OH Court Rules Adverse Possession of Shallow Minerals Includes Shale
Ohio’s Seventh District Court recently delivered a ruling that affects landowners/rights owners as well as drillers. In Tomechko v. Garrett (full copy below), the justices ruled that “adverse possession” of shallow gas rights expands to include deep gas rights (i.e. shale rights) in cases where shallow production “modified the subterranean structure.” According to the legal experts at Frost Brown Todd, “the Seventh District’s ruling strains credulity” and has the potential to “have unintended consequences and will almost certainly result in greater uncertainty and litigation.”
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Here’s a connection we hadn’t made until we read about yesterday’s oral arguments before the U.S. Supreme Court in PennEast Pipeline vs. New Jersey. The connection is this: The PennEast case also has huge ramifications for another currently-stalled M-U pipeline. Columbia Gas wants to build a tiny 3.37-mile, 8-inch pipeline under the Potomac River from Maryland to West Virginia. It is being blocked from doing so by the lefties in Maryland (see 
The American Energy Alliance (AEA) is raising the alarm of a conspiracy by Democrat Attorneys General from deep blue states colluding with Big Green groups to bypass Congress with a new round of sue-and-settle lawsuits. It is the equivalent of an overthrow of the legislative branch of the federal government. Here’s how the conspiracy works…
In what can only be characterized as a complete and utter failure of a Big Green lawsuit, yesterday a Pennsylvania Public Utility Commission (PUC) judge ordered Sunoco Logistics, builder of the Mariner East pipeline system, to pay a $2,000 fine (the equivalent of a few high-priced lunches) and talk more to local groups around Philadelphia that want to complain about the project. That’s the end result of a request by seven antis that began in November 2018 asking the PUC to shut down the entire three-pipeline project (see 
Last week MDN told you that Epsilon Energy, which concentrates most of its effort on the Marcellus in Susquehanna County, PA, had sued its joint venture partner Chesapeake Energy over Chessy’s refusal to allow Epsilon to drill four shale wells on land Chessy doesn’t want to drill (see 
Last week the State of New Jersey, along with co-conspirator the New Jersey Conservation Foundation, filed their responses to defend their indefensible actions in blocking PennEast Pipeline’s eminent domain taking of land owned or controlled by NJ. It was their last, desperate attempt to avoid having a lower court ruling overturned. They gave it their best shot, but we think they came up short.
Epsilon Energy concentrates most of its effort on the Marcellus in Susquehanna County, PA. Epsilon doesn’t typically do its own drilling. The company joint venture partners with (gives money to) other companies, like Chesapeake Energy, and the other company typically does the drilling. Epsilon, according to its website, owns ~4,000 net acres in the PA Marcellus. Epsilon sued Chesapeake Energy earlier this month over lack of access to drill wells on acreage Chesapeake says it doesn’t want to drill. A Texas bankruptcy court judge has tossed Epsilon’s lawsuit. Looks like bankruptcy is a “get out of your contracts for free” card for Chesapeake.
Whether or not drilling companies have the right to deduct post-production expenses (processing the gas, pipeline transportation, etc.) has raged for more than a decade here in the Marcellus/Utica. Even if landowners have ironclad, very specific language in the contract prohibiting post-production deductions from royalties, some companies (*cough* Chesapeake Energy *cough*) still find ways to claim deductions anyway, leading to expensive and years-long lawsuits that benefit the lawyers more than anyone else. A decision in a recent Texas Supreme Court case gives landowners in the M-U some hope.
In May 2020 the Pennsylvania Supreme Court heard oral arguments in a case challenging whether or not the state Attorney General’s office has the right to use a consumer protection law to prosecute companies like Chesapeake Energy and Anadarko over royalty payment shenanigans (see 
In a brilliant move aimed at boxing in the Delaware River Basin Commission (DRBC), two northeastern Pennsylvania State Senators–Gene Yaw and Lisa Baker–along with members of the PA Senate Republican Caucus (27 Senators in all), filed a lawsuit in January against the DRBC accusing the quasi-governmental agency of “taking” the property rights of PA residents without just compensation under the law (see 
When Equitrans’ 303-mile Mountain Valley Pipeline, which will connect West Virginia and bountiful supplies of Marcellus/Utica gas to southern Virginia (eventually beyond), is finally done, will Equitrans send a bill to the odious Sierra Club and other Big Green groups that have intentionally held up the project *for years* with a blizzard of frivolous lawsuits? Frivolous lawsuits holding up the MVP project have had very real costs. For example, Equitrans’ “all-in” cost to ship an Mcf of gas through the pipeline (when it finally is in-service) has doubled because of the delays. We think Equitrans should sue the litigious enviro groups to recover the escalating cost they will pay. Let’s put the Sierra Club out of business.