WV O&G Pushes Hard for Forced Pooling Law, Landowners Push Back
Last week MDN brought you news of a new forced pooling bill under consideration in this year’s West Virginia legislative session (see WV Makes a New Push for Forced Pooling Using New WVU Study). Forced pooling is one of those rare issues where drillers and landowners are typically on opposite sides of the debate. The WV drilling industry continues to press hard for this new bill, while landowner groups continue to push back just as hard against it.
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As sure as the seasons change and our long winter is finally turning into spring with the first crocuses popping up through the soil, you can count on another sign of spring: a forced pooling bill will pop up in the 60-day West Virginia legislative session. And so it has. The WV legislature is currently considering two bills, Senate Bill (SB) 538 and House Bill (HB) 2853, called “unitization bills” which is just another word for forced pooling. This time West Virginia University is providing support for forced pooling in the form of a new study claiming forced pooling will “jump-start” a new era of natural gas development.
In Ohio forced pooling is called “unitization.” When a landowner/leaseholder owns 65% of the mineral rights under property in a given location and wants to pool other neighboring properties into an oil or gas drilling unit, that landowner/leaseholder files a request with the Ohio Dept. of Natural Resources Division of Oil and Gas Resources Management. The Division head then schedules a hearing to consider the request. All such hearings scheduled for this week are now canceled and will be rescheduled. Furthermore, the Division will only be able to accept new unitization requests on Tuesdays and Thursdays, and they will only return phone calls about unitization on Fridays. All due to the COVID-19 coronavirus.
West Virginia’s co-tenancy law was signed into law by Gov. Jim Justice in March 2018 (see 
The legal beagles at Vorys represented Antero Resources in a recently-decided case with far-reaching implications for Ohio drillers and landowners. The Vorys team won the case. As with most lawsuits, this one is complicated and gets in the weeds. The short short version is that under an original lease signed years ago, a landowner and drilling company (at that time) removed a section of the lease that allows the landowner’s property to be pooled (called “unitized” in Ohio) with other properties.
Landowners in Ohio who didn’t like being force pooled with their neighbors have, since 2015, tried to get the courts to declare that forced pooling is illegal. They’ve struck out in every court where they’ve tried that argument, including (now) the U.S. Court of Appeals for the Sixth Circuit.
In 2015, landowners in Harrison County, OH who own 127 acres (the Kerns) filed a lawsuit alleging their property rights were about to be violated because Chesapeake Energy had filed a pooling request with the Ohio Dept. of Natural Resources (ODNR) to pool (combine) the Kerns property with surrounding properties for shale drilling. The Kerns had not signed and do not want drilling under their land. Their neighbors do. Ohio has a law on the books that allows for “forced pooling” in cases when a majority of the surrounding land is leased but landowners with small positions refuse to sign. The Kerns resisted and fought the case all the way to Ohio Supreme Court, which rejected their claims. Chesapeake drilled and fracked three wells (on a neighboring property), which included drilling under the Kerns’ property. So the Kerns filed a new lawsuit in 2016, in federal court, claiming a “taking” of their property had occurred. The federal court has just ruled–against the Kerns. This was the first time a court case dealt directly with the constitutionality of Ohio’s unitization (forced pooling) law. The upshot: Ohio’s forced pooling law remains intact and in force…
On Tuesday, the Ohio State Supreme Court rejected a case in which landowners who were made part of a “unitization order” (i.e. forced pooling) had objected claiming their property rights were stripped away without due process. In legal terms, the landowners claimed it was a “taking” of their property without just compensation. The Supreme Court rejected the case because, they said, there were other legal means the landowners could have tried first (a lower court) before appealing the case direct to the Supremes using something called a mandamus action. In essence, the Supremes said, “Nice try, but you need to jump through the proper hoops first.” Ultimately the Supremes did not rule on the Constitutionality of the claim itself because the case had gotten to them via the wrong path. We’re guessing the landowners will now go back to square one and use the path laid out by the Supremes. Here’s the low down on the rejection by the Supremes, from the legal beagles at the Vorys law firm…
At the beginning of each new year the West Virginia legislature meets for a 60-day session. This year the session runs from Jan. 10 to Mar. 10. For the previous maybe 6-7 years, the shale industry has pushed for some sort of forced pooling legislation. Each year those bills, as close they sometimes got, were defeated. This year the industry is staying well away from saying anything about “forced pooling.” Last time around (in 2017) we came close with something MDN calls forced pooling lite–a bill that would have allowed for co-tenancy and joint development. That bill was eventually defeated (see 
For some time we’ve reported on the effort to pass new legislation in West Virginia on co-tenancy and joint development (see 
In August MDN told you the West Virginia Oil & Natural Gas Association (WVONGA) plans to push, once again, for what MDN calls forced pooling lite in the next session of the legislature scheduled for early 2018 (see 
When MDN editor Jim Willis attended the Shale Insight conference in Pittsburgh two weeks ago, one of the recurring themes he heard from West Virginia officials is that the state urgently needs to pass “mineral efficiency” laws. What they meant by mineral efficiency is another name for co-tenancy and joint development. We’ve written a fair bit about the topic–what we call “forced pooling lite.” In August the West Virginia Oil & Natural Gas Association (WVONGA) announced its intention to push, once again, for co-tenancy and joint development (see 
A West Virginia Circuit Court case decided last week (by jury) found in favor of surface owners against a well pad constructed by EQT. The decision has far-reaching implications for not only surface owners and drillers, but mineral rights owners too. From the first time we read about so-called “joint development” legislation being promoted by the drilling industry in WV (back in February), we’ve not been fans (see 
The West Virginia Legislature has appointed a new Joint Committee on Natural Gas Development, composed of Senators and Delegates, to put their collective heads together to see how they can encourage more oil and gas development in the Mountain State. The committee will meet tomorrow for the first time. The effort is being supported by the West Virginia Oil and Natural Gas Association (WVONGA). In general, it certainly seems like a good idea–WV needs more drilling. However, WVONGA plans to use the committee as a platform to push its “modernized mineral efficiency laws”–i.e. forced pooling lite. As we reported last week, WVONGA is making an all-out push for new forced pooling laws in 2018 (see 
The West Virginia Oil & Natural Gas Association (WVONGA) plans to push, once again, for what MDN calls forced pooling lite in the next session of the legislature scheduled for early 2018. Forced pooling legislation in West Virginia has been put forward five times in the past seven years–and each time it has failed to win enough votes in the WV legislature. This year, WVONGA changed tactics and renamed forced pooling as co-tenancy and joint development (see 
Ohio is about to pass and adopt it’s latest biennial budget. Part of the budget bill includes language to exempt Ohio’s city and town parks from the state’s unitization (i.e. forced pooling) laws. In Ohio, if 65% of the landowners in a proposed unit have agreed to lease their land for oil or gas drilling, the other landowners in the unit can be forced to join the unit to allow drilling under (not on) their land. There are all sorts of requirements before forced pooling occurs, including a $10,000 fee paid by the driller, and a hearing to review efforts made to enroll said recalcitrant landowners. But in the end, it is possible to force landowners who don’t want drilling, to have it. The justification is that those who don’t want it are harming those who do want it by not agreeing to join the unit. Should the action of someone with a few acres deny benefits to all of his neighbors? We’re not saying we support the concept of forced pooling–just giving you our best interpretation of the arguments used to support it. We understand those arguments. We also understand the sanctity of private property. Until now, local towns and municipalities in Ohio were treated like any other landowner. But now, with the new budget, they will get a special exemption. Local municipalities cannot be forced to participate–unless they want to participate–in a drilling unit…