey, No. 2013-1730 (Ohio June 18, 2015)

The Ohio Supreme Court held that holders of mineral rights can prevent their rights from being deemed abandoned under the state’s Dormant Mineral Act by filing a claim to preserve within 60 days after a surface owner’s notice of intent to declare the interests abandoned. In this case, two individuals who acquired surface rights to land in Harrison County, Ohio in 2009, initiated procedures in 2010 under the Dormant Mineral Act to have the oil and gas rights underlying the surface property deemed abandoned and vested in them. A month later, a holder of the mineral rights underlying the property filed and recorded an “Affidavit Preserving Minerals.” The Supreme Court rejected the surface rights’ owners ‘ argument that the affidavit did not preclude a declaration of abandonment because it was filed after their notice. The court deemed the mineral rights holder’s filing sufficient to preclude a declaration that the mineral interests were abandoned.

Eagle Energy Production, L.L.C. v. Corporation Commission of the State of Oklahoma Name and Date

Description

Eagle Energy Production, L.L.C. v. Corporation Commission of the State of Oklahoma, No. 112,165 (Okla. Civ. App. Dec. 5, 2014)

The Oklahoma Court of Civil Appeals denied an appeal of the Oklahoma Corporation Commission’s finding that mineral interest owners were not bound by a 2008 forced pooling order. The appellate court agreed with the Commission that the pooling order did not apply to the owners because the one-year lease to which the order would have applied had expired prior to the order’s issuance, and the owner did not step into its lessee’s shoes. The court said that the pooling applicant should have implemented “clean-up pooling” after the lease expired to include the owner in the pooling order.

Cox v. Kimble dba Red Hill Development Name and Date

Description

Cox v. Kimble dba Red Hill Development, No. 13 CA 32 (Ohio Ct. App. Feb. 17, 2015)

The Ohio Court of Appeals affirmed a trial court ruling that required an oil and gas lessee to release a portion of its lease. The appellate court found that the trial court had not abused its discretion when it determined that handwritten provisions in the 1980 lease required a second well to be drilled in order to extend the primary term under the lease’s habendum clause from 40 acres to 100 acres. The Court of Appeals also affirmed the trial’s denial of the lessee’s claim of adverse possession and upheld the trial court’s finding that the lessor’s quiet title action was not time-barred.

Gawenis v. Arkansas Oil & Gas Commission Name and Date

Description

Gawenis v. Arkansas Oil & Gas Commission, No. CV-14-648 (Ark. May 28, 2015)

The Arkansas Supreme Court affirmed an order of the Arkansas Oil and Gas Commission that integrated a mineral rights owner’s unleased interests in a 0.69-acre mineral tract into a 5,154-acre drilling unit. The court rejected the owner’s contentions that the order constituted an unconstitutional taking and deprived him of his constitutional right to a jury trial to determine just compensation for the taking.

Center for Biological Diversity v. United States Bureau of Land Management Name and Date

Description

Center for Biological Diversity v. United States Bureau of Land Management, No. 2:15-cv-4378 (C.D. Cal., filed June 10, 2015)

Two environmental groups filed a lawsuit in federal court in California challenging the environmental review conducted by the U.S. Bureau of Land Management (BLM) for the resource management plan for 400,000 acres of public land and 1.2 million acres of subsurface mineral estate “at the epicenter of oil and gas drilling in California” in the area of Bakersfield. The plaintiffs contended that the environmental impact statement (EIS) prepared for the plan did not include an adequate discussion of alternatives, and that the EIS failed to disclose significant environmental impacts, including the impacts of hydraulic fracturing on surface water, groundwater, air quality, land disturbance, wildlife, climate, and seismicity. The plaintiffs also claimed that BLM should have prepared a supplemental EIS to take into account new information on the impacts of unconventional oil and gas extraction techniques.

Town of Abita Springs v. U.S. Army Corps of Engineers Name and Date

Description

Town of Abita Springs v. U.S. Army Corps of Engineers, No. 15-451 (E.D. La., filed Feb. 12, 2015)

The Town of Abita Springs filed an action against the U.S. Army Corps of Engineers in the federal district court for the Eastern District of Louisiana alleging that the Corps committed procedural violations in its consideration of a permit application by Helis Oil & Gas Company, LLC to drill in wetlands. The Town alleged that the Corps failed to provide sufficient information for public comment, unlawfully denied a public hearing, and failed to reject an incomplete permit application. The Town asked the court to order the Corps to hold a public hearing and to issue a new public notice and accept public comment on a complete application

In re Wind River Oil & Gas Permits Name and Date

Description

In re Wind River Oil & Gas Permits, NPDES Appeal Nos. 15-02, 15-03, 15-04, 15-05 (EAB, Phoenix Production Co. petition for review filed Apr. 29, 2015; Wesco Operating, Inc. summary petition filed Apr. 30, 2015; NRDC petition for review filed Apr. 14, 2015; PEER petition for review filed Apr. 14, 2015)

Public Employees for Environmental Responsibility (PEER), Natural Resources Defense Council (NRDC), and two oil and gas companies filed appeals with EPA’s Environmental Appeals Board challenging National Pollutant Discharge Elimination System (NPDES) permits issued for wastewater from oil and gas drilling operations on the Wind River Indian Reservation in Wyoming. PEER and NRDC generally claimed that the NPDES permits did not properly address discharges of maintenance chemicals and hydraulic fracturing fluids. The two oil and gas companies (to which EPA had issued the permits) argued, among other things, that conditions in the permits improperly incorporated tribal water quality standards and that the permit’s requirements would be too costly.

Center for Biological Diversity v. California Department of Conservation Name and Date

Description

Center for Biological Diversity v. California Department of Conservation, No. __ (Cal. Super. Ct., filed July 28, 2015)

The Center for Biological Diversity (CBD) filed a lawsuit in California Superior Court challenging the environmental impact report (EIR) prepared for well stimulation activities, including hydraulic fracturing. The organization alleged violations of the California Environmental Quality Act (CEQA), including failure to conduct supplemental environmental review to take into account an independent scientific study by the California Council on Science and Technology (CCST), which was released after completion of the final EIR and which CBD said showed that well stimulation techniques would have significant effects not discussed in the EIR and more severe effects than the EIR disclosed. CBD also alleged that the Division of Oil, Gas, and Geothermal Resources (DOGGR) of the California Department of Conservation violated SB 4, the 2013 law that required preparation of the EIR and the CCST study. CBD asked the court to enjoin DOGGR from granting any well stimulation permits until it had prepared an adequate EIR. Alternatively, CBD sought a declaration that to the extent DOGGR certified the EIR without approving a well stimulation “project” or “program,” DOGGR could not use the EIR to support any subsequent program activities or project approvals.

Looney v. Chesapeake Energy Corp. Name and Date

Description

Looney v. Chesapeake Energy Corp., No. 2:15-cv-2108 (W.D. Ark., filed June 3, 2015)

Mineral interest owners in Arkansas filed a class action lawsuit against Chesapeake Energy Corporation and related entities (Chesapeake) in which they alleged that Chesapeake had, among other misdeeds, improperly deducted post-production costs from royalties owed to the plaintiffs. Plaintiffs alleged claims for breach of contract, breach of common law and statutory duties, violations of statutory provisions governing royalties and proceeds from oil and gas production, violations of the Deceptive Trade Practices Act, unjust enrichment, and violation of the duty to provide full and accurate disclosure concerning the production, marketing, and sale of gas to the mineral interest owners. The plaintiffs sought certification of six classes of plaintiffs, all of whom were royalty owners in wells but whose leases provided for different types of rights to royalties.

Sierra Club v. Village of Painted Post Name and Date

Description

Matter of Sierra Club v. Village of Painted Post, No. 151 (N.Y. Nov. 19, 2015)

The New York Court of Appeals revived a lawsuit challenging the Village of Painted Post’s compliance with the State Environmental Quality Review Act in connection with the Village’s entrance into two agreements: (1) a bulk water sale agreement with a company that operated gas wells in Pennsylvania and (2) a lease agreement for a water transloading facility. The transloading facility would serve as a “filling station” where water would be withdrawn, loaded onto trains, and transported to Pennsylvania. The Appellate Division denied standing to a resident of the village who complained about train noise. The Appellate Division reasoned that the resident could not establish a special injury because so many people would be affected by the train noise since the trains traveled through the entire village. The Court of Appeals found that “[t]he number of people who are affected by the challenged action is not dispositive of standing” and that the resident’s allegations that increased train noise kept him awake at night were sufficient to confer standing.

Brown v. Access Midstream Partners, L.P. Name and Date

Brown v. Access Midstream Partners, L.P., No. 3:14-0591 (M.D. Pa. Sept. 30, 2015)

Description The federal district court for the Middle District of Pennsylvania denied motions to dismiss an action brought under the Racketeering Influenced and Corrupt Organizations Act (RICO) by landowners in Pennsylvania’s Marcellus basin who entered into oil and gas leases with Chesapeake Appalachia, LLC (Chesapeake Appalachia). The court allowed the landowners to proceed with a substantive claim under RICO, as well as a RICO conspiracy claim and a claim for unjust enrichment under Pennsylvania state law. The defendants in the suit are Chesapeake Energy Corporation, the parent company of Chesapeake Appalachia; Access Midstream Partners, L.P. (Access Midstream), which was formed by, and acquired natural gas gathering and intrastate pipeline assets from, Chesapeake Energy; and the chief financial officer of Chesapeake Appalachia and its parent company, who was also a director of Access Midstream. The court said that the plaintiffs’ allegations that defendants entered into unlawful agreements to charge inflated gathering and transportation costs to disguise the true nature of reductions in the plaintiffs’ gas royalties went beyond a simple breach of contract claim and into the realm of RICO. The court also found that the landowners’ allegations of injury, causation, a scheme to defraud, and a pattern of racketeering activity were sufficient and that the plaintiffs had adequately alleged that each of the defendants participated in the conduct of a RICO enterprise.

SWN Production Co. v. Edge Name and Date

Description

SWN Production Co. v. Edge, No. 5:15-cv-00108 (N.D. W. Va. Sept. 30, 2015)

The federal district court for the Northern District of West Virginia granted an oil and gas lessee’s motion for a preliminary injunction requiring property owners to allow the lessee to enter their property. The court was not persuaded by the property owners’ argument that the plaintiff’s lease did not permit it to use the surface of their property to drill horizontally into neighboring properties. The court found that the plaintiff was likely to succeed on the merits, and that the plaintiff had made a clear showing of irreparable harm since it was well-settled that unauthorized interference with a real property interest constituted irreparable harm and since denial of entry would delay the plaintiff’s oil and gas operations, which were scheduled to begin “in the very near future.” Noting West Virginia’s public policy favoring responsible development of natural gas resources, the court also found that the balance of equities tipped in favor of the plaintiff and that a preliminary injunction was in the public interest

Wright v. Misty Mountain Farm, LLC Name and Date

Description

Wright v. Misty Mountain Farm, LLC, No. 1658 MDA 2014 (Pa. Super. Ct. Oct. 9, 2015)

The Pennsylvania Superior Court ruled that grantors under a 1950 deed and their successors retained their subsurface rights to oil, gas, and minerals based on an exception in the deed. The court held that the deed provided that the grantors retained these subsurface rights subject only to a lease entered into in 1949. The court rejected the contention by a successor to the 1950 grantees that the grantors’ rights terminated when the 1949 lease expired. The court also rejected the claim that the exception did not extend past the grantors because the deed did not expressly extend the rights to their “heirs and assigns.” The court also said it was “of no moment” that the grantees and their successors had treated the oil, gas, and mineral rights as their own

Cole v. EP Energy Co., E&P, L.P. Name and Date

Description

Cole v. EP Energy Co., E&P, L.P., No. 4:15-cv-02844 (S.D. Tex., filed Sept. 30, 2015)

A worker who suffered a concussion and other injuries as a result of an ice plug blowing during a hydraulic fracturing operation at a Texas drilling site filed a lawsuit against the owner of the site and a company that allegedly hired the owner’s on-site company man. The complaint said that the onsite company man failed to order the use of proper anti-freeze materials in the pipes despite freezing temperatures. The complaint alleged counts of negligence, negligent undertaking, and premises liability against the site owner; counts of negligence and negligent hiring against the defendant who hired the on-site company man; and a count of gross negligence against both defendants

Sierra Club RCRA Notice of Intent to Sue Name and Date

Description

Sierra Club, Notice of Intent to Sue for Violations of the Resource Conservation and Recovery Act Involving Earthquakes Induced by the Injection and Disposal of Oil and Gas Production Wastes into the Ground (Oct. 2015)

On October 29, 2015, Sierra Club sent a notice of intent to sue to four companies that it said had violated the Resource Conservation and Recovery Act (RCRA) by injecting waste fluids from oil drilling and hydraulic fracturing into wells and causing or contributing to a “huge increase in the number and severity of earthquakes” in Oklahoma and southern Kansas. Sierra Club contended that the companies’ actions might present an imminent and substantial endangerment to health and the environment. Sierra Club said that, at minimum, the companies would need to immediately substantially reduce the amounts of production wastes being injected, reinforce vulnerable structures, and establish an independent earthquake monitoring and prediction center.

EQT Production Co. v. Pennsylvania Department of Environmental Protection Name and Date

Description

EQT Production Co. v. Pennsylvania Department of Environmental Protection, No. 2015-152 (Pa. Envtl. Hearing Bd., filed Oct. 12, 2015)

EQT Production Company (EQT) filed an administrative appeal of an order of the Pennsylvania Department of Environmental Protection (PADEP). The order said that the contamination of a water supply used for agricultural purposes was caused by an overflow of drilling production fluids from a production pit at a gas well pad operated by EQT. The order stated that EQT was presumed responsible and causally responsible for the pollution of the water supply. PADEP also found that EQT’s failure to provide temporary water or restore or replace the water supply was unlawful and constituted a public nuisance. In its appeal, EQT objected to the order on a number of grounds, including that PADEP exceeded its statutory authority and failed to provide a factual basis for its determinations. EQT said the presumption of responsibility was not applicable and that PADEP had failed to demonstrate causation.

Arnold & Porter attorneys have a long history of counseling energy companies on regulatory compliance and defending their interests in enforcement proceedings and litigation. To receive updates on legal developments related to hydrofracking, or to tell us about an additional pending or decided case to add to the chart, please contact Margaret Barry, [email protected]

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